Health Ombudsman v Franklin [2021] QCAT 186

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100

Craig v Medical Board of South Australia [2001] SASC 169; [2001] 79 SASR 545

Health Ombudsman v Creagh-Scott [2019] QCAT 69

Health Ombudsman v Mak [2019] QCAT 24

Nursing and Midwifery Board of Australia v Buckley [2010] QCAT 392

• [1] This is a referral of a matter against Tyson Bryan-Anthony Franklin (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant seeks a finding that the respondent has behaved in a way that constitutes professional misconduct, and orders for sanction.
• [2] The respondent is 28 years old and was first registered as a podiatrist on 20 February 2017. The conduct the subject of the referral does not relate to conduct during the course of his practice as a podiatrist but, rather, to the commission of criminal offences relating to child exploitation material. The respondent was 25 years of age at the time of the conduct.

• [3] The respondent has not chosen to engage in the proceeding, despite contact from the Office of the Health Ombudsman and their encouragement to do so. He has sent an email to the Tribunal prompted by such contact from the Office of the Health Ombudsman, stating:

To date, I have chosen to remain out of these discussions as I have made my position clear about not returning to my profession in any future, and I hoped this would provide a more speedy outcome.

That being said, I also understand that it may be of use for QCAT to know that since charges were laid and I was formally stepped down from my position as a podiatrist, I've been receiving specialist psychological therapy and I have chosen to continue these for the past two years. I've also undertaken additional therapy, as advised by my specialist, to address and explore the history of my offending.

These sessions have been extremely effective in understanding the origins of why my offending and have helped prevent any future reoffending.

I have chosen to provide this email not to seek a lighter outcome, but to provide some assurance that I have taken it upon myself to receive the help that was required.

I hope this email has been of some use to the hearing.

• [4] On 22 October 2018, in the course of investigating an unrelated matter, police forensically examined the respondent's mobile phone. The respondent's browser history on his mobile phone revealed that he had accessed child pornography material on an image sharing website hosted in Russia known to facilitate the trading of child exploitation material. Between 3 January 2017 and 23 October 2018, the respondent accessed child pornography images on the website on 2211 occasions. The titles of the images accessed by the respondent included ones which were clearly referable to child exploitation material, although they were not capable of grading according to the Oliver scale or any other scale of grading of such material.
• [5] Police located one child exploitation image on the respondent's phone which was characterised as being in category 1 of the Oliver scale. That is the least serious category on such scale.
• [6] On 5 November 2018, police executed a search warrant at the respondent's residence and seized various electronic devices. Those items were analysed and no offensive material was detected. An examination of the respondent's browser history on his phone also revealed that he had conducted numerous searches seeking news articles relating to the investigation and prosecution of offenders who had raped and murdered children and had viewed similarly themed videos on YouTube. The respondent had searched for material relating to sexual relationships between adults and children.
• [7] The respondent was interviewed by police in November 2018 and made very full and frank admissions to accessing child pornography, including and up until the previous evening. He told police that he was attracted to petite females and that attraction "cascaded" to younger girls and led to him searching the website for photographs of underage girls. He would normally screenshot the images he located on the website and subsequently delete them, as he did not want them stored on his phone and knew that he could access them again on the website. He admitted to masturbating to the images and videos depicting child pornography. He admitted to being aroused by teenage girls and younger, and said that his searches for offensive material had progressively become worse and that he was unable to control his urges to view the material. He admitted to speaking to people online and discussing rape fantasy. He said that he knew that he would ultimately be reported to authorities and was now prepared to undertake help. He said that he actively avoided children because of his thoughts. He admitted that he was addicted to viewing the offending material and that he actively viewed child exploitation material. He admitted to rape fantasies in relation to children and other sadistic thoughts.
• [8] The respondent was arrested and charged with offences. On 3 September 2019, in the District Court at Cairns, he pleaded guilty to one count that between 2 January 2017 and 6 November 2018 he accessed material using a carriage service and the material was child pornography material, contrary to section 474.19 of the Criminal Code (Cth) 1995, and one count that between 3 and 6 November 2018 he knowingly possessed child exploitation material, contrary to section 228D of the Criminal Code (Qld) 1899. With respect to the Commonwealth offence, the learned sentencing judge ordered that the respondent be imprisoned for a period of 15 months but released forthwith upon a two year $1,000 good behaviour bond. A conviction was recorded. With respect to the State offence the respondent was released upon entering into a two year $1,000 good behaviour bond and a conviction was not recorded.
• [9] During the course of the sentencing hearing, a report of Dr Nelson, clinical psychologist, dated 2 September 2019, was admitted. Dr Nelson diagnosed a paedophilic disorder, non-exclusive sexual interest in girls only and not of incest only type. Dr Nelson stated that the respondent met the diagnostic criteria of an individual acting on sexual urges involving sexual activity with a prepubescent child or children, or the sexual urges or fantasies causing marked distress or interpersonal difficulty, through the distress his attraction to children caused him, and not due to him offending against others in a direct manner. The respondent did not meet criteria for a personality disorder, such that there was a likelihood that he would become a contact offender against children. Dr Nelson referred to the respondent's then current relationship with a young woman, who was aware of the nature of his offending and paraphilia, and support from the respondent's father and stepmother and sister. Dr Nelson expressed the opinion that the respondent was intelligent enough to seriously address his sexual concerns and rely upon his partner and family members for support. He considered it was not difficult to see the respondent moving past his current dilemma positively, and achieving goals of having a family and being a productive member of the community.
• [10] During the course of his sentencing remarks, the learned sentencing judge stated as follows:

The insight that you have now gained has provided the momentum to engage in treatment and support, and to do so with the support of family who have written about you, your mother and your sister with whom you now live, as well as a partner who knows and accepts your current matters. And it is with all of those support systems that I am confident that you will be able to see the end of these matters and better manage your own desires, if not eliminate them at all possible.

...

And having regard to the medical evidence it seems to me that risk is low, should you continue the intensive and purposeful treatment that you set out to do in the wake of this offending. I also take into account the extent of your contrition. You have pleaded guilty early, and that is taken into account as a mitigating factor, demonstrating a willingness to facilitate the course of justice, evidence of your remorse, and also acceptance of your responsibility. Indeed, it was an acceptance which was immediate and candid when you spoke to the police, giving them full details about your offending, expanding on matters beyond that which could be gleaned from the mere titles of the pornography you accessed.

• [11] As noted earlier, the respondent has recently indicated that he has continued psychological and other treatment since that time, but has placed no evidence before the Tribunal in support of such assertion.

• [12] The criminal offending by the respondent was very serious offending. As the courts have noted on many occasions, the obtaining and possession of child exploitation material is not a victimless crime. Indeed, behind every image lies a child who has been violated to produce such material. The dissemination and viewing of such material repeats such violation of the victim and provides and encourages a market in such images, which has the consequence of the violation of new victims. Criminal conduct of such a type is completely inconsistent with the fundamental obligation of health practitioners to help people, rather than hurt them. It is conduct which meets each limb of the definition of "professional misconduct" in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).
• [13] Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

• [14] The purposes of sanction in this jurisdiction are protective, not punitive. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,[1] the imposition of sanction may serve one or all of the following purposes:

(a) preventing practitioners who are unfit to practise from practising;

(b) securing maintenance of professional standards;

(c) assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;

(d) bringing home to the practitioner the seriousness of their conduct;

(e) deterring the practitioner from any future departures from appropriate standards;

(f) deterring other members of the profession that might be minded to act in a similar way; and

(g) imposing restrictions on the practitioner's right to practise so as to ensure that the public is protected.

• [15] In the circumstances of this case, where the respondent is no longer practising as a podiatrist and has professed an intention not to return to the profession, the principal purposes of sanction are to protect public confidence in the profession by denouncing the respondent's conduct and deterring other members of the health professions that might be minded to act in a similar way, that is, to obtain and possess child exploitation material.
• [16] On 24 November 2018, the respondent advised the Australian Health Practitioner Regulation Agency (AHPRA) that he had been charged with criminal offences and that he would cease practising as a podiatrist until his matter had been finalised. On 11 July 2019 the Podiatry Council of New South Wales, after having received information that the respondent may have returned to work as a podiatrist, suspended the respondent's registration. On 9 December 2019, the New South Wales Health Care Complaints Commission referred the matter to the Office of the Health Ombudsman. On 25 November 2020, the respondent surrendered his podiatry registration.
• [17] The applicant submits, and the Tribunal accepts, that the period of time between 11 July 2019 and this hearing of about two years, during which the respondent was precluded from practice as a podiatrist, should be taken into account in considering the length of any further preclusion of the respondent from practice.
• [18] The respondent's serious professional misconduct requires denunciation by the Tribunal and, pursuant to section 107(3)(a) of the HO Act, the Tribunal reprimands the respondent.
• [19] The applicant contends for orders disqualifying the respondent from applying for re-registration as a health practitioner for a period of five to seven years from the date of the order. The applicant has referred to a number of decisions of this and other tribunals in support of such submission.
• [20] Of most assistance are decisions of this Tribunal concerning matters where nurses' professional misconduct was constituted by criminal offences involving child exploitation material. In each of the matters the nurses had pleaded guilty to criminal offences involving child exploitation material relating to very substantial quantities of images and/or videos, with such offences attracting terms of imprisonment that were either wholly suspended or involved immediate release upon a good behaviour bond, as in the case of the respondent in this matter.
• [21] In Nursing and Midwifery Board of Australia v Buckley,[2] the respondent was reprimanded and disqualified from applying to be re-registered as a nurse for a period of two years, which, taking into account the period prior to hearing during which the respondent had not practised as a nurse as a consequence of being charged with an offence, resulted in a total preclusion period of about four years.
• [22] In Health Ombudsman v Mak,[3] the Tribunal accepted joint submissions of the parties resulting in a disqualification period of three years, which, taking into account the prior period during which the respondent had not practised as a nurse since being suspended as a result of his conduct, resulted in a total preclusion period of more than 10 years.
• [23] In Health Ombudsman v Creagh-Scott,[4] the respondent was disqualified from applying for registration for a period of three years and six months, which, taking into account the period of time since the respondent had surrendered his registration, resulted in a total preclusion period of about seven years.
• [24] The details of the conduct in Buckley are not sufficiently disclosed as to reach any confident comparison as to whether the conduct in that case was equivalent to, or, one way or another, different to that of the respondent in this matter. It does not appear that the decision was informed by the more recent decisions of this and other Tribunals in matters of this type. I am not satisfied that an order with a similar effect to that of Buckley would adequately address the seriousness of this respondent's misconduct.
• [25] In the matter of Mak, the conduct itself was very serious, involving possession of numerous images and videos characterised as category 4 on the Oliver scale. The respondent in that matter was considerably less frank than the respondent in this matter in the course of the investigation and prosecution of the criminal proceedings. The orders made by the Tribunal were in the context of acceptance of a joint position submitted by the parties, in circumstances where the respondent had deposed that he had no intention of returning to nursing or any other healthcare practice.
• [26] In my view, the matter of Creagh-Scott provides more assistance in determining appropriate sanction in this matter. In that matter the respondent had, it seems, made his searches for child pornography during a lesser period of 12 months, as compared to 22 months in the case of this respondent, but the facts upon his criminal sentencing established the extremely disturbing nature of the material he possessed, including sexual penetration and aspects of sadism in relation to young boys, including a baby. That respondent had similarly made full and frank admissions when interviewed by police, had resigned from employment after being charged, surrendered his registration, made early pleas of guilty to the criminal charges and had made extensive and ongoing efforts to obtain treatment and counselling. In those circumstances, the Tribunal found that the agreed position of the parties, resulting in an effective total preclusion period of about seven years, was within an appropriate range in all the circumstances.
• [27] Insofar as those decisions provide some yardsticks towards assessing an appropriate total period of preclusion in this matter, they lead me to the view that a total period of preclusion from practice of about six years is an appropriate order for sanction in this matter.
• [28] Pursuant to section 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a registered health practitioner for a period of four years.
• [29] The applicant also sought an order, pursuant to section 107(4)(b) of the HO Act, prohibiting the respondent from providing any health service until such time as the respondent obtains registration as a podiatrist under the National Law or a corresponding law of a State or Territory of Australia.
• [30] There are often compelling circumstances indicating the necessity for such an order. For example, where a nurse's professional misconduct is of such a nature that the protective purposes of sanction require preclusion from practice not only as a registered nurse but as an unregistered health practitioner, such as an assistant in nursing, for the immediate protection of potential patients, because of the concern that the respondent might repeat the same type of misconduct in the course of their practice that resulted in the finding of professional misconduct and orders for sanction. For example, where the professional misconduct was constituted by the nurse committing criminal offences of a sexual nature or of dishonesty against patients under their care.
• [31] In this case, as earlier mentioned, the most important purposes of sanction are to express the Tribunal's denunciation of such conduct and to protect the reputation of the profession and to deter other health practitioners who might be inclined to engage in similar conduct. In circumstances where the respondent does not seem to present any clear risk of harm to patients who might come under his care and in circumstances where the respondent has professed an intention not to return to his profession, I am not satisfied that there is a sufficient evidential basis for making the order sought by the applicant. In circumstances where sanction should go no further than what is required to meet its protective purpose, I am not satisfied that the Tribunal should make such an order.

• [32] The applicant did not seek any order for costs and, in circumstances where there is no reason to depart from the default position pursuant to section 100 of the _Queensland Civil and Administrative Tribunal Ac_t 2009 (Qld), the Tribunal will order that each party bear their own costs of the proceeding.

[1] [2001] SASC 169; [2001] 79 SASR 545 at 553-555.

[2] [2010] QCAT 392.

[3] [2019] QCAT 24.

[4] [2019] QCAT 69.