Health Care Complaints Commission v Weinzettel

NCAT Occupational|2021-06-30

REASONS FOR DECISION

In a decision handed down in January 2021, we found physiotherapist, Andrew Weinzettel, guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) (the National Law): Health Care Complaints Commission v Weinzettel [2021] NSWCATOD 10 (the Decision).
The parties agree that, given that finding, it is necessary and appropriate that we exercise the discretion conferred by the National Law to make "protective orders", but disagree about the form of orders. The Commission urges us to cancel Mr Weinzettel's registration, to bar him from seeking review of that order for a period of four years, and, in addition, to make a "prohibition order". Mr Weinzettel, on the other hand, contends that the more appropriate form of order is to suspend his registration for a period of 12 months and to impose a series of conditions on his registration, including that he work under supervision and receive ongoing psychiatric and psychological treatment. Mr Weinzettel opposes the making of a prohibition order.
For the reasons that follow, we have decided to make a cancellation order, to impose a non-review period of 12 months, and to make a prohibition order but not in the form sought by the Commission. These reasons should be read in conjunction with the Decision.

Mr Weinzettel's conduct since the offending conduct

Mr Weinzettel worked as a physiotherapist, apparently without incident, for about 15 years until 12 November 2018 when a report was made to NSW Police that a covert camera had been installed in one of the change rooms of the Clinic. A week later Mr Weinzettel's registration as a physiotherapist was suspended. It remains suspended to this day.
Following his conviction for offences under s 91L(1) of the Crimes Act, Mr Weinzettel was sentenced to 30 months' imprisonment to be served by way of an "intensive correction order". That sentence expires on 20 April 2022.
As a consequence of his conviction, Mr Weinzettel is a "registerable person" under the Child Protection (Offenders Registration) Act 2000 (NSW) and is subject to several reporting requirements, including that he notify the NSW Commissioner of Police of the name of any employer and details of any affiliation with any organisation in which children participate.
Since the suspension of his registration as a physiotherapist Mr Weinzettel has found it difficult to find suitable alternative employment. He has worked in various jobs, including as a labourer. He is currently working as a production supervisor. His income is significantly less than what he's able to earn as a physiotherapist. He is keen to return to return to work as a physiotherapist.

Psychological assessments

In a sentencing assessment report, dated 10 October 2019, tendered in the sentencing proceedings in the NSW Local Court, forensic psychologist Laura O'Neill provided an opinion about the risk of Mr Weinzettel re-offending. Ms O'Neill's opinion was based on a "file review". She did not meet with Mr Weinzettel.
Ms O'Neill assessed Mr Weinzettel using the STATIC 99R, an actuarial tool used to predict recidivism rates among known sex offenders. Ms O'Neill explained that the STATIC 99R is commonly used to assess sexual reoffending and has "moderate predictive accuracy". STATIC 99R assesses a person against 10 static (unchangeable) factors, including the offender's age, relationship with the victim and history of offending. Mr Weinzettel scored 2 from a possible range of between minus 3 to 12. According to Ms O'Neill, this meant that Mr Weinzettel's risk fell in the "average" range.
Ms O'Neill stated that should Mr Weinzettel re-offend, the type of offence is likely to be of a similar type to that for which he has been convicted.
In her report Ms O'Neill noted several factors, which in her opinion were protective against re-offending: 1. the absence of any criminal history; 2. the fact that Mr Weinzettel led a stable and well organised life until the commission of the offences the subject of Complaint 1; 3. Mr Weinzettel's "prosocial attitudes" and "positive skills" in managing his impulses; 4. Mr Weinzettel's expression of remorse, both for his victims and his family; 5. Mr Weinzettel's willingness to engage in treatment recommended by NSW Community Corrections.
Ms O'Neill recommended that if Mr Weinzettel were to receive a community-based sentence that he be further assessed to confirm his current "dynamic risk". In her opinion, Mr Weinzettel requires a supervised order of at least two years' duration to enable him to participate in "offence-specific assessment and intervention".

Opinion of treating psychologist Mr Carlos Camacho

At the request of Mr Weinzettel's solicitors, Mr Weinzettel's treating psychologist, Mr Carlos Camacho, prepared a report dated 1 May 2021. Mr Weinzettel commenced seeing Mr Camacho in March 2019 and has attended 20 treatment sessions.
In Mr Camacho's opinion, throughout the period Mr Weinzettel has been in his care, Mr Weinzettel's condition has improved and with further treatment is likely to continue to improve.
According to Mr Camacho, at the time of the subject offences Mr Weinzettel was suffering from depression. In his opinion, that condition is treatable, and Mr Weinzettel will require cognitive behavioural therapy sessions over the next 36 months; fortnightly for 24 months and monthly for a further 12 months.

Opinion of psychologist Ian Kilpatrick

At the request of Mr Weinzettel's solicitors, in May 2021 psychologist, Mr Ian Kilpatrick, assessed Mr Weinzettel and prepared a report.
Mr Kilpatrick assessed Mr Weinzettel using three tests: Depression Anxiety and Stress Test 42 (DASS 42), Personality Assessment Inventory (PAI) and STATIC-99R.
Mr Kilpatrick found that: 1. measured under the DASS, Mr Weinzettel's results for depression, anxiety and stress were "normal"; 2. assessed under the PAI, Mr Weinzettel's clinical profile is "entirely within normal limits … there are no indications of significant psychopathy"; 3. assessed under STATIC 99R, the risk of Mr Weinzettel re-offending was rated as average.
Mr Kilpatrick noted that Mr Weinzettel admitted making covert recordings of Person A for reasons of sexual gratification. He stated that while Mr Weinzettel denied installing the covert camera in the change rooms of the Clinic in November 2018 for reasons of sexual gratification, he now recognises that his actions were "most inappropriate".
Mr Kilpatrick agreed with Mr Camacho's opinion that Mr Weinzettel's expression of remorse and regret is "profound and genuine".
Mr Kilpatrick considered in his report whether Mr Weinzettel could be said to be a "repeat offender". He noted that the Decision indicates that Mr Weinzettel is already a repeat offender. While he considered Mr Weinzettel's actions in filming a female patient in a bathroom of the Clinic sometime between January 2015 and January 2018 to be "concerning", he noted that this occurred over three years ago, around the same time Mr Weinzettel had been filming Person A in his home.
Mr Kilpatrick stated that by recording people without their consent Mr Weinzettel had transgressed ethical, professional, and legal boundaries. However, he stated that having considered Mr Weinzettel's account and Mr Camacho's opinion he saw no evidence that "clinically as a physiotherapist [Mr Weinzettel] is either incompetent or unethical". Mr Kilpatrick went on to suggest that NCAT might consider giving Mr Weinzettel "limited practice rights" and require that for a period of 12 months he work under supervision and not work in a practice which provides hydrotherapy. He also recommended that work Mr Weinzettel be given limited access to patient bathrooms and change facilities.

Opinion of psychiatrist Dr Pusic

Psychiatrist, Dr Augustus Pusic, assessed Mr Weinzettel at the request of his solicitors.
In a report dated 5 May 2021, Dr Pusic stated that Mr Weinzettel: 1. agreed that the conduct the subject of the Complaint is both improper, immoral and unethical; 2. readily admitted that surreptitiously filming a person without their consent in a place where that person would have had a reasonable expectation of privacy is legally and morally wrong and not in keeping with the standard of conduct required by a registered physiotherapist; 3. had difficulty in explaining his improper behaviour other than to acknowledge that he recorded Person A purely for his own sexual gratification and that at the time he was experiencing some emotional difficulties with his wife following the birth of their third child. Dr Pusic pointed out that when giving that explanation Mr Weinzettel spontaneously volunteered that his emotional state did not in any way justify or explain his "grossly inappropriate behaviour"; 4. expressed remorse and regret; 5. was acutely regretful that his inappropriate behaviour has had a devastating effect on his immediate family; 6. was aware that his conduct would have caused his victims major ongoing distress and was ashamed and regretful.
Dr Pusic stated that he saw no evidence that Mr Weinzettel suffered from any major psychiatric or psychotic disorder or any sexual paraphilia.
Dr Pusic noted that although Mr Weinzettel could not explain his inappropriate behaviour other than to acknowledge that it was for the purpose of sexual gratification, he was willing to explore his motivation and drive. Dr Pusic notes that to this end Mr Weinzettel had undertaken several courses to gain insight and understanding, and to enable him to refrain from such behaviour in the future. In addition, Dr Pusic noted that Mr Weinzettel had established good rapport with his treating psychologist, Mr Camacho.
Dr Pusic recommended that Mr Weinzettel use the following 12 months to gain a better understanding of and receive treatment for his offending behaviour. He recommended "cognitive behaviour psychotherapy, insight oriented psychotherapy as well as pharmacology if necessary".

Proposed orders

The Commission urges the Tribunal: 1. to cancel Mr Weinzettel's registration; 2. to order that Mr Weinzettel be disqualified for a period of four years from seeking review of the cancellation order; 3. to make a prohibition order under s 149C(4) of the National Law, prohibiting Mr Weinzettel from providing any "health service", unless and until Mr Weinzettel's registration is reinstated.
Mr Weinzettel, on the other hand, submits that the more appropriate form of orders would be: 1. to issue a reprimand; 2. to suspend his registration for a period of 12 months; 3. at the end of that period of suspension, to impose several conditions on his registration, including that Mr Weinzettel: 1. practise under "indirect supervision" (Compliance Policy - Supervision, Physiotherapy Council of NSW, March 2016); 2. attend for treatment with a general practitioner, psychologist, and psychiatrist at a frequency to be determined by the practitioner; 3. provide the Physiotherapy Council with evidence that he has completed a "Certificate of Ethics".

What if any disciplinary powers should be exercised?

Where a complaint made under the National Law is admitted or proven, the Tribunal may exercise any of the powers in Subdiv 6, Div 3 of Pt 8 of the National Law. They include the powers to caution, reprimand and to impose conditions on a practitioner's registration. Where, as here, the Tribunal is satisfied that a practitioner is guilty of professional misconduct, it may suspend or cancel the practitioner's registration: s 149C(1) of the National Law.
In exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order."
In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA observed at [20] that, in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83].

Risk of reoffending

Highly relevant to what form of protective orders should be made, is the question of whether there is a risk that Mr Weinzettel will repeat conduct of the type that is the subject of Complaints 1 and 2 (the offending conduct).
We accept, as stated by Dr Pusic, Messrs Kilpatrick and Camacho, that Mr Weinzettel is genuinely remorseful. In addition, we accept that Mr Weinzettel is remorseful not only for the devastating effect that his conduct has had on his family and himself, but also on Person A.
In addition, we find that Mr Weinzettel has followed any treatment recommendations made by his treating practitioners, and since March 2019 has genuinely engaged in therapy sessions provided by Mr Camacho.
Further, we accept that the weight of medical evidence indicates that at the time of the offending conduct, Mr Weinzettel was probably suffering from depression and that condition is now well managed.
Finally, we note the character references provided by five former patients, each of whom are apparently people of good repute. Each hold Mr Weinzettel in high regard and attest to his proficiency and dedication as a physiotherapist. They each state that they are aware of his offending conduct but, nonetheless, believe Mr Weinzettel to be a person of good character and deserving of a second chance.
While favourable to Mr Weinzettel, these considerations do not fully address the question of risk. In Dr Pusic's opinion, Mr Weinzettel is not an untreatable sexual deviant. In Dr Pusic's opinion, his prognosis is positive, pointing to the absence of evidence that Mr Weinzettel suffers from any major psychiatric disorder or sexual paraphilia and that he has demonstrated insight, remorse, and commitment to ongoing treatment. However, Dr Pusic does not state that, currently, Mr Weinzettel does not pose a risk of reoffending. Nor does he state that if Mr Weinzettel were to undertake treatment of the type he recommends for a period of 12 months, at the end of that period, he is unlikely to pose a risk of reoffending. Rather, the effect of Dr Pusic's opinion is that Mr Weinzettel is a good candidate for rehabilitation, but more needs to be done.
In his report, Mr Camacho did not particularise the type of treatment he has been providing Mr Weinzettel. As best as can be made out, it appears designed to treat depression. Given that none of the experts who have assessed Mr Weinzettel, including Mr Camacho, stated that depression was a factor which contributed to Mr Weinzettel's sexual offending, the fact that he has undertaken 20 therapy sessions with Mr Camacho is largely irrelevant to the question of risk.
For reasons unclear, throughout the period he has been subject to an intensive correction order, Corrective Services NSW has not offered Mr Weinzettel the opportunity to engage in sex offender treatment of the type recommended by Ms O'Neill. This is unfortunate given Mr Weinzettel's apparent willingness to engage in any form of recommended treatment.
It is perplexing why Mr Weinzettel, a respected member of the community with no criminal history or history of sexual deviancy, who is apparently happily married, would in his mid-50's covertly record females in various states of undress for reasons of sexual gratification. It may be that the humiliating effect of the criminal proceedings and these disciplinary proceedings, together with the development of insight and remorse, will be sufficient to guard against a repeat of this type of behaviour. However, in our opinion unless and until Mr Weinzettel successfully completes treatment of the type recommended by Dr Pusic and Ms O'Neill, it could not be said that he does not pose a real and material risk of reoffending.
Nor, without the benefit of an assessment conducted by a suitably qualified expert, could it be said that if Mr Weinzettel were to undertake such treatment, that it would be successful. For that reason, we have decided that it would be inappropriate to suspend Mr Weinzettel's registration, as this would permit him to automatically return to practice at the expiration of the period of suspension. We have decided the more appropriate order is to cancel Mr Weinzettel's registration.

Period of disqualification

The Commission seeks an order under s 149C(4)(b) that Mr Weinzettel be disqualified from seeking review of the cancellation order for four years. Mr Weinzettel submits that a four-year disqualification period is unreasonable, arbitrary, and not supported by the evidence.
In Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) Basten JA commented on the purpose of an order under s 149C(4)(b): The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, 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. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make.
Payne JA in Chen at [88] explained: The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order.
On the available evidence it is not possible to make a reliable finding about the likely period Mr Weinzettel would require treatment of the type recommended by Dr Pusic and Ms O'Neill. Dr Pusic did not address that issue in his report. Ms O'Neill refers to a period of two years.
We have decided that it is appropriate that Mr Weinzettel be disqualified from seeking review of the cancellation order for a period of 12 months. First, it is consistent with Dr Pusic's positive prognosis. Second, it takes into account Mr Weinzettel's willingness to engage in treatment and the factors identified by Dr Pusic, Mr Kilpatrick and Mr Camacho considered as favourable to Mr Weinzettel's rehabilitation. Third, it signals to the profession our view about the seriousness of the offending conduct.

Should a "prohibition order" be made?

Where, as here, an order is made to cancel a health practitioner's registration, the Tribunal may make a "prohibition order": s 149C(5): (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order" ) do any one or more of the following-- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
The power to make a prohibition order can only be exercised if we are satisfied that Mr Weinzettel poses a "substantial risk to the health of members of the public" (emphasis added). Therefore, the question posed is whether Mr Weinzettel is likely to pose a real and material risk to the health of the public if he were to be involved in the provision of health services: see, Health Care Complaints Commission v Menz (No. 2) [2017] NSWCATOD 172 at [18]. In answering that question, it is necessary to have regard to the type of risk likely to be posed by Mr Weinzettel, whether he poses a risk to the public at large, and the breadth of the definition of "health services".
Ms O'Neill is the only expert to expressly address the type of risk likely to be posed by Mr Weinzettel. In her view, it is likely to be similar in nature to the offending conduct, i.e. covertly recording women or girls for reasons of sexual gratification.
There is no evidence to suggest that Mr Weinzettel might covertly record men or boys. We are not satisfied that he poses a substantial risk if he were to provide health services to men and boys. For this reason, we have decided to make a prohibition order which prevents Mr Weinzettel from directly or indirectly providing health services to women and girls and being engaged by a provider of health services which directly or indirectly provides health services to women and girls. That order is to remain in place unless and until the cancellation order is lifted.

Costs

Mr Weinzettel properly concedes, that there is no factor which might justify a departure from the "general rule" that he pay the Commission's costs.
We order that Mr Weinzettel pay the Commission's costs, as agreed or assessed.

Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) Mr Weinzettel's registration as a physiotherapist is cancelled. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW) Mr Weinzettel may not apply for review of the cancellation order for a period of 12 months. 3. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW) unless and until his registration as a physiotherapist is reinstated, Mr Weinzettel is prohibited from: 1. providing health services directly or indirectly to women and girls; 2. being engaged by a provider of health services which directly or indirectly provides health services to women and girls. 1. Mr Weinzettel is pay the Commission's costs, as agreed or assessed.

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: 08 September 2021

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)

Cited By (2)