Health Care Complaints Commission v Jung

Findings

1. In light of the uncontested evidence filed by the Commission, we make the following relevant findings: 1. the respondent is 38 years old; 2. the respondent obtained a Bachelor of Science (Physiotherapy) from Curtin University in 2009; 3. the respondent was first registered as a physiotherapist on 21 December 2009; 4. on or about 15 June 2014, a court attendance notice was issued to the respondent in respect of: 1. one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900; 2. two counts assault with an act of indecency contrary to s 61L of the Crimes Act 1900; 1. on or about 28 November 2014, court attendance notices were issued to the respondent in respect of: 1. one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900; 2. seven counts assault with an act of indecency contrary to s 61L of the Crimes Act 1900; 1. the offences were prosecuted in the District Court of NSW. The charges followed reports to police by a number of patients concerning inappropriate and non-consensual touching of a sexual nature during massages that the respondent had offered without request during certain consultations; 2. on 18 June 2014, the Commission received notification from the Australian Health Practitioner Regulation Agency that the respondent had been charged with the offences; 3. on 23 June 2014, s 150 proceedings were held and the respondent's registration was suspended pursuant to s 150 of the National Law; 4. on or about 8 February 2016, the respondent was arraigned in respect of eight charges; 5. on 8 February 2016 the respondent pleaded guilty to all charges save for the one count of sexual intercourse without consent. The judge alone trial determined that the respondent was not guilty of that offence; and 6. on 2 March 2016, the respondent was sentenced to an aggregate sentence of five years' imprisonment, with a non-parole period of three and a half years. In the course of his sentencing remarks, the trial judge stated that the respondent had seriously abused the trust placed in him in relation to each of his patients.

The Complaints

1. Section 144 of the National Law provides that: The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.

The first complaint

1. The Commission's first complaint is that the respondent has been convicted of offences in the State of NSW. On the basis of the certificates of conviction tendered before us we find that this complaint is established. The respondent has been convicted of eight counts of indecent assault of some six patients attending his practice. The offences took place in the period 23 April to 12 June 2014.

The second complaint

1. The second complaint is that the respondent is not a suitable person to hold registration in the practitioner's profession.
2. The content of "not a suitable person" is not defined in the National Law, but assistance can be obtained from s 55. That section sets out a number of circumstances in which a board of a health profession can decide whether or not a person is a suitable person to hold registration in the profession. These circumstances relevantly include an impairment that may affect capacity to practice to the extent that it may place public safety at risk, a criminal history disclosing that the person is not an appropriate person to practice or for any other reason that person is not a fit and proper person or is unable to practice competently and safely. See too Health Care Complaints Commission v Roopra (No 2) [2013] NSWDT 3, referred to in Health Care Complaints Commission v Cheung [2018] NSWCATOD 10 at [75].
3. These concepts have been explored in various decisions. In Health Care Complaints Commission v Vincent [2012] NSWNMT 2, in considering whether someone convicted of child pornography offences was a suitable person to practice (in that case the practice of nursing) reference was made to Health Care Complaints Commission v Pierce [2010] NSWNMT 1, which dealt with whether the person was of good character in the context of fitness to practice (see par [46]). These factors included: 1. whether the misconduct could be satisfactorily explained as an error of judgment rather than a defect of character; 2. the intrinsic seriousness of the misconduct in terms of fitness to practice; 3. whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities or character; 4. the motivation which may have given rise to the proven episode of misconduct; 5. the underlying qualities of character shown by previous and other conduct; and 6. whether the practitioner's conduct post the proven episode of misconduct demonstrates the public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a nurse.
4. See also Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17]; Health Care Complaints Commission v Simring [2007] NSWNMT 7, Health Care Complaints Commission v Schmich [2009] NSWNMT 19 at pars [33]-[37].
5. The respondent's conduct is described in the sentencing remarks of the trial judge. In essence, the Court found that the respondent "seriously abused the trust placed in him" as a healthcare professional by each of his patients. The respondent's conduct "amplifie[d] the extreme vulnerability of [his] patients [by] taking advantage of that situation for self-gratification". The Court found that in each matter there had been "a significant breach of trust", in that the offending was not related to therapeutic treatment and was undertaken for the respondent's sexual gratification". The Court found the conduct to be "objectively grave behaviour".
6. The Commission relies on the circumstances of the offending, the number of patients involved, the offending not being isolated and the findings as to obtaining sexual gratification without a therapeutic purpose to establish that pursuant to s 144(e) of the National Law that the respondent is not a suitable person to hold registration.
7. The Commission also points to the respondent's evidence at his trial where he conceded that he had, in relation to at least one complainant, massaged her breast even though he knew it was wrong and agreed that the sexual urge was so strong that he could not control it. In relation to one of his interviews with police, he also agreed that he had deliberately lied when he said he could not remember the last time he had massaged the breasts of a woman. The respondent apparently told a psychologist who provided a report for sentence that his conduct was on the "borderline" of invading intimate regions. He accepted the suggestion in cross-examination that that was not a truthful statement. The Commission submits that the totality of the respondent's evidence at trial demonstrates an issue with insight.

Consideration

1. Two indictments were brought against the practitioner in the District Court at Gosford. On the indictment dated 6 August 2015, three counts of assault with act of indecency pursuant to s 61L of the Crimes Act 1900 were brought against the practitioner. The respondent pleaded guilty to one count of assault with act of indecency pursuant to s 61L of the Crimes Act 1900.
2. On the indictment dated 8 February 2016, seven counts of assault with act of indecency pursuant to s 61L of the Crimes Act 1900 and one count of sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900 was brought against the practitioner. The respondent pleaded guilty to seven counts of assault with act of indecency pursuant to s 61L of the Crimes Act 1900.
3. On 2 March 2016, the practitioner was convicted of eight counts of Assault with act of indecency pursuant to section 61L of the Crimes Act 1900. The respondent was convicted in relation to eight offences against Patients A to F, women aged from 36 to 57 who attended his practice for physiotherapy consultations and treatment.
4. Additional offences were admitted by the practitioner on a "Form 1" and under s 33 of the Crimes (Sentencing Procedure) Act 1999 were taken into account on 2 March 2016 when sentence was imposed: 1. the respondent admitted, without entering a plea, to indecently assaulting Patient A, by rubbing his hands back and forth across the exterior of her vagina on 7 June 2014, contrary to section 61L Crimes Act 1900; 2. the respondent admitted, without entering a plea, to indecently assaulting Patient A, by rubbing his hands back and forth across the exterior of her exposed breasts on 7 June 2014, contrary to section 61L Crimes Act 1900.
5. The respondent was sentenced to five years imprisonment with a non-parole period of three and a half years to commence on 23 February 2016. The practitioner will be eligible for parole on 22 August 2019.
6. We note the following sentencing remarks: Patients obtaining treatment have to trust healthcare professionals, patients feel obliged for their own good to comply with a healthcare professional's requests. Most patients would understandably feel that it was against their own interests to refuse to cooperate with a request for a healthcare professional in the course of treatment. Accordingly, patients will generally permit a healthcare professional to handle them physically and in private in ways that they would not permit others. In this case the offender who was a physiotherapist for each of the complainants had them attend his practice for therapeutic treatment. In my view he seriously abused the trust placed in him in relation to each of them in relation to the charges for which he is to be sentenced. The present case amplifies the extreme vulnerability of patients and taking advantage of that situation for self-gratification attracts general and personal deterrent elements into appropriate sentence and in each matter there has been a significant breach of trust.
7. In relation to each of Patients A to F, the sentencing judge found that there was objectively grave behaviour. In relation to Patient A the sentencing judge found: There was skin to skin contact. The massage of the breasts was not of short duration. The offending that led to the touching of the pubic bone was not skin to skin contact, it was through tights. [Patient A] was a patient of the offender when she attended his surgery for treatment. The conduct of the offender was not in any way related to the therapeutic treatment and was undertaken for sexual gratification.
8. In relation to Patient B the sentencing judge found: There was skin to skin contact, the massage of the complainant's breasts was not of short duration, the rubbing of her vagina was of short duration but I need to take into account that the rubbing of the vagina is a very serious matter. The complainant was a patient of the offender when she attended his surgery for treatment. The conduct was not in any way related to therapeutic treatment and was undertaken by the offender for sexual gratification. The offender was in a position of trust in relation to the complainant. He significantly breached that trust.
9. In relation to Patient C the sentencing judge found: There was skin to skin contact, massaging of the breast was not of short duration. [Patient C] was a patient of the offender when she attended his surgery for treatment. The conduct was not in any way related to the therapeutic treatment of [Patient C] and was undertaken for sexual gratification.
10. In relation to Patient D the sentencing judge found: There was skin to skin contact. I am not able to say the duration of the contact with the breasts because she was not able to say. She was a patient of the offender when she attended his surgery for treatment. The conduct was not in any way related to the therapeutic treatment and was undertaken for sexual gratification.
11. In relation to Patient E the sentencing judge found: There was skin to skin contact, the massage of the breasts was of short duration in the region of about 10 seconds. [Patient E] was a patient of the offender when she attended his surgery for treatment. The conduct was not in any way related to the therapeutic treatment of [Patient E] and was undertaken for sexual gratification.
12. In relation to Patient F the sentencing judge found: The massage of the breasts was not of short duration on each occasion. [Patient F] was a patient of the offender when she attended his surgery for treatment. The offending conduct was not in any way related to the therapeutic treatment of [Patient F] and was undertaken for sexual gratification.
13. His Honour concluded that in relation to each matter there was a significant breach of trust.
14. In Cheung the Tribunal considered the suitability of a pharmacist, who was convicted of poisoning a staff member with the intention of causing stress or pain, to practise his profession. The Tribunal observed at [76] that: One relevant consideration in determining suitability of a practitioner is whether the conduct in question could be characterised as 'one off' or 'isolated' in nature. Considerations such as the maintenance of the reputation of the profession and the trust that is reposed in the profession by the public are also relevant to the determination of the question of suitability of an individual for registration: Roopra at [285]. Other factors include professional integrity, personal integrity, insight into the reason why the conduct attracted the severe criticism of the Tribunal, insight into the steps required to remediate any personal or professional deficits identified by the offensive conduct, steps taken towards such remediation, the respondent's otherwise good character, the nature of the respondent's prior professional practice including any prior misconduct: Health Care Complaints Commission v Vu [2012] NSWPYT 1 at [69], adopted in Roopra at [287].
15. In our view, this misconduct cannot be explained as an error of conduct. It is self-evident that the misconduct is intrinsically serious in terms of the respondent's fitness to practice. The conduct was not a "one off" or isolated offence, as it constituted a course of conduct in respect of six women over a period of about seven weeks. In the circumstances, we are amply satisfied that the respondent's disgraceful conduct and repeated betrayals of his patients' trust establishes that he is not a suitable person to practise.

Protective orders

1. The relevant principles to be applied in matters of this nature were recently set out in Cheung as follows: 80. First, the overriding principle governing the proceedings is the protection of the public. An imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) of the National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are administer the need to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]. 81. As was stated by Barrett JA in Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20]: Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. .... 21 The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards. 82. Secondly, whether an offence or offences are sufficiently serious to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 83. Thirdly, the purpose of the disciplinary powers of the Tribunal is not to punish the respondent but rather to protect the public and maintain proper professional standards: Lee at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]. 84. Fourthly, the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638C.
2. Under s 149C of the National Law the Tribunal may suspend or cancel registration if the Tribunal is satisfied, relevantly the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise in the practitioner's profession (s 149C(1)(c)) or if the practitioner is not a suitable person for registration in the practitioner's profession: s 149C(1)(d).The Tribunal can consider whether the imposition of a lesser sanction than cancellation would be appropriate: Health Care Complaints Commission v Qasim [2014] NSWCATOD 42 at [76]. The Commission contends that a sanction less than cancellation for an appropriate period would be inadequate in this case.
3. The Commission submits, in summary, that the following matters warrant the respondent's deregistration: 1. The respondent's continued conduct, knowing that it was therapeutically unjustified, and was purely for sexual gratification and was therefore a breach of his professional standards points compellingly to an underlying defect of character such that there would be no confidence that public and professional confidence could be reposed in him in the future practising in his profession, at least for a significant period of time and in the absence of any evidence of reform; 2. The respondent's conduct arose as a result of a defect of character rather than as an error of judgment, the conduct was intrinsically serious, it involved gross breaches of patient trust, it involved multiple complainants and it occurred at a point when the respondent had been practising for less than 5 years. 3. The failure of the respondent to attend, give evidence and be available for cross-examination permits the Tribunal to draw appropriate adverse inferences against a Respondent due to the absence of relevant oral or documentary evidence that could only come from him, including as to reform and insight. 4. The offences committed by the respondent demonstrate that he does not possess the character and attitude appropriate for a physiotherapist, but it also demonstrates a general unfitness of character and attitude for positions in the health profession generally, particularly any involving contact with patients;
4. For the following reasons, we agree. First, as we have found, the conduct which constituted the offence was very serious: the respondent indecently assaulted some six women, all of whom were patients. Secondly, the conduct occurred on eight occasions over a period of approximately seven weeks. Thirdly, as the sentencing judge noted, these were serious breaches of trust. Fourthly, the respondent's conduct is a serious breach of the standards that the public have a right to expect of a practitioner. The objective seriousness of the conduct of the respondent, the fact the conduct was deliberate, the fact it occurred over a period of time in respect of no less than six female patients all militate strongly in favour of an order cancelling the respondent's registration.
5. We think that that is the appropriate outcome. In our view, the seriousness of the respondent's conduct clearly warrants an order that his registration be cancelled. The order reminds other members of the profession of the public interest in the maintenance of high professional standards, and will emphasise the unacceptability of the kind of conduct involved in the disciplinary offence: NSW Bar Association v Meakes [2006] NSWCA 340 at [114].
6. As to the period of time before which the respondent can reapply for registration, the Commission submits that this should be in the order of seven to ten years. The relevant matters to be considered include the period of time likely to be required for the practitioner to change his conduct so that he is to practise without risk to the health and safety of the public. To address that question, the respondent's insight into his conduct is relevant as is his progress since the offending. The respondent has offered no evidence at all, so we are unable to assess his insight, if any.
7. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA (at [22]) said that the fixing of a period within which re-registration may not be sought may be seen to have a twofold operation; it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered.
8. In our view, in light of the findings set out above and the seriousness and nature of the respondent's offences, the appropriate period before which the respondent can apply for a review of the order cancelling his registration is seven years.

Prohibition Order

1. Given the seriousness of the respondent's conduct we also propose to make a prohibition order as sought by the Commission.

Costs

1. This is a costs jurisdiction, and costs normally follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Health Care Complaints Commission v Marino (No. 2) 2016] NSWCATOD 75 at [40]. The Commission has been successful. The respondent must pay the Commission's costs.

Orders

1. For the above reasons we order that: 1. Complaints One and Two are established; 2. The respondent's registration is cancelled; 3. Any application to review the cancellation order may not be made for a period of seven years from the date of these reasons; 4. The respondent is prohibited from providing any health service as defined in s 4 of the Health Care Complaints Act 1993 for a period of seven years; and 5. The respondent is to pay the applicant's costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2018