Health Ombudsman v Soriano [2025] QCAT 431

Health Ombudsman v Soriano [2025] QCAT 431 | Case summary | Zoe

[1] This matter is brought by the Director of Proceedings on behalf of the Health Ombudsman against Allan Loi Soriano ('respondent'). This matter is concerned with the referral filed in the Tribunal pursuant to s 103(1)(a) of the Health Ombudsman Act 2013. The referral alleges that over a course of 72 days between 29 November 2015 and 12 January 2019, the respondent inappropriately facilitated the submission of 910 claims to the Commonwealth Department of Veterans Affairs ('DVA') for payment in respect of treatment that had been provided to clients by massage therapists, while he himself was overseas. The DVA requirements were that claims could only be made if a physiotherapist had provided the service to the client. The respondent has admitted the conduct.
[2] The legislative provisions are set out in the applicant's submissions at paragraphs 7 to 12. The background of the matter is that the respondent is presently 53 years old. He was awarded a Bachelor of Physiotherapy from the University of Queensland in 1992. He subsequently worked in the public sector until 1997 before he commenced private practice in 1998. In 2002, he established the Ningi Physiotherapy & Sports Injury Clinic, which he continues to operate. He has not been the subject of any earlier disciplinary proceedings.
[3] On 26 November 2019, the respondent notified Ahpra, as he was required to, that his DVA provider registration had been revoked. The Office of the Health Ombudsman commenced an investigation in May 2020, which concluded in 2022, and in August 2024 the Director of Proceedings filed this referral in the Tribunal. At all material times, the respondent was subject to the codes or guidelines developed by the Physiotherapy Board of Australia ('Board') from time to time; they are set out in the applicant's submissions.
[4] The applicant in these proceedings bears the onus of proof to the Briginshaw standard,[1] and bears the onus of proof to characterise the conduct. The parties have filed a Statement of Agreed Facts. All relevant factual matters have been agreed to, and there are no other factual matters in dispute. Nevertheless, even when such agreement occurs, it is still for the Tribunal to independently come to a view as to whether the alleged conduct is proven to the required standard, and as to whether the conduct constitutes either unsatisfactory professional performance, unprofessional conduct, or professional misconduct. It is for the Tribunal to order the appropriate disciplinary sanction.
[5] The parties agree that the DVA is charged with the responsibility of delivering government programs for veterans, members of the defence force, federal police, and their dependents (entitled persons). The DVA framework specifically provides that only a physiotherapist who has been issued with a provider number by the Department of Human Services at the time of service, is eligible to provide services to entitled persons. The treatment must be in person, and the DVA would not otherwise pay for services by anyone other than the registered DVA provider.
[6] In 2015, the DVA corresponded with the respondent and advised him that it would be conducting an audit in relation to the respondent's claiming patients. In August, the DVA wrote to the respondent, informing him of the findings, including that the audit had identified various shortcomings in respect of practices at his clinic, including that the treatment had been rendered to entitled persons by physiotherapy assistants rather than physiotherapists. The DVA made recommendations that the respondent re-educate himself in relation to the DVA framework and that he must not submit claims for services rendered by physiotherapy assistants, as it was identified he had been doing.
[7] In 2019, the DVA advised the respondent it would be conducting a second audit. The second audit disclosed that the respondent had continued to engage in a number of practices inconsistent with the requirements of the DVA framework. Following that audit, and in response to the DVA's findings, the respondent sent an email addressing the findings and acknowledging the claims for treatment that had happened while he was overseas, and that he understood it was a serious breach of the policy. In November 2019, the DVA advised the respondent that his provider registration had been terminated. In September 2023, the respondent entered a debt-repayment arrangement with the DVA, agreeing to pay a total sum of approximately $34,000.00. That has been paid, and the payment was finalised in September 2024.
[8] The details of the allegations are set out in the submissions from paragraph 47 of the applicant's submissions. Part of the background to the matter is that during that period of time whilst he was overseas and staff were performing the services, he had allowed the staff to use his Medicare token. The other matter that should be mentioned at this stage is that his reason for being overseas, which is acknowledged by the Board, was that his sister was terminally ill and he was travelling to offer support to her and to her family.
[9] The meaning of professional misconduct is set out in s 5 of the Health Practitioner Regulation National Law (Queensland). It includes unprofessional conduct that occurs on more than one instance such that, when considered together, it amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The applicant points out that it has previously determined, and the cases included in the submission establish, that conduct of registered health practitioners who engage in inappropriate billing practices ordinarily result in a finding of professional misconduct. The Tribunal is comfortably satisfied that should be the finding in this case.
[10] The applicant also points out that following the first audit, the respondent had been advised that claims could not be submitted for treatment performed by an assistant, so there had been some warning. Despite that, he then went overseas for the time I have nominated earlier and instructed his staff to use his Medicare token to submit claims for treatment while he was overseas.
[11] It has been submitted, and it is accepted, that:

[5]

[12] Turning to sanction, as is set out and as is well established, the purpose of disciplinary proceedings is to protect the public, not to punish the practitioner. It is important that the sanction provide a deterrence to other practitioners who may be like-minded to act in the way alleged. It should seek to maintain the professional standards and the confidence of the public in the system.
[13] There is also a question of personal deterrence, although here, that looms less large. In deciding the appropriate sanctions, the Tribunal has to consider a number of matters, including the nature and seriousness of the conduct, remorse, the need for specific deterrence, which I have said is not so high in this matter, and general deterrence, which remains an important consideration. The Tribunal needs to look at any attempts at rehabilitation or re-education, and any mitigating or exacerbating factors such as past disciplinary history and, importantly here, the delay and effluxion of time which is not to be laid at the foot of the practitioner. It is also significant to look at whether the practitioner has been cooperative. He has.
[14] Putting those factors into shorter form, there is a very significant delay in this matter, much larger than would normally be seen, and it is pretty well unexplained. The applicant has repaid the DVA. He has suffered considerable financial loss to the tune of about a quarter of a million dollars a year from losing the DVA contract. He is a single practitioner. He was, during the course of the behaviour the subject of this Tribunal's hearing, suffering the emotional strain of his sister being ill to the point that it was terminal in 2019. The applicant has provided some comparable cases. Comparable cases are useful because they can provide a guideline as to what is below or beyond the appropriate sanction in any particular case.
[15] I should mention that in some of the comparable cases, there were criminal proceedings. That can sometimes have the effect where the criminal sentence skews the arrangement because the sentence ought to be exhausted before the practitioner can return to practice. In this case, there were no criminal proceedings, so that should be noted. Having said that, and all else being equal, the proposed suspension would seem to be at the lower end of what one might expect. Having set out all the features in this case, the Tribunal is of the view that the sanction does not need to include a suspension.

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