Health Ombudsman v Mukhlif [2025] QCAT 361

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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

Health Care Complaints Commission (NSW) v Torroba [2023] NSWCATOD 109

Medical Board of Australia v Karim (Review and Regulation) (Corrected) [2023] VCAT 171

Nursing and Midwifery Board of Australia v Harris (Review & Regulation) [2023] VCAT 982

Psychologist Board of Australia v Golus [2015] QCAT 12

Christopher Templeton instructed by the Office of the Health Ombudsman

• [1] The respondent is a medical practitioner registered with the Medical Board of Australia ('Board'). He practises primarily as a locum in various regional hospitals around Australia.
• [2] He does not hold any specialist qualifications. His main area of interest is surgical practice. He is 62 years old and is resident in Victoria.
• [3] On 12 October 2022, he commenced employment on a temporary contract as a Principal House Officer with the Central Queensland Hospital and Health Service ('Service') at the Gladstone Hospital ('Hospital'). The contract was terminated by written notice dated 17 February 2023.
• [4] On the 26 June 2024, the Director of Proceedings on behalf of the Health Ombudsman ('applicant') filed a referral which contains three allegations. Allegation 3 is that the respondent contravened section 130(1) of the Health Practitioner Regulation National Law (Queensland) ('National Law') by failing to notify the Board within seven days of the termination of his employment contract on 17 February 2023. The respondent admits this allegation.
• [5] The other two allegations are that during his employment at the Hospital, on various occasions, he engaged in behaviour towards two female registered nurses (anonymised as Persons 1 and 2), which included unwanted sexualised and/or inappropriate physical contact or gestures and/or communications, and which constitutes professional misconduct as defined in section 5 of the National Law. The respondent disputes these allegations, although in relation to Person 2, he says he engaged in inappropriate conduct towards her by kissing the top of her head.
• [6] A contested hearing was held on 26 August 2025. Both nurses gave evidence and were cross-examined by counsel on behalf of the respondent. The respondent gave evidence and was cross-examined by counsel on behalf of the applicant.

• [7] Allegation 1 - sexual harassment:[1]
  1. On various occasions between 12 October 2022 and 26 January 2023, the respondent engaged in behaviour which included sexualised and/or inappropriate physical contact or gestures, and/or communications with [Person 1].

Particulars

1.1 The respondent asked questions of Person 1 including:

(a) Asking her on dates;

(b) Asking her out for dinner;

(c) Asking her what she was doing after work.

1.2 The respondent stood in close physical proximity with Person 1 when it was unnecessary to do so.

1.3 The respondent came into physical contact with Person 1 by:

(d) placing his hands on her shoulders;

(e) placing his hand on her waist.

1.4 On 26 January 2023, while alone in a stock room with Person 1:

(a) the respondent stood in close proximity with her; and

(b) placed his hands near to, but not touching her hips; and

(c) said words to the effect "we are in a closed dark area, how about a kiss".

1.5 The respondent's conduct set out above contravened sections 5.4 and 10.1 of the code of conduct, Good medical practice: a code of conduct for doctors in Australia, dated October 2020.

• [8] Allegation 2 - Sexual harassment:[2]
  1. On various dates between 12 October 2022 and 16 February 202[3] the respondent engaged in behaviour which included sexualised and/or inappropriate physical contact and/or communications with [Person 2].

Particulars

2.1 The respondent asked questions and made comments to Person 2 by:

(a) asking her on dates;

(b) asking her out for coffee;

(c) advised he had seen her with her child at a shopping centre and suggested they go for coffee at the centre;

(d) Said "why do I like you, you're so angelic".

2.2 The respondent stood in close proximity with Person 2, when it was unnecessary to do so.

2.3 The respondent came into physical contact with Person 2 by:

(a) Touching her hair;

(b) Touching her hand.

2.4 On 16 February 2023, entered an office where Person 2 was alone and:

(a) while Person 2 was on the phone, closed the office door;

(b) touched Person 2 and followed her when she attempted to move away;

(c) attempted to kiss her and put his tongue in her mouth;

(d) followed Person 2 out of the office and said words to the effect she was "blushing and red in the face".

2.1 The respondent's conduct set out above contravened sections 5.4 and 10.1 of the code of conduct, Good medical practice: a code of conduct for doctors in Australia, dated October 2020.

• [9] The applicant has the legal responsibility of proving the allegations to the civil standard subject to the application of the sliding scale discussed in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The more serious allegations involving both nurses allege unlawful conduct, and for that reason the Tribunal should apply the higher end of that sliding scale in assessing the evidence and reaching a determination.

• [10] Person 1 is an experienced registered nurse. As at the date of her affidavit,[3] she had worked at the Hospital for seven years. She provided orientation to the respondent when he commenced working at the Hospital although he does not recall that. She says that she became concerned about his conduct about a month after he started working at the Hospital.
• [11] She worked primarily in a department within the Hospital. At times she was required to work closely with the respondent, for example, when managing wounds and discussing dressings etc. She says he asked her things which made her feel uncomfortable e.g., was she happy in her marriage, and made comments such as 'you smell good'. In his affidavit[4] he does not directly address these allegations, rather he denies saying or doing anything with sexual and/or romantic connotations. She says that he asked her to coffee or dinner on a weekly basis. He says he extended invitations regularly to nursing staff to have coffee with him, and he asked them for dining recommendations as he was living alone in a hospital flat and did not intend to cook for himself.
• [12] She says that he often got 'into [her] personal space' when working with her, so close she could smell his breath. She describes him as 'very touchy' and that he would put his hand on her shoulder or on her waist. This would happen a couple of times a week, and she was always having to 'move [herself] away from him'. He would at times touch her shoulders and offer to give her a massage.
• [13] He denies ever knowingly or intentionally standing in such close proximity to anyone. He does recall being counselled by the Director of Medical Services ('DMS'), about his behaviour but he says that related to some interaction that he had with female medical colleagues who never complained. His alleged conduct of invading the personal space of colleagues was certainly one of the issues raised in a "final warning" letter dated 9 February 2023 from the DMS to the respondent.
• [14] Prior to 26 January 2023, Person 1 had not complained formally about the respondent's behaviour towards her. On that day, which was the Australia Day holiday and quiet, she asked the respondent to come to the stock room to check a dressing which she proposed to use on a patient. She wanted his opinion.
• [15] She says that they were standing in the stock room alone, when he said words to the effect of 'we are in a small room, how about a kiss?' As he said this, she says, his hand was near her left hip. He laughed, and she felt uncomfortable and unsafe but tried to laugh it off and immediately left the stock room.
• [16] On this occasion, Person 1 did complain to her "boss", RC, a registered nurse and team leader, who provided an affidavit in which she confirms that Person 1 rang her at home on the afternoon of Australia Day and told her that the respondent had asked her for a kiss but she declined and asked him to leave the clinic. A few days later she advised the DMS of the complaint.[5]
• [17] The respondent denies that he ever asked Person 1 for a kiss. He denies any inappropriate contact towards her.
• [18] Person 2 is also a very experienced registered nurse who has worked at the Hospital for many years. She also worked with the respondent in the clinic. As with Person 1, she says that the respondent repeatedly asked her out for coffee, and stood too close to her and touched her back and hair when this was not necessary for work. He denies this. She describes him as 'creepy'.[6] She clearly understood his conduct to be romantically and/or sexually motivated because she says she repeatedly told him she was happily married.
• [19] On 16 February 2023, she was working in a closed in area in the clinic, stationed at a desk with a computer and phone. On at least three occasions, without any work-related reason, the respondent came into the closed off area and shut the door and sat down opposite where she was working at the desk. She told him to leave on a number of occasions.
• [20] She says he touched her hair and said words to the effect of 'why do I like you. You are so angelic.' He does agree that he was in her office that day. In his affidavit, he agrees that he regularly complimented her for being an excellent nurse, and 'may have said something to the effect of her being an angel or reminding [him] of an angel.'[7]
• [21] Person 2 says that the respondent eventually did leave on that day, but returned about five to ten minutes later while she was on a work-related phone call. She says he again began fiddling with her hair; and then he came around to her side of the desk, touched her hair and face and put his arms around her. She tried to pull away, but he kept 'coming towards [her]'.[8] She was shocked and abruptly ended her phone call.
• [22] She moved to the front of the desk and he was standing over her. He then kissed her mouth using his tongue, trying to get it in her mouth. She kept her mouth closed and felt his saliva on her mouth and chin. She was 'disgusted'.
• [23] In his affidavit, he denies this course of events but states:[9]

On 16 February 2023 I confirm that I kissed Person 2 on the hair on the top of her head. I realised this was wrong and went to leave the office. As I was leaving the office Person 2 said words to the effect of, 'Wait... wait... don't leave...' and she stood up from her chair and followed me to the door. When I turned around Person 2 approached my face and leant in, motioning as though she was going to kiss my mouth.

I stopped Person 2, who did not make contact with my mouth.

• [24] He says he knew it was wrong to kiss her on the top of the head. He said that he was 'excited, emotional and tearful' after hearing just before this incident that his daughter had excelled in a maths exam and he 'wanted to share the good news with someone.'[10]
• [25] The respondent was interviewed by telephone for over an hour by an investigator from the Office of the Health Ombudsman on 13 July 2023. He agreed in cross-examination before the Tribunal that he did not tell the investigators that Person 2 attempted to kiss him on 16 February as he was exiting the office.[11]
• [26] Person 2 says that after the respondent had kissed her, she left the clinic and went out into the corridor. He followed her and commented that she was 'blushing and red in the face.'[12]
• [27] She did not feel safe, so she went to the nurses' station but did not speak to any of the staff there about the incident. She noticed the respondent was nearby again. She then telephoned the person whose call had been interrupted.
• [28] Her unit manager RC came into the nurses' station and Person 2 told her to 'tell Mustafa to leave me alone.'[13] RC told her to come with her to her office. RC says that Person 2 came to see her at her office at about 4:30pm. She was shaking and had tears in her eyes.[14] She told RC that things had got physical between her and the respondent. While they were talking, the respondent came to the office and 'peer[ed] in'.[15]
• [29] Person 2 says that she and RC went to the DMS shortly after and told him what had happened.
• [30] After RC and Person 2 had met with the DMS, RC walked her to her car.
• [31] In an email to the General Manager that evening,[16] RC noted that the respondent attempted to kiss Person 2, whose name RC did not disclose in the email, and that Person 2 did not wish to go into any further details.[17]
• [32] In cross-examination, the respondent confirmed that his employment at the Hospital was terminated by the DMS on 17 February as a result of an incident on 16 February.[18] He agreed that he had been counselled on a number of occasions prior to 17 February by the DMS about his tone of voice with colleagues and patients and his 'body language'. As noted earlier, he had met with the DMS on 8 February who told him to be careful about other people's personal space. Although he now says that he cannot recall receiving the letter from the DMS dated 9 February,[19] he agreed that he understood that at that date he knew he was on a 'final warning' about his behaviour. That letter refers to complaints about 'inappropriate workplace behaviour and inappropriate interpersonal communication'.[20]
• [33] The next day, on 17 February 2023, Person 2 says she drove to work but felt afraid and sat in her car in the carpark. She says Person 1 called out to her, she started crying and she then told Person 1 about the incident the day before. Later that day, another colleague, RG, told Person 2 that it would be best if she go home. Shortly afterwards, while RG and Person 2 were both in the tearoom, the respondent came to the tearoom and was blocked by another nurse from entering. He was wanting to talk to Person 2. Person 2 hid behind RG who told the respondent to go away which he eventually did. RG again escorted Person 2 to her car.

• [34] Both nurses were impressive and credible witnesses. It is correct, as the respondent's counsel submits, that there is not exact conformity in the accounts of the witnesses e.g., Person 2 does not refer to the respondent asking for her. It would be much more suspicious if each witness achieved actual conformity with the accounts of others where the evidence overlaps. It is clear that Person 2 was extremely upset by the events of 16 February as described by her. As a matter of common sense and ordinary experience, it would be expected that people would recall different things.
• [35] Neither of the two experienced nurses deviated from their evidence relating particularly to the most serious aspect of each allegation - the attempted kiss on 26 January and the actual kiss on 16 February. Neither formally complained until (I infer) the respondent's conduct escalated to the attempted or actual physical contact. When they each complained on separate occasions to RC their complaints were consistent with what RC says they told her.
• [36] There is evidence that Person 2 was quite distressed after the incident on 16 February. I am satisfied that this distress was genuine and related to what she says occurred.
• [37] The respondent's counsel accepted (as he must on the evidence) that there was nothing to suggest collusion. Their separate complaints relating to the most serious conduct were contemporaneous and convincing.
• [38] Their respective accounts of the respondent's behaviour shows a consistent course of conduct by him towards each of them, characterised by unwanted advances by way of invitations to coffee or dinner, invading their personal space, and suggestions culminating in the more serious conduct which prompted them both to independently complain about him.
• [39] Mr Templeton also submits that the respondent's conduct in this matter is consistent with the conduct the subject of the Board's decision to caution him and impose conditions on his registration after an investigation prompted by a series of allegations by a registered nurse, who was a colleague when the respondent worked at a hospital in Tasmania in 2015.
• [40] The details of the complaint, the investigation and the decision of the Board are set out in the Hearing Brief.[21]
• [41] It is clear that the nurse complained of conduct characterised as 'sexual harassment' relating to the respondent asking 'her out to dinner and [making] inappropriate comments of a sexual nature despite discouragement from the RN'.[22] It is not clear from the material that these allegations were proved.
• [42] In the investigation report, reference is made to CCTV footage on 12 February 2015 showing three separate occasions where the respondent approached the RN 'and came very close to her or whispered in her ear'.[23]
• [43] As the matter seems to have been resolved by agreement between the parties, I do not intend to treat the evidence about that matter as corroborative of the evidence of the nurses in this case. In my opinion, the evidence is neutral. It is of course very relevant to sanction.
• [44] The respondent was not an impressive witness. He was consistently unwilling to answer direct questions, preferring to engage in long discursive answers which were substantially unresponsive.
• [45] There are a number of features of his evidence that cause me to comfortably prefer the evidence of the nurses where their evidence conflicts with his.
• [46] The first feature relates to his allegation, made for the first time in his trial affidavit, that Person 2 tried to kiss him after he had kissed her on the top of her head. He says he did not tell the investigators about this event because he was then trying to protect Person 2's reputation. At the time of the interview, he must have been well aware that he was in serious trouble with the regulator as a result of the allegations made against him by the two nurses. It defies logic and commonsense that he would then not take the opportunity to tell the truth about what he says occurred on 16 February. Apart from that incident, which Person 2 denies in her second affidavit, there is not a shred of evidence that she had in any way shown a romantic interest in him or encouraged him to think that she might be interested in him rather than the other way around. He did not mention it to the investigators because it did not happen and he has recently fabricated the incident to sully the credit of Person 2.
• [47] The second feature relates to a submission made by Mr Templeton concerning the evidence of various witnesses about the respondent's actions after the incident on 16 February in following and or trying to engage with her. At that time, he was clearly aware that, as from 8 February, he was under a 'final warning' in relation to his conduct. He says he wanted to apologise to her for kissing the top of her head. I reject this evidence. He was clearly afraid that if she complained his work would be in jeopardy. I am satisfied that his attempts to speak to her were a desperate attempt to prevent the DMS acting on the letter dated 9 February.
• [48] I am satisfied to the requisite standard that allegations 1 and 2 are proved. I am satisfied that each and together constitute professional misconduct as defined in section 5 of the National Law. I intend to include the admitted allegation as part of a general finding to that effect in final orders. It is not necessary to make a separate finding of unprofessional conduct in relation to allegation 3.

• [49] The principles relating to the imposition of sanction are well known and need not be repeated. The underlying principle that informs this Tribunal's discretion to impose sanction is 'that the health and safety of the public are paramount'.[24] The purpose of sanction is to protect the public and not to punish the practitioner.
• [50] In this case, the conduct is serious as it involved unwanted conduct and comments of a sexualised nature towards two professional colleagues in the workplace. It clearly impacted adversely on both nurses, especially Person 2 who was fearful of further contact with the respondent after the incident on 16 February.
• [51] The respondent's conduct was apt to distract both experienced and competent nurses from their professional duties, and in that way potentially impact on patient welfare. In busy hospitals, especially in places like the emergency wards and clinics at the Hospital, it is necessary for doctors and nurses to often work closely together for patient welfare. Conduct of the kind proved here is disruptive of these professional relationships, and is prone to bringing the profession into disrepute.
• [52] The disciplinary history of the respondent, albeit dated, is relevant to sanction. Conditions imposed on his registration then did not deter him from engaging in the conduct proved in this case.
• [53] His attitude to these proceedings suggests a complete lack of insight into his behaviour. Specific deterrence therefore is a relevant principle here. General deterrence is also relevant to discourage like behaviour towards colleagues in the workplace.
• [54] The authorities referred to in the applicant's trial submission[25] support the submission made by Mr Templeton that the appropriate disciplinary response is a reprimand, a suspension of practice from nine to twelve months, and conditions relating to mentoring to focus on appropriate behaviour towards colleagues. Mr Nattrass, on behalf of the respondent, fairly concedes that if the primary allegations were proved a period of suspension is appropriate, but for a shorter period of three to four months. His submission is based on his contention that Nursing and Midwifery Board of Australia v Harris (Review and Regulation) [2023] VCAT 982 is a more serious case than this one.
• [55] Mr Harris was an enrolled nurse who engaged in conduct described by the Tribunal:[26]

...that he sexually harassed four colleagues by touching three [female] colleagues on the bottom, poking and tickling two colleagues and messaging three colleagues in language which was suggestive, overtly familiar and intimate. In each case the conduct was uninvited, unwelcome and made the colleagues feel uncomfortable...

• [56] He was suspended for eight months. The argument is that it is a more serious case because it involved four (as opposed to two) colleagues of the respondent. It is a very relevant comparable; however, it can be distinguished from this case on the basis that the practitioner did not contest the allegations or the characterisation of the conduct or sanction, he co-operated with the regulator in filing a comprehensive statement of agreed facts and determinations, and did not give evidence in what was an uncontested hearing. None of his colleagues were required to give evidence. He did not have any prior relevant disciplinary history.
• [57] Accordingly, the findings and orders of the Tribunal are as follows:
  1. Pursuant to s 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct.

1. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
2. Pursuant to s 107(3)(d) of the HO Act, the respondent's registration is suspended for a period of nine (9) months to commence on a date that is 30 days from the date of the Tribunal's order.
3. Pursuant to s 107(3)(b) of the HO Act, the following conditions are imposed on the respondent's registration ('Conditions'):
   • 4.1 On the resumption of practise, the respondent must be mentored by an approved mentor, focusing on appropriate behaviour towards colleagues, on at least a monthly basis for 12 months, with each session being 1 hour in duration.
   • 4.2 The respondent must:
     • 4.2.1 Comply with the Ahpra Protocol: Mentoring in force at the date these Conditions are imposed and then as updated from time to time.
     • 4.2.2 Complete the mentoring within 12 months from his return to practice.
   • 4.3 The review period for the Conditions is 12 months from the respondent's resumption of practise.
4. Part 7, Division 11, Subdivision 2 of the National Law applies to the conditions imposed by the Tribunal.
5. There be no order as to costs.

[1] Application or referral - disciplinary proceeding, filed in the Tribunal 26 June 2024, Annexure to Part C, 3 [1].

[3] Affidavit of Person 1, affirmed on 4 October 2024 ('Affidavit of Person 1').

[4] Affidavit of Mostafa Ali Mukhlif, affirmed on 25 November 2024 ('Respondent's Affidavit').

[5] Hearing Brief, filed in the Tribunal 4 March 2025, 28 ('HB').

[6] Affidavit of Person 2, affirmed on 2 October 2024, [5] ('Person 2's Affidavit').

[7] Respondent's Affidavit (n 4) 5 [40].

[8] Person 2's Affidavit (n 6) 3 [17].

[9] Respondent's Affidavit (n 4) 5 [42].

[11] Transcript of Proceedings, Health Ombudsman v Mostafa Ali Mukhlif (Queensland Civil and Administrative Tribunal, OCR152-24, Judicial Member Robertson, 26 August 2025) 1-49 l 46 ('Transcript of Hearing').

[12] Person 2's Affidavit (n 6) 3 [19].

[14] Affidavit of RC, affirmed on 2 October 2024, 2 [9].

[18] Transcript of Hearing (n 11) 1-40 ll 3-7.

[19] Affidavit of JT, affirmed on 3 October 2024, exhibit JT5.

[24] Health Ombudsman Act 2013 (Qld) s 4.

[25] Medical Board of Australia v Karim (Review and Regulation) (Corrected) [2023] VCAT 171; Nursing and Midwifery Board of Australia v Harris (Review & Regulation) [2023] VCAT 982 ('Harris'); Health Care Complaints Commission (NSW) v Torroba [2023] NSWCATOD 109; Psychologist Board of Australia v Golus [2015] QCAT 12.