Health Ombudsman v WLG[2024] QCAT 333

REASONS FOR DECISION

Introduction

1. [1]
   These disciplinary proceedings were referred to the Tribunal by the applicant Director on 31 May 2023. The parties have signed a statement of agreed facts dated 17 November 2023.
2. [2]
   The respondent was, at all times material to the allegation the subject of the referral, a registered nurse. He is no longer registered, having not sought to renew his registration since 2 July 2021.
3. [3]
   In his response the respondent admitted the matters in the allegations contained in the referral.
4. [4]
   By an email dated 15 January 2024 the respondent provided short submissions, including indicating he had moved interstate and thanking the Tribunal for taking the time to read his submissions. He has not participated in the proceeding since that time. In those circumstances the Tribunal has proceeded to deal with the matter on the papers in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

The conduct the subject of the referral 

5. [5]
   The respondent pleaded guilty on 29 November 2022 to one count of indecent treatment of a child under 16 under s 210(1)(A) of the Criminal Code 1899 (Qld). He was sentenced in the District Court on 13 March 2023 to imprisonment for 9 months which was wholly suspended for an operational period of 18 months.
6. [6]
   The conduct giving rise to the charge occurred on a single occasion and involved the then 12 year old daughter of his then flatmate. In May 2021, at approximately 1.30am, the respondent went into the complainant’s bedroom, stroked her back over her clothing and under her clothing, caressed her buttocks, rubbed her inner left thigh around her underwear, placed his face between her buttocks and licked the top of the crack between her buttocks.
7. [7]
   The complainant complained to police the next day and the police attended on the respondent that same day. He told the police he had consumed a quantity of alcohol and he was subsequently arrested and charged.
8. [8]
   The respondent wrote in his response to the allegations that he cannot remember the conduct giving rise to the referral.^[1]  Whilst that submission was not advanced at sentence, I address that issue further later.

The respondent’s history

9. [9]
   The respondent obtained a Diploma of Nursing in the United Kingdom in 2000. He was 52 years old at the time of these events and is now 55 years old.
10. [10]
    He has told the Tribunal in writing that he does not intend to return to the nursing profession and he has been working in a casual driving role delivering food.^[2]
11. [11]
    Before the conduct the subject of the present referral, the respondent had not faced any disciplinary hearings. He had, however, been subjected to some regulatory action.
12. [12]
    He had been diagnosed by a psychiatrist since December 2016 with depression and at that time gave a history of alcohol use disorder. He went on leave from work in about September 2017 and returned to part time work as a nurse, in January 2018, with a return to work plan. He struggled with aspects of his return to work and in August 2018 he resigned his position as a nurse at a major hospital. By October 2018 he had done a short stint in agency work as a nurse. His treating psychiatrist stated diagnoses of adjustment disorder with depressed mood, alcohol use disorder in reported remission and persistent depressive disorder in remission in a report to AHPRA in mid October 2018.^[3]
13. [13]
    On 22 November 2018 the Immediate Action Committee of the Nursing and Midwifery Board of Australian (Board) imposed conditions on the respondent’s registration and required him to undergo an independent health assessment involving a psychiatric assessment inclusive of blood alcohol testing.
14. [14]
    In a health assessment report dated 3 February 2019 to AHPRA, Dr Jill Reddan advised she considered that the respondent had an impairment, being Alcohol Use Disorder, and recommended a prolonged period of at least a year of abstinence from alcohol. Dr Reddan recorded the respondent had advised he had presented to hospital on two occasions in 2019 with suicidal ideation, he was hospitalised for several nights and monitored in each occasion. Dr Reddan considered that after a period of approximately six months of abstinence, the respondent would probably be again fit to return to work in an intensive care unit or emergency department.
15. [15]
    In July 2019 his treating psychiatrist reported that he had suffered major setbacks in terms of his physical and mental health and was under care of a cardiologist. He was no longer working and his medications were increased. His treating psychiatrist opined at that time that it would be beneficial for him to get work in any area for which he was suitably qualified except high acuity work.^[4]
16. [16]
    On 26 September 2019, the Board imposed practice and supervision conditions on the respondent’s registration. The respondent was also required to consult with a psychiatrist on a monthly basis for treatment for adjustment disorder, depressed mood and alcohol use disorder.^[5]
17. [17]
    I have traversed this history because:

    1. it sets out that the respondent had struggled with excessive alcohol use for some years prior to the offending. He told the psychologist for the pre-sentence report that it was not uncommon for him to drink five or six bottles of wine a day.^[6] This lends support to his statements to the Tribunal that he was under a very heavy alcohol consumption on the evening and did not remember the conduct giving rise to the referral, although he accepts that it occurred; and
    2. it raises factors that have to be balanced in considering the protective nature of the jurisdiction.
18. [18]
    The respondent is presently the subject of an interim prohibition order imposed by the Ombudsman pursuant to s 73 of the Health Ombudsman Act 2013 (Qld) (HO Act).

Characterisation of the conduct

19. [19]
    The Tribunal has observed of those who commit offences against children:

Health practitioners enjoy the benefits of registration and the obligations of such require them to conduct themselves with propriety, both in the conduct of their profession and their personal life. Criminal offending punishable by imprisonment can adversely affect the reputation of a profession and impair public confidence.

There is ample authority that the commission of serious sexual criminal offences by a registered health practitioner against a child will inevitably and invariably result in a finding that the conduct constitutes professional misconduct, on the basis that such egregious conduct is fundamentally inconsistent with a practitioner being a fit and proper person to hold registration: see Health Ombudsman v GCV [2020] QCAT 30, and Health Ombudsman v DKM [2021] QCAT 50.^[7]

20. [20]
    Further, this Tribunal observed in Health Ombudsman v Warren^[8] that (at [13]):

It must be uncontroversial that the offence of indecent treatment of a child constitutes professional misconduct for the purposed of s 107(b)(ii) of the Health Ombudsman Act 2013 (Qld).

21. [21]
    Whilst the conduct was unrelated to his practice of the profession, the respondent’s conduct falls to be assessed by reference to the codes and guidelines for practise approved by the Board. The Nursing and Midwifery Board of Australia Code of Conduct articulates that nurses will not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration. 
22. [22]
    The Tribunal finds that the conduct constitutes professional misconduct within the meaning of limbs (a) and (c) of the definition of ‘professional misconduct’ in s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) as conduct which fell substantially below the conduct expected of a practitioner with similar experience and that the conduct was totally incompatible with the practitioner being a fit and proper person to hold registration in the profession. 

Discussion and Sanction

23. [23]
    When turning to sanction, it is important that these proceedings are protective in nature and not punitive. The Tribunal must regard the health and safety of the public as paramount.^[9]
24. [24]
    Maintenance of professional standards and public confidence in the profession are relevant considerations. The sanction in a particular case must be considered based on the peculiar facts and to craft something which best achieves those purposes.
25. [25]
    The factors for the Tribunal to consider when determining what sanction is appropriate include:^[10]

    1. the nature and seriousness of the conduct;
    2. whether the practitioner acknowledges culpability and evidences contrition or remorse;
    3. what needs for specific or general deterrence arise;
    4. whether there have been other disciplinary findings before or after the conduct in question;
    5. evidence of character and rehabilitation;
    6. whether there has been delay from the time the investigation started to the conclusion of the matter in the Tribunal; and
    7. any other mitigating factors.
26. [26]
    The conduct is objectively serious.
27. [27]
    A reprimand, which is not a trivial sanction is appropriate and the Tribunal will make such an order as a part of its decision.

The respondent’s health

28. [28]
    The fact that the respondent has struggled over many years with alcohol abuse issues, and that this contributed to him offending in such an egregious way, is testament to the pernicious impacts alcohol abuse can have on a person’s life.  It is true, as the Ombudsman submits, that this does not excuse the offending, however, in this jurisdiction the critical issue for the Tribunal is how to bring this into consideration in the formulation of a sanction that is protective of the public.
29. [29]
    Both his psychiatrist in the report in 2018 and Dr Reddan in the 2019 health assessment report observed that it was possible the respondent may have minimised his drinking.^[11] Dr Reddan thoughtfully articulated how chronic, excessive alcohol consumption can affect cognitive, emotional and behavioural functioning and can impair performance more severely than the patient may appreciate.^[12]
30. [30]
    The respondent self-reports to the Tribunal that he has ceased drinking since July 2022.^[13]  The same submission was made at his sentence proceeding.  There is no evidence independent of the respondent to support that position; there is no evidence at all pointing the other way either.
31. [31]
    Given the respondent’s ongoing struggles with alcohol, a sanction which sees him spend considerable time out of practice is required to protect the public. It will also give the respondent time, if, despite his present views, he determines in the future to seek re-registration, to obtain objective evidence (for example blood tests) over a significant period, to support any application.

Deterrence, insight and remorse

32. [32]
    A psychologist’s report dated 17 February 2023 and tendered at the sentence hearing included, relevantly that:

    1. he had been drinking heavily on the evening of 30 May 2021. He had consumed six bottles of wine that evening and had a chronic history of alcohol abuse. He did not recall sexually assaulting the complainant, however she would have no reason to lie, so he accepted he did touch her as alleged;^[14]
    2. he was ashamed, embarrassed and regretful of his conduct;
    3. he left full time employment in mid 2018 and supported himself by accessing superannuation for several years, thereafter taking on a casual driving role in food delivery;^[15]
    4. he had last seen his psychiatrist in April 2021, at which time the psychiatrist diagnosed major depressive disorder and alcohol use disorder;^[16]
    5. his treating psychiatrist held the opinion that the respondent was likely to suffer from chronic, relapsing, remitting depression, consistent with persistent depressive disorder with major depressive episodes and that his alcohol use disorder is also likely to be chronic;^[17] 
    6. he attended a four week residential detoxification program in mid 2022 and as at the date of the report he had maintained an abstinence from alcohol;^[18] and
    7. he was assessed as a low risk of any further sexual offending and as someone who would benefit from referrals to community support agencies and the monitoring of his alcohol use, and re-engagement in psychiatric treatment or psychological counselling. 
33. [33]
    The sentencing judge noted that the offending seemed isolated and out of character.
34. [34]
    In pleading guilty in the criminal proceeding and in admitting the facts in the referral the respondent has acknowledged his wrongdoing and demonstrated remorse.  Additionally, he has repeated to this Tribunal that, every day, he feels great remorse for what he has done and that he has brought great shame on himself and his family. He wrote that he will never forget what he has put his victims through and that he wishes he could turn back the clock so he would not have ruined a young girl’s life. Given his early acknowledgement of wrongdoing and repeated expressions of regret, there is limited need, in this proceeding, for specific deterrence.
35. [35]
    Matters involving serious criminal conduct will always carry some need for general deterrence, however, where there is mental disorder which has contributed to the conduct, it is recognised that this consideration may be ‘sensibly moderated’.^[19]  In view of the material setting out the respondent’s mental struggles, this is a case which calls for ‘sensible moderation’ of that consideration.
36. [36]
    It is some considerable time since the respondent has practised, having not renewed his registration since 2 July 2021. Prior to that, he last regularly worked as a nurse in approximately mid 2018. The respondent presently does not intend to return to nursing, noting that he feels it has a significant impact on his mental health and his alcohol issues.^[20]  That he perceives some correlation between his mental health and his drinking suggests that he has insight into factors which may make him unsafe to practice and he had previously expressed similar insight to the forensic psychologist who prepared the report tendered at sentence.^[21]
37. [37]
    Truly beating an alcohol addiction is notoriously difficult for many people. If the respondent changes his mind in the future about practising as a nurse, it is appropriate that the Board determine, at the time that the issue arises, whether the respondent is suitable to be registered.
38. [38]
    As to the comparative cases, the Ombudsman has provided a number of cases for the Tribunal’s consideration. The Ombudsman contends and, having considered them, the Tribunal agrees, those of most assistance are Nursing and Midwifery Board of Australia v Burrows,^[22] and Health Ombudsman v DNE.^[23] 
39. [39]
    In Burrows,^[24] the practitioner, who was then 35 or 36 years old, was visiting the complainant’s family when he indecently dealt with the then 8 year old complainant. Whilst the complainant complained promptly, the police were not involved until 2016. The respondent was arrested and spent 26 days in custody before he was released on bail. He was employed as a registered nurse at a hospital and AHPRA suspended his registration. 
40. [40]
    Burrows pleaded guilty to the charge of indecent treatment of a child under twelve with a circumstance of aggravation and was sentenced to imprisonment for two years, suspended after six months for an operational period of two years. He had a criminal history including convictions when he was 31 years old for deprivation of liberty, unlawful assault and going armed in public. Those offences were sexually motivated and he had desisted when he realised the complainant had become distressed. He was under treatment by a psychiatrist at the time of the offences and the psychiatrist’s view was that he was quite unlikely to reoffend if he complied with treatment. He was later fined $500 for committing an indecent act in public, when he exposed his penis in the sight of a female on a bus.  In so far as Burrows’ offending was identified in the Tribunal’s reasons it was “a single occasion, and no penetration, but it did involve a child, who was a young child, abused in her own home”.^[25] The Tribunal accepted that the offending had occurred a long time ago, with no subsequent sexual offence against a child or any other serious sexual offence, there was no sexual misconduct in the respondent’s professional work and Burrows had sought to address his offending conduct and shown remorse. The lengthy time that had passed was relevant and there were references which suggested he was highly regarded at work.  The Tribunal imposed a disqualification period of 4 years, which represented an effective period of seven and a half years away from practice. There was also a failure to notify as required by s 130 of the National Law, however, the disqualification period was not extended by reason of that.
41. [41]
    In DNE,^[26] the 30 year old practitioner was convicted in the District Court on his plea of guilty to one count of aggravated indecent treatment of a child under 16 (under 12 under care) and sentenced to a 12 month intensive correctional order with special condition that he submit to medical and psychological treatment as may be directed by the community corrections officer.  He admitted the allegations and their characterisation of his conduct as professional misconduct.  He had no prior disciplinary or criminal history and at the time of his offence he was employed as a registered nurse at a hospital. The complainant child was the three year old daughter of his de facto partner and he was in a stepfather relationship with her, having cared for her since she was about three months old.  He was home alone with the child caring for her when his partner was at work. The child was asleep in the master bedroom and the respondent lay down next to her and took his pants off and began to masturbate. He kissed the child’s groin whilst masturbating. His partner returned home early from work and saw the respondent lying naked on the mattress, masturbating with his head between the child’s legs. The respondent went to the police station that day and confessed to the offending. He told police he came to engage in the act because it would be “more arousing” and “the orgasm would be better”. He also said to the police he had always found children attractive that he “finds them clean and tidy” and “not dirty like adults”.  DNA evidence found the presence of his saliva on the inside of the child’s underwear.
42. [42]
    DNE sought treatment from a clinical psychologist within 10 days of the offending and had 15 sessions with him over 12 months.  A forensic psychologist also provided a report which was before the District Court and the Tribunal. DNE had completed a six-step sexual offender treatment program over many hours. Both psychologists agreed DNE suffered from a depressive disorder, either persistent or major and both regarded DNE as a very low risk of reoffending. The clinical psychologist observed in his report that DNE conformed in many ways with a diagnosis of borderline personality disorder which is a pervasive pattern of instability, particularly in relationships. 
43. [43]
    At the disciplinary hearing the Tribunal also had a report from a further psychologist who had provided DNE with offender specific treatment at the referral of Corrective Services. That psychologist stated DNE impressed as consistently remorseful, accepting his offending without minimisation or distorted thinking and expressed his commitment to exclusive future pro-social functions. The Tribunal considered general deterrence and the maintenance of professional standards were relevant considerations^[27] and accepted that DNE’s insight and remorse were high.^[28]
44. [44]
    The Tribunal noted DNE had been out of practice for about 27 months at the time of the sanction determination. By reference to Burrows, which the Tribunal accepted was a more serious case, the Tribunal cancelled DNE’s registration and imposed a disqualification period of three years from the date of the order. The Tribunal refused to prohibit DNE from providing any health services for a finite period, on the basis that DNE had worked in a specialised area of nursing and there was no unregistered health service he could engage in that would utilise his specialist professional skills so he could circumvent the effective cancelation of his registration, noting that DNE’s conduct since the offending had entirely mitigate against such a proposition.
45. [45]
    The Tribunal forms the view that Burrows is a more serious case than the case before it today, by reference to the younger age of the child involved, the sentence imposed in the District Court (actual imprisonment served) and that Burrows had a prior criminal history, including for offences with a sexual motivation. As the respondent is not registered, there is no basis to cancel his registration. A three year period of disqualification from today, as contended for by the Ombudsman, is an appropriate period, taking into account in a general way that the respondent has not held registration since 2 July 2021, a period of just over three years, which gives an effective preclusion period of approximately 6 years.
46. [46]
    The Ombudsman seeks also an order prohibiting the respondent from performing any health service until he obtains registration as a health practitioner.
47. [47]
    The materials in the hearing brief suggest that the respondent’s work involved working in a Paediatric Intensive Care Unit in a major hospital. That might be thought to involve some specialist skills, but also transferrable skills. In so far he possessed specialist skills, this, with his length of time out of practice and his present stated intention not to return to nursing, might be said to militate against such an order.
48. [48]
    However, unlike in DNE, where there was extensive evidence before the Tribunal of the steps DNE had taken to address underlying causes of his offending, the issue of this practitioner’s future risk is somewhat opaque on the material before the Tribunal. He maintains he has ceased heavy alcohol consumption since July 2022, but there is no objective evidence that supports that. In view of the psychiatrists’ observations in the earlier reports from 2018 and 2019 that the respondent may have been minimising his drinking and the lack of objective evidence as to the respondent’s abstinence, in this case the protection of the community calls for a prohibition order on the provision of any health services to remain in place whilst the respondent remains unregistered as a health practitioner.
49. [49]
    The Tribunal made an interim non-publication order to protect the complainant’s identity on 14 June 2023. The Ombudsman seeks to vary that order, effectively to make it permanent and to provide for what might be described as slightly amended machinery aspects of the order.  It is appropriate to amend the order in those respects.
50. [50]
    However, the Tribunal has jurisdiction, of its own motion, to make a non-publication order in s 66(3) of the QCAT Act.
51. [51]
    These reasons traverse, quite extensively, aspects of the health conditions the practitioner faces, including mental health conditions described by his treating practitioner as chronic and as likely to be severe episodically and findings of a health assessment conducted on the respondent pursuant to the statutory regime. There are references in the material to a history of suicidal ideation. It has been important to set those matters out because they are relevant to considerations of future risk, in informing the sanction the Tribunal proposes.
52. [52]
    The Tribunal has earlier recognised that in order to maintain the privacy of impairment material it is necessary to de-identify the Tribunal’s decision and reasons, and to otherwise preserve the privacy of the record of proceedings of the Tribunal.^[29] Whilst the referral does not contain allegations based on the respondent’s impairment, the determination of the referral has necessitated articulating significant information about the practitioner’s medical conditions. It has also meant traversing material relating to the finding that he had an impairment of alcohol use disorder, prior to committing the conduct which brings him before the Tribunal which, it is accepted, involved his abuse of alcohol as, at the very least, a contextual factor. In this particular case, it is appropriate to extend the non publication order to the identity of the respondent practitioner.
53. [53]
    The Tribunal thanks the assessors for their thoughtful engagement and assistance.

Orders

54. [54]
    The Tribunal makes the following orders:

1. The interim non-publication order made 14 June 2023 is vacated.

2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
   1. the contents of a document or thing filed in or produced to the Tribunal;
   2. evidence given before the Tribunal;
   3. any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of the respondent, any victim of the respondent, or any family member of such victim, save as is provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings or any appeal or review arising from these proceedings.

3. Order 2 does not apply to the publication of the above information to the extent that it is published for the purpose of the applicant performing its statutory functions under the Health Ombudsman Act 2013 (Qld).
4. Any material affected by this non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
   1. a judicial member;
   2. a tribunal member;
   3. an associate to a judicial officer or tribunal member appointed under relevant legislation;
   4. any assessor appointed to assist the Tribunal;
   5. the staff of the Tribunal registry;
   6. any judicial officer, associate or registry staff dealing with any appeal or review arising from these proceedings; or
   7. the parties to these proceedings or any appeal or review arising from these proceedings (including their legal representatives).

55. [55]
    The Tribunal decides that:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of three years from the date of this order.
4. Pursuant to s 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service, paid or otherwise, in a clinical or non-clinical capacity, until such time as he obtains registration as a health practitioner.
5. Each party bears its own costs of the proceedings.