Health Ombudsman v Greenland [2022] QCAT 421

• [2] The first charge is alleged to have been constituted by the fact that by not deleting or removing the file from the BitTorrent program, the respondent made it accessible to other BitTorrent users. The second charge relates to the respondent using his computer to access the internet for CEM from a sharing website. He then downloaded images and videos of young girls, primarily between the ages of 12 and 15, but some as young as six to eight. The third charge relates to the respondent's possession of material depicting girls aged five to 14 engaged in sexual activity or in a sexual manner. A small number of the images showed a child being harmed. The majority of the files were between 2017 and 2020.

• [3] In respect of the first charge, the respondent was convicted and ordered to perform 200 hours community service. In respect of the second charge, the respondent was convicted and sentenced to two years imprisonment to be released on giving security by way of recognisance in the sum of $2,000 on condition he be of good behaviour for a period of two years (this was a commonwealth offence). In respect of the third charge, the respondent was convicted and sentenced to two years imprisonment wholly suspended for an operational period of two and a-half years.

• [4] The parties have agreed on a statement of agreed facts and there are no factual issues in dispute and, indeed, the parties are agreed on sanction. Nevertheless, it is necessary for the Tribunal to determine, pursuant to section 107 of the Health Ombudsman Act 2013 (Qld) (HO Act):

(a) whether the respondent has behaved in a way that constitutes either unsatisfactory professional performance or unprofessional conduct or professional misconduct; and > > (b) the appropriate disciplinary sanction.

• [5] The applicant submits, and the respondent has admitted, that the respondent's conduct amounts to professional misconduct pursuant to section 5(a) and (c) of the definition of professional misconduct in the Health Practitioner Regulation National Law (Queensland) (National Law). The characterisation is as well consistent with recent comparable decisions. In Health Ombudsman v Franklin[1] at [12], the Tribunal stated:

"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" ...

• [6] The guiding principles in administering the HO Act is that the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Tribunals have summarised that the disciplinary act may serve one or all of the following purposes:

(a) preventing practitioners who are unfit to practice from practicing; > > (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 professional standards; > > (f) deterring other members of the profession who might act in a similar way; and > > (g) imposing restrictions on the practitioner's right to practice to ensure the public is protected.

(a) insight and remorse are important factors; > > (b) cooperation may be a significant mitigating factor; and

(d) any subsequent rehabilitation by the practitioner may mitigate the sanction.

• [8] The applicant notes that the CEM material was not categorised on the Oliver scale and that the videos and images should be categorised, therefore, on the assumption that they are towards the lower end of the scale. The respondent committed the offences outside work, but his conduct reveals character failings.

• [9] The respondent voluntarily surrendered his registration on or about 10 March 2020. He immediately retired from medical practice. He voluntarily resigned from various professional membership bodies and removed himself as supervising author on a research project.

• [10] The respondent made admissions to the police, therefore, cooperating with the law enforcement side of the prosecution. He pleaded guilty in the criminal proceedings, cooperating with the criminal justice system. In the disciplinary proceedings, he admitted that his behaviour constituted professional misconduct. He has indicated he does not intend to return to practice.

• [11] The respondent has voluntarily undergone regular and continuing treatment from Dr Ian Curtis. Further, he has completed a sexual offender counselling course with Dr Curtis. The headings of and themes of this counselling course are instructive and include:

(a) features of internet offences; > > (b) the myth of the victimless crime; > > (c) the type of offending as an implicit support of an illicit and evil industry; > > (d) the concept and understanding of hazardous "acting out" of emotions in behaviour without processing cognitively first; > > (e) false assumption of private behaviour; > > (f) the protection and parenting of all children as a responsibility of all adults; > > (g) relating to young children and a wife who is hurting emotionally; > > (h) his changing role in the family because of his offending; > > (i) the meeting of needs and being present for loved ones; > > (j) the importance of mature transparency within a marriage; > > (k) understanding the judicial process; > > (l) human growth and family life in the context of relationships; and > > (m) understanding and recognising the important concerns of our society regarding this type of offending.

• [12] These courses, as well as the criminal convictions, will serve to bring home to the respondent the seriousness of his offending and mitigates the need for specific deterrence.

• [13] The respondent made immediate revelations to his family and extended family. He had completed a thesis that documented difficult airway management in anaesthetics. He was well known as a speaker, committee member and published researcher. He resigned from all such positions so his fall from grace was very public.

• [14] Dr Curtis opined that the respondent had long suffered with reactive depression, which predisposed him to episodic depression in the form of major depressive disorder. He was also using alcohol in a maladaptive way over the offending interval. However, his future prognosis is positive.

• [15] He has no previous convictions. He was a widely recognised clinical medical scientist. He took an active role in the SARS influenza epidemic in Hong Kong in 2004. He has references from friends, family and professional colleagues and retains their support.

• [16] The Health Ombudsman v Franklin.[2] The practitioner was a podiatrist aged 25. He did not engage in the disciplinary proceedings but advised QCAT by email that he did not intend to return to practice, and that he had been receiving specialist psychological therapy for two years and had undertaken, as advised by his specialist, courses. It should be noted that there was, apart from his email, there was no evidence of such factors.
• [17] However, he made full admissions to the police. However, he admitted to being aroused by teenage girls and younger and to speaking to people online about rape fantasies. He admitted he was addicted to viewing the offending material. He was diagnosed with a paedophilic disorder. In his case, he was disqualified for four years with his voluntary resignation equating his time away from practice to six years.
• [18] In the Medical Board of Australia v Yu (No 2),[3] the respondent was 35 at the time of the decision. The Tribunal noted his conduct was prolonged and sustained. Some of the CEM was on the Oliver scale of 4, so high range. He had not surrendered registration but had been subjected to onerous conditions since the date of his arrest. He did not cooperate fully at any stage of the criminal investigation, and, in fact, misrepresented the extent of his online illegal behaviour. The Tribunal found that he was disingenuous in an attempt to avoid severe disciplinary sanction. His behaviour demonstrated an addiction to pornography. The Tribunal found there had been no attempt to understand or remedy the motivation for his conduct. The disqualification was for eight years from March 2021 (taking into account the conditions imposed in 2015).
• [19] There are significant matters making those decisions in a worse category than the present and both lack the significant mitigating features and the significant rehabilitation.

• [20] For reasons set out above, the Tribunal orders as follows:
  1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), in respect to allegation 1, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  3. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of five (5) years.
  4. Each party must bear their own costs of the proceedings.

[1] [2021] QCAT 186.

[2] [2021] QCAT 186.

[3] [2021] SACAT 45.