Health Ombudsman v van den Brink [2025] QCAT 407

(a) be mentored by another registered physiotherapist approved by the Health Ombudsman;

(b) only practise at approved practice locations; and

(c) complete an education course, assessment or program provided by the Health Ombudsman addressing the topic of maintaining professional boundaries.

• [4] The respondent's practice was subject to the requirements of the Board's Code of Conduct as in force at the applicable time.[1] By the Further Amended Statement of Agreed and Disputed Facts ('Statement of Agreed and Disputed Facts'), the respondent admits that he failed to maintain appropriate professional boundaries with Patient A.[2] The respondent does not contest the allegations that:[3]

(a) he asked Patient A if she was bisexual;

(b) he asked Patient A whether she had sex with her boyfriend; and

(c) on 28 February 2020, he engaged in sexual misconduct when he and Patient A engaged in a sexual act.

• [5] Having regard to the Statement of Agreed Facts, there are no issues in dispute in respect of the allegations. In the circumstances, the Tribunal finds the allegations to have been proved against the respondent. The Tribunal notes the observations made by the applicant with respect to the respondent's conduct towards Patient A as follows:[4]

(a) The consultations had a degree of intimacy because they involved the respondent physically touching Patient A (massage) and on one occasion revealing her bottom to perform dry needling.

(b) The respondent's conduct involved a persistent crossing of boundaries which, during the sessions, commenced with flirtation, inappropriate questions and progressed to sexual innuendo. He was persistent in the face of Patient A initially declining his invitations to meet outside the clinic for breakfast.

(c) Patient A was isolated and vulnerable because she had only recently moved to the area, did not have a lot of friends, and was unable, because of her injury, to drive or walk from her residence. She had moved away from New South Wales to Airlie Beach following a violent sexual assault perpetrated against her by her ex-partner, which she disclosed (absent the details) to the respondent after he probed her for answers about how she was feeling (which disclosure occurred prior to the events of 28 February 2020).

(d) The respondent's conduct escalated to the point where he unexpectedly and uninvitedly attended Patient A's house late in the evening of 28 February 2020. There, after some conversation, Patient A performed oral sex on the respondent. While consensual, it is evident from Patient A's evidence that the respondent placed some pressure on her for sexual intimacy and was persistent in his quest for it to occur.

• [6] The Tribunal accepts the uncontested evidence of the witnesses whose affidavits are relied upon by the applicant.
• [7] The parties are agreed that, and the Tribunal finds, the totality of the respondent's admitted conduct constitutes professional misconduct. The Tribunal notes the decisions of Physiotherapy Board of Australia v Browning [2014] QCAT 509 ('Browning') and Health Ombudsman v Vincent [2022] QCAT 162 ('Vincent'), as well as that the paramount guiding principle that underlines and informs the Tribunal's power to sanction healthcare providers who engage in professional misconduct is that the health and safety of the public are paramount.[5] The Tribunal notes that the purpose of disciplinary proceedings is to protect, not to punish.[6] The Tribunal notes that the following factors must be taken into account in determining sanction:

(a) specific and general deterrence;

(b) the nature and seriousness of the conduct;

(c) insight and remorse shown by the practitioner and any steps taken to mitigate the risk of reoffending;

(d) mitigating factors including mental health issues; and

(e) past disciplinary history and antecedents.

• [8] The parties have agreed on an appropriate sanction. The Tribunal has considered the reasons of Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91]- [93] to the effect that the Tribunal would ordinarily accept the agreed sanction unless it falls outside the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.[7]
• [9] The Tribunal has had regard to the comparable decisions provided by the applicant; in particular, to the decision of Browning, where two-months' suspension was imposed on a practitioner who commenced a sexual relationship shortly before the end of the treating relationship. It was submitted that this suspension might be regarded on the light side of being considered appropriate in the circumstances.
• [10] The Tribunal also notes the decision of Vincent, where a period of nine months' suspension was imposed in respect of boundary violations of a sexual and inappropriate nature against one patient and related boundary violations of an inappropriate and sexual nature with a former patient. It was noted that the decision of Vincent is more serious because it involves sexual activity at the clinic, and it concerns two patients.
• [11] The applicant also submitted that the present case is more serious than Browning because the physiotherapy sessions involved a high degree of physical intimacy, there was inappropriate conduct during the sessions, Patient A was particularly vulnerable, and the respondent was persistent and exerted some pressure on sexual intimacy.[8]
• [12] The Tribunal notes and accepts the submission of the applicant that:[9]

the sanction must reflect the fact that the respondent's election not to contest the allegation means that the witnesses (particularly [Patient A]) need not be cross-examined, the respondent cannot be credited with any real degree of insight given he made only limited admissions to the conduct.

• [13] The applicant also noted that the respondent did not admit the events that occurred on 28 February 2020 at Patient A's house and that his election not to contest the allegations came later after evidence had been filed and the matter was scheduled to commence within several weeks.

• [14] In the circumstances, the Tribunal is satisfied that the sanction agreed between the parties is appropriate.
• [15] The Tribunal makes the following orders:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to s 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the respondent's registration is suspended for six (6) months from the date of the order.
4. No order as to costs.

[1] Further Amended Statement of Agreed and Disputed Facts, filed in the Tribunal 15 February 2024, [8].

[4] Applicant's Submissions, filed in the Tribunal 19 February, [9] ('Applicant's Submissions').

[5] Health Ombudsman Act 2013 (Qld) ss 3-4.

[6] Health Ombudsman v Jolley [2019] QCAT 173, [75]; Health Ombudsman v Barber [2017] QCAT 431, [34].

[7] Applicant's Submissions (n 4) [15].

[8] Applicant's Submissions (n 4) [18].

[9] Applicant's Submissions (n 4) [19] (citations omitted).