Health Ombudsman v NMS[2025] QCAT 240

REASONS FOR DECISION

Background

1. [1]
   This proceeding is brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against NMS (‘respondent’), a registered medical radiation practitioner.  This matter relates to the conduct of the respondent, which will be dealt with in more detail below.  Having regard to all of the conduct of the respondent, the applicant submitted that the following findings and orders were appropriate:

   1. the conduct of the respondent constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’);
   2. an order that, pursuant to section 107(3)(a) of the HO Act, the respondent be reprimanded; and
   3. there be no orders as to costs.
2. [2]
   On behalf of the respondent, it was initially agreed that the respondent be reprimanded, but that the conduct be characterised as unprofessional conduct rather than professional misconduct.  Initially, the matter was intended to be dealt with on the papers.  However, having regard to the respondent’s mental health issues at all material times, the Tribunal advised the parties that it wished the matter to be heard.
3. [3]
   Following some correspondence issued by the Tribunal, the respondent amended its submission by seeking an order that the respondent be cautioned rather than reprimanded.  There is no factual dispute between the parties.  The two matters in issue are the characterisation of the conduct and whether there should be a reprimand or a caution. 

The Conduct the Subject of the Referral

4. [4]
   The conduct that brings the respondent before the Tribunal can be summarised as follows.  On 28 April 2022, a nationally recognised protection order was made under the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVP Act’) that the respondent:

   1. must be of good behaviour towards the named aggrieved and children; and
   2. must not commit associated domestic violence against the children and must not expose the children to domestic violence.
5. [5]
   On 28 January 2023, the respondent, the named aggrieved, and their children had spent the morning together on a family outing.  On the way back home, the respondent and the named aggrieved had a disagreement.  That agreement escalated and later that day, the police were called to the family home.  The police were advised (and there is no dispute about this) that the respondent had:

   1. been hitting the named aggrieved in the head and shoulders on two or three occasions;
   2. hit him in the region of the temple and then his shoulders;
   3. struck the aggrieved while he was helping one of the young children to remove her shoes; and
   4. been verbally abusive towards the aggrieved, swearing and calling him names in the presence of the two children who were crying at the time.
6. [6]
   The incident was recorded, presumably by the aggrieved person, and that recording recorded the respondent calling the aggrieved, ‘a piece of shit’, and saying that ‘you deserve to die’.  It also recorded the aggrieved saying ‘don’t hit me, stop hitting me’, to which the respondent said ‘I will never, never, never stop hitting him’.
7. [7]
   The police charged the respondent with one count of contravention of a Domestic Violence Order (‘DVO’) pursuant to section 177(2)(b) of the DFVP Act.  The respondent failed to notify the Medical Radiation Practice Board of Australia (‘Board’) in writing that she had been charged with an offence punishable by 12 months imprisonment or more in accordance with section 130 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
8. [8]
   On 6 March 2023, the respondent was convicted on her own plea of guilty in the Magistrates Court of contravention of the existing DVO.  The respondent was placed on probation for eight months and ordered to attend domestic violence and/or anger management counselling.  The respondent also failed to notify the Board in writing that she had been found guilty of an offence in accordance with section 130 of the National Law.  It should also be observed that no conviction was recorded.
9. [9]
   Aggravating features of the conduct of the respondent are:

   1. she was already subject to a DVO made less than 12 months prior to the subject conduct;
   2. the conduct occurred in the presence of the couple’s two children, both of whom were clearly distressed by the events; and
   3. the conduct was not a one-off incident, but quite prolonged and included a number of disturbing comments directed towards the male aggrieved person.

Characterisation of the Conduct

10. [10]
    For conduct to be properly characterised as being professional misconduct, as opposed to unprofessional conduct, a finding must be made that the conduct under consideration was such that it fell substantially below the standard which might reasonably be expected of a registered health practitioner of an equivalent level of training or experience.^[1]
11. [11]
    In this regard, both parties referred to the decision of this Tribunal in Health Ombudsman v Niem Quoc Tang [2020] QCAT 165, where the Deputy President said:^[2]

The meaning of “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 at [110]:

…it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner.  In the context of this appeal, ‘substantial’ connotes a large or considerable departure from the standard required.  This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.

12. [12]
    On behalf of the respondent, particular emphasis was placed on the words ‘or other aspects of the conduct.’  In this regard, the following was submitted on behalf of the respondent:

The respondent respectfully submits that the Tribunal should consider her conduct against a background of an untreated mental health (bipolar) disorder at the time of her offending in characterising allegation 1 and in that context, it should be characterised as ‘unprofessional conduct’ as defined within section 5 of the National Law.

The respondent also submits that allegation 2 (which relates to her failure to notify the Board of the fact that she had been charged and later, of the fact that she was convicted in accordance with section 130 of the National Law) should not be considered as an ‘aggravating circumstance’ of allegation 1.  Instead, the respondent respectfully submits that it should be considered separately as ‘unprofessional conduct’ as defined within section 5 of the National Law.

13. [13]
    Particular emphasis was placed on the respondent’s unfortunate mental health issues at the time and by way of conclusion, it was submitted that ‘the Tribunal should also be mindful of the following mitigating factors’:^[3]

    1. that the respondent entered an early guilty plea after she was charged with contravention of the DVO;
    2. that the respondent has demonstrated remorse in relation to her conduct;
    3. that the respondent sought medical assistance before she had contravened the DVO but was not adequately treated due to factors outside her control;
    4. specific deterrence is not necessary where there is no evidence to suggest the public is at risk from the respondent continuing to practise as a medical radiation practitioner;
    5. the respondent was not the subject of any disciplinary findings before the events which are the subject of this referral, nor since;
    6. Dr Steele’s (the respondent’s treating psychiatrist) prognosis of the respondent’s ‘bipolar disorder is well-stabilised,’ and the likelihood of her reoffending is low; 
    7. according to Dr Steele, the respondent’s:

bipolar disorder and in particular steroid-induced mania in 2022 contributed to the original index protection order being put in place and subsequently the episode in January 2023 another episode precipitated by unmedicated bipolar disorder, her having not been able to engage with a psychiatrist for treatment at that point of time.

14. [14]
    Those submissions were effectively adopted and reinforced by Mr Ames who appeared for the respondent at the hearing of this matter.  There can be no doubt about the significance of the respondent’s mental health issues at the time.  However, most (if not all) of the matters raised, while clearly relevant to how the respondent ought to be finally dealt with by way of consequential orders, do not bear on the objective characterisation and nature of the actual conduct itself. 
15. [15]
    On balance, having regard to the conduct of the respondent at the time and particularly the aggravating features referred to above, the Tribunal is of the view that the altercation and subsequent behaviour of the respondent constitutes unprofessional conduct that fell substantially below the standard reasonably expected of a registered health practitioner.  As a consequence, the Tribunal finds that the conduct of the respondent, in total, constitutes professional misconduct.  One finding to that effect will be made to embrace all of the conduct alleged against the respondent.

Discussion and Sanction

16. [16]
    Turning to the consequential orders that ought to follow, given the report of Dr Steele, which is discussed in detail below, there appears to be little need for a sanction to send a message of personal deterrence.  The real issue is what is the appropriate sanction in all the circumstances, particularly having regard to the usual need to impose a sanction that sends an appropriate message of general deterrence.

Dr Steele’s report

17. [17]
    Dr Steele reported the respondent’s remorse and sadness in respect of her conduct.  It was also reported that the respondent’s bipolar disorder is now stabilised, her prognosis is ‘excellent’ with no further episodes of mood instability and that the likelihood of any further reoffending is low.  No doubt the prognosis is dependent on the respondent continuing to appropriately deal with her mental health issues, but there is nothing to suggest that she will not do so.  In respect of the mental health affecting the respondent at the material times, Dr Steele reported as follows:

I have diagnosed bipolar disorder with recurrent manic episodes and it would seem very likely on the balance of probabilities with her history that she was struggling with her bipolar condition at the time of the offending and unfortunately had not been placed yet on a treatment regime because of the inability to access a psychiatrist at the time.

18. [18]
    Dr Steele then went on to record under various headings as follows: ‘If our client had a psychiatric condition: what effect did it have on her life generally at the time?’  Dr Steele responded:

Bipolar disorder can often be triggered postpartum and [the respondent] indeed struggled with postnatal depression after the birth of her children.  Her pregnancy was then followed by an autoimmune disorder after the birth of her son and she was placed on high-dose steroids in 2021 and subsequently struggled with a clear description of steroid induced mania which precipitated the initial event involving the good behaviour bond and protection order in April of 2022.

19. [19]
    ‘Did it cause or contribute to her offending?  If so, how?’  Dr Steele responded as follows:

I do believe her bipolar disorder and in particular a steroid-induced mania in 2022 contributed to the original index protection order being put in place and subsequently the episode in January of 2023[:] another episode precipitated by unmedicated bipolar disorder [and] her having not been able to engage with a psychiatrist for treatment at that point in time.

Whether the respondent is an appropriate medium or vehicle to serve the purpose of general deterrence

20. [20]
    It is clear that the applicant’s primary position as to consequential orders was that a reprimand was necessary to send an appropriate message of general deterrence.  In the applicant’s written submissions, the importance of general deterrence was canvassed in detail and by way of conclusion; it was then said:^[4]

It is submitted that the correct approach is as determined in Legal Services Commissioner v McLeod^[5] [(‘McLeod’)] where Judicial Member Peter Lyons QC determined at [30], in a legal discipline context, that the main purpose of discipline proceedings is to protect members of the public from misconduct by lawyers and associated with this the need to safeguard the reputation of the legal profession.  He stated that ‘general deterrence is, in this context of some importance.  However, it has been recognised that this consideration may be “sensibly moderated” where mental disorder has contributed to a lawyer’s misconduct (footnotes omitted).’

General deterrence remains an important factor in this matter albeit ‘sensibly moderated’.  The sanction must reflect the requirement to illustrate that failing to meet professional standards has disciplinary consequences and serves a warning to other practitioners to consider their conduct in a careful manner.

21. [21]
    It has long been recognised in the criminal jurisdiction that mental health issues of a significant nature but falling short of a defence may be relevant in sentencing in a number of ways.  Unsurprisingly, a number of the principles expressed in the reasoning of the superior courts in criminal matters have been adopted by the Tribunal.
22. [22]
    An example of this is McLeod and LCK v Health Ombudsman.^[6]  In so far as general deterrence is concerned, in the light of serious mental illness, in R v Neumann; ex parte A-G (Qld),^[7] Fryberg J, with McPherson JA and Jerrard JA agreeing on the law, relevantly said:

In R v Dunn,^[8] this court cited with approval a statement of Bray CJ in R v Kiltie,^[9] approved in R v Masolatti,^[10] that “low intelligence and diminished responsibility falling short of insanity will (if otherwise relevant) operate on sentence as a mitigating factor.”  It diminishes the moral culpability of the offender.^[11]  Further, as was observed in R v Elliott^[12] by Davies and Thomas JJA (McPherson JA concurring), “Mental abnormality falling short of insanity may be a significant mitigating factor.  Apart from the question of culpability, it makes it difficult for the court to apply a factor such as general deterrence.”  That reflected (albeit without direct reference) what was written by Gleeson CJ in R v Engert:^[13] 

The circumstance that an offender suffers from a mental disorder may well be of considerable significance in a number of respects to the sentencing task.  One of those respects depending upon the facts and circumstances of the individual case may relate to the matter referred to by this Court in the case of R v Scognamiglio (1991) 56 A Crim R 81.  At 86 the passage in a judgment of the then Chief Justice of Victoria was cited with approval.  That passage was in the following terms:

In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other, but in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given little weight.

…

General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.

That decision also demonstrates that it is not essential that there be a causal relationship between the abnormality and the commission of the offence; although causation must be taken into account in assessing the circumstances of the case.

23. [23]
    In R v Tsiaras (‘Tsiaras’),^[14] the Victorian Court of Appeal relevantly observed in respect of the question of general deterrence that a prisoner suffering from a serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.  Almost 10 years later, in R v Verdins (‘Verdins’),^[15] the Victorian Court of Appeal again said in respect of the issue of general deterrence as follows:^[16]

Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

24. [24]
    The Court went on to explain why that is so and said:^[17]

The sentencing consideration identified in Tsiaras are not – and were not intended to be – applicable only to cases of “serious psychiatric illness”.  One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would be properly described as a (serious) mental illness.

25. [25]
    Those cases were considered and cited with approval by White JA, with Frazer JA and North J concurring, in R v Yarwood,^[18] where her Honour, after considering those cases, said:^[19]

The courts in Australia, as discussed in Verdins, have readily accepted that moral culpability for an offence as distinct from the offender’s legal responsibility for it might be reduced by mental illness.  There seems little doubt that the applicant’s diagnosed psychological and psychiatric conditions contributed directly to his offending.  His ability to exercise appropriate judgment, think clearly, and fully appreciate the wrongfulness of his conduct seems to have been grossly impaired.  That is not to say (as the applicant comes close to submitting in some places in his written submissions) that he was not criminally responsible for his conduct.  But if fellow practitioners and the public were aware of the extent of his illness they would not require a condign punishment to be imposed, rather the punishment should be ameliorated.

26. [26]
    During oral submissions, Mr Lucey, who appeared on behalf of the applicant, pointed out that Dr Steele’s report noted that the respondent’s mental health disorder at the time was a contributing factor in the respondent’s conduct.  That can be accepted as, no doubt, the fact that the respondent and the aggrieved person had a disagreement or argument on the trip home after the outing was also a contributing factor, if not the trigger, for what occurred later.  That said, a fair reading of Dr Steele’s report is indicative of the fact that the respondent’s conduct when they arrived home was largely, if not wholly, as a result of her mental health at the time.  To put it another way: but for her mental health issues, it was more likely that the conduct would not have occurred.
27. [27]
    Here there is evidence that there was a direct causal link between those issues and the conduct of the respondent.  In all the circumstances, the need for a sanction to send a message of general deterrence should be given much less weight than might ordinarily be the case because the respondent is not an appropriate vehicle or medium for making an example to others.
28. [28]
    The Tribunal agrees with the observation of Mr Lucey that this is a finely balanced case and indeed, if it were not for the reasons discussed, a reprimand would almost inevitably follow.  However, this is a unique case by virtue of the state of the respondent’s mental health at the time of the conduct bringing her before the Tribunal.
29. [29]
    Bearing that in mind and bringing all the other mitigating factors in favour of the respondent, the findings and orders of the Tribunal are as follows:

1. Pursuant to s 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the HO Act, the respondent is cautioned.
3. There be no order as to costs.