Health Ombudsman v Harirchian [2021] QCA 141

SUPREME COURT OF QUEENSLAND

CITATION: Health Ombudsman v Harirchian [2021] QCA 141

PARTIES: HEALTH OMBUDSMAN / (applicant) / v / RAMIN HARIRCHIAN / (respondent)

FILE NO/S: Appeal No 498 of 2021 / QCAT No 149 of 2020

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT: Queensland Civil and Administrative Tribunal at Brisbane – [2020] QCAT 414 (McGill SC Judicial Member)

DELIVERED ON: 29 June 2021

DELIVERED AT: Brisbane

HEARING DATE: 21 April 2021

JUDGES: Sofronoff P and McMurdo JA and Ryan J

ORDERS: Leave to appeal is granted.The appeal is allowed.The orders made in the Queensland Civil and Administrative Tribunal on 1 December 2020 are set aside.The registration of the respondent is suspended forthwith.The respondent pay the applicant’s costs of and incidental to the application and the appeal on a standard basis.

CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC – where the respondent was a registered general practitioner – where the respondent was convicted by jury trial on one charge of sexual assault of a female patient who attended his practice – where the respondent was sentenced to eight months imprisonment to be suspended after serving three months, for an operational period of two years – where the Health Ombudsman imposed conditions on the respondent’s practice preventing him from treating female patients and limiting the locations he could practice – where the respondent continues to deny guilt of the offending – where the Health Ombudsman took ‘immediate registration action’ to suspend the respondent’s registration ‘in the public interest’ under s 58(1)(d) of the Health Ombudsman Act 2013 (Qld) – where the respondent applied to QCAT for a review of the decision to suspend registration – where the Judicial Member ordered not to suspend the respondent’s registration but maintained the imposition of conditions prohibiting the respondent from having contact with female patients and required the presence of a chaperone in other circumstances – where the applicant sought leave to appeal QCAT’s decision – where the applicant submits that the Judicial Member incorrectly interpreted the words ‘in the public interest’ under s 58(1)(d) of the Health Ombudsman Act 2013 (Qld) – where the applicant submits the Judicial Member erred in the application of the public interest test used in s 58(1)(d) of the Health Ombudsman Act 2013 (Qld) by incorporating an irrelevant consideration – whether the Judicial Member’s reasoning as to the construction and application of s 58(1)(d) of the Health Ombudsman Act 2013 (Qld) in the decision below was infected by error / Health Ombudsman Act 2013 (Qld), s 58 / Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40, cited / Craig v Medical Board of South Australia (2001) 79 SASR 545; [2001] SASC 169, cited / Medical Board of Australia v Leow [2019] VSC 532, cited / New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20, cited

COUNSEL: I Freckelton QC for the applicant / M J Copley QC, with J R Jones, for the respondent

SOLICITORS: Clayton Utz Lawyers for the applicant / Avant Law for the respondent

1. THE COURT: The respondent obtained his medical qualifications in Iran in 1992. He has been registered in Australia since 2008 and obtained his vocational registration with the Royal Australian College of General Practitioners in 2011.

2. In October 2018 a woman attended his practice for treatment. After she entered the respondent’s consulting room he made a number of sexual comments and then, after her pants had been taken down,¹ the respondent touched his patient on the labia and clitoris. After touching his patient in that way, the respondent made another sexual remark and placed his fingers in his mouth and said he wanted to lick her and that he was hard. The woman moved away from him.

3. As a consequence, the respondent was charged with one charge of sexual assault and pleaded not guilty. A jury returned a verdict of guilty on 6 December 2019. Smith DCJ sentenced the respondent to eight months imprisonment to be suspended after he had served three months, the suspension to be operative for two years.

4. The respondent appealed against his conviction but then abandoned his appeal. However, he continues to deny his guilt.

5. Immediately after the respondent was charged, the Health Ombudsman imposed conditions on his practice which prevented him from treating female patients and which limited the locations where he could practice. After the respondent’s release from prison on 26 February 2020, the Health Ombudsman wrote to the respondent to say that he was considering suspending the respondent’s registration in the public interest. On 1 May 2020, after considering the respondent’s submissions, the Ombudsman suspended the respondent’s registration under s 58(1)(d) of the Health Ombudsman Act 2013 (Qld). On 28 May 2020, the respondent applied to QCAT for a review of the decision to suspend his registration. After some delays which were not the fault of the parties, on 1 December 2020 Judicial Member McGill SC decided not to suspend the respondent’s registration but, instead, to impose conditions which prohibited the respondent from having contact with female patients and which required the presence of a chaperone in other circumstances in which he might be in the company of females during the course of his practice. The Health Ombudsman now seeks leave to appeal against this decision.

6. The applicant submitted that Judicial Member McGill incorrectly interpreted the words “in the public interest” in s 58(1)(d) of the Health Ombudsman Act 2013 (Qld).

7. Section 3(1) of the Act sets out its main objects:

“(1) The main objects of this Act are—

(a)to protect the health and safety of the public; and

(b)to promote—

(i)professional, safe and competent practice by health practitioners; and

(ii)high standards of service delivery by health service organisations; and

(c)to maintain public confidence in the management of complaints and other matters relating to the provision of health services.”

8. Section 4 provides as follows:

“4. Paramount guiding principle

(1)the main principle for administering this Act is that the health and safety of the public are paramount.

(2)Without limiting subsection (1), the health and safety of the public is the main consideration for–the health ombudsman, when deciding what relevant action to take to deal with a complaint or other matter; andthe director of proceedings, when deciding whether to refer a matter to QCAT; andQCAT, when deciding a matter referred to it under this Act.”

9. Part 2 of the Act establishes the office of Health Ombudsman.² The functions of the Health Ombudsman include identifying and dealing with health service issues by undertaking investigations, enquiries and other relevant actions.³ Part 7 of the Act confers discretionary powers on the Health Ombudsman to take “immediate registration action” in certain circumstances. Such action is defined to include the suspension of a practitioner’s registration or the imposition of conditions upon registration.⁴ Section 58 is central to this proceeding because it specifies the conditions which must exist for the discretion to be engaged:

“58 Power to take immediate registration action

(1)The health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if—

(a)the health ombudsman reasonably believes that—

(i)because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and

(ii)it is necessary to take the action to protect public health or safety; or

(b)the health ombudsman reasonably believes the practitioner’s registration was improperly obtained because the practitioner or someone else gave a National Board information or a document that was false or misleading in a material particular; or

(c)the practitioner’s registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction under the National Law; or

(d)the health ombudsman reasonably believes the action is otherwise in the public interest.

Example of when action may be taken in the public interest—

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate registration action is required to be taken to maintain public confidence in the provision of services by health practitioners.

(2)The health ombudsman may take the action at any time, whether or not a complaint has been made in relation to the registered health practitioner.

Note—

The National Law, section 205 provides for the relevant National Board to give effect to the health ombudsman’s decision.”

10. The action which the Health Ombudsman took in relation to the respondent was to suspend his registration pursuant to s 58(1)(d). The discretion arises if the Health Ombudsman “reasonably believes” that a suspension “is otherwise in the public interest”. The word “otherwise” signifies that the Health Ombudsman reasonably believes that the action is required in the public interest for reasons other than those specified in s 58(1)(a), (b) and (c). Apart from subsections 58(1)(b) and (c), which relate to issues to do with the status of the registration itself, s 58(1)(d) contemplates that it may be in the public interest to suspend a practitioner’s registration notwithstanding that he or she does not pose “a serious risk to persons” and although there is no need to take action to “protect public health or safety”. The paradigm example is contained in the note to that subsection which is quoted above. It follows that it is a fortiori that it may be appropriate to suspend registration in order to maintain public confidence in the provision of health services if a health practitioner has actually been convicted of a serious criminal offence.

11. It is necessary to bear firmly in mind that the powers conferred under Part 7 of the Act are disciplinary powers and not punitive powers. The powers are conferred entirely for protective purposes and not in order to punish a practitioner for wrongdoing. It is for this reason that, although the proper exercise of a power may in fact involve a great deprivation to the person disciplined, there is no element of punishment involved.⁵ Sometimes the public interest will require the making of an order which has a severely adverse effect on a practitioner which is greater than might be warranted if punishment alone were the relevant consideration.⁶ That is not to say that the protection of the public interest might not justify an order suspending a practitioner’s registration in order to bring home to the practitioner the seriousness of the practitioner’s departure from professional standards and to deter the practitioner from any further departure. Such an order might also be made to emphasise to other members of the profession, and to reassure the public, that a certain type of conduct is not acceptable professional conduct. Such orders are still not a punishment; they are made to serve the public interest in a particular way.

12. The exercise of a power of suspension when a practitioner has committed a particular kind of offence is in the public interest if it both protects the profession against further misconduct and also demonstrates to the profession and to the public that the profession does not allow or tolerate such conduct.⁷

“It was submitted that the views of the referees should be accorded little weight, on the basis that public interest and public confidence are matters of broad judgment and impression, and that the public are entitled to trust doctors not to use them for sexual pleasure. That the applicant can produce female patients who continue to trust him as their doctor despite knowledge of his conviction is to some extent inconsistent with the respondent’s argument. It is not obvious to me why considerations of public interest should be assessed by reference to the supposed views of the great mass of the public, who are never going to consult the applicant anyway, but the views of those whose confidence in him has not been shaken by his conviction, and want to return to him, should be disregarded.”

14. In our respectful opinion this reasoning was erroneous. The fact that some of the respondent’s patients continue to trust him despite his commission of the offence was, as the applicant correctly submitted below, of little weight. The question is not whether the respondent had some patients who were willing to give him a reference; it was whether the public interest required a suspension of the practitioner’s registration pending a determination of disciplinary proceedings. The public interest is not to be measured by the opinions of a handful of patients although those opinions are relevant to the decision. The ability of the respondent to produce such character witnesses was not inconsistent with the applicant’s submission that a suspension was required in the public interest. Nor is the public interest to be equated with “the supposed views of the great mass of the public”. The public interest is, as the applicant submitted, a matter for broad judgment having regard to the nature of the profession of medicine, the demands and opportunities it presents for misconduct. The matters that may be relevant to a consideration of the demands of the public’s interest in the ethical practice of medicine are potentially unlimited and the matters that will be relevant in a particular case will depend on the circumstances of that case.

15. In the course of his reasoning Judicial Member McGill also said:

“The respondent was also critical of the notion that allowing the applicant to continue to practice would assist in his rehabilitation; but remaining in employment has always been regarded as improving prospects of rehabilitation in the context of criminal sentencing. To destroy the livelihood of a man who has been sentenced to a term of imprisonment, and has served his sentence, strikes me as more of a punitive measure than a protective one. Like so much of the respondent’s submissions, this was infused with hyperbole.”

16. We have already set out the law as established by the High Court concerning the lack of any punitive element in the discipline of medical practitioners. No assistance can be gained from a consideration of what happens when a judge sentences a criminal offender. Nor is it relevant that the respondent has served his sentence for the offence. It was erroneous to consider that the respondent’s refusal to admit his offending was immaterial because “in the context of the criminal law a failure [to admit committing an offence] has never been regarded as an aggravating circumstance”.⁸ A refusal to admit proven wrongdoing is not “the absence of a mitigating factor”. Mitigation is irrelevant because punishment is not under consideration. In disciplinary proceedings the failure of a practitioner to admit proven wrongdoing may constitute an extremely significant fact if it shows the practitioner’s lack of the insight that is necessary for the practitioner to be regarded as a fit and proper person to continue in practice.

17. In our respectful opinion, the decision of the Tribunal was infected by error.

18. The provisions of Part 7 of the Act constitute an important part of a law which was enacted, in part, to maintain public confidence in the medical profession. For this reason, it is important that errors in principle in the application of that law should be corrected. It is in the public interest that leave to appeal should be granted. The appeal should be allowed and the decision should be set aside.

19. It is necessary to consider whether this Court should substitute its own decision and return the matter to the Tribunal for reconsideration.⁹ Because the matter should not be delayed further the Court ought to re-exercise the function of the Tribunal.

20. The practitioner’s conduct in this case was of a most serious kind because his misconduct constituted a serious criminal offence of which he was convicted and sentenced to imprisonment. It is relevant that the offence involved a physical assault of a sexual nature and, therefore, also a gross violation of the patient’s trust and grave breach of the standards expected of medical practitioners. It may be accepted that, as a purely tactical measure, female patients can be protected against risk of any future similar assaults by means of the imposition of conditions. However, the present is not a case in which the safety of patients is the only concern or, having regard to the deterrent sentence that has been served, the main concern. It is a case that is concerned with public confidence being maintained in the integrity of the profession and in the manner in which the profession is regulated. We regard it as of the greatest significance that the applicant has refused to accept that he has been guilty of wrongdoing. Not only was his criminal conduct of a kind that can shake the confidence of the public in the medical profession, but the respondent’s failure to accept responsibility for his behaviour implies a real lack of understanding on his part concerning the demands made upon him as a medical professional. In our respectful opinion this was a case in which the Health Ombudsman was right to conclude that it was necessary to suspend the respondent’s registration in order to reassure the public and the profession that the regulatory system was adequate and alert to protect the public confidence.

Leave to appeal is granted.

The appeal is allowed.

The orders made in the Queensland Civil and Administrative Tribunal on 1 December 2020 are set aside.

The registration of the respondent is suspended forthwith.¹¹

The respondent pay the applicant’s costs of and incidental to the application and the appeal on a standard basis.

Footnotes

1. There was no finding as to how the pants came to be pulled down. ↩

2. Section 24. ↩

3. Section 25(b). ↩

4. Section 57. ↩

5. Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. ↩

6. Craig v Medical Board of South Australia (2001) 79 SASR 545 at [43] per Doyle CJ. ↩

7. Craig v Medical Board of South Australia (2001) 79 SASR 545 at [47] per Doyle CJ. ↩

8. Reasons at [23]. ↩

9. Section 153(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009. ↩

10. cf Medical Board of Australia v Leow [2019] VSC 532 at [81] per Niall JA. ↩

11. Pursuant to s 62(2) a suspension of this kind continues to have effect until the Health Ombudsman revokes the suspension. ↩