Health Ombudsman v Galloway [2022] QCAT 121

Health Practitioner Regulation National Law (Qld), s 5

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Health Ombudsman v DKM [2021] QCAT 50

Health Ombudsman v Flute [2021] QCAT 189

Health Ombudsman v Franklin [2021] QCAT 186

Health Ombudsman v GCV [2020] QCAT 30;

Medical Board of Australia v Arulanandarajah [2021] VCAT 85

National Nursing and Midwifery Board v Burrows [2020] QCAT 164

• [1] On the 26th of February 2021 the Director of Proceedings on behalf of the Health Ombudsman (the applicant) referred this health service complaint to the Tribunal. The referral contains one allegation relating to the respondent's appearance before Justice Henry on the 21st of October 2020 in the Supreme Court of Queensland in Cairns. He had pleaded guilty on an earlier date to a number of serious criminal offences, namely:

(a) Permitting premises to be used for the commission of a crime (possess dangerous drug cannabis) - on the 4th of January 2020 (count 1);

(b) Two offences of indecent treatment of a child under 16 (exposing a child to an indecent act) on the 5th of January 2020 (counts 2 and 4);

(c) Attempted indecent treatment of a child under 16 (procuring a child to perform an indecent act) on the 5th of January 2020 (count 3).

• [2] In respect of each of counts 2, 3 and 4, the respondent was sentenced to 12 months imprisonment suspended after three months with an operational period of two years. His Honour ordered that those sentences be served concurrently. In respect of count 1, the practitioner was sentenced to three months imprisonment followed by a nine-month probation period with the period of imprisonment to be served concurrently with the earlier terms of imprisonment.
• [3] At all material times the respondent was registered as a paramedic with the Paramedicine Board of Australia (the Board); a health service provider within the meaning of section 8(a)(i) of the Health Ombudsman Act 2013 (Qld) (HO Act); and subject to the registration standards, codes or guidelines approved by the Board as to what constitutes appropriate professional conduct or practice for the paramedicine profession.
• [4] The applicant alleges that the conduct the subject of criminal sanction constitutes professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Qld) (National Law).
• [5] The respondent filed a response to the referral on the 14th of May 2021 in which he admitted the relevant facts relating to the convictions in the Supreme Court and the fact of the convictions themselves.
• [6] He also signed an agreed statement of facts which was filed on the 15th of September 2021. He has not filed any written submissions for the purposes of today's hearing, but he has done the Tribunal the courtesy of appearing in person by telephone and he has informed me that he has read the applicant's submissions and has no comment to make in relation to any aspect of those submissions.

• [7] The respondent was born on the 18th of December 1991. He was 28 years old at the time of the conduct referred to the Tribunal. He was first registered with the Board as a paramedic on the 10th of December 2018. His registration is currently suspended.
• [8] He completed a Bachelor of Nursing/Bachelor of Paramedicine at the Australian Catholic University in 2015. At the time of the relevant conduct, he was employed as a paramedic with the Queensland Ambulance Service (QAS), where he had been employed for approximately four years.
• [9] He was suspended from his employment with QAS effective 16th of January 2020. He resigned from his employment on the 17th of June 2020. He has not been the subject of previous notifications to the Australia Health Practitioner Regulatory Authority (Ahpra). He has no criminal convictions other than those forming the basis of this referral.
• [10] On the 8th of January 2020 the Health Ombudsman received a notification from the Queensland Police Service that the respondent had been charged with a number of offences, including the offences for which he was ultimately convicted on his own pleas of guilty.
• [11] On the 18th of January 2020 the Health Ombudsman notified the respondent of his decision to take immediate registration action and suspend his registration.

• [12] At the time of the offending conduct the respondent was living with his de facto partner (Ms A) and her two young children. On the night of 4 January 2020, Ms A's 13-year-old cousin (MB) and her 14-year-old friend (OG) were babysitting the two young children while the respondent and Ms A went out for the night.
• [13] Before they left, the respondent was aware the two babysitters smoked cannabis at the residence. This is the basis of count 1 on the indictment to which he pleaded guilty.
• [14] The respondent and Ms A returned home to the residence at around 3 or 4 am, and Ms A moved her two children out of their bedroom and into the bedroom where the babysitters were sleeping. The conduct which followed formed the basis of counts 2, 3 and 4 referred to above.
• [15] The respondent and Ms A smoked some cannabis, had a shower together and went to bed naked. One of Ms A's children came into the room. Ms A asked the respondent to put the child back in the other room, which was the same bedroom where MB and OG were sleeping. The respondent took the child to the other room and placed it on the mattress. He was still naked.
• [16] OG woke up and the respondent inquired about how the kids had been. He was, at the time, naked and standing there masturbating. The room was not in full light, but there was peripheral lighting sufficient for it to be obvious and visible what the respondent was doing. OG said the kids had been fine and then turned away. That initial act of masturbating in front of her gave rise to count 2 on the indictment.
• [17] The respondent told OG Ms A was asleep and that she had given him "blue balls". The respondent asked OG for oral sex. That conduct gave rise to count 3 on the indictment.
• [18] OG refused the respondent's request. He repeated the request. The respondent said he would give OG "some buds" in return (a reference to cannabis). OG again refused the respondent's request and asked him to leave.
• [19] The respondent asked OG if he could sit and masturbate. OG did not respond. The respondent sat and masturbated. OG again asked him to leave. The respondent did not leave. The respondent asked OG if she thought that MB would perform oral sex on him and tapped MB's foot to wake her up. She, in fact, already awake and was just pretending that she was asleep. She rolled over and directly saw the respondent naked and still masturbating his erect penis.
• [20] The respondent asked MB, still masturbating, how the kids were, and she turned away. That activity towards MB gave rise to count 4 on the indictment. The respondent then left the room.
• [21] OG and MB left the house immediately. The matter was reported to the police later that day.

• [22] It is accepted that the applicant bears the onus of proving the relevant conduct and that it constitutes profession misconduct to the civil standard as described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
• [23] The fact that the respondent's conduct occurred outside of his professional role as a paramedic is not impediment to a finding by the Tribunal of unprofessional conduct or professional misconduct. Such conduct, particularly that leading to criminal convictions, has been so characterised in numerous previous decisions of the Tribunal (and in other jurisdictions). Examples include: domestic violence offences, assault and grievous bodily harm offences, drug offences and sexual offences of varying degrees of seriousness. In relation to this last category of offences, see Health Ombudsman v GCV [2020] QCAT 30; and Medical Board of Australia v Arulanandarajah [2021] VCAT 85.
• [24] Recently, in Health Ombudsman v Flute [2021] QCAT 189, the Tribunal considered convictions against a registered nurse for entering a dwelling and committing and indictable offence, namely, assault occasioning bodily harm whilst in company, and supplying dangerous drugs. An alleged failure to notify the National Board of those charges was also referred to the Tribunal. Although the convictions were of a different kind in the present matter, the principles discussed by the then Deputy President of the QCAT, his Honour Judge Allen QC, are apposite.
• [25] His Honour said at [21-26]:

None of the conduct the subject of the referral occurred in the course of the respondent carrying out the practice of nursing, except insofar as allegation 2 relates to her failure to fulfil the obligation imposed upon her as a registered health practitioner to notify her professional Board of the relevant event.

The definitions of "unprofessional conduct" and "professional misconduct" in section 5 of the National Law make it clear that such conduct may be constituted by conduct outside the practice of the health profession. Health practitioners enjoy the benefits of registration and the obligations of such registration require them to conduct themselves with propriety, not only in the conduct of their profession, but also in their personal life.

The conduct of the respondent, the subject of allegations 1 and 3, fell well below the standard of conduct expected of members of the nursing profession in their personal life and obviously had the real potential to affect public confidence in the members of the nursing profession. If a member of the profession commits a criminal offence punishable by imprisonment this can reflect adversely on the reputation of the profession and may damage public confidence in it.

The conduct the subject of allegation 1 is completely inconsistent with the obligations of nursing professionals, being members of a caring profession who are expected to help people and who the public reasonably expects to be people that they can trust not to hurt them.

Although the conduct of the respondent in supplying dangerous drugs did not impact directly on patients, it was conduct quite inconsistent with the expectations of the public and other members of the profession that nurses exercise the utmost care in their dealings with drugs, both professionally in the context of the legislation governing prescribed drugs and also by avoiding serious illicit drug offending contrary to the criminal law.

The conduct of the respondent with respect to both allegations 1 and 3 readily fit the terms of the definition of "professional misconduct" in limbs (a) and (c) of that definition in section 5 of the National Law.

• [26] In National Nursing and Midwifery Board v Burrows [2020] QCAT 164, the Tribunal considered a registered nurse's conviction for indecent treatment of a child under 12 (the offence having been committed prior to registration, some 20 years earlier). The practitioner was sentenced to imprisonment for two years suspended after six months. The details of the offence, evidenced from the decision, are that the victim was eight years old, in her own home, the practitioner was visiting the family, it was a single occasion and there was no penetration.
• [27] The Tribunal found the practitioner's conviction constituted professional misconduct.
• [28] The conduct of the respondent here, as he admits, was very serious.
• [29] At the time he was 28 years old. The victims of his offending were children aged 13 and 14 years. They were vulnerable by virtue of their age and the circumstance of staying in the respondent's home. There was a significant power imbalance at play, which was exploited by the respondent. The respondent's conduct involved a serious breach of the children's (and their parents) trust. It had a significant detrimental impact upon them, as clearly seen from Justice Henry's sentencing remarks at page 38 of the hearing brief.
• [30] Whilst there was no actual touching of the victims, as his Honour remarked:

The absence of touching here rather pales in significance, in my view, when considered against the sinister level of your misconduct towards the girls, not merely exposing yourself to them but masturbating yourself, inviting participation and continuing to masturbate yourself when it had to be clear to you that your presence was unwanted. Further to all of this, the offence is not one which had no or only a trivial consequence. The victim impact statements, as I have mentioned, unsurprisingly, confirm your offending has had a significant impact.

• [31] Paramedics are required to treat and care for people of all ages, people inherently vulnerable by virtue of their circumstances. There is a significant level of trust placed in the profession to act in a patient's best interest, and not to exploit that vulnerability.
• [32] The respondent's conduct here is entirely inconsistent with those qualities and ethical standards. It was anathema to a caring profession, and undoubtedly to his professional peers. It was inconsistent with proper practice.
• [33] The drug-related conviction too was quite inconsistent with the expectations of the public, and other members of the profession -that paramedics will avoid inappropriate dealing with drugs, not only in a professional context, but also illicit drugs and associated criminal offending in their personal lifestyle.
• [34] The respondent's conduct had the real potential to adversely affect the good standing and reputation of the profession in the eyes of the public, and the public's trust in the profession. His behaviour cannot be divorced from the professional context.
• [35] The Tribunal finds that the conduct of the respondent as proved constitutes professional misconduct under the limbs (a) and (c) of the National Law definitions.

• [36] As is well established, the purpose of proceedings such as this is to protect and not to punish. The main principle for administering the HO Act, and which underpins the jurisdiction of this Tribunal to sanction health practitioners who have strayed from proper professional behaviour, is that the health and safety of the public are paramount. The appropriate sanction is to be considered at the time of determination and not at the date of conduct.
• [37] In deciding the appropriate sanction in the particular case the Tribunal will considers factors which relevantly arise including, the nature and seriousness of the respondent's conduct, insight and remorse shown by the respondent, the need for specific and general deterrence, evidence of rehabilitation and steps taken by the respondent to prevent reoccurrence of conduct, matters giving context to and/or explanation for the conduct, and other matters including past disciplinary history, police history and character evidence and periods of preclusion and non-practice and delay and effluxion of time and cooperation during the criminal and disciplinary proceedings.
• [38] As set out in the relevant case law, any sanction may serve one or more various purposes including: preventing practitioners who are unfit to practice from practising; securing maintenance of professional standards; assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct or unprofessional conduct will not be tolerated; instilling in practitioners an understanding of the seriousness of their conduct; deterring the respondent from any future departures from the appropriate standards; deterring other members of the profession who might be minded to act in a similar way, and imposing restrictions on a respondent's right to practice so as to ensure that the public is protected.
• [39] I agree with the characterisation of the respondent's conduct by the applicant in submissions. The conduct can be described as egregious.
• [40] The respondent has shown some insight and remorse by cooperating with the criminal investigation and pleading guilty at an early stage. He apologised in writing to the victims and provided some monetary compensation in the sum of $2500 to each of them. The sentencing Judge accepted that he was genuinely remorseful and the risk of reoffending was unlikely. The respondent has participated and cooperated in disciplinary proceedings, by filing a response to the referral, and agreeing to a statement of facts and appearing today in person by telephone.
• [41] However, there is no evidence before the Tribunal demonstrating his reflection on, or insight into, the significance of his criminal conduct in the context of his professional role.
• [42] The significance of deterrence in disciplinary proceedings is not to punish; it is important for a protective purpose. A sanction order serves to emphasise to other members of the profession, or to reassure the public, that certain of conduct is not acceptable. Orders must uphold the standards of the profession and maintain the public's confidence and trust.
• [43] The respondent's conduct here occurred outside his professional practice as a paramedic. However, there are features of that conduct of direct and significant relevance to his fitness and propriety to be a member of the profession.
• [44] In view of the indicators or insight and remorse referred to earlier, this is not a matter primarily focused on the needs of specific deterrence, although the lack of evidence of his present attitude or any future role as a member of the profession is also relevant. Today he has told me that he is training in another area of employment.
• [45] By far the greater purpose of the Tribunals orders in this case will be to maintain public confidence and trust in the profession and uphold its professional standards. The inconsistency of the respondent's conduct, with the qualities, attributes and ethical standards of members of the paramedicine profession must be affirmed in the eyes of the public.
• [46] The respondent's registration has been suspended since the 18th of January 2020. In the circumstances of this matter the applicant fairly acknowledges that this period of time should be taken into account when determining the appropriate sanction.
• [47] The applicant has referred the Tribunal to a number of comparable decisions, noting that there is no directly analogous comparable case. Consistency in sanctions in respect of healthcare providers who engage in profession misconduct by committing offences is important.
• [48] As discussed in the case of Burrows, previous cases of sexual offending by health practitioners against children considered by the Tribunal have resulted in the cancellation of registration (if not already suspended) and disqualification for significant periods.
• [49] In Burrows, the practitioner was reprimanded, his registration cancelled, and he was disqualified from reapplying for a period of four years from the date of order, which recognised that he would, in effect, be seven and a-half years out of practice in total.
• [50] In Burrows, regarding the period of preclusion from practice, the Tribunal noted previous decisions of periods of between eight and 15 years were imposed, but also that those matters involved more serious offending, involved multiple complainants, offending on multiple occasions, and extending to penetration.
• [51] In that case the Tribunal also took into account the offending occurred many years earlier and there had been no sexual offence against a child or any other serious sexual offences since that time.
• [52] Recently in Health Ombudsman v DKM [2021] QCAT 50, serious sexual offences by a doctor against his daughter resulted in the practitioner being indefinitely disqualified from applying for registration. Although that practitioner's offending was more serious than that of the respondent in this matter, the comments made by the Tribunal are of assistance in considering the appropriate orders in this case.
• [53] At [57-58], his Honour Judge Allen QC, the then Deputy President of QCAT, said:

I have considered previous decisions of the Tribunal where professional misconduct constituted by serious sexual offending by nurses, unrelated to the practice of their profession, resulted in sanctions involving lengthy finite periods of preclusion from practice. Those decisions lend support to my assessment that, if a finite period of preclusion was appropriate, a total period of preclusion of at least 10 years, so a further period of at least five years, would be necessary to meet the purposes of sanction in this case.

A finite period of preclusion would be appropriate if the Tribunal concluded that, upon the end of that period, there is a real prospect that the respondent would then be a fit and proper person to practise his profession. On the other hand, an indefinite disqualification is required if the Tribunal concludes that there are no grounds to believe that the respondent may become fit to practise as a medical practitioner.

• [54] Also relevant to the present case are those cases involving healthcare providers that have been convicted of accessing and/or possessing of child pornography. Such cases also concern conduct by practitioners outside of the professional context found to be entirely inconsistent with qualities expected of the relevant health professions.
• [55] In the recent decision of Health Ombudsman v Franklin [2021] QCAT 186, the Tribunal disqualified a registered podiatrist from reapplying for registration for a period of four years (total preclusion from practice of about six years) in relation to one conviction of accessing child pornography material and one of possession of child exploitation material.
• [56] The applicant submits that the appropriate sanction in this matter is that the respondent be reprimanded, his registration cancelled, and that he be disqualified from reapplying for registration for a period of two years. The respondent has not made any contrary submissions.
• [57] I am satisfied here that the serious nature of the criminal conduct, the absence of any current evidence relating to his attitude to his profession, that the respondent is currently unfit to practice, and that cancellation is the appropriate order. This accords with the approach taken by the Tribunal in both Burrows and DKM.
• [58] The protective purposes of the Tribunal's orders, particularly in maintaining public confidence and trust in the profession, and in upholding professional standards requires a period of preclusion from practice.
• [59] I accept the applicant's submission that a finite period of preclusion is appropriate in the circumstances, after which the respondent may apply to the Board for an assessment of his fitness and eligibility to return into practice.
• [60] The orders proposed are proportionate to the respondent's conduct and reflective of the paramount guiding principle. Any less a sanction would have the potential to erode professional standards and diminish public confidence in the paramedicine profession.

• [61] In those circumstances the Tribunal makes the following findings and orders:

(a) Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;

(b) Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;

(c) Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent's registration is cancelled;

(d) Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from reapplying for registration for a period of two years;

(e) Each party will bear their own costs of the proceedings.