Health Ombudsman v Esposo [2025] QCAT 166

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal 2009 (Qld)

Council for the Regulation of Health Care Professionals v General Dental Council and Fleischmann [2005] EWHC 87 (Admin)

Health Ombudsman v ANP [2022] QCAT 6 Health Ombudsman v Brown [2019] QCAT 218 Health Ombudsman v ICN [2024] QCAT 246 Health Ombudsman v OOD [2021] QCAT 388

Health Ombudsman v Warburton [2025] QCAT 167 Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549

Tineke Harding, Principal Legal Officer of the Office of the Health Ombudsman

• [1] This proceeding is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman ('applicant') against Sarah Regina Esposo ('respondent') who, at the relevant time was a registered psychologist. She was convicted of the offence of misconduct in relation to public office - a public officer doing an act or making an omission in abuse of authority of office pursuant to section 92A(1)(c) of the Criminal Code Act 1899 (Qld) ('Criminal Code').
• [2] The matter was dealt with in the District Court of Queensland at Brisbane on 8 December 2023. At all material times, the respondent was not acting in her capacity as a practising psychologist.

• [3] The respondent's date of birth is 6 January 1982. She first obtained general registration as a psychologist on 12 August 2010 with the Psychology Board of Australia ('Board'). Since the conduct that brought the respondent before this Tribunal and before the District Court of Queensland, the respondent elected not to renew her registration when it was due for renewal on 30 November 2021. As a consequence, her registration lapsed on or about 4 January 2022.
• [4] The respondent commenced employment with the Department of Education on or about 29 November 2010 and was employed as a Principal Statistical Officer at the time of her criminal conduct. As a consequence of that conduct, the respondent was suspended from her employment, with remuneration, on 8 June 2018. On 19 September 2019, her suspension was changed to suspension without remuneration. Subsequently the respondent resigned from her role within the department on 7 May 2024. Notwithstanding her resignation, she was subject to a post-separation disciplinary finding of termination of employment on 11 June 2024.

The conduct that is the subject of the referral

• [5] In this proceeding, the applicant seeks the following findings and orders:

(a) that the respondent has behaved in a way that constitutes professional misconduct;

(b) that the respondent be reprimanded;

(c) that the respondent be disqualified from applying for registration as a psychologist under the Health Practitioner Regulation National Law (Queensland) for a period of six months; and

(d) there be no orders as to costs.

• [6] By reference to the Statement of Agreed Facts, there are really no material factual matters in issue. The real issues to be resolved centre around what findings and orders ought to be made given the agreed factual background. In this regard, it is contended on behalf of the respondent as follows:1

(1) concedes that there ought to be a finding that she has engaged in unprofessional conduct;

(2) submits that her conduct does not warrant a finding of professional misconduct;

(4) submits that no further sanction ought to be imposed;

(5) joins the applicant's submissions that there ought to be no order as to costs.

• [7] On or about 8 December 2023, the respondent was charged with one count of fraud as an employee in relation to the sum of $30,000 or more. That charge levelled against the respondent, was withdrawn by the Director of Public Prosecutions by way of a nolle prosequi. On 8 December 2023, in the District Court of Queensland before his Honour Judge Smith (as he then was), the respondent entered a plea of guilty and was convicted of one count of misconduct in relation to public office pursuant to section 92A(1)(c) of the Criminal Code.
• [8] The respondent was sentenced to three years' imprisonment, wholly suspended with an operational period of three years. The respondent was one of three offenders. In dealing with the respondent, the learned sentencing judge summarised the relevant facts and circumstances as follows:2

The facts of the case are involved, and I read the statement of facts carefully and I have had regard to that. ...you were a public officer employed by the Department of Education. Mr Roland Simons was also employed by the department as a director and employee of the department. He and you were required to disclose your personal interests which might influence the performance of your duties. The offending was primarily committed by Mr

1. Outline of submissions - respondent filed in the Tribunal on 28 February 2025, p 1 ('Respondent's submissions').
2. Reproduced at [22] of the Applicant's submissions filed in the Tribunal on 7 February 2025 ('Applicant's submissions').

Simons... From April of 2015, the Department of Education conducted a review of the School Opinion Survey. At about the same time, a business called School Measures was set up. This involved you and Simons... Ms Kho, the third offender, your sister, was recruited to the business by you and she was the face of the business. There is no doubt that there was an actual conflict of interest here and your involvement and Simons' involvement in this business ought to have been disclosed. Now, from October 2015 until June 2018, Simons engaged primarily in a course of conduct which involved promoting School Measures to various people within and outside the Department of Education... You became aware only from 6 April 2017 that Simons intended to pursue a remunerative contract with the department. You failed to declare your conflict of interest from that date and aided him in his endeavours.

Having said that, your role was very minor, in my opinion... and that is that you had knowledge of the promotion of the business, you were kept informed by [Simons] of the actions undertaken, and your active role was to contribute promotion ideas and produce survey content.

• [9] His Honour went on to say:3

As the Crown submits, you are liable under section 7(1)(c) of the [Criminal] Code. Ms Kho was also a party to this count, as she did not work for the department, but of course she also had the fraud count, which carried a higher maximum. Having said that, your role in the department raises issues of breaches of trust and issues of honesty, but that needs to be balanced against the extra count for Kho and the actual receipt of money. ...The offence carries seven years imprisonment. I agree with the Prosecution the conduct involves a breach of trust and it is crucial that those working for the Government in public office are honest. Ultimately, this is all taxpayers' money we are concerned about and society is adversely affected by this conduct.

• [10] His Honour also went on to say:4

It is a touch and go case, actually, that is really serious because of the statements of principle here. But at the end of the day, I agree that imprisonment is not mandatory, although usual, I would think, because of the mitigating factors stressed by Mr Ryan in oral submissions, your absence of previous convictions, the plea of guilty, your limited role - if it had been more active, if you were a principal, you would be going to jail, no doubt, today for quite some time...

• [11] During the sentencing proceedings, references were tendered which spoke very highly of the respondent and also referred to the fact that her criminal conduct was entirely out of character. In this regard, Dr Neralic a clinical psychologist, prepared a report on 13 November 2023 and made the following observations:5

Significantly around the period of time related to her case, both parents became ill, and died suddenly. First her father entered a nursing home in early 2016, then in December 2016 her mother became severely ill, went into hospital, and remained there until her death a few weeks later.

A few weeks after her mother died her father also died. Sarah said the vigilant care and responsiveness required to support both parents over this period was

5 Reproduced at [6] of the Respondent's Submissions (n 1).

highly stressful, and the grief of both losses in a short period was emotionally overwhelming.

• [12] Later in the report Dr Neralic stated:6

It's also likely that due to both her parents['] deteriorating health, Sarah's high emotional state and the subsequent grief from losing both mother and father within several weeks of each other affected her capacity for clear and rational thinking. Long and unusual states of stress and emotional overwhelm can making (sic) access to higher order thinking difficult and unreliable.

• [13] By way of opinion, Dr Neralic expressed the following views:7

In my opinion, the consequences of coddled parenting and the cultural value of obedience meant Sarah entered and remained throughout her adulthood naïve, and inexperienced in recognising how people with authority can abuse this power. This conditioning meant that she was vulnerable to subjugating her own authority (i.e. to Roland Simons), accept the status quo, and subsequently making it extremely difficult to assert and act on her thoughts and objections.

• [14] In that regard, the respondent had expressed, on a number of occasions, her reservations about the conduct overall and in particular that of Simons.
• [15] In respect of that report, the learned sentencing judge, in part, said:8

... the report from Ms Neralic... shows that you have undergone much counselling and talks about your involvement with that and stresses the relationship with Mr Simons. You blindly trusted him and he seems to have been a pretty manipulative individual, I form the view, and manipulated you as well. And I note that in [Ms Neralic's] opinion, the consequences of your parenting and cultural values had an impact on your blind obedience to Mr Simons, effectively.

• [16] Obviously this highly intelligent and educated woman has been living under the cloud of her criminal conduct since no later than July 2019. Of course her criminal conduct was a matter of her own making. However, having regard to the delays in having her criminal proceedings finalized it is not surprising that the learned sentencing judge saw the issue of delay as a mitigating factor. It should also be observed, though, that the period of delay has provided the opportunity for the respondent to be able to show that she has now rehabilitated herself.

• [17] Turning then to the characterisation of the respondent's conduct. Counsel on behalf of the respondent, at least as far as the Tribunal understands it, is submitting that a finding of unprofessional conduct rather than professional misconduct can be justified on a number of grounds. These include:

(a) the respondent's role in the scheme of things was minor, and she received no personal financial advantage from the scheme;

(b) as observed by Dr Neralic, the offending occurred at a time of considerable stress, and at a time when she was extremely vulnerable to being manipulated by the male co-offender; and

(c) the respondent was a long serving and highly regarded public servant. In this regard, the Tribunal also intends to proceed on the basis that the respondent's conduct was out of character.

• [18] In the written submission filed on behalf of the respondent, it was submitted as follows:9

The gravamen of the respondent's wrongdoing is her failure to disclose her conflict of interest. That being so, the conduct of her superior and mentor is highly relevant, particularly where he was a longstanding public servant who was known, respected, and given authority in the department. The impact on the respondent's decision-making of the fact that Mr Simons was himself not disclosing a conflict of interest - for even more significant activity - cannot be overstated.

The offence of which the respondent was convicted is clearly serious, and it is conceded that cases involving dishonesty provide some guidance. However, the respondent submits that her conduct, involving an omission - the failure to disclose the conflict of interest - was of a somewhat different character to deliberate fraudulent acts found to constitute professional misconduct in other cases.

In characterising her conduct in relation to her professional obligations, the respondent submits that it is also relevant that School Measures was never a scam business. During the criminal proceedings, the survey content developed by the respondent and provided by School Measures to the department in the pilot program was described by the Principal Statistical Officer as "a really effective program that was good value for money".

It is noted that the respondent received no financial benefit from the offending.

In all the circumstances of the case the respondent submits that the finding tribunal ought to be that she has behaved in a way that constitutes unprofessional conduct ...

• [19] While mitigating factors surrounding the respondent's conduct may go directly to any sanction that might be imposed, they do not disturb the objectively true nature and character of the actual conduct involved. While the respondent's role can be properly characterised as minor in the overall scheme of the criminal conduct involved, it was nonetheless serious. This was reflected not only by the actual sentence that was imposed, but also by the reference by his Honour to it being a "touch and go case".10 That is, as far as the sentencing judge was concerned, it would have been open for a period of actual custody, albeit even if for only a short period of time.
• [20] The respondent's conduct not only involved criminality, it also constituted a serious breach of trust as a public servant, not only in respect of her employer, but also in respect of the taxpaying public at large.

10 Transcript of Proceedings, The King v Sarah Regina Esposo (District Court of Queensland, IND 2512/22, Smith J, 8 December 2023) l 41.

• [21] Also, the conduct of the respondent cannot be characterised as a momentary lapse of judgment. Her involvement in the scheme spanned over a lengthy period of time. Although again, her conduct could properly be characterised as being an ongoing failure to declare a conflict of interest, which in turn aided the co-offender Simons to continue his fraudulent activity. On balance, the Tribunal is of the view that the respondent's conduct ought properly to be characterised as professional misconduct. It falls substantially below the standard reasonably expected of a registered health practitioner.

• [22] Turning then to the questions of consequential orders. Both parties recognise the important role general deterrence plays in matters such as this. Given the report of Dr Neralic, it would appear that the rehabilitation of the respondent means that she is a low risk of reoffending. Accordingly, there seems to be little, if any, need for a sanction to send a message of personal deterrence. In this regard, the Tribunal would note that, in any event, if the possibility of an actual term of imprisonment being activated does not act as a deterrent, one might rhetorically ask: "what would?"
• [23] Turning then to the issue of general deterrence. In this regard, it is necessary to bear in mind that the purpose of proceedings such as this is not to repunish the respondent for her conduct. The court system has done that. The overriding concern is the protection of the public. This principle includes that the good standing and reputation of the relevant profession be maintained. The Tribunal agrees that the respondent should be reprimanded. As has been recognised many times, a reprimand is not a trivial penalty and has the potential for serious adverse implications for a professional person. A reprimand would appropriately express the denunciation by the Tribunal of the respondent's conduct. The reprimand will form part of the public record.
• [24] The real issue between the parties in respect of sanction is whether the respondent ought also be subject to a period of disqualification. This proceeding causes the Tribunal to consider the application of the so-called Fleischmann principle articulated in Council for the Regulation of Health Care Professionals v General Dental Council and Fleischmann [2005] EWHC 87 (Admin) ('Fleischmann'). In that case, the High Court (UK) was concerned with a dentist who had been convicted of twelve counts related to inciting the distribution of and possession of child exploitation material. He was sentenced to a community rehabilitation order for three years and ordered to remain on the Sex Offenders Register for five years. In disposing of that matter, Newman J said:11

Since Mr Fleischmann had been sentenced to a Community Rehabilitation Order for a period of three years from December 2003 (with conditions), it followed that, if he was suspended for the maximum period of twelve months, he would be able to resume his practice before he had satisfied his sentence. In the words of Sir Thomas Bingham in Bolton v Law Society (1994) 1 WLR 512, 518 F-G, this would be before he had "... paid his debt to society".

• [25] In Fleischmann, it was also observed:12

11 Council for the Regulation of Health Care Professionals v General Dental Council and Fleischmann

[2005] EWHC 87 (Admin), [52] ('Fleischmann').

I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he's satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with the period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whist serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained.

• [26] The Fleischmann principle has been recognised and applied by this Tribunal in a number of cases. These include Health Ombudsman v OOD [2021] QCAT 388, where it was said that it would be incongruous and inconsistent with important principles of deterrence and maintenance of public confidence in the profession to permit a practitioner to apply for registration while still on parole for serious drug offences. The principle was also discussed in the Health Ombudsman v ANP [2022] QCAT 6, and also in the Health Ombudsman v ICN [2024] QCAT 246 ('ICN'). In ICN it was said:13

I note in this case that there is no issue of parole, but a suspended sentence. However, in my view, whilst where such a sentence is imposed it might perhaps be easier to digress from the general principle, the general principle still has application.

• [27] More recently, the Tribunal considered the application of this principle in the Health Ombudsman v Warburton [2025] QCAT 167 ('Warburton') handed down on 19 March 2025. In that case, the principle was applied, although not in its entirety. The facts of that case are far more serious than those the Tribunal has to deal with in this case. In Warburton, the respondent was convicted of two criminal offences while a registered nurse. She pleaded guilty and was sentenced in respect of one count of attempting to procure grievous bodily harm, being a domestic violence offence, and a second count of attempting to procure a malicious act with intent, again, a domestic violence offence. She was sentenced to five years' imprisonment, to be suspended after serving 16 months, with an operational period of five years.
• [28] The facts could be summarised as follows: The respondent hired and paid two third parties to grievously injure her ex-partner. This was ultimately unsuccessful in causing him any physical harm, due to either the ineptitude or the lack of enthusiasm on the part of the proposed assailants. That said, the circumstances included the respondent giving instructions to those two individuals to have the complainant's penis and tongue cut off, his face burnt with acid, and his spine to be severed with a knife for the purpose of causing paralysis. The instructions also included to break every bone in the ex-partner's body so that he could no longer walk or talk.
• [29] In dealing with the Fleischmann principle, the Judicial Member said:14

There is an important principle that has been discussed during the course of submissions, which goes to the length of time before she should have been allowed to reapply. Where a practitioner has been convicted of a serious criminal offence, ordinarily they will be not be permitted to return to practice unless they have completed their sentence, including the operational period of a suspended sentence, unless there are exceptional circumstances which would

13 Health Ombudsman v ICN [2024] QCAT 246, [20].

14 Health Ombudsman v Warburton [2025] QCAT 167, [18].

provide otherwise. Those cases of exceptional circumstances are few and far between.

• [30] The Judicial Member then went on to say:15

The Tribunal is of the view that, as was stated by the learned sentencing judge, this was very serious behaviour.

It is unfortunate that that serious behaviour has led to the respondent being in the difficult circumstances in which she now finds herself. ...the Tribunal... will disqualify her from applying from a practice for a period of four years.

That mitigates slightly the four years, eight and a half months suggested, but the Tribunal is aware she will have to reapply, she will be confronted with having no recency of practice and there will be other steps that she might have to take.

• [31] As noted, the facts of that case are clearly far more serious than the facts here. It is difficult to imagine conduct so diametrically opposed to the ethical and professional obligations and the public's expectations of a registered nurse.
• [32] On behalf of the respondent, by way of conclusion, it was submitted as follows:16

The respondent respectfully joins the applicant's submission that it would be excessive to impose a further period of disqualification that extends to the end of the operational period of the suspended sentence imposed by the District Court, i.e., a further period, at the date of these submissions, of approximately one year and 9.5 months.

Where the parties differ is that the respondent contends that any period of disqualification would go beyond what is necessary for the protection of the public and would constitute a punitive measure.

(a) the length of time since the offending;

(b) the time she has spent out of practice, a voluntary cessation in recognition of her wrongdoing and the need to address the impact and causes of it;

(c) the requirement to undergo the process of re-applying to the Board, noting that whatever the Tribunal's orders the respondent will not be able to return to practice immediately, and that the Board will be able to impose conditions on [her] registration if it considers these are appropriate;

(d) her rehabilitation, including the psychological intervention she participated in, and which addressed factors that contributed to her offending;

(e) her high degree of insight and remorse.

The respondent also submits that is also relevant that she is a highly qualified practitioner who could, in the future, provide valuable services to the community and that it is her desire to do so.

• [33] Insofar as the issue of general deterrence is concerned, there is some merit in the first three of those matters raised. Indeed, a number of those elements were recognised by the applicant, where it was said:17

The Tribunal may consider it appropriate to digress from the general principle in the particular circumstances of this matter, as to do otherwise and impose a further disqualification period of almost two years, may result in punitive sanction. The particular circumstances are:

(a) the age of the conduct, occurring between 2015 and 2018, with the delay in criminal proceedings progressing over four years;

(b) although the respondent has not been the subject of immediate registration action, she has not worked as a psychologist since her suspension from the department. She then felt she could not work as a psychologist, and decided not to renew her registration, with it lapsing on or about 4 January 2022, prior to the conclusion of the criminal proceedings. In the meantime, she has pursued other interests;

(c) the respondent recognises that she will not meet the [Board's] Recency of Practice Standard and will be required to satisfy certain criteria on any future application for registration;

(d) this period out of practice should not in its entirety, be considered as a de facto suspension for the purpose of determining sanction but is a relevant factor for which some allowance should be made.

Taking all these factors into consideration, the applicant submits that a further disqualification period is required to reflect the seriousness of the conduct and send a message to the respondent, other practitioners and the public that criminal conduct such as this will not be tolerated. The appropriate period of disqualification is six months from the date of the Tribunal's decision.

• [34] It would appear that the "other interests" referred to largely centre around the respondent's voluntary work at a Catholic Church in West End.
• [35] Nearly seven years have elapsed since the execution of the search warrant on the respondent. Nearly six years have elapsed since the respondent was charged on 16 July 2019. Since that date, her employment with her employer has been terminated, and the respondent allowed her registration to lapse since on or about 4 January 2022.
• [36] Without attributing any blame on any of the parties that might have been involved in this matter, the extent of delay in finalising it could only be described as being inordinately lengthy. In Health Ombudsman v Brown [2019] QCAT 218 ('Brown'), the health practitioner was convicted of drug offences and failed to notify the relevant regulator of those offences. At the time of the hearing before the Tribunal, the respondent held a non-practising certificate as a nurse. In Brown, the Tribunal expressed the view that it was not a case where the conduct of the respondent should be regarded as a de facto voluntary suspension of practice, indicative of insight and remorse. The Tribunal, however, went on to say:18

18 Health Ombudsman v Brown [2019] QCAT 218 [30]-[33].

Nevertheless, the conditions placed upon the respondent's registration and his subsequent application for non-practising registration has meant that he has, effectively, been prevented from carrying out his profession as a registered nurse for a period approaching four years.

In accordance with the reasons of the Tribunal in [Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549] at [30], some allowance should be made for that substantial period in which the respondent has been unable to secure work after the conditions were imposed by the Board. That is notwithstanding that the conditions may have been imposed by reason of the Board managing concerns as to a health impairment of the respondent.

Realistically, as a result of his criminal conduct, which bases the referral and finding of professional misconduct, the respondent has been effectively prevented from practising since imposition of conditions on his registration on 27 August 2015. It will be apparent from the Tribunal's reasons that any example to be made of the respondent, for reasons of general deterrence, must be viewed in the context of that fact.

Some allowance should be made for that factor, and that factor does militate against the need for a suspension of registration to meet the protective purposes of sanction. Other relevant factors in considering sanction include that the criminal offending was at the lower range of seriousness of such offences. Certainly at a lower order than other cases referred to the Tribunal, in which suspensions of registration have been ordered, several of which have been referred to by the parties.

• [37] In that case, the Tribunal decided not to impose any further sanction other than a finding of professional misconduct and that the respondent be reprimanded. Unfortunately, in Brown, the Fleischmann principle does not appear to have been raised and was certainly not referred to by his Honour Judge Allen QC. Nevertheless, this Tribunal, as in Brown, considers that the time the respondent has been out of employment as a consequence of her actions, albeit of her own doing, to be a relevant consideration.
• [38] The approach adopted by the applicant could not be said to be an unreasonable one. However, the view of the Tribunal is that it does not give sufficient weight to the exceptional delay in having this matter disposed of, and the other factors affecting the respondent that have occurred during that period of delay.
• [39] At the risk of being repetitive, the timeline concerning the respondent is:

(a) the execution of a search warrant at her home on 7 June 2018;

(b) more than a year passed before she was charged on 16 July 2019, the initial charge of fraud eventually being dropped;

(c) nearly three and a-half years passed before she was dealt with by the District Court on her own plea of guilty in December of 2023; and

(d) some six months later on 27 June 2024, a disciplinary referral was filed in this Tribunal, where it was dealt with almost 11 months later on 23 May 2025.

• [40] In total, nearly six years have elapsed from the time of being charged to the hearing of this proceeding. It is also tolerably clear that the length of time in having all of the proceedings involving her conduct being dealt with, have, at the very least, contributed to her feelings of uncertainty and her mental health issues more generally.
• [41] In this regard, she has attended counselling on no less than 45 occasions with Dr Neralic since July of 2019. It should also be noted that the respondent was suspended without pay on 19 September 2019. As was referred to during the criminal proceedings, delay in having her criminal conduct dealt with in the District Court, not only contributed to a significant impact on her mental health, but also resulted, at least to some extent, to her suffering significant financial loss.
• [42] This is a finely balanced matter. However, having regard to the extreme delays involved, and the other mitigating factors in favour of the respondent, the Tribunal has concluded that to impose a disqualification period which would delay the applicant being eligible to apply for reregistration for a further six months which, for the purposes of sending a message of general deterrence, would result in an excessively punitive outcome.
• [43] It should be noted that the Tribunal endorses the general application of the Fleischmann principle wherever appropriate. It is only the particular facts and circumstances of this case that have resulted in the non-application of that principle and the imposition of a period of disqualification.
• [44] That a period of disqualification has not been imposed still requires the respondent to apply for registration as a psychologist and, even if successful in that application may have conditions imposed on her registration.
• [45] Accordingly, for the reasons given, the findings and orders of the Tribunal are as follows:

Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) ('HO Act'), the respondent has behaved in a way that constitutes professional misconduct.

Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded. There be no orders as to costs.