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[2020] QCAT 30
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2020-02-12
Mr J
Original judgment source is linked above.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
[1] The Director of Proceedings on behalf of the Health Ombudsman ("the applicant") has referred a health service complaint against GCV[1] ("the respondent") to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) ("HO Act"). The applicant seeks a finding that the respondent has behaved in a way that constitutes professional misconduct and consequent orders for sanction.
[2] The respondent was registered as a registered nurse in November 1994. He is aged 60 years and was aged between 48 and 52 years at the time of the conduct the subject of the referral. He was employed as a registered nurse by a southeast Queensland Hospital and Health Service at such time. The conduct is unrelated to the respondent's employment and practice as a nurse. The practitioner had no criminal history or disciplinary notifications prior to the conduct.
[3] The conduct the subject of the referral is the respondent's commission of serious sexual offences against his step-daughter between June 2007 and September 2011. The respondent's step-daughter was aged 13 to 16 years of age at the time of the offences. The offending conduct was very serious. It involved the respondent touching the victim's breast and vaginal area, digital penetration of her vagina, having the victim lick the respondent's penis and masturbate his penis to the point of ejaculation. The offending was accompanied by threats to the victim that, if she was to tell anyone, it would destroy the family relationship. It was often accompanied by offers of reward or perceived benefit to the victim. Over time the offending became more frequent. The complainant suffered physical health difficulties which made her particularly vulnerable. The offending was a gross violation of the trust owed by a step-parent to a child.
[4] The respondent made admissions when interviewed by police but they were limited, in that the respondent sought to portray the victim as a willing participant in and, on occasions, the instigator of the sexual activity. The respondent did not seek to maintain such a contention when being sentenced for his offences but sought to explain such statements as examples of distorted thinking contributing to his criminal behaviour.
[5] On 22 July 2016, the respondent appeared in the District Court at Ipswich and pleaded guilty to one count of maintaining a sexual relationship with a child under 16 years, six counts of indecent treatment of a child under the age of 16, under care, and one count of sexual assault. All the offences had the circumstance of aggravation that they were domestic violence offences. The respondent was sentenced to four and a half years imprisonment for the maintaining offence with lesser concurrent terms of imprisonment for the other offences and was ordered to be eligible for parole, after serving one third of the head sentence, on 22 January 2018.
[6] A psychologist's report tendered on behalf of the respondent on sentence indicated that respondent had sought psychological treatment for a number of issues related to his sexual offending. The treating psychologist opined that the respondent had demonstrated high levels of remorse and shame and appeared to take responsibility for his offending behaviour. He had demonstrated some insight into his offending behaviour and good motivation to attend treatment to develop further insight and ensure no recidivism. Counsel for the respondent referred to the loss of the respondent's 25 year nursing career and the sentencing judge referred to the respondent's loss of a career in which he appeared to have excelled as "an inevitable consequence" of his offending.
[7] On 14 August 2015, after the respondent was charged with the criminal offences, the Health Ombudsman suspended the respondent's registration by way of immediate registration action and made an interim prohibition order prohibiting the respondent from providing any health service. On 9 February 2016 the respondent surrendered his registration. The respondent has remained subject to the interim prohibition order.
[8] The respondent does not resist a finding that his conduct amounts to professional misconduct. The Tribunal has no hesitation in finding that the grave criminal offending by the respondent constitutes professional misconduct as defined in the third limb of the definition of "professional misconduct" in section 5 of the Health Practitioner Regulation National Law, being "conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession." The Tribunal decides, pursuant to section 107(2)(b)(iii) of the HO Act, that the respondent has behaved in a way that constitutes professional misconduct.
[9] The applicant seeks the following orders by way of sanction:
(a) that the respondent be reprimanded pursuant to section 107(3)(a) of the HO Act;
(b) that the respondent be disqualified from applying for registration as a registered health practitioner for a period of between eight and ten years pursuant to section 107(4)(b) of the HO Act; and
(c) that the respondent be prohibited from proving any health service for a period of between eight and ten years pursuant to section 107(4)(b) of the HO Act.
[10] The applicant relies upon Tribunal decisions of Nursing and Midwifery Board of Australia v FH [2010] QCAT 675 and Nursing and Midwifery Board of Australia v Dibbs [2015] QCAT 241 in submitting that such a lengthy period of preclusion from practice as a registered health practitioner is appropriate in all the circumstances of this case. The applicant further submits that a prohibition order is appropriate, in addition to and for the same length of time as a disqualification period, because the respondent might readily gain employment in an unregistered health profession, for example as an assistant in nursing, without the oversight of a registration body with the associated protective mechanisms in place to assess the respondent's ongoing fitness to practice.
[11] The respondent has placed written statements and submissions before the Tribunal. The respondent points out that he has completed programs to address his offending behaviour and has been assessed as a low risk of reoffending. He states that he is willing to abide by the Health Ombudsman's request of not providing any health service.
[12] The Tribunal has also considered a more recent report from the psychologist who provided a report for the purpose of the criminal sentencing proceedings. She considers the respondent to be a low risk of reoffending.
[13] The extremely serious criminal offending by the respondent constitutes such a gross departure from the standards expected of a member of a caring profession that it compels a finding that the respondent is not currently a fit and proper person to hold registration as a registered nurse. It is likely that the respondent's character is so indelibly marked by his misconduct that he could not ever be regarded as a fit and proper person to practice the profession of nursing. Nevertheless, the applicant does not seek a permanent disqualification and, in circumstances where this matter has been heard on the papers at the request of both parties, it would constitute a denial of procedural fairness to the respondent to make orders of disqualification and prohibition for a longer period than that sought by the applicant. In the event that the respondent was to seek re-registration, no doubt the National Board would carefully consider his fitness to practise at that time.
[14] The cases referred to by the applicant do support a period of disqualification within the range contended for by the applicant. Taking into account the time that has elapsed since those submissions were made, the respondent should be disqualified from applying for registration as a registered health practitioner for a period of nine years.
[15] The Tribunal accepts that there should be a concurrent prohibition from providing any health services as an unregistered health practitioner. Considerations of procedural fairness should again constrain the Tribunal to the length of prohibition contended for by the applicant. The respondent will be prohibited from providing any health service for a period of nine years.
[16] The applicant did not seek any order for costs and that will be reflected in the orders of the Tribunal.
[17] Accordingly, the Tribunal orders as follows:
[1] These reasons have been anonymised to protect the identity of the victim of the respondent's criminal offending, consistently with legislative requirements and the terms of a non-publication order made by the Tribunal on 12 February 2020 pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
Health Ombudsman
GCV [2020] QCAT 30
Nursing and Midwifery Board of Australia v FH [2010] QCAT 675
Nursing and Midwifery Board of Australia v Dibbs [2015] QCAT 241