Health Ombudsman v Yap [2024] QCAT 425

• [2] The respondent was convicted on his plea of guilty on 13 July 2023. The nature of the offending will be dealt with in more detail below.
• [3] On behalf of the applicant, it is submitted that the following findings and orders are appropriate:

(a) a finding that the conduct of the respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) ('HO Act');

(b) an order pursuant to section 107(3)(a) of the HO Act, that the respondent is reprimanded;

(c) an order pursuant to 107(3)(e) of the HO Act, that the respondent's registration is cancelled;

(d) an order pursuant to section 107(4)(b) of the HO Act disqualifying the respondent from applying for registration for a period in the range of six to eight years;

(e) an order pursuant to section 62(2)(a)(ii) of the HO Act, that the immediate registration order imposed by the Health Ombudsman on 15 June 2022 is set aside; and

(f) finally there be no order as to costs for reasons that will become apparent.

• [4] The Tribunal is of the opinion that the applicant ought to be disqualified from applying for registration for a period of eight years.
• [5] There is no dispute concerning the relevant facts and circumstances surrounding this matter. Indeed, the respondent's response to the particulars of his conduct, as raised by the applicant, noting that the only participation in this proceeding was a letter addressed to the presiding Judge of the Tribunal dated 7 February 2024. In that document, the respondent said in part:

I will carry the error of my judgment as a burden in my heart for the rest of my life, but will learn to live positively. I have learnt never to repeat this mistake again, and do not want to experience any further loss of career, freedom, reputation, and friends or family, for what I had worked so hard for my entire life to establish and achieve.

In moving forward, I am now focused on building my own business in a non-medical related sector. I may look into a non-clinical medical administrative role in the future, should I be given the opportunity to continue a role in contributing meaningfully to society.

I acknowledge that a decision for an order or sanction will be required in order to maintain ongoing public trust in our medical and judicial system. I hope my statement will be sufficient for the panel to arrive at a decision and do not wish to exhaust any further public resources on my matter. I will accept the Court's judgment that will be passed.

• [6] As already observed, the respondent has not otherwise participated in these proceedings. On 18 May 2022, the respondent was charged with the offences already referred to. On 19 May 2022, the relevant authorities were advised that the respondent had been charged with the possession of illegal pornography involving minors. On 25 May 2022, a decision was made by the Health Ombudsman to investigate the matter. On 25 June 2022, the Health Ombudsman took immediate registration action and suspended the respondent's registration. On 13 July 2023, the respondent pleaded guilty to the charges in the Brisbane District Court.

The conduct that is the subject of the referral

• [7] The respondent pleaded guilty to the following charges:

(a) one count of use of a carriage service to access child pornography material;

(b) one count of use carriage service to transmit, make available, publish, distribute, advertise, or promote child pornography material;

(c) one count of use carriage service to access child abuse material;

(d) one count of use carriage service to transmit, make available, publish, distribute, advertise, or promote child pornography material;

(e) one count of possessing or controlling child abuse material obtained or accessed using a carriage service; and

(f) one count of possessing child exploitation material.

• [8] The respondent was sentenced in respect of those matters to six months imprisonment to be served concurrently, suspended after serving a period of four months upon security by recognisance in the sum of $2000, with an operational period of five years. The respondent was also the subject of a two-year probation order in respect of the last of those charges and 12 months imprisonment suspended after serving four months with an operational period of two years. A conviction, unsurprisingly, was recorded.
• [9] It can be accepted that the respondent's conduct is of the most serious nature involving child abuse or child exploitation material. An aggravating feature is that the respondent held specialist registration in paediatrics and child health throughout the offending period, whilst working as a consultant paediatrician at the Sunshine Coast University Hospital. For a period of five years between 23 June 2017 and 18 May 2022, the respondent accessed child exploitation material with a total of 2079 media files identified. Under a search warrant, the police seized an Apple iPhone, an Apple MacBook Pro and a Toshiba USB.
• [10] The police also seized printed A4 images from the respondent's main bedroom. In total, there were 2079 media files, of which 481 fell into Category 1 and 1598 in Category 2. The media files depicted actual female children ranging from four to 16 years of age and included images depicting vaginal, anal, and oral rape by unknown adult males. The files also depicted a number of particularly disturbing images, including:

(a) ejaculation onto the children's bodies and into their mouths;

(b) children being restrained using bondage type restraints while being sexually abused; and

(c) children engaging in sexual acts with each other.

• [11] The material also depicted that a number of the children involved were in obvious states of distress. A digital forensic analysis of the metadata properties of the media files on the Toshiba USB show that the respondent had used a carriage service to access child abuse on 339 occasions and on 68 different dates. The respondent also transmitted a total of 290 media files to himself. In that regard, the respondent told police that the purpose of transmitting the media files to himself was to store that material.

• [12] In sentencing, the Court noted that the nature of this offending is particularly grave, given real children are subjected to appalling and depraved sexual acts, to be used then for sexual gratification. In this regard, the learned sentencing Judge made the following observations:[1]

This sort of offending is considered to be particularly grave by the legislature and the Courts. That is because these are real children who are subjected to appalling and depraved sexual acts in order to feed a market created by people like you who access and download it and use it for sexual gratification. The continued use of such material by people creates a demand for the production of increasingly worse material. As a person who made that market, you are responsible in part for the sexual exploitation of children. The material you accessed and downloaded was depraved and involved the corruption of innocent children, some of whom were of a very tender age.

The nature of the images involved penetrative sexual activity by adults on children, and you engaged in accessing this material over a very lengthy period of time: some five years. It is, in my view, an aggravating feature that you were at the time a paediatrician. It is aggravating because you were in that position charged with protecting children, and frankly, it is breathtaking that a man in such a position did not turn his mind to the harm that these children are subjected to. I must, though, take into account, in determining the appropriate sentence, the public shaming and humiliation that has occurred to you, and I must do so in a tangible way. I will take those features, together with your pleas of guilty, your genuine remorse and your otherwise good character into account by reducing the period I will require you to serve before release on recognisance release order.

• [13] Those observations of the learned sentencing Judge can be readily accepted. In the Health Ombudsman v Franklin ('Franklin'),[2] the respondent was a registered podiatrist who accessed some 2000 child exploitation material images on a website. On being satisfied that the conduct satisfied all three limbs of professional misconduct, the Tribunal observed as follows:[3]

The criminal offending by the respondent was very serious offending. As the courts have noted on many occasions, the obtaining and possess[ion] of child exploitation material is not a victimless crime. Indeed, behind every image lies a child who has been violated to produce such material. The dissemination and viewing of such material repeats such violation of the victims and provides and encourages a market in such images, which has the consequence of the violation of new victims. Criminal conduct of such a type is completely inconsistent with the fundamental obligation of health practitioners to help people, rather than hurt them.

• [14] Those observations also can be readily accepted by the Tribunal. It was submitted on behalf of the applicant that the respondent's conduct constituted a number of aggravating features. These included:

(a) by reason of his speciality in paediatrics and child health, the respondent's principal obligation and responsibility in his practice of the medical profession was to provide healthcare for children;

(b) that the offending period extended over some five years;

(c) the respondent had accessed a large number of files on multiple occasions, meaning that this was not an example of a momentary lapse of judgment or mistake, or conduct that could be described as being out of character;

(d) that a number of the images were particularly disturbing and involved children who were clearly in a distressed state; and

(e) unsurprisingly that the respondent's conduct constituted a significant breach of trust and ethical responsibility.

• [15] The Tribunal accepts those submissions.
• [16] The respondent's employment as a consultant paediatrician at the Sunshine Coast University Hospital was suspended by his employer on 18 May 2022. Effectively, the respondent has ceased to act as a registered medical practitioner for a period of some two years and three months. The respondent is no longer practising and has indicated that he does not intend to return to practice of a medical practitioner. It was observed in the Franklin that where the respondent is no longer practising in his profession and has professed an intention not to return to the profession, the principal purpose of sanction is to protect public confidence in the profession by denouncing the respondent's conduct and deterring other members of the health profession that might be minded to act in a similar way. There can be no doubt that deterrence, both personal and general, is of particular significance in the circumstances of this case.
• [17] During the sentencing hearing, reports were prepared by Dr Andrew Ellis, a forensic psychiatrist and Dr Marcelo Rodriguez, the respondent's treating psychologist. Dr Ellis reported that the respondent had no psychiatric history, suffered from childhood anxiety and social anxiety as an adult, with an overlaying anxious temperament predisposing him to depression. He had experienced low mood over the last few years due to work pressure, particularly during the period of the COVID pandemic. Dr Ellis also reported that he subsequently experienced other stressors, including a relationship breakdown and a complaint about his medical treatment of a child. Somewhat disturbingly, Dr Ellis reported that he was not seeking or receiving any specific treatment or counselling.
• [18] Dr Rodriguez also observed that at the time he had been consulting with the respondent, over a period of some 12 months, he also diagnosed a major depressive disorder and based on the respondent's self-report, assessed that he did not meet the criteria for paedophilic disorder, and although he was unable to determine a paraphilic disorder element, concluded his offending could not be explained, and so that could not be ruled out.
• [19] In the respondent's explanation to Dr Ellis about his conduct, the respondent explained that he "chanced" upon the images in the first instance and was able to relate these to his work in child protection, not realising it was causing harm to children, thinking more of it as a "scientific project or continuing professional development activity".[4] Dr Ellis, quite sensibly in the view of the Tribunal, did not accept this explanation as plausible.
• [20] Returning then to the issue of deterrence, in Nursing and Midwifery Board of Australian v Faulkner,[5] it was observed by the Court of Appeal that:

In general, the practitioner's punishment under the criminal law is not a factor which should moderate the disciplinary sanction, because the purpose of that sanction is not to punish the practitioner, but to protect the public. It is recognised that the protection of the public extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners. There is a deterrent element involved in the protection of the public in this context. In that way, where a substantial punishment has been imposed on the practitioner under the criminal law for the misconduct for which the practitioner is to be disciplined, that punishment can be relevant. But its relative importance will obviously depend upon the facts and circumstances of the particular case.

• [21] In this regard, a number of cases were referred to by the applicant as being helpful in deciding on an appropriate range, particularly insofar as the period of disqualification is concerned. Those cases, without going into them in any detail, were as follows:

(a) Health Ombudsman v Mak;[6]

(b) Health Ombudsman v Creagh-Scott;[7]

(c) Franklin;

(d) Health Ombudsman v Asinas; Asinas v Medical Board of Australia;[8]

(e) Medical Board of Australia v Yu (No 2);[9]

(f) Health Ombudsman v Greenland;[10] and

(g) Health Ombudsman v YDU.[11]

• [22] Unsurprisingly, no two cases are ever the same in every respect. Some of those cases referred to involve less serious offending, and some arguably more serious offending. That said, there can be no doubt that the range contended for on behalf of the applicant is an appropriate range. It was also submitted on behalf of the applicant that the respondent's conduct is inconsistent with him being a fit and proper person to hold registration. Three reasons were given for that:

(a) his conduct was deliberate and persistent, involving most serious conduct over a lengthy period of time;

(b) the evidence is that it likely involved an element of sexual interest in children; and

(c) there is no evidence of adequate treatment or insight having been gained by the respondent since his release from custody, such that the public could be satisfied that he no longer poses a risk to the public or that professional and public confidence may be reposed in him to uphold and observe the high standards and moral rectitude required by the medical profession.

• [23] The Tribunal agrees with the thrust of those three matters raised by the applicant and the Tribunal readily accepts that the respondent is not currently a fit and proper person to hold medical registration. The Tribunal is satisfied that, having regard to all the facts and circumstances of this case and in particular, that the respondent was at the time a practising paediatrician, this is a matter that requires an order that the respondent be disqualified at the top end of the range contended for on behalf of the applicant.

• [24] Accordingly, the Tribunal finds and orders as follows:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the conduct of the respondent in allegation 1 constitutes professional misconduct.
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent's registration is cancelled.
4. Pursuant to section 107(4)(b) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of eight years.
5. Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration order imposed by the Health Ombudsman on 15 June 2022 is set aside.
6. There be no order as to costs.

[1] Sentencing Remarks contained in the Hearing Brief, pp 48-49.

[2] [2021] QCAT 186 ('Franklin').

[4] Submissions of the Applicant dated 15 April 2024, [61].

[5] [2018] QCA 97.

[6] [2019] QCAT 24.

[7] [2019] QCAT 69.

[8] [2021] QCAT 306.

[9] [2021] SACAT 45.

[10] [2022] QCAT 421.

[11] [2023] QCAT 493.