RMQ v Health Ombudsman[2024] QCAT 302

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr N is a massage therapist in a southern State of Australia.  On 14 January 2022, while in Queensland holidaying with his family, Mr N booked and received a “Lomi Lomi” massage from RMQ at a home studio from which the massage business of which RMQ is a part owner operates.
2. [2]
   As RMQ’s business name suggests,^[1] and as its website attests, the business caters in particular, but not exclusively, for LGBTQI+ clients.  The business website advertises a number of massage treatments, including a Lomi Lomi massage. That massage does not have a sexual element. However, the business website also advertises a “Male to Male Premium Relaxation (30 mins)” massage in which the client “will receive a super relaxing massage style and relief”.^[2]
3. [3]
   It is common ground in these proceedings that “relief” as used in this context is intended to connote that the particular massage includes a sexual service.
4. [4]
   Mr N’s massage lasted for between 90 minutes and two hours.^[3]   At the end of that time, sexual conduct occurred between Mr N and RMQ.  That conduct occupied, on Mr N’s account, “around 1.5 – 2 minutes”.^[4]  It is not in dispute that RMQ enquired whether sexual conduct was wanted; aspects of what occurred thereafter are disputed. What is not in dispute is that Mr N put RMQ’s penis into his own mouth on two occasions during that time.
5. [5]
   It is also not in dispute that, subsequent to the sexual conduct, Mr N “asked [RMQ] to massage my quads”.  That massage occurred for about five minutes.  Thereafter, for a further five minutes, RMQ massaged “around [Mr N’s] shoulders and neck”.   Mr N says of these circumstances, “I think I was in shock at what had happened, and I just needed some thinking time”.^[5]
6. [6]
   Immediately thereafter, Mr N paid RMQ an additional cash amount related to the sexual conduct.  He paid, he says, because he “felt threatened and vulnerable at this point because [RMQ] had his hands near my throat and was asking for more money and appeared to be stronger than me”.^[6] 
7. [7]
   Subsequently, Mr N complained to the police.  That complaint was rejected because “there is no clear indication of unwanted sexual assault during this instance”.^[7] Furthermore, there was no offence “because whilst [Mr N] said no, [Mr N] then continued to engage the act by ‘putting [RMQ’s] penis in his mouth’ and ‘allowing [RMQ] to have his hand on [Mr N’s] penis’”.^[8]
8. [8]
   Mr N also complained the Health Ombudsman.  That led ultimately to a prohibition order^[9] issuing against RMQ on 26 June 2023.^[10]  By that order, RMQ was prohibited “permanently from providing any health service, paid or otherwise, in a clinical or non-clinical setting”.^[11] 
9. [9]
   In these proceedings, RMQ seeks to review that order.  For the reasons which follow, the Prohibition Order will be set aside.

The Nature of the Review

10. [10]
    The instant review is not a search for error made by the Health Ombudsman.  Rather, the Tribunal must conduct “a fresh hearing on the merits” so as to decide whether, on the evidence before it, the making of a prohibition order is “the correct and preferable decision”.^[12] 
11. [11]
    That in turn requires the Tribunal to decide initially whether RMQ was a “health practitioner” by reason of providing a “health service” within the meaning of the HO Act.  If it is, it is then necessary to decide whether by reason of RMQ’s “health, conduct or performance” he “poses a serious risk to persons”.^[13] 

Was RMQ a Health Practitioner by Reason of Providing a “Health Service”?

12. [12]
    A prohibition order can issue only against a “health practitioner”.   Equally, it is only a “health practitioner” who has standing to review the Health Ombudsman’s decision.^[14]  RMQ is not a “health practitioner under the National Law”.^[15]  Consequently, RMQ is a “health practitioner” within the meaning of the HO Act only if he was providing a “health service”^[16] within the meaning of s 7 of that Act. 
13. [13]
    That section provides, relevantly:

3. (1)
   A health service is a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and wellbeing.

3. (2)
   A health service may be provided to a person at any place including a … home.

3. (3)
   A health service includes a support service for a service mentioned in subsection (1).

3. (4)
   Also, without limiting subsection (1), a health service includes—

3. (a)
   …

3. (a)
   a service providing alternative or complementary medicine …

14. [14]
    RMQ prepared his own submissions and represented himself before the Tribunal. English is his second language.^[17] Obvious and understandable difficulties were created both in the clarity of his submissions and in the breadth and acuity of his cross-examination of Mr N. In his submissions before the Tribunal — and in his earlier responses during the show cause process (which were apparently prepared by lawyers then acting) — RMQ appears to contend that he did not provide a “health service”.
15. [15]
    The argument was not fully developed.  However, it is said, for example, that “health services were amongst the services provided by [the business] but [Mr N] did not seek one of them” and Mr N “was in search of an education rather than a health service”.^[18] While it is true that Mr N says he was interested in exploring this particular massage for potential use in his own massage practice, his motivations in this context are irrelevant.  The issue turns on what RMQ’s service is or what it purports to be.
16. [16]
    Central to RMQ’s contention appears to be the assertion that he can’t have been providing a health service because what he offered and provided was a sexual service consistent with the business’s premium massage earlier referred to.  RMQ says relief is a sexual service offered by the business to which a premium charge of $60 is “paid after the sexual event”. He contends that Mr N understood this, consented to one-on-one sexual activity, and paid for that service accordingly.
17. [17]
    There is no doubt that Mr N’s massage embraced, at its conclusion, sexual conduct.  But that fact is not determinative of the broader question of what RMQ’s service is, or what it purports to be. 
18. [18]
    RMQ’s business advertised and marketed itself as a “LGBTQI+ friendly massage home studio”.  The business name itself reinforced that message.  The advertised services offered were for different forms of massage, only one form of which includes “relief”.  The business’s website described the different forms of massage as “treatments” and each claimed benefits for the client’s health or wellbeing.  The business was registered for clients to claim on their private health insurance for therapeutic massage through the HICAPS facility.
19. [19]
    In the first instance, Mr N booked, received, and paid for a “Lomi Lomi” massage (with hot stones).  No sexual service was requested or booked at that time. The sexual service provided ultimately arose after approximately one and half to two hours of an advertised, non-sexual massage offered by the business.  RMQ himself describes the sexual content as “an extra”.  It was paid for separately and after the non-sexual massage occurred.  
20. [20]
    In RMQ’s 30 May 2023 submissions during the show cause process, he says:

… there is a tension between the Prostitution Act and the [HO] Act … the tension relates to the ‘lawfulness of a person providing a sexual service “one to one” and one providing a “health service”’ …

… the Prostitution Act constricts the way in which one can advertise sexual services.  Despite this, [Mr N] understood that ‘he could expect “relief” at the business’ indicating that ‘he may have gone to [the name of the business] expecting to receive sexual services’.^[19] 

21. [21]
    The fact that the Prostitution Act 1999 (Qld) restricts the way in which sexual services can be offered and advertised, and the fact that one of a number of advertised massages is for a sexual service, does not alter the advertised central purpose of the business to which any sexual service was an “extra”. That central purpose is, or purports to be, the offering of massage treatments.  Those treatments are for “maintaining, improving, restoring or managing people’s health and wellbeing” — indeed, even the “premium service with relief” arguably claims a benefit to wellbeing by being “super relaxing”.
22. [22]
    I find that RMQ was providing a “health service”. As a consequence, RMQ was a “health practitioner” within the meaning of the HO Act. A prohibition order can issue against him and he has standing to seek this review.

What is a “serious risk to persons” and how is it assessed?

23. [23]
    In Health Ombudsman v McBean,^[20] then-Deputy President of this Tribunal, Allen KC DCJ said:

The term “serious risk” is not defined in the HO Act, the National Law, or the Acts Interpretation Act 1954. The term therefore takes its ordinary meaning in its statutory context. The word “serious” is defined in the Macquarie Dictionary as:

“of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind.”

Section 113(2) of the HO Act^[21] provides a non-exhaustive list of the types of conduct which may constitute a serious risk, including “engaging in a sexual or improper personal relationship with the person”.  

It is helpful to consider the following criteria:

3. (a)
   the nature of the risk;

3. (b)
   the likelihood of it eventuating; and

3. (c)
   the seriousness of the consequences if the risk eventuates.^[22]

24. [24]
    Importantly:

The three factors in MacBean are considerations, not elements of a serious risk that must be satisfied … What matters is whether, bearing in mind those factors, and taking into account their strengths and weaknesses, it is appropriate in the light of all the evidence to find that there is a serious risk to persons.^[23]

25. [25]
    Taking account of the “strengths and weaknesses” of the three criteria recognises that they are not mutually exclusive but, rather, overlap.  The likelihood of a risk occurring might be extremely small, but it may be rendered serious by its nature and potential consequences. 
26. [26]
    It has been said in a different context:

Risk assessment in any situation involves, in essence, the asking of the following questions:

3. (1)
   What harmful outcome is potentially present in this situation

3. (2)
   What is the probability of this outcome coming about?

3. (3)
   What risks are probable in this situation in the short, medium and long term?

3. (4)
   What are the factors that could increase or decrease the risk that is probable?

3. (5)
   What measures are available whose deployment could mitigate the risks that are probable?^[24]

27. [27]
    In Health Ombudsman v Abdelkadiri,^[25] Judicial Member Robertson said that assessing whether a serious risk exists “will always depend upon the individual facts of the case and the context in which the impugned conduct occurs”. 
28. [28]
    His Honour went on to say:

The [Tribunal] decisions highlight important indicators of propensity in the form of past and repeated offending behaviour. Other relevant factors that the Tribunal takes into account include:

3. (a)
   Any explanation as to why the relevant conduct occurred, evidence of the particular circumstances of the conduct, or evidence of the respondent’s character, generally;

3. (b)
   The existence of any physical or psychological condition which may impact upon the ability or likelihood of the person engaging in particular conduct in the future;

3. (c)
   The level of insight and remorse shown by the practitioner, and evidence of any remedial steps taken to address issues leading to the conduct and to ameliorate the risk of similar conduct in the future, for example, in the form of counselling, psychological/psychiatric intervention or education/training/professional development programs.^[26]

29. [29]
    The considerations just described must be applied giving paramount importance to the health and safety of the public.^[27]

What is the Nature of the Risk Alleged by the Health Ombudsman?

30. [30]
    In the show cause notice^[28] directed to RMQ, the Health Ombudsman identified the nature of the risk in this way:

The nature of the risk is that you will, in the course of providing massage or other health services, engage in behaviour of a sexual nature with a client.

I hold the preliminary view that the nature of the risk you pose to persons is as follows:

3. a.
   You may touch persons inappropriately.

3. b.
   You may engage in sexual activities with persons during the provision of massage services.

3. c.
   You may fail to maintain professional boundaries with persons as a massage therapist.

3. d.
   You may fail to be fully and appropriately clothed during the provision of massage services

3. e.
   Under the guise of providing health services, you may provide services that are not health services, such as sexual services.

The risk may extend to your possible provision of any health services.  It is common to virtually all health professions that a health practitioner is tasked with providing health care to persons of differing levels of vulnerability.  Such persons are open to be exploited, but for the trustworthiness and integrity of the health practitioner.  Your conduct is demonstrative of a person who is prepared to put his own interests over those of vulnerable persons.  Such a person who has shown a propensity to breach that trust ought not be allowed to practise any health service.^[29]

31. [31]
    In addressing “the likelihood of the risk”, the Health Ombudsman wrote in the same document:

In assessing the likelihood of the risk eventuating I have considered whether your conduct suggests that you have a fundamental flaw in your character which presents an ongoing risk into the future, and which would prevent you from providing health services again.^[30]

32. [32]
    While error is not the subject of the instant inquiry, I feel compelled to comment that is not at all clear how it is said — on any view of the evidence — that a single instance of consensual conduct could point to a “fundamental flaw in [RMQ’s] character”.  Further, even were Mr N’s evidence to be accepted entirely it is also not at all clear how it could be concluded that RMQ’s conduct could be “demonstrative of a person who is prepared to put his own interests over those of vulnerable persons”. On the evidence before the tribunal, save for Mr N there has been no complaint made against RMQ by anyone at any time.
33. [33]
    In the proceedings before the Tribunal, it was submitted on behalf of the Health Ombudsman:

The risk is that individuals attending for an advertised massage service may receive unexpected and unwanted invitations for sexual activity and feel threatened or overcome by such offerings.  If [Mr N’s] version is accepted, the risks arising from non-consensual sexual touching are clear.^[31]

34. [34]
    That submission was refined during oral submissions:

[Mr N] said that he said “no” meekly [in response to RMQ’s enquiry as to whether a sexual service was wanted], and so a fair assessment of this situation is that, ultimately, both of them probably consented or at least it was reasonable to assume they consented [to the sexual conduct].  And so the question is does the engaging in that kind of activity, which involves the offer of sexual services in the course of a massage and the subsequent provision of them, constitute a serious risk?^[32]

35. [35]
    The submission’s answer to the question there posed, appears to lie in the sexual services arising from an “unexpected and unwanted” invitation for the same.  That is, the serious risk is apparently said to arise from the client wanting and expecting a remedial massage but unexpectedly being invited to receive, and/or receiving, sexual conduct in lieu of, or in addition to, that massage.
36. [36]
    The Health Ombudsman’s submissions refer to the ‘National Code of Conduct for Health Care Workers (Queensland)’.  The Code provides clear evidence of what in the usual course of events might be expected — and not expected — by a client receiving massage services.  For example, the Code proscribes health care workers from engaging in “behaviour of a sexual or close personal nature with a client”.^[33] 
37. [37]
    Section 288 of the HO Act permits the Code to be taken into account in providing guidance “about the standard of services that should be provided by health service providers”.  The section also provides that the Tribunal “may have regard” to (relevantly) the Code in making a decision under the HO Act.  
38. [38]
    However, evidence of non-adherence to that aspect of the Code — as is clearly the case here — does not of itself establish that RMQ is a serious risk to persons.  Regard must be had to the “individual facts of the case and the context in which the impugned conduct occurs”.^[34]

What Facts and Circumstances are Established in this Case?

39. [39]
    A finding as to the nature of the risk and the likelihood of its recurrence can only be made as a result of inferences contended to drawn from the established facts pertaining to a single incident.
40. [40]
    RMQ invited me to listen to an audio recording of Mr N’s interview with Health Ombudsman officers and to conclude therefrom that there were a very large number of occasions when Mr N said he ‘could not recall’ in answer to questions posed.  RMQ’s assertion is well founded.  Mr N effectively admitted a significant lack of recall in his evidence before the Tribunal.  I accept RMQ has a much clearer recall of events than Mr N.
41. [41]
    I was unimpressed with the evidence of Mr N.  I consider his evidence was tailored to fit a picture of how he would like the events under consideration to be seen, and in particular his participation in them, rather than how they actually occurred.  I consider Mr N’s lack of recall conformed to that pattern: his recall fitted the picture he sought to convey, and his lack of recall pertained to matters that might not fit that picture.
42. [42]
    Mr N’s evidence is that he consulted RMQ’s business website and was, as a result, aware that the business offered a “Premium” massage that had a sexual element.  Despite this, Mr N says he nevertheless “enquired about this at some point over the phone”.  He was unable to recall when this occurred or the specifics of the enquiry.^[35] Mr N did recall that in response to that enquiry he was asked whether he wanted a male therapist to which he responded he did not have a preference. 
43. [43]
    He says he thought “it was odd and specifying a male therapist suggested it may be more than a massage”.  That is, Mr N’s own evidence flags an expectation or apprehension on his part that a sexual service may be offered.  Yet, despite the asserted expectation or apprehension on his part, Mr N gives no evidence of seeking clarification.  Rather, he says, “because I was specifically seeking for a Lomi Lomi massage and the reviews were positive, I booked”. When he arrived for the massage, did Mr N — himself a trained massage therapist and someone who knew sexual services were offered — did not seek to clarify that no sexual activity was sought (or would be tolerated) by him.  Rather, he says he merely confirmed and paid for a Lomi Lomi massage with hot stones.^[36] 
44. [44]
    Mr N appears to suggest that this evidence is determinative of all that he considered might eventuate in his massage.  If that be the suggestion, I reject it. I consider Mr N’s enquiry, and the established, indeed largely uncontroversial, subsequent conduct bear out an expectation on his part that sexual conduct might be offered as well as a therapeutic massage.
45. [45]
    I accept RMQ’s evidence that Mr N was fully naked when RMQ walked into the massage room.  I also accept RMQ’s evidence that Mr N rejected RMQ’s offer of a towel “to cover his glutes” and that he told RMQ that he “was fine with being naked”.^[37]
46. [46]
    It is uncontroversial that it was RMQ who instigated discussion about “relief”.  RMQ says he asked Mr N “if [Mr N] would like it”.  That came about, he says, because “he could feel that [Mr N] wanted something more”.^[38]  There are variations in the accounts of the two men as to what exactly occurred thereafter.
47. [47]
    Mr N says RMQ’s hand touched his genitals (“I don’t remember exactly where”) and RMQ asked, “would you like relief”.^[39]  Mr N records in in his statement he said ‘no’ (later saying in oral evidence that he did so “meekly”).^[40]  His account continues with RMQ asking him “are you sure” and consensual sexual conduct thereafter progressing.^[41]
48. [48]
    That account is effectively confirmed in material particulars by RMQ.  He says, however, that Mr N “said he wanted to” but proceeded to give an account of having had “a similar argument with his wife because his wife found out that he had a sexual massage with a man before”.^[42]  Mrs N gave evidence and denied any such conversation.^[43]  I accept her evidence.  I also accept the evidence of Mr N that there was no such conversation with his wife.  Of course, the fact that no such conversation occurred between Mr and Mrs N does not mean that a conversation to that effect did not occur between Mr N and RMQ.  I accept RMQ’s evidence that such a conversation did occur between them. 
49. [49]
    RMQ’s account in his statement continues, “I was rubbing [Mr N’s] inner thighs, maybe slightly touching his genital.  Suddenly he took my shorts and underwear off and sucking my genital”.^[44]  RMQ was adamant before the Tribunal that this had effectively occurred without his consent (for example describing it as “rape”).  I took this assertion to be an attempt to emphasise that it was Mr N who instigated penile penetration and an attempt to underscore RMQ’s denial that any conduct by Mr N was non-consensual. 
50. [50]
    The true position is, I think, summed up by the concession in the oral submissions on behalf of the Health Ombudsman that both RMQ and Mr N “probably consented or at least it was reasonable to assume they consented” to sexual conduct.
51. [51]
    Clearly that concession — with respect, properly made — must have a significant detrimental impact upon any contention that an “unexpected and unwanted invitation for sexual activity” occurred in the instance case and the asserted inference that there is a risk of such conduct occurring with others.
52. [52]
    Equally clearly, the fact that Mr N concedes that it was he who initiated a particular form of penetrative sexual conduct with RMQ on two occasions must also have a significant detrimental impact upon those same contentions.
53. [53]
    When Mr N was asked in the proceedings why he did not clarify at the outset that the massage was not to contain any sexual content or reject RMQ’s invitation, or attempt to stop the sexual activity, Mr N dissembled.  He gave an account of then pertaining personal circumstances, but no part of his answers addressed the issue or provide a reasonable explanation.^[45]  Otherwise he says he did not stop the sexual activity because,  “I guess, got caught up on [sic] the moment, for want of a better expression, I guess”.^[46]
54. [54]
    Within that context, I reject any suggestion that Mr N was “vulnerable.”   Notwithstanding vulnerabilities arguably inherent in such situations, Mr N gave the impression of being a confident and assertive man and, as a trained massage therapist who practices as such in another State, he cannot claim reasonably that he was either naïve or inexperienced as to what should or should not occur during a remedial massage or that there was a power imbalance between the two.
55. [55]
    I think Mr N’s claims that he was “in shock” or that he “felt threatened and vulnerable … because [RMQ] had his hands near my throat” are highly implausible. I also consider it highly improbable that Mr N would have considered the small and slightly built RMQ observed by me during the proceedings as stronger than him.
56. [56]
    I find Mr N’s evidence as to his shock; feelings of threat and vulnerability is an attempt to fit his evidence to the picture earlier referred to: it is, I consider, an attempt to justify ex post facto behaviour he engaged in consensually – and actively - but later regretted.
57. [57]
    The evidentiary context within which the relevant assessment of risk must be made also includes the fact that, save for the evidence of Mr N:

• There is no evidence at all before the Tribunal that RMQ has posed any risk to any person;
• There is no evidence of any complaint ever having been made about RMQ’s conduct as a massage therapist by any other person at any time.
• There is no evidence that any person has “felt threatened or was overcome by any offerings” of sexual conduct by RMQ;

58. [58]
    The context also includes uncontroversial evidence that the massage performed by RMQ was otherwise entirely professional and appropriate.  For example, he absented himself when the client undressed and he attempted to have the parts of the body not being worked on covered with a towel.  The circumstances as found are not at all redolent of intrusive predatory behaviour.
59. [59]
    I consider the evidence taken as a whole is indicative of the sexual conduct which occurred being specific to the particular circumstances, including a particular client who well knew sexual services were offered and sought them.
60. [60]
    Within the formulation postulated in the Health Ombudsman’s submissions to the Tribunal earlier quoted, I do not accept that the sexual activity was “unwanted” or unexpected; the evidence is in my view strongly to the contrary.
61. [61]
    In my opinion, no inference should be drawn from the evidence before the tribunal that a person who neither wished for sexual services, nor indicated a desire to receive the same would be exposed to either an invitation to participate in the same or be the subject of such conduct.  I reject the contention that there is a risk of the nature described.
62. [62]
    Further, the circumstances as found point against the likelihood of any such risk recurring.
63. [63]
    The seriousness of the consequences if the identified risk eventuates must also be seen in its proper context.  That is a context which includes potential clients being advised openly on a public website that sexual services are offered.    Should a person who was entirely uninterested in sexual activity receive an offer of the same during or after a massage, there might be offence or even shock, but I seriously doubt — and there is no evidence to suggest — the consequences would be more serious than that.
64. [64]
    Of course, the consequences are likely to be much more serious if, without offer, invitation or warning, sexual conduct occurred.  However, there is no evidence (including from Mr N) that would suggest RMQ would engage in any such conduct and no such inference could reasonably be drawn.
65. [65]
    The Health Ombudsman does not establish that RMQ is a serious risk to persons.

Other Applications

66. [66]
    A non-publication order in the usual terms is sought by the Health Ombudsman and is not opposed by RMQ.  In light of my findings, I consider it appropriate that the order extend to RMQ.
67. [67]
    RMQ filed applications for named people to attend to give evidence.  All are, with respect, misconceived.  For example, an application sought to have the Health Ombudsman herself give evidence about matters wholly irrelevant to the issues to be determined or about which she could not have knowledge.
68. [68]
    The reasons for dismissing each of those applications are evident from the transcript.  I will formally make orders dismissing those applications to perfect the record.

Orders

69. [69]
    The following orders will be made:

3. 1.
   The prohibition order issued by the Health Ombudsman on 26 June 2023 be set aside.

3. 2.
   Each of the two applications filed by the applicant on 22 May 2024 be dismissed

3. 3.
   The name of the applicant and any other person referred to in the Tribunal’s reasons be anonymised.

3. 4.
   Any publication of the Tribunal’s reasons shall refer to the applicant and any other person referred to in the Tribunal’s reasons only as anonymised

3. 5.
   Save as might otherwise be ordered by the Tribunal or for the purposes of any appeal or any proper function of the Health Ombudsman or the Tribunal, it is prohibited to publish, copy or inspect:

3. (a)
   the contents of a document or thing filed in or produced to the Tribunal;

3. (b)
   evidence given before the Tribunal; and

3. (c)
   any order made or reasons given by the Tribunal;

to the extent that it could identify or lead to the identification of the applicant or any other person referred to therein.

3. 6.
   There be no order as to costs of either the applications or the review.