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Health Ombudsman v Theodoros (No 2)[2024] QCAT 479

Health Ombudsman v Theodoros (No 2)[2024] QCAT 479

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Theodoros (No 2) [2024] QCAT 479

PARTIES:

health ombudsman

(applicant)

v

stellios theo theodoros

(respondent)

APPLICATION NO/S:

OCR185-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 December 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

  1. 1. By consent, the applicant has leave to amend paragraph 15.6 of the referral in the manner set out in the amended annexure to Form 22 attached to the application for miscellaneous matters dated 14 October 2022.
  2. 2. The applicant has leave to amend paragraph 11.1(c) of the referral in the manner set out in the amended annexure to Form 22 attached to the application for miscellaneous matters dated 14 October 2022.
  3. 3. The application is otherwise dismissed.

CATCHWORDS:

ADMINSTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Health Ombudsman has brought disciplinary proceedings against the respondent – where the Health Ombudsman applies for leave to amend the referral – whether leave ought be granted – leave granted in part

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 104

Board of Professional Engineers v Lennox [2010] QCAT 702

Health Ombudsman v Theodoros [2024] QCAT 378

McCann WorldGroup Pty Ltd v Singyun Pty Ltd [2018] QCATA 128

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an application by the Health Ombudsman (HO) to amend a disciplinary referral filed on 28 June 2021.
  2. [2]
    A summary of the referral and the background giving rise to it, has been set out in a decision on an application to strike out the referral (which succeeded in part with leave to replead). I adopt some parts of that summary and statement of relevant background.[1]
  3. [3]
    The referral contains 25 allegations of professional misconduct against the respondent, who was at all relevant times, a general practitioner (GP).
  4. [4]
    The allegations involve seven patients as follows:[2]

Patient

Allegation number

Patient A

1-5

Patient B

6-9

Patient C

10-14

Patient D

15-18

Patient E

19-21

Patient F

22-23

Patient G

24-25

  1. [5]
    The allegations relate to alleged misconduct during the period from 2002 to 2015.[3]
  2. [6]
    This application was held in abeyance pending the determination of an application to strike out the referral.  That application having been finalised, this application is now to be determined.

What is the proceeding about?

  1. [7]
    Broadly, the allegations can be summarised as follows:
    1. in respect of each patient, the HO alleges that examinations were conducted which were not clinically indicated, excessive and not reasonably required.[4]  For all patients, those examinations were pap smear screen tests, vaginal swabs, pelvic examinations and breast examinations.  For two of the patients the examinations also were skin checks;
    2. the HO alleges in respect of three patients,[5] that the respondent conducted full “well woman checks” which were inappropriate.  These checks are defined in each of the allegations as “the examinations”.  A “well woman check” is defined in an initial paragraph of the referral as “a patient examination including a pap smear test, pelvic examination, breast examination and potentially also a skin check.”[6]; 
    3. for each patient, the HO alleges that the respondent failed to keep adequate and accurate medical records;
    4. for five patients,[7] the HO alleges the respondent failed to maintain professional boundaries; and
    5. for three patients, the HO alleges a failure to exercise reasonable care and skill. 
  2. [8]
    Broadly, it can be taken from the statement of agreed and disputed facts filed 14 September 2022 (SOADF) that:
    1. the parties are agreed on occasions when the respondent consulted then particular patient and procedures or examinations done on those occasions, that the practitioner exchanged text messages with some of the patients, that some medical records were kept and some medical records were not kept or were inadequate for the patients; and
    2. the parties are in dispute about the clinical indication and need for the examinations, whether the examinations were conducted appropriately and whether professional boundaries were maintained.

What is the current state of the proceeding?

  1. [9]
    The referral was filed on 28 June 2021 and an extensive response was filed on 28 October 2021.
  2. [10]
    Taken from the SOADF, agreed matters of chronology are:
    1. the respondent retired from practice as a medical practitioner at the end of 2021, surrendered his registration in February 2022 and is presently 73 years old;
    2. the HO received an initial notification in December 2015 from another practitioner in the practice which raised allegations including inappropriate touching of a patient, kissing a patient on the lips and in relation to the frequency and performance of pap smears;
    3. in April 2016 the Medical Board of Australia (Board) decided to investigate the respondent.  It took immediate registration action in the form of imposing conditions which required, in summary, the respondent not to have contact with any female patient without the presence of a Board approved chaperone who directly observed the entire contact and to not undertake any gynaecological procedures.  The respondent had, prior to this action, voluntarily ceased treating female patients but in any case complied with the immediate action conditions until he retired and subsequently surrendered his registration;
    4. the Board’s investigation included the management over a period of years of several patients including Patients D, E, F and G;
    5. the HO received complaints from each of Patients A and B in July 2017 and decided to commence an investigation in September 2017.  In November 2017 the HO requested the Board transfer to it the matters the Board was investigating;
    6. the HO referred the matter to the Director of Proceedings (DOP) to consider pursuant to s 103 of the Health Ombudsman Act 2013 (Qld) (HO Act) in early September 2018, who referred it back for further investigation in early August 2019.  The HO referred the matter (excluding Patient C) to the DOP in late July 2020;
    7. the HO received a written complaint from Patient C in late July 2020, commenced an investigation into Patient C’s complaint in August 2020 and referred the matter relating to Patient C to the DOP on 26 May 2021.
  3. [11]
    It can be seen, from the above, that it took five and a half years from the initial notification for the matter to be referred to the Tribunal. The allegations involving Patient C were referred more expeditiously.              

What is sought on this application?

  1. [12]
    The HO seeks to:[8]
    1. correct and amend two particulars of the referral, being paragraphs 11.1(c) and 15.6; and
    2. add one particular omitted from the referral, which would become particular 20.1a.
  2. [13]
    The respondent consents to the application in so far as it deals with particular 15.6.
  3. [14]
    Paragraph 11.1(c) is one particular for one of the allegations involving Patient C and paragraph 20.1a is one particular for one of the allegations involving Patient E.

What legal principles apply?

  1. [15]
    The application is made pursuant to s 64(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) which gives the Tribunal a discretion to make an order at any time in a proceeding that a relevant document (which includes a referral) be amended.
  2. [16]
    The paramount guiding principle for administering the Health Ombudsman Act 2013 (Qld) (HO Act) is the health and safety of the public.  The HO submits this is the main consideration for the DOP when referring a matter to the Tribunal and for the Tribunal when deciding a matter referred to it.[9]  Pursuant to the QCAT Act the Tribunal is to deal with matters in a way that is accessible, fair, economical, informal and quick.[10]  The Tribunal is not bound by the rules of evidence or any practices or procedures applying to courts of record other than to the extent the Tribunal adopts those rules, practices and procedures.[11]  The Tribunal must act with as little formality and technicality and with as much speed as the requirements of the QCAT Act and the HO Act and a proper consideration of the issues before the it permit.[12]
  3. [17]
    The HO relies on a passage from Board of Professional Engineers of Queensland v Jenkins[13] to the effect that:

In the Courts, arguments between parties in relation to particulars and interlocutory jockeying about procedural matters is commonplace. The Tribunal, however, is meant to provide a forum wherein the genuine issues in dispute can be the focus – interlocutory processes should be kept to a minimum. At the core of the Tribunal process is the obligation to afford parties procedural fairness and natural justice. In doing so. The Tribunal is not required to strictly apply the rules of evidence and procedure.

  1. [18]
    That passage does not mean that there can never be, or should never be, an interlocutory application in a matter.
  2. [19]
    In opposing the application the practitioner points to the chronology that:
    1. the referral was filed some six years after commencing the investigation;
    2. the disclosure brief was received on 13 July 2021, about 2 weeks after the referral was filed;
    3. the respondent filed a response on 28 October 2021;
    4. the SOADF and index to the agreed bundle were both filed on 14 September 2022 after lengthy negotiations;
    5. two rounds of evidence have been completed; and
    6. the application to amend the referral comes 16 months after filing the referral.  
  3. [20]
    Additionally, the respondent submits the proceeding is meant to be advanced for the purpose of protecting the health and safety of the public.  In this case the practitioner has retired and surrendered his registration, he has not consulted with a female patient since 2014, he complied with all conditions on his registration for the seven years between their imposition and his retirement and he will not return to medical practice.
  4. [21]
    Whilst recognising the Tribunal is not ordinarily bound by the rules of evidence, or practice and procedure that apply to courts of record, the practitioner submits that the Tribunal has accepted that the factors set out in Aon Risk Services Australia Ltd v Australian National University[14] are relevant to an application to amend a document pursuant to s 64 of the QCAT Act.
  5. [22]
    The respondent extracts the following from Aon:

An application for leave to amend a pleading should not be approached on the bass that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.  There is no such entitlement.  All matters relevant to the exercise of the power to permit amendment should be weighed.  The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend …

A party has the right to bring proceedings, Parties have choices as to what claims are to be made and how they are to be framed.  But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced.  That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.[15]

  1. [23]
    The practitioner submits the Tribunal has to consider the Aon factors:
    1. the extent of delay in seeking leave and its associated costs;
    2. the point the litigation has reached;
    3. the prejudice to the respondent if leave to amend is granted;
    4. the applicant’s explanation for the delay;
    5. the nature and importance of the amendment to the applicant;
    6. the need to maintain public confidence in the judicial system.
  2. [24]
    Additionally, the respondent submits the nature of the proceedings[16] and whether the amendments have been undertaken with reasonable diligence[17] are also relevant factors for consideration. Specifically, where the proceedings are disciplinary proceedings and the parties are legally represented, the expected standard of pleadings is higher.[18]
  3. [25]
    The respondent submits the HO’s conduct has caused significant prejudice to the respondent from the delay in that the respondent has been denied the benefit of being able to make a timely response to the allegations without his memory being affected by the passage of time, the proceedings have been unnecessarily protracted and exacerbated the emotional toll on the respondent and have unnecessarily caused the respondent to incur significant costs.

What is sought by way of amendment to Particular 11.1(c)?

  1. [26]
    In respect of Patient C and allegation 11:
    1. it is an agreed fact that between 7 April 2010 and 10 March 2014 the respondent conducted “well woman checks” on Patient C defined as “the examinations”; 
    2. it is disputed that the respondent asked Patient C to remove the remainder of her clothing following a pap smear test and conducting a breast and skin check, during which Patient C was completely naked and not offered any covering.
  2. [27]
    The amendment to particular 11.1(c) seeks to add the words “on 10–12 occasions” at the start of the particular.
  3. [28]
    The HO submits that this is clarifying a matter already alleged against the respondent, is based on material disclosed to the respondent in July 2021 and is contained in the HO’s evidence filed in the Tribunal.
  4. [29]
    Patient C’s affidavit has been filed. It simply annexes a written statement Patient C provided to the Office of the Health Ombudsman dated 15 September 2020 and deposes to it being true. In her statement, Patient C gives the factual information which has been converted into the existing particular, prefacing it with the words “I estimate that on 10–12 occasions”.  From other information in the statement, it appears Patient C will say this was in years 5–10 of the treating relationship. That is consistent with the time frame for allegation 11.
  5. [30]
    The amendment the HO now seeks to make is one which was within the applicant’s knowledge from the outset of the matter.  The applicant’s submissions state that the applicant acknowledged to the respondent on 21 June 2022 prior to the finalisation of the SOADF that the number of times which conduct is alleged to have occurred should be articulated in the referral and that leave would be sought to amend the referral accordingly.[19]  No explanation is provided as to why this was not done when the referral was filed or prior to the finalisation of the SOADF.
  6. [31]
    The respondent’s opposition to the amendment is that it changes the allegation to particularise 10–12 occasions of the conduct occurring, rather than a single occasion of the conduct occurring.  Further, the respondent submits there is no specificity of when the conduct is alleged to have occurred, because the effect of the amendment is to allege that the conduct has occurred during 10–12 of the approximately 21 pap smear tests the respondent performed on the patient in the period ending 21 March 2014.
  7. [32]
    The difficulty for the respondent is that allegation 11 is one that in an approximate 4 year period, the respondent conducted full “well woman checks” on Patient C in a manner which was inappropriate (emphasis added). It defines the full “well woman checks” as “the examinations” (emphasis added).  The referral as presently cast is alleging and particularising something which the applicant alleges is occurring on more than one occasion.  So much is apparent from the way that “well woman check” is defined in paragraph 14 of the referral as a singular term.
  8. [33]
    The opening words of the particulars to allegation 11 refer again to “the examinations” — that is, conduct occurring on more than a single occasion.
  9. [34]
    The Tribunal is not satisfied that the addition of the words “on 10–12 occasions” changes the alleged frequency of the matters in the particular from one occasion to more than one occasion.
  10. [35]
    The amendment will be allowed.

What is sought by way of addition of a further particular to Allegation 20 involving Patient E ?

  1. [36]
    Allegation 20 is an allegation that the respondent failed to maintain professional boundaries with Patient E.  It is presently supported by a sole particular that, over the course of the treating period, the respondent would conclude appointments with Patient E by kissing or attempting to kiss Patient E on the cheek.
  2. [37]
    The applicant seeks to add an entirely different type of conduct to support the allegation by the addition of paragraph 20.1a.  That is a particular that during consultations on unspecified occasions over an approximate 8 year period, the respondent would, on occasion, roll towards Patient C while seated in his chair, with his legs spread apart and would place his hands on Patient C’s knees while she was also seated.  
  3. [38]
    This is said to directly reflect Patient E’s evidence in her statement to AHPRA in December 2016.  It was not included in the referral because of inadvertent omission.  It is correct that this information appears in Patient E’s statement of 7 December 2016, which her affidavit filed in the proceeding simply annexes and confirms to be true.
  4. [39]
    The practitioner submits that the respondent will not be able to properly respond to this allegation if amended as it is alleged to have occurred on an unspecified number of occasions on unspecified dates over an approximate eight-and-a-half-year period.
  5. [40]
    In respect of this particular:
    1. this factual allegation is first sought to be raised in the referral some many years after it was first raised in the investigation;
    2. there is a total lack of specificity as to in which of the consultations this was said to have occurred, or how often it was said to have occurred;
    3. there are a significant number of allegations raised in the referral with wide ranging conduct involving a number of patients over many years. The particular sought to be added is of conduct which would be at the lower end of the spectrum of seriousness, if it was established; and
    4. the parties are significantly advanced in preparing for the hearing.
  6. [41]
    In balancing these considerations, the principles earlier cited about the significance of these being disciplinary proceedings (and in which the parties are legally represented) and the objects of the QCAT Act, the Tribunal refuses leave to amend the referral to include the proposed particular 20.1a.

Orders

  1. By consent, the applicant has leave to amend paragraph 15.6 of the referral in the manner set out in the amended annexure to Form 22 attached to the application for miscellaneous matters dated 14 October 2022.
  2. The applicant has leave to amend paragraph 11.1(c) of the referral in the manner set out in the amended annexure to Form 22 attached to the application for miscellaneous matters dated 14 October 2022.
  3. The application is otherwise dismissed.

Footnotes

[1] Health Ombudsman v Theodoros [2024] QCAT 378 (‘Theodoros No 1’).

[2] Theodoros No 1, [2].

[3] Theodoros No 1, [7].

[4] Allegation 1 for Patient A, Allegation 6 for Patient B, Allegation 10 for Patient C, Allegation 15 for Patient D, Allegation 19 for Patient E, Allegation 22 for Patient F and Allegation 24 for Patient G.

[5] Allegation 2 for Patient A, Allegation 7 for Patient B and Allegation 11 for Patient C.

[6] Referral, [14].

[7] Allegation 3 for Patient A, Allegation 8 for Patient B, Allegation 12 for Patient C, Allegation 16 for Patient D and Allegation 20 for Patient E.

[8] Section 9 of the application for miscellaneous matters filed 14 October 2022 (application). 

[9] HO Act ss 4(1) and (2).

[10] QCAT Act s 3(b).

[11] QCAT Act s 28(3)(b).

[12] QCAT Act s 28(3)(d).

[13] [2015] QCAT 104 (‘Jenkins’).

[14] (2009) 239 CLR 175 (‘Aon’).

[15] Aon, [111]–[112] (footnotes omitted).

[16] Relying on Board of Professional Engineers v Lennox [2010] QCAT 702 (‘Lennox’), [55].

[17] Relying on McCann WorldGroup Pty Ltd v Singyun Pty Ltd [2018] QCATA 128, [28].

[18] Relying on Lennox, [55].

[19] Applicant’s submissions, [13].

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Theodoros (No 2)

  • Shortened Case Name:

    Health Ombudsman v Theodoros (No 2)

  • MNC:

    [2024] QCAT 479

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Deputy President

  • Date:

    16 Dec 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 104
2 citations
Jump To
Cite 1 - [2015] QCAT 104
Cite 2 - [2015] QCAT 104
Board of Professional Engineers of Queensland v Lennox [2010] QCAT 702
2 citations
Jump To
Cite 1 - [2010] QCAT 702
Cite 2 - [2010] QCAT 702
Health Ombudsman v Theodoros [2024] QCAT 378
2 citations
Jump To
Cite 1 - [2024] QCAT 378
Cite 2 - [2024] QCAT 378
McCann Worldgroup Pty Ltd v Shingyun Pty Ltd [2018] QCATA 128
2 citations
Jump To
Cite 1 - [2018] QCATA 128
Cite 2 - [2018] QCATA 128

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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