ELO v Health Ombudsman[2025] QCAT 249

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant and a fellow female medical radiation practitioner (‘complainant’) were work friends at a public hospital in the Brisbane area.  They were close work friends but had not, until the night of 22 June 2024, socialised outside of the workplace.  On that night they, and other work colleagues, went out to bars and restaurants in the Brisbane CBD.  They drank heavily.  The complainant was particularly affected by alcohol.  As a result, those work colleagues who were with her determined to book a hotel room for her to allow her to sleep.  They did so because they formed the view that to allow her to take a taxi or uber home was potentially unsafe because of her intoxication.
2. [2]
   A group of three workmates, including the applicant, effectively put her to bed in the hotel room and then left her to sleep.  The applicant, however, took a key to the room.  The others did not observe him doing so.  He returned later and let himself into the room.  The complainant says he then raped her.
3. [3]
   He denies the allegations and said to her, in a recorded pretext call between them only shortly afterwards, that she and he had in fact arranged earlier in the night to meet at a hotel, for the purpose of consensual sexual conduct.
4. [4]
   The applicant was charged with serious sexual offences, three charges of rape, arising from that alleged conduct, and lesser sexual offences involving earlier alleged conduct against another of his female colleagues on the same night.  That matter does not have any great relevance to the issues which now arise.
5. [5]
   The committal of his charge has not yet been conducted in the Magistrates Court.  Obviously, if the matter were to proceed to a trial it is still a significant period of time before the matter would be determined.  It is fair to say that if he were convicted that he would inevitably face a very significant period of imprisonment and he would be precluded from registration as a medical radiation practitioner.^[1]
6. [6]
   The Health Ombudsman in a decision of 17 December 2024 determined to take immediate registration action against the applicant, pursuant to section 58 of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), to suspend his registration as a medical radiation practitioner.
7. [7]
   He seeks to review that decision.  I have determined the application should be dismissed.  My reasons for doing so follow.

Statutory Framework

8. [8]
   Section 3(1) of the HO Act provides:

1. The main objects of this Act are –
   1. to protect the health and safety of the public; and
   2. to promote –
      1. professional, safe and competent practice by health practitioners; and
      2. high standards of service delivery by health service organisations; and
   3. to maintain public confidence in the management of complaints and other matters relating to the provision of health services.

9. [9]
   Section 4 provides:

Paramount guiding principle

1. The main principle for administering this Act is that the health and safety of the public are paramount.
2. without limiting subsection (1), the health and safety of the public is the main consideration for –
   1. the health ombudsman, when deciding what relevant action to take to deal with a complaint or other matter; and
   2. the director of proceedings, when deciding whether to refer a matter to QCAT; and
   3. QCAT, when deciding a matter referred to it under this Act. 

10. [10]
    Section 58 of the HO Act is in the following terms:

Power to take immediate registration action

1. The health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if–
   1. the health ombudsman reasonably believes that –
      1. because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and
      2. it is necessary to take the action to protect public health or safety; or
   2. the health ombudsman reasonably believes the practitioner’s registration was improperly obtained because the practitioner or someone else gave a National Board information or a document that was false or misleading in a material particular; or
   3. the practitioner’s registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction under the National Law; or
   4. the health ombudsman reasonably believes the action is otherwise in the public interest.

Example of when action may be taken in the public interest –

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate registration action is required to be taken to maintain public confidence in the provision of services by health practitioners.

11. [11]
    I have determined to dismiss the application by reason of s 58(1)(d) of the HO Act.  I do not conclude it would be appropriate to do so under section 58(1)(a) as I do not conclude that the conduct of the applicant is such that he poses a serious risk to persons, and it is necessary to suspend him to protect public health and safety.  In so concluding, I do not intend to indicate there is no such risk.  His alleged conduct indicates a lack of regard for other persons’ wellbeing or for appropriate respect of boundaries, but the fact it was in a social setting, away from his workplace, and that his work record is untainted by any findings against him, supports the view that reliance on section 58(1)(a) would not be appropriate.
12. [12]
    It is the common view of the parties that a useful summary of the principles relevant to the Tribunal’s consideration of this application, as set out by Judicial Member Dick SC in Aggarwal v Health Ombudsman [2024] QCAT 385, are as follows:^[2]

1. an immediate action order does not require detailed inquiry;
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 may 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 may be well sufficient to create the necessary reasonable belief as to the existence of the 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.

13. [13]
    In Health Ombudsman v Harirchian [2021] QCA 141, the Court of Appeal allowed an appeal from a decision of the Tribunal which had determined that a practitioner’s registration as a general practitioner would not be suspended, but that it be made subject to conditions limiting him from having contact with female patients.
14. [14]
    The Court of Appeal, in a joint judgment, emphasised the power to take such action involves disciplinary powers and not punitive powers.  It said:^[3]

…although the proper exercise of a power may in fact involve a great deprivation to the person disciplined, there is no element of punishment involved.  Sometimes the public interest will require the making of an order which has a severely adverse effect on a practitioner which is greater than might be warranted if punishment alone were the relevant consideration.

[…]

The exercise of a power of suspension when a practitioner has committed a particular kind of offence is in the public interest if it both protects the profession against further misconduct and also demonstrates to the profession and to the public that the profession does not allow or tolerate such conduct.

[…]

The public interest is, as the applicant submitted, a matter for broad judgment, having regard to the nature of the profession of medicine, the demands and opportunities it presents for misconduct.  The matters that may be relevant to consideration of the demands of the public's interest in the ethical practice of medicine are potentially unlimited and the matters that will be relevant in a particular case will depend on the circumstances of that case.

15. [15]
    It was of course a feature of that matter that the practitioner had been convicted of the offences alleged following a trial.  But it is made clear by the example given in section 58 of the HO Act that the power to suspend is not limited to cases of proven offending.  The fact the applicant has not been convicted is relevant to my determination, but not determinative of it.  In my view, considerations of the strength of the case against the applicant and of possible defences that might arise on the material before me are very relevant.
16. [16]
    In relation to consideration of whether suspension is warranted because it is in the public interest to do so, the observations of Niall JA in Medical Board of Australia v Liang Joo Leow 2019 [VSC] 532 are relevant.  His Honour set out at [23]-[24] the observations of the Tribunal below in these terms:

The Tribunal referred to the Explanatory Memorandum which accompanied the introduction of s 156(1)(e)^[4] and observed that whether a health practitioner being charged of a serious offence will give rise to the need for immediate action is a matter for judgment in the particular case.

The Tribunal observed the taking of immediate action does not require proof of conduct and that it was open to take immediate action based on complaints and allegations.  The Tribunal said that ‘the mere fact of and seriousness of charges, in a case, might be enough to create the reasonable belief that immediate action is in the public interest’.

17. [17]
    It was also noted that the nature of the allegations will be highly relevant to the question of whether an audit is justified.
18. [18]
    I concur with those observations of the Tribunal members in the judgment below in that case.  Later in the judgment, his Honour observed:^[5]

In circumstances where the allegations, if substantiated, may reflect on the practitioner’s fitness to hold registration may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges… In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole.

As a consequence, the Board may conclude, in those circumstances, that is in the public interest to take immediate action in order to address the question of public confidence…

[…]

Ultimately, the question is whether or not the Board reasonably believes, in circumstances when none of the other sub-paragraphs of s 156(1) apply, that it is necessary in the public interest to take immediate action.  The meaning of public interest is informed by the example.

19. [19]
    In my view, a number of matters, not present in other cases relied on by the applicant^[6] but present here, caused me to come to the conclusion I have.
20. [20]
    First, it seems clear to me that the complainant in this matter was grossly affected by alcohol.  In the pretext phone call I have referred to, the applicant himself says, ‘everyone was like super drunk’.  He also describes he and the complainant as ‘very drunk’.  The complainant said, in that call, she had very limited recollection of what had occurred.  She also said she had never blacked out before in her life and didn't think she had ever drunk that much before.  This is generally consistent with the contents of her statement, and of others in their statements which support the view I have formed that she was grossly intoxicated.^[7]  It was those others, who with the applicant, took the complainant to the hotel room and put her to bed.
21. [21]
    Secondly, she was intoxicated to the extent that her colleagues determined it would be unsafe to allow her to catch a taxi or Uber home and instead determined to book a hotel room to allow her to sleep off the effects of intoxication.  NF says in his statement that he and, notably, the applicant, ‘had concerns about an Uber driver taking advantage of [the complainant]’.  NF said also that he, the applicant, and AV had earlier discussed how to get the complainant home, before deciding the ‘safest option’ was to arrange a hotel room.  AV says she and NF did not feel safe putting her in a taxi ‘in her state’.
22. [22]
    Thirdly, both AV at [43] of her statement and NF at [68] of his say the applicant made inappropriate gestures towards the complainant's person, when they were putting her to bed, indicative of his having a sexual interest in her.
23. [23]
    Fourthly, it seems clear the applicant, without the knowledge of AV or NF took a key to the room as they left enabling him to later gain access to it, even if the complainant was unresponsive.  He of course says in the pretext phone call that when he entered the room the complainant was awake and willingly engaged in intercourse with him.  My point however is that if the complainant's drunkenness was somehow feigned to get others to book the hotel room so that she and the applicant could engage in consensual sex, why would the applicant have taken the key.  Surely, he could have knocked on the door, if access to the hotel floor was available without a key, and otherwise he could have rung her to have let him into the room.  Indeed, if, as the applicant asserts, they arranged to meet up, why would she just not have said her goodbyes to the others and pretended to go home before going to a prearranged destination.  His taking of the key in circumstances where she was grossly intoxicated, and he had demonstrated sexual interest as NF and AV attest, and the fact that was her colleagues who arranged the hotel room is strongly supportive of the allegations of the complainant.
24. [24]
    During the hearing there was some discussion about whether the applicant in fact had a key.  Although his counsel did say that the video, which was recorded by the hotel’s CCTV, of his entering the room, at 10:38pm on that night, did not appear to show him knocking.  I note that in the pretext phone call the complainant asked the applicant if she had let him in to the room and that he said to her that he had a key.
25. [25]
    The fact of his taking the key and letting himself in, in circumstances where others described her gross intoxication and of her having effectively passed out when put to bed is, in my view, corroborative of the complainant's version of being raped and there being no prearranged meet up.
26. [26]
    The level of intoxication and her conduct are also supportive of the view that she was incapable of consenting to the acts which occurred.  I accept that issues at trial concerning not only consent but possibly honest and reasonable but mistaken belief as to consent are likely to arise. 
27. [27]
    The fifth point I want to note concerns the nature of the sexual acts themselves.  The complainant said to the applicant in the pretext call that her partner was the only person she had ever been with.  To that response, the applicant said ‘yeah’ in apparent agreement.
28. [28]
    The nature of the sexual acts alleged, namely oral, vaginal and anal intercourse and licking of his anus, are highly surprising if the events of that night were consensual.  Rather, in my view, they are consistent with the circumstance that she was so intoxicated that she was not able to consent to such conduct.
29. [29]
    Ultimately the whole of the circumstances are such that it is in my view, appropriate to conclude that suspension of the applicant’s registration is in the public interest.  Such action is justified to maintain public confidence in the provision of health services by medical radiation practitioners, or indeed by any registered health practitioner.  I am conscious, in making that decision, of the presumption of innocence and of the fact the allegations are untested, but also not contradicted except to the extent of the applicant’s statements in the unsworn pretext phone call.  I am also conscious of the significant loss of income that the applicant will suffer up to trial which will itself be for a significant period having regard to the likely duration of time before the trial of this matter. 
30. [30]
    The nature of the allegations and the strength of the evidence which I have briefly referred to justify the orders I have made.  It is appropriate to demonstrate to the profession and to the public that such conduct is not tolerated and is necessary in order to maintain public confidence in the provision of radiation services pending the outcome of his trial.  The imposition of such a suspension is not to punish the applicant but to maintain public confidence in provision of such services and, so, is in the public interest.
31. [31]
    Public confidence in the applicant’s profession would potentially be seriously eroded if the public were aware of the alleged circumstances of the matter, and he were allowed to practise.  Despite the fact the allegations are not yet proven, the events did not occur at his work, he has no “black marks” on his reputation and, despite the fact his services as a radiographer will be denied to the public, I conclude there is a serious risk that to set aside the suspension would pose a serious risk that public confidence in the provision of health services would be eroded.  I am also cognisant of the fact that I have concluded the circumstances do not warrant a finding that such a suspension ought to be made under section 58(1)(a) of the HO Act.
32. [32]
    I generally accept the submissions of the respondent's counsel set out at [17] of his written submission but do note that my discussions with the professional assessors sitting with me indicated that it is improbable that clients would be significantly disrobed during any procedure the applicant might undertake.
33. [33]
    I might also add I have not placed great weight on the various CCTV depictions of events, which do however broadly support the view of the complainant's intoxication.
34. [34]
    Finally, I wish to refer to an affidavit of JK relied on by the applicant.  I should first indicate I give leave to the applicant to rely on that affidavit despite non-compliance with the Tribunal’s directions as to the filing of such documents.
35. [35]
    I place no regard on JK’s affidavit at [9] thereof about the applicant’s capacity to have engaged in the alleged conduct.  I assume that if he was informed of the applicant’s own statements in the pretext phone calls, he would have also found that conduct something he would not have thought the applicant capable of.
36. [36]
    So too I do not find his comments at [11] and following of his affidavit of assistance.  The professional assessors that I sat with do not foresee the applicant’s suspension as negatively impacting the provision of radiological or radiation services in any meaningful way.
37. [37]
    In the circumstances, I have also concluded it is not appropriate to set aside the Health Ombudsman’s suspension and impose conditions on his registration.  Such conditions might well be appropriate in a case involving a finding under section 58(1)(a) of the HO Act as such conditions might well protect public health and safety, but I do not think they address the circumstances I have outlined above and my reliance on section 58(1)(d) of the Act.
38. [38]
    Where action is taken in the public interest to maintain public confidence in the provision of health services, allowing him to practise with conditions would not address the issue.
39. [39]
    I therefore order that:

1. Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Health Ombudsman’s decision to suspend the applicant’s registration is confirmed. 
2. The parties have liberty to apply for costs.