Health Ombudsman v XYA[2025] QCAT 246

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   This is a disciplinary referral of a matter in relation to Ms XYA, a registered nurse, brought by the Director of Proceedings on behalf of the Health Ombudsman.^[1]  The referral contains one allegation: that the respondent was convicted in the District Court of Queensland of seven criminal offences, namely—

   1. four counts of indecent treatment of a child under 16, under 12, who is a lineal descendant (domestic violence offence);
   2. one count of involving a child in making child exploitation material (domestic violence offence);
   3. one count of distributing child exploitation material; and
   4. one count of possessing child exploitation material.
2. [2]
   Pursuant to s 107(2)(b) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the applicant seeks that the Tribunal makes the following disciplinary orders against the respondent:

   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 reprimanded.
   3. Pursuant to s 107(3)(e) of the HO Act, the respondent’s registration is cancelled.
   4. Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration such that she be precluded from practice for a total of ten years.
   5. Pursuant to s 107(4)(b) of the HO Act, the respondent is prohibited from providing any health service for the same period for which she is disqualified.
3. [3]
   The applicant further seeks that:

   1. Pursuant to s 62(2)(a)(ii) of the HO Act, the immediate registration action imposed by the Health Ombudsman on the respondent’s registration on 27 August 2021 is set aside.
   2. There be no order as to costs.
4. [4]
   The respondent has not filed written submissions however, on 11 October 2024, she affirmed an affidavit, while she was incarcerated, that pertained to various matters including what, in her view, led to her conduct, whether disability, mental health or illness had anything to do with her offending, her mental health and wellbeing and a future plan for herself. 

Issues for determination by the Tribunal

5. [5]
   On 7 June 2025, the parties filed in the Tribunal a statement of agreed facts.  The respondent wholly admits the conduct that is the subject of the referral.  As such, the Tribunal does not have to make any factual findings.
6. [6]
   The Tribunal must determine how the admitted conduct should be characterised and what is the appropriate sanction in all of the circumstances of the case. 

Factual background

7. [7]
   The respondent first obtained registration as a nurse in December 2018 and practised in a medical centre in a regional town in Central Queensland until August 2021, when she was charged by police with criminal offences arising from her conduct. 
8. [8]
   The respondent’s conduct, briefly, is that between 28 February 2021 and 6 August 2021, the respondent committed sexual offences, most involving her ten-year-old son who suffers with autism spectrum disorder and attention deficit hyperactivity disorder.^[2]  His autism manifested in him being particularly attached to the respondent, who had primary care of him.^[3]  The respondent took photos of him in sexualised positions alone and with her and distributed them to others on the internet.^[4]  She engaged in online conversations which involved discussions about having sex with her son and other children and she possessed child exploitation material.^[5] 
9. [9]
   On 6 August 2021, the police exercised a search warrant of the respondent’s home and found two phones which the respondent identified as hers.^[6] 
10. [10]
    The respondent was taken to a separate room where she made admissions to the police.^[7]
11. [11]
    At the conclusion of the search, the respondent was arrested and taken to the watchhouse where she was charged, and then released on bail due to health concerns.^[8] 
12. [12]
    On 22 August 2022, the respondent pleaded guilty to and was convicted of seven criminal offences, identified above at [1].
13. [13]
    On 8 September 2023, the respondent was sentenced to a head sentence of three years’ imprisonment with eligibility for parole on 10 February 2024.  It follows that convictions were recorded.  The respondent is currently on parole and will be until 7 September 2026. 
14. [14]
    In August 2021, the Office of the Health Ombudsman became aware of the police investigation and decided to investigate the matter.  On 27 August 2021, the applicant took immediate action by suspending the respondent’s registration. 
15. [15]
    On 8 October 2023, which is after the respondent was sentenced, the OHO’s investigation was completed, and the Health Ombudsman referred the matter to the Director of Proceedings. 
16. [16]
    On 7 December 2023, the Director of Proceedings decided to refer the matter to the Tribunal and filed a referral.

Relevant law

17. [17]
    The jurisdiction of the Tribunal is set out in the HO Act, which is the enabling Act for the purpose of s 9(1) of the Queensland Civil and Administrative Tribunal 2009 (Qld) (‘QCAT Act’).  In hearing and deciding the matter, the Tribunal is exercising original jurisdiction, pursuant to ss 9(2)(a) and 10(1)(b) of the QCAT Act. 
18. [18]
    The Tribunal proceeds having regard to s 4(1) of the HO Act, that the main principle for administering the Act is that the health and safety of the public are paramount. 

How should the conduct be characterised?

19. [19]
    The applicant submits that the respondent’s conduct constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition of that term in s 5 of the Health Practitioner Regulation National Law (Queensland). 
20. [20]
    The applicant submits that it:

is uncontroversial that conduct underlying the commission of the offence of indecent treatment of a child alone constitutes professional misconduct.^[9]  The Tribunal readily regards conduct involving sexual offending as inconsistent with a practitioner being a fit and proper person to hold registration.^[10]

21. [21]
    The criminal offending is egregious.  As the courts have noted on many occasions, obtaining, distributing and possessing child exploitation material is not a victimless crime.  The seriousness of the respondent’s conduct is compounded by the fact that the victim of most of her offending was her son, who was especially vulnerable by virtue of his young age and autism which, as mentioned above, manifested in his attachment to the respondent.
22. [22]
    Each occasion of dissemination and viewing of child exploitation material repeats such violation of the victim and provides and encourages a market in such images, which has the consequence of repetitious violation of the victims. 
23. [23]
    The Tribunal is satisfied, on the material and submissions provided, that the conduct is properly characterised as professional misconduct.

Discussion and sanction

24. [24]
    Disciplinary proceedings are protective, not punitive, in nature.^[11] 
25. [25]
    There are well established considerations for the Tribunal on a disciplinary referral:^[12]

    1. preventing respondents who are unfit to practise from practising;
    2. bringing home to the respondent the seriousness of their conduct;
    3. deterring the respondent from future department from appropriate standards or others who might be minded to act in a similar way; and
    4. imposing restrictions on the respondent’s right to practise to ensure public protection.
26. [26]
    The Tribunal accepts the applicant’s submissions regarding the extreme seriousness of the conduct set out at [31] of its submissions. 
27. [27]
    The applicant submits, and the Tribunal accepts, that the respondent has made some expressions of remorse and shown some insight, mostly in her affidavit referred to above at [4] but also through her early admissions and guilty pleas, however she has indicated her continued unwillingness to take full responsibility for her conduct.
28. [28]
    The material received from the respondent’s treating psychologist is brief.  It focuses on the respondent’s participation (distinct from engagement) in the sessions and that she has ‘developed increased insight regarding individual interpersonal factors associated with her sexual offence pathway’ however, it does not speak to whether the respondent has demonstrated remorse or insight into the conduct itself, nor does it discuss the respondent’s recidivism risk.  In this regard, however, the Tribunal notes the respondent’s son has been removed from her care and accepts the applicant’s submission that she is unlikely to repeat the conduct relating to her son. 
29. [29]
    Deterrence, both specific and general, is of significance in cases such as this.  The sanction should convey to the public that conduct of this kind is repugnant and squarely inconsistent with the fundamental obligation of health practitioners to help people.  Conveying that message is necessary to protect the health and safety of the public and to maintain confidence in the nursing profession and the health professions generally.
30. [30]
    The Tribunal regards the sanction sought by the applicant as being within the appropriate range.  The Tribunal was concerned to ensure that the period of disqualification should be imposed from the date of the suspension, which was 27 August 2021, and not from today’s date.  At [3(d)] of the applicant’s submissions, the applicant seeks that the respondent be disqualified for a total period of ten years.  However, in [56] of its submissions, the applicant simply refers to the respondent being precluded from practice for a period of ten years.  The Tribunal has taken the view that a ten-year period of preclusion from today would be within range, but at the high end, and is satisfied that the respondent should be precluded from practice for a total period of 10 years from the date of suspension. 
31. [31]
    The applicant has referred the Tribunal to several comparable cases.  The Tribunal has considered those authorities and is of the view that Health Ombudsman v Chalmers [2023] QCAT 96 (‘Chalmers’) provides the most suitable yardstick, noting however that such cases are no more than that, as each matter ultimately turns on its own facts.
32. [32]
    The respondent in Chalmers was convicted of three counts of indecent treatment of an eight to nine year old girl.  The practitioner was a close family friend to the child’s family.  The respondent was 60-61 years old, filed no material in the Tribunal and had never sought medical or psychiatric treatment.  The respondent had not practised for three years and was not registered as at the date of the hearing; the Tribunal disqualified him from applying for registration for six years, making his total time away from practice approximately nine years.  The Tribunal also prohibited the respondent from providing any health service until such a time that he obtained registration.
33. [33]
    The present matter is more serious than Chalmers because the respondent’s main victim was her child, who was particularly vulnerable for the reasons above, the conduct was prolonged and extended beyond indecent treatment to include the production and distribution of child exploitation material together with the egregious communications with others regarding sexualising her son and other children.
34. [34]
    Accordingly, the Tribunal is satisfied, on the submissions and the material provided, that the conduct is properly characterised as professional misconduct and that orders should be made against the respondent as set out in [56(a)-(g)] of the applicant’s submissions, with one alteration to subparagraph (d): that the period of preclusion from practice for a total of 10 years from the date of suspension, being 27 August 2021.

Non-publication order 

35. [35]
    In addition, having regard the nature of the conduct falling within the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVP Act’), the Tribunal is cognisant that an order for non-publication protecting the publication of information that identifies or may lead to the identification of the respondent’s child, indirectly or directly, ought to be made so as to comply with s 159 of the DFVP Act. 
36. [36]
    The Tribunal makes this order on its own initiative pursuant to s 66(3) of the QCAT Act.