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[2019] QCAT 397
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2019-12-13
Original judgment source is linked above.
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - OTHER HEALTH CARE PROFESSIONALS - where the respondent was an unregistered health care professional - where the respondent provided a number of services around South East Queensland including therapeutic massage therapies and lymphatic drainage massage - where the applicant instituted disciplinary proceedings against the respondent - where the respondent was convicted on his own plea of guilty of various sexual offences against patients - where the respondent did not engage with the disciplinary proceedings - where there was no dispute that the appropriate order was that the respondent be permanently prohibited from providing any health service - whether there are any restrictions that the Tribunal could impose short of a permanent prohibition that would adequately ameliorate the risk posed by the respondent.
Health Ombudsman Act 2013 (Qld) s 4, s 68, , , , , , ,
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[1] This is a referral by the Director of Proceedings on behalf of the Health Ombudsman ("applicant") of a matter against Philip Roy Newman ("respondent"), pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld)("HO Act"). The applicant refers the matter seeking a prohibition order pursuant to s 113(1) and (4) of the HO Act.
[2] The respondent is a 68 year old former massage therapist. He is not a health practitioner requiring registration under the Health Practitioner Regulation National Law 2009 (Queensland) ("National Law"), but meets the definition of a "health practitioner" as defined by the National Law. During the time of the relevant conduct the respondent worked at various locations in South East Queensland, providing massage therapy and lymphatic drainage massage.
[3] The conduct the subject of the referral occurred in 2009 and 2010, when the respondent was aged 58 to 59 years. The respondent sexually assaulted three female patients by massaging their breasts on the pretence that he was providing legitimate therapeutic massage therapy, specifically lymphatic drainage massage. The respondent's conduct constituted a gross violation of the trust he owed to each vulnerable patient. Each patient suffered emotional harm as a consequence of the respondent's conduct.
[4] The respondent was not charged with criminal offences constituted by his conduct until October 2014. On 1 December 2016 the respondent appeared before the District Court at Maroochydore and entered pleas of guilty to three counts of sexual assault. The respondent was convicted and sentenced to 18 months imprisonment, wholly suspended for an operational period of three years.
[5] The referral was filed in the Tribunal by the applicant on 30 April 2018. On 14 July 2018 the Health Ombudsman imposed an interim prohibition order, pursuant to s 68 of the HO Act, prohibiting the respondent from providing any health service. There is evidence before the Tribunal of efforts on the part of the applicant to secure the engagement of the respondent in the proceedings and that the respondent has indicated that he has no wish to engage in the proceedings.
[6] Despite every opportunity to do so, the respondent has declined to engage in the proceedings and, thus, has not opposed the orders sought by the applicant. Nevertheless, the Tribunal must determine, pursuant to s 113(1) of the HO Act, whether the practitioner poses a serious risk to persons, and if so, whether, pursuant to s 113(4) of the HO Act, a prohibition order should be made.
[7] The term, "serious risk", is not defined in the HO Act or otherwise relevantly statutorily defined. The term, therefore, takes its ordinary meaning in its statutory context. The word "serious" is defined in the Macquarie Dictionary as:
"of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind."
[8] Section 113(2) of the HO Act provides a non-exhaustive list of the types of conduct which may constitute a serious risk, including engaging in a sexual or improper personal relationship with the person.
[9] It is helpful to consider the following criteria:
(a) the nature of the risk;
(b) the likelihood of it eventuating; and
(c) the seriousness of the consequences if the risk eventuates.
[10] The nature of the risk is that the respondent will, in the course of providing massage or other health services, sexually assault patients.
[11] The likelihood of the risk eventuating is high, because the respondent has shown a past propensity to offend against patients when they are in a vulnerable and trusting state, with his conduct relating to several patients and occurring over a substantial period of time. There is no material before the Tribunal to suggest that the respondent has sought to address any underlying issues that may have contributed to his conduct or has developed insight into his conduct. The Tribunal could have no confidence that the respondent no longer has a propensity to place his own sexual gratification over and above the care of his patients, notwithstanding what one would hope would be the salutary deterrent effect of his suspended sentence of imprisonment and the passage of time since the offending conduct.
[12] The seriousness of the consequences, should the risk eventuate, are of course very significant, with commission of serious sexual offences against women likely to cause either emotional harm, physical harm, or both.
[13] Bearing in mind the protective purposes of sanction in this jurisdiction and the paramount guiding consideration of the health and safety of the public,[1] the Tribunal is comfortably satisfied to the applicable standard of proof,[2] that the respondent poses a serious risk to persons within the terms of s 113(1) of the HO Act.
[14] The Tribunal, therefore, has a discretion, pursuant to s 113(4) of the HO Act, to make an order:
(a) prohibiting the respondent, either permanently or for a stated period, from providing any health service, or a stated health service, or;
(b) imposing stated restrictions on the provision of any health service, or a stated health service, by the respondent.
[15] There are no restrictions that would adequately ameliorate the serious risk posed by the respondent. The material does not permit the Tribunal to find that any prohibition of practice should be for a finite period. In all the circumstances, the appropriate order is that there be a permanent prohibition of practice.
[16] The applicant has indicated that he does not seek any order for costs and that should be reflected in the Tribunal's orders.
[17] Accordingly, the Tribunal orders as follows:
- Pursuant to s 113(1) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons.
- Pursuant to s 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision to issue the interim prohibition order on 14 July 2018.
- Pursuant to s 113(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service.
- Each party must bear their own costs of the proceeding.
[1] Health Ombudsman Act 2013 (Qld), s 4.
[2] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
Health Ombudsman
Newman [2019] QCAT 397
(1938) 60 CLR 336