Health Ombudsman v Rochford [2025] QCAT 368

Health Practitioner Regulation National Law (Queensland) ss 5, 130

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 9, 10

Chinese Medicine Board of Australia v Lui (Review and Regulation) [2024] VCAT 1108

Council for the Regulation of Health Care Professionals v General Dental Council and Fleischmann [2005] EWHC 87

Health Ombudsman v Choi [2022] QCAT 268

Health Ombudsman v Esposo [2025] QCAT 166

Health Ombudsman v Gebusion [2021] QCAT 102

Health Ombudsman v Harirchian [2022] QCAT 143

Health Ombudsman v Hoddle [2022] QCAT 142

Health Ombudsman v McManus [2025] QCAT 160

Health Ombudsman v Than [2023] QCAT 478

Health Ombudsman v Vu [2021] QCAT 240

Health Ombudsman v Warburton [2025] QCAT 167

Nursing and Midwifery Board of Australia v Easdon [2024] VCAT 321

Physiotherapy Board of Australia v Espedido (No 2) (Review and Regulation) [2023] VCAT 1056

• [1] The Director of Proceedings on behalf of the Health Ombudsman ('applicant') refers Bernard Michael Rochford ('respondent') to the Tribunal pursuant to section 103(1)(4) of the Health Ombudsman Act 2013 (Qld) ('HO Act'), having received notifications from two of the respondent's patients - who will be referred to as Patient A and Patient B - relating to complaints of sexual assault.
• [2] The respondent was first granted registration by the Osteopathy Board of Australia on 8 January 2009.[1]
• [3] On 23 August 2021, the Office of the Health Ombudsman ('OHO') issued the respondent with a notice of immediate registration action following the receipt of information that the respondent had been charged with two counts of sexual assault.[2]
• [4] On 24 August 2021, the respondent notified Ahpra of the sexual assault charges in accordance with section 130 of the Health Practitioner Regulation National Law (Queensland) ('National Law').[3]
• [5] On 27 August 2021, the OHO imposed several conditions on the respondent's registration, including a prohibition on him having any contact with his female patients.[4]
• [6] On 13 November 2023, the respondent pleaded guilty to both sexual assault charges.[5]
• [7] On 28 November 2023, the respondent surrendered his registration as an osteopath.[6]
• [8] On 19 January 2024, the respondent was convicted of the charges and sentenced:

(a) in respect of Patient A, to 15 months imprisonment, wholly suspended with an operational period of three years; and

(b) in respect of Patient B, to perform 200 hours of unpaid community service within 12 months, and was ordered to pay Patient A and Patient B $2000 each in compensation after he volunteered to pay them during the sentencing process. These amounts were paid immediately.

• [9] The Statement of Agreed Facts has been signed by both parties, and accordingly there are no issues in dispute in respect of the allegations.

• [10] The HO Act is an enabling Act for the purposes of section 9(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). The Tribunal hears this matter in its original jurisdiction pursuant to sections 9(2)(a) and 10(1)(b) of the QCAT Act. The Tribunal notes that pursuant to section 4(1) of the HO Act, the paramount guiding principle regarding the administration of the HO Act is that the health and safety of the public are paramount.

• [11] The applicant submits that the respondent's conduct should be properly characterised as professional misconduct. This is not disputed by the respondent. The Tribunal accepts that the conduct meets the definition of professional misconduct contained in section 5 of the National Law. In doing so, the Tribunal accepts the applicant's submission that the respondent's conduct was a serious departure from the professional standards expected of a health practitioner, and that it constitutes a breach of the following standards and provisions of the Ahpra Code of Conduct Principles:[7]
  1. relationships based on openness, trust and good communication...;
  2. practitioners must always act in accordance with the law;
  3. practitioners have a duty to make the care of patients or clients their first concern and to practice safely and effectively. They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion;
  4. maintaining professional boundaries;
  5. as a practitioner, it is important to maintain health and well-being. This includes seeking an appropriate work-life balance; and
  6. recognising the impacts of fatigue on practitioner health and ability to care for patients or clients.
• [12] The respondent accepts that he should be reprimanded in respect of the conduct but does not agree that he should be disqualified from applying for registration as an osteopath for a period of 36 months from the date of the order. Having regard to the comparable cases which the respondent provided, the respondent submits that a disqualification period of between 9 to 15 months, having regard to the period out of practice, would be reasonable in the circumstances. The respondent submits that a disqualification period of 36 months, as sought by the applicant, would be excessive and would not give due regard to achieving parity with the other sanctions imposed.

• [13] The applicant provided a number of authorities by way of comparatives and submits that the disqualification period sought is well within the range of the sanctions imposed in the cases provided. In particular, the applicant relied on the decision of Director of Proceedings on behalf of the Health Ombudsman v McManus [2025] QCAT 160 where the respondent in that case was disqualified from applying for registration as a registered health practitioner for a period of six years from the date of the order. It should be noted in that case the Tribunal made a specific finding that because the respondent had not participated in the proceedings for some considerable time, the Tribunal could not be satisfied that there was any insight or remorse or that the respondent had taken any steps towards rehabilitation. The Tribunal accepted the submission that, in those circumstances, the respondent would continue to pose a risk to the community if he was allowed to practice in the future. The offending circumstances in that case were similar to the present case. In that case, the Tribunal was concerned with ensuring that the issues of specific and general deterrence were properly addressed. It was considered by the Tribunal that both specific deterrence, having regard to the respondent's failure to demonstrate insight, and general deterrence, with respect to the concern of others undertaking similar offences, were matters which warranted a longer period of suspension in that case.
• [14] The Tribunal also took into account the decision in Chinese Medicine Board of Australia v Lui (Review and Regulation) [2024] VCAT 1108 where a medical practitioner - an acupuncturist - was alleged to have massaged the area surrounding the groin and vagina of two separate patients, four years apart. In that case, a disqualification period of six years was imposed on the practitioner. The Tribunal observed in that case that general deterrence was of high importance, especially when sexual misconduct by a health practitioner had taken place.[8]
• [15] The Tribunal considered the decision in Physiotherapy Board of Australia v Espedido (No 2) (Review and Regulation) [2023] VCAT 1056 where, in the course of a clinical consultation, a physiotherapist touched a patient's vulva without clinical indication and for sexual gratification. The Physiotherapy Board of Australia sought 10 years' disqualification, which was reduced to six years to recognise the practitioner's time out of practice.[9]
• [16] In the matter of Health Ombudsman v Hoddle [2022] QCAT 142, the osteopath was charged with two counts of sexual assault and two counts of rape. The Tribunal ordered eight years' disqualification.[10]
• [17] Other cases provided by the applicant showed that disqualification periods over four years were common for offences similar to the type of those committed by the respondent in this case.[11] The respondent made submissions in respect of why these cases were distinguishable from the present case.
• [18] The Tribunal notes that comparable decisions provided by parties are of assistance but must be considered on their own facts and circumstances having regard to the issues such as insight, remorse, rehabilitation and deterrence.
• [19] The respondent accepts the applicant's submission that time out of practice before the hearing is a relevant factor but does not usually involve an arithmetical discount.[12]
• [20] The Tribunal has had regard to the victim impact statement provided by Patient B. It is plain from the victim impact statement that Patient B suffered serious consequences as a result of the sexual assault, which extended over a period of 18 months, and is described by Patient B as 'a turbulent spiralling as my life tumbled out of control'. Patient B notes that a turning point came on 10 November 2023 when it became clear that she would not be required to attend court given the respondent's plea of guilty.
• [21] The respondent relies on a report by psychiatrist Doctor Jacqui Yoxall, dated 5 January 2023 (however, the Tribunal is satisfied that the date should instead be 5 January 2024). From that report the Tribunal notes the psychiatrist's opinion that the respondent's risk of reoffending is very low because the factors contributing to the offending are no longer present. The psychiatrist identified the factors contributing to the offending as:

(a) substantial personal stress relating to the impact of Covid-19 on his business and personal financial stability;

(b) overuse of alcohol as an unhealthy coping mechanism;

(c) what appears to have been an undiagnosed and untreated adjustment disorder with mixed anxiety and depression; and

(d) an adjustment disorder, also known as substantial depression or exogenous, reactive, or stress-related depression, which is a psychological condition that occurs when an individual has difficulty coping with or adjusting to a specific life stressor or change.

• [22] That report also notes that the respondent was 50 years old and a registered osteopath with some 30 years' experience at the time of offending. He has no prior criminal history. The psychiatrist notes that prior to the offending the respondent was a successful health practitioner, a committed father and husband who lived a responsible and law-abiding life. It is noted that upon assessment there was no indication of deviant sexual interest, no long-standing patterns of impulsiveness, no negative attitudes toward females, nor any difficulties in sexual self-regulation. The psychiatrist noted they were advised by the respondent that he relinquished his registration, has no intention to ever attempt to return to a career as a health practitioner and accepts that by engaging in the offences, he has relinquished the right to work in such a position of public trust.
• [23] The Tribunal also notes the report from the treating psychologist Kathryn Wyllie, dated 24 December 2024, where she opines that:

the [respondent's] statements about no longer wishing to practice as an osteopath may be representative of a self-preserving behaviour. However, this is only my opinion, that [the respondent] is preparing himself for the worst-case scenario that he may no longer be allowed to practice osteopathy again following his offences.

• [24] However, the report also opines the respondent will not likely reoffend in the future.
• [25] In the respondent's submissions, the respondent states that he has made full admissions by way of his pleas of guilty in the related criminal proceedings and by his full admissions in these proceedings, and that, given the evidence, the respondent has insight and genuine remorse that goes well beyond him merely saying he regrets his actions. The Tribunal accepts that, having regard to the evidence, the respondent has displayed insight and remorse into his offending and is unlikely to reoffend.
• [26] As indicated, deterrence is a matter which the Tribunal must consider. In determining the appropriate sanction in this case, the Tribunal has had regard to the issues relating to general deterrence. Clearly, behaviour of this type must be denounced, and cancellation of registration must send a clear message that conduct is reprehensible and will be met with severe consequences. In imposing the sanction, the Tribunal has had regard to the purpose of disciplinary proceedings which is to protect the public not to punish the respondent, and that the health and safety of the public are paramount.
• [27] The Tribunal notes the submission made by the respondent that the decision of Council for the Regulation of Health Care Professionals v General Dental Council and Fleischmann [2005] EWHC 87 ('Fleischmann') should not be relied on as it is a decision from a foreign country. The Tribunal specifically notes that it does not agree with this submission; the decision has been followed by Judicial Members and by other Tribunals in the past. In particular, the Tribunal notes the decision of Health Ombudsman v Esposo [2025] QCAT 166. In that case, the Judicial Member referred to the statement made by the Judicial Member in the decision of Health Ombudsman v Warburton [2025] QCAT 167 at [18] where it was said:

There is an important principle that has been discussed during the course of the submissions, which goes to the length of time before she should be allowed to reapply. Where a practitioner has been convicted of a serious criminal offence, ordinarily they will not be permitted to return to practice unless they have completed their sentence, including the operational period of a suspended sentence, unless there are exceptional circumstances which would provide otherwise. Those cases of exceptional circumstances are few and far between.

• [28] The Tribunal is satisfied that the principles stated in the decision of Fleischmann are legitimate and appropriate principles which can be taken into account, and indeed have been taken into account in matters of this type. In any event, having regard to the decision of the Tribunal, it is not a relevant consideration in this case.

• [29] For the following reasons, the Tribunal is satisfied that an appropriate disqualification period in this case is two years commencing from the date of the hearing, which is also the date the order was made. The Tribunal has taken into account the respondent's pleas of guilty, albeit it occurred after a period of time. The Tribunal has also taken into account that the respondent has been unregistered since November 2023.
• [30] The Tribunal is satisfied, having regard to the report of the psychologist and the psychiatrist, that the respondent presents a low risk of reoffending, has insight, and is remorseful. In this regard, the Tribunal notes compensation voluntarily paid by the respondent to the complainants.
• [31] The Tribunal also notes the factors contributing to the offending in the first place, which have been identified by the reporting psychiatrist; however, the Tribunal has also taken into account the victim impact statement as provided by Patient B and referred to above. The Tribunal also notes that the respondent has acknowledged all of his offending in these proceedings and has agreed to the factual matrix.
• [32] In those circumstances, specific deterrence is less important; however, general deterrence is still a significant factor which the Tribunal has taken into account in imposing the sanction on the respondent. The Tribunal also notes the ongoing consultation of the psychologist, which goes to the respondent's rehabilitation.
• [33] In regard to the authorities provided by the applicant, the Tribunal is satisfied that a three year disqualification period was not out of range, however, with regard to the mitigating factors set out above balancing the aggravating factors, the Tribunal is satisfied that a period of disqualification of two years from the date of hearing is appropriate.

• [34] In the circumstances, the Tribunal makes the following orders:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) ('HO Act'), the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
3. Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as an osteopath for a period of two years from the date of this order.
4. There is no order as to costs.

[1] Statement of Agreed Facts, filed in the Tribunal 11 October 2024, 1 [4].

[7] Submissions on Behalf of the Applicant, filed in the Tribunal 1 April 2025, 5 [33] (citations omitted).

[8] Chinese Medicine Board of Australia v Lui (Review and Regulation) [2024] VCAT 1108.

[9] Physiotherapy Board of Australia v Espedido (No 2) (Review and Regulation) [2023] VCAT 1056, [7], [28].

[10] Health Ombudsman v Hoddle [2022] QCAT 142, [57].

[11] Nursing and Midwifery Board of Australia v Easdon [2024] VCAT 321; Health Ombudsman v Than [2023] QCAT 478; Health Ombudsman v Harirchian [2022] QCAT 143; Health Ombudsman v Vu [2021] QCAT 240; Health Ombudsman v Gebusion [2021] QCAT 102.

[12] Health Ombudsman v Choi [2022] QCAT 268, [42].