GYK v Health Ombudsman[2025] QCAT 168

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant is a paramedic.
2. [2]
   On 7 March 2024, the respondent suspended the applicant’s registration on an ‘immediate action’ basis under ss 58(1)(a) and 58(d) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).
3. [3]
   The respondent provided the applicant with a Notice of Proposed Decision to take immediate action on 5 February 2024.  The applicant’s solicitors responded on 13 February 2024 submitting that the proposed action in suspending the applicant’s registration at the time was premature and prejudicial.
4. [4]
   On 7 March 2024, having had regard to the matters raised by the applicant’s solicitors, the respondent formed a reasonable belief that the proposed immediate action was necessary because the applicant posed a serious risk and that it was otherwise in the public interest that his registration be suspended.  The applicant seeks review by the Tribunal of this decision on the following basis:

   1. There is no sustainable belief that the applicant is a serious risk in light of the exculpatory evidence which necessarily gives rise to a doubt about the veracity of the allegations.  That is particularly so when regard is had to the other inherent credibility and reliability concerns;
   2. Alternatively, a condition requiring the applicant to practice as a secondary paramedic for dispatches involving patients under 18 years of age would mitigate any risk;
   3. The public interest favours the setting aside of the order once all of the unique circumstances of the case are properly understood and imputed because those features would not undermine the public confidence.
5. [5]
   The immediate action was taken by the respondent after it received information from the Queensland Police Service on 30 January 2024 that the applicant had been charged with a number of offences of a sexual nature against children under 16 being lineal descendants of the applicant.
6. [6]
   Committal proceedings took place on 23 September 2024 when a number of witnesses including the children (now adults) were cross examined in respect of the charges.
7. [7]
   The applicant was committed for trial in the District Court by consent.
8. [8]
   Since then, the Director of Public Prosecutions has presented an indictment in the District Court charging the applicant with:

   1. two counts of repeated sexual conduct with a child;
   2. seven counts of rape;
   3. six counts of indecent treatment of a child under 12 who was a lineal descendent;
   4. two counts of indecent treatment of a child under 16 who was a lineal descendent; and
   5. one count of sexual assault.
9. [9]
   The matter has been given a first listing for trial later this year.
10. [10]
    As a result of the evidence given at the committal proceedings the applicant submits that with careful scrutiny of the evidence a reasonable belief of a serious risk is unsustainable because:

    1. in an interview under s 93A of the Evidence Act 1995 (Cth), the child ES gave evidence that there was no complaint of sexual misconduct against the applicant;
    2. critically, the applicant submits the offending against ES has been introduced by the other complainants as an integral part of the narrative.  Without it there must necessarily be doubts attaching to the complainants’ accounts of these events.
11. [11]
    Further concerns about the state of the evidence were noted as follows:

    1. AYS confirmed that part of her concern in going to police on 20 February 2022 was ES;
    2. JMS confirmed that ES was also her part of concern when she went to the police station on 20 February 2022;
    3. JMS recalls sending a text message to the applicant after attending the police station on 20 February 2022 because it appeared no action was going to be taken;
    4. Each complainant said they spoke to each other on 20 February 2022 in a general or broad sense;
    5. AYS confirmed that herself, JMS, and their mother had concerns about ES before 20 February 2022;
    6. Both complainants attended the police station together on 20 February 2022;
    7. A friend of AYS recalled telling her that she was “not sure if they were actual memories or nightmares” in about November 2021 before another conversation in about April 2022 where “…[AYS] had said she had spoken to [JMS] and that they both had the same memories…” and “…this actually happened”;
    8. AYS said that JMS was “feeling a lot of trauma and disassociating” around February 2022.
12. [12]
    It was also submitted that the allegations need to be carefully scrutinised in circumstances where the applicant has no criminal history nor does he have any disciplinary history in a 17-year career as a paramedic.
13. [13]
    The starting point of the applicant’s submissions was the decision of YBCG v Health Ombudsman [2024] QCAT 516.  The applicant referred to [12]-[14] in particular, where the Deputy President stated:

Reasonable belief of a serious risk requires the existence of a factual matrix sufficient to induce that belief in a reasonable person.  Belief is an inclination of the mind toward assenting to, rather than rejecting, a proposition.  An immediate action order does not entail a detailed inquiry and is one which requires action on an urgent basis because of the need to protect the public.  Immediate action is not a substitute for action that may be taken after an investigation.

The available material should be carefully scrutinised to determine the weight to be attached to it.  Self-evidently this careful scrutiny is critical to a determination of whether, in a particular case, there is a risk, whether that risk is serious and if it is, what action needs to be taken.

A reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons.  It is not necessary to be satisfied that certain conduct will be engaged in, or that it is more probable than not that it will be engaged in.  The corollary to that principle is, I would have thought, that an absence of any evidence of past inappropriate conduct is a factor which must also be weighed in making an assessment of reasonable belief, particularly for a long standing practitioner, where allegations are disputed.

14. [14]
    The applicant submits that, in taking immediate action, the regulator must balance the need to protect the public with the interests of the practitioner, must not underestimate the impact on the practitioner, and that whilst public safety is the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.
15. [15]
    It is submitted that the conditions imposed by the respondent are not the least onerous necessary to mitigate the relevant risk.
16. [16]
    The applicant submits that a condition requiring the applicant to practice as the secondary paramedic for dispatches involving patients under 18 years old would mitigate any risk.  The applicant submitted in respect of the power in section 58(1)(d) of the HO Act that having regard to the unique circumstances of this case it was not in the public interest to take the immediate action taken by the respondent.
17. [17]
    The respondent noted comments in Medical Board of Australia v Liang Joo Leow [2019] VSC 532 (‘Liang Joo Leow’) at [78] where Niall JA noted with respect to section 156(1)(e) of the HO Act:

An important part of the broader context is the nature and purpose of the power conferred by 156 of the [Health Practitioner Regulation National Law (Queensland) (‘National Law’)]… The purpose of immediate action is to put measures in place to protect against, or ameliorate, harm pending the determination…

18. [18]
    The applicant notes the following circumstances:

    1. exculpatory evidence;
    2. inherent concerns with the credibility of the complainants because of the risk of collusion; and
    3. inherent concerns with the reliability of each complainant because of the obvious mental health and memory issues.
19. [19]
    The applicant submits that because of these circumstances, this is a case in which it is unlikely to adversely impact public opinion of the medical profession and its regulation as a whole.  In conclusion it was submitted that the correct and preferable decision of the Tribunal is to set aside the Health Ombudsman’s decision of 7 March 2024.
20. [20]
    The respondent acknowledged the evidentiary issues which had been highlighted in the committal proceedings however noted that, in exercise of its responsibility to consider reasonable prospects of conviction exist notwithstanding, the indictment was signed by the Director of Public Prosecutions, presented in the District Court and the matter has been listed for trial.
21. [21]
    The respondent submits that there is:^[1]

    1. A serious risk that the applicant is sexually attracted to children, and, if given a private opportunity, will give effect to that sexual attraction.  Therefore, he is a serious risk to children in his care when unsupervised.
    2. A serious risk that the applicant holds a deranged set of views and values relating to sexual conduct by adults towards children and if called upon to provide advice or judgment dealing with victims of sexual abuse, he may provide corrupted care and advice that causes more damage or trauma.
    3. A serious risk that the applicant would treat a survivor of child sex abuse, and if that survivor later discovered that the applicant is facing charges relating to child sexual offences, the survivor may suffer feelings of betrayal, trauma or general psychological harm.
22. [22]
    The respondent also submits that because of the serious and prolonged nature of the allegations, immediate suspension of the applicant’s registration is necessary to maintain public confidence in the provision of services by paramedics and confidence in the regulatory system.^[2]
23. [23]
    The respondent:

    1. acknowledges the issues relating to the evidence of ES, but submits that the allegations of offending against JMS and AYS stand alone and are examples of the most serious offending.
    2. submits there is no evidence to suggest that the two complainants conspired to make a false complaint to police.
    3. submits the applicant’s submission, relating to the strength of the prosecution’s case because of the complainants’ memory, is of no assistance to the Tribunal because it is not uncommon when dealing with childhood sex offences, particularly historical childhood offences, that reliability issues may come into contention.  However, this is not fatal to a successful prosecution such to warrant a conclusion that there is no basis for a reasonable belief.
    4. submits the absence of criminal and regulatory history merely prevents a sustainable submission that something in the applicant’s criminal or regulatory history should be used to support a concern of heightened risk, it is otherwise of little assistance.
    5. rejects the applicant’s submissions regarding the imposition of conditions because, by nature of his role as a paramedic, the applicant may have to urgently attend to victims of childhood sexual abuse or an adult survivor.^[3]
    6. submits there is no condition – at least that is immediately apparent – that can address the serious risk of the immediate action.
    7. submits the suggestion that the applicant be a secondary paramedic is incompatible with the urgent and unpredictable nature of the work and would burden the emergency services with an extra layer of supervision.
    8. in conclusion, submits careful scrutiny of the facts supports a reasonable belief of a serious risk and that the action is otherwise in the public interest.

Applicable law

24. [24]
    In a proceeding for a review of a reviewable decision, the Tribunal may –^[4]

    1. confirm or amend the decision;
    2. set aside the decision and substitute its own decision; or
    3. set aside the decision and substitute a new decision.
25. [25]
    In WD v Medical Board of Australia [2013] QCAT 614, the then-Deputy President of the Tribunal, Horneman-Wren SC DCJ sets out the nature of this proceeding as follows:

Although an immediate action decision is referred to as an “appellable decision”, it proceeds as a review of the decision as provided under the Queensland Civil and Administrative Tribunal Act 2009 [(Qld) (‘QCAT Act’)].  Such a review is to be conducted as a full de novo hearing on the material before the Tribunal; not that which was before the [Health Ombudsman].  It permits consideration of matters which have occurred since the time which the decision of the [Health Ombudsman] was taken.  The purpose of the review is to produce the correct and preferable decision.

In these proceedings, the Tribunal must determine whether it holds a reasonable belief that because of [the applicant’s conduct, he] poses a serious risk to persons, and that it is necessary to take immediate action in the form of the suspension of [his] registration to protect public health or safety [and that it was otherwise in the public interest].

In Pearse v Medical Board of Australia,^[5] the Tribunal cited with approval the observations of the South Australian Health Practitioners Tribunal in I v Medical Board of Australia,^[6] the Supreme Court of New South Wales in Lindsay v NSW Medical Board^[7] and the Western Australia State Administrative Tribunal in Liddell v Medical Board of Australia,^[8] as to the proper approach to be taken by the Tribunal in determining the issues which arise in an immediate action matter.  That approach may be summarised as follows:

1. an immediate action order does not entail a detailed enquiry;
2. it requires action on an urgent basis because of the need to protect public health and safety;
3. the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;
4. an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5. the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
6. the material available should be carefully scrutinised in order to determine the weight to be attached to it;
7. a complaint that is trivial or misconceived on its face will clearly not be given weight;
8. the nature of the allegations will be highly relevant to the issue of whether the order is justified.

Discussion

26. [26]
    The Tribunal is satisfied that, having regard to the serious nature of the offending, that the immediate action taken by the respondent was appropriate.
27. [27]
    The submissions made by the applicant subsequent to the committal proceedings and in particular relating to some limitations in the evidence do not convince the Tribunal that its reasonable belief that the applicant is a serious risk should be displaced. 
28. [28]
    The Tribunal has had regard to the fact that the Director of Public Prosecution has continued with the presentation of an indictment, including the charges against the applicant relating to the younger child.
29. [29]
    In the Tribunal’s view, the fact that there are some evidentiary issues does not detract from the extremely serious nature of the alleged offending and the Tribunal is satisfied that no condition can be imposed that would ameliorate the risk.  In particular, the Tribunal accepts the submission made by the respondent, and contained in paragraph 8(c) of its submissions, that the serious risk referred to there is a serious risk which should properly be taken into account.
30. [30]
    The Tribunal is also satisfied that the public interest test is met in this case.  The HO Act contemplates, by way of note to s 58(1)(d) (i.e., the public interest provision), that immediate action can be taken when a practitioner is charged with a serious criminal offence in order to maintain public confidence in the provision of health services.
31. [31]
    This case is clearly distinguishable from the decision referred to by the applicant of Liang Joo Leow in that there is no suggestion of any consent in the present case and the complainants were at the time children, and in some cases very young children, and the lineal descendants of the applicant.  In this case, it cannot be said, in light of the circumstances, “may not be seen as having the potential to cause public outrage if the [paramedic] continues to practice while the charges are pending”.
32. [32]
    In the circumstances the Health Ombudsman’s decision on 7 March 2024 to suspend the applicant’s registration by way of immediate action is confirmed.

Non-publication

33. [33]
    Pursuant to s 66(3) of the QCAT Act, the Tribunal may make a non-publication order on its own initiative.  Given the factual circumstances of this case and the impending criminal proceedings, the Tribunal makes, on its own initiative, a non-publication order in the following terms:

1. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
   1. the contents of a document or other 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 applicant and the complainants save as 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, and for the respondent to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the Health Ombudsman Act 2013 (Qld).

2. Any material affected by the 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, court staff or associate 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.