4. Mr Gordon must pay the Board's costs of these proceedings as agreed or assessed on a standard basis against the scale applicable in the District Court of Queensland.

HEALTH PRACTITIONER - GROUND FOR DISCIPLINARY ACTION - Where registrant convicted of indictable offences - where registrant no longer registered - where agreed he should not be allowed to reapply for a period - whether condition should be imposed upon re-registration.

HEALTH PRACTITIONER - CONDITIONS OF REGISTRATION - where offending conduct did not violate professional boundaries - whether boundary awareness counselling a relevant condition - whether other counselling appropriate.

Health Practitioners (Professional Standards) Act 1999 ss 9, 123,124(1)(i), 243(2)(b)(ii)(iii), 255

Queensland Civil and Administrative Tribunal Act 2009 s256

Dental Board of Queensland v Cullen [2006] QHPT 004; considered

Holms v Dental Board of Queensland BD 470/04, unreported decision of O'Brien DCJ, 20 February 2006; considered

**[2] Mr Gordon pleaded guilty to offences relating to downloading and possessing child exploitation material.[[1]] His conviction of those offences establishes a ground for taking disciplinary action against Mr Gordon.[[2]]

[3] He ceased practising his profession as a pharmacist on 1 May 2008, the date of his arrest, and voluntarily surrendered his registration effective from 2 November 2009[[3]].

[4] The Board seeks an order precluding him from reapplying for registration for two years from the date of the order. Mr Gordon did not oppose the order. His current intention is not to reapply.

[5] There was a contest about what conditions, if any, should be imposed upon a future application, should he change his mind[[4]]. Mr Gordon argued against the Tribunal specifying any conditions, because the Board had the power to impose appropriate conditions in light of the circumstances then applying if and when any future application is made. Its representative conceded the Board had the necessary power to impose conditions upon registration but submitted it was unlikely to do so if the Tribunal did not make any orders to that effect. It was not apparent why the Board would not exercise its power to impose relevant conditions if it were otherwise appropriate to do so.

[6] Initially, the board sought conditions that would have required Mr Gordon, at his own expense, to:

• Undertake, prior to registration, a course in boundary violation awareness approved by the Board;

• Consult monthly for 12 months with a psychiatrist or psychologist approved by the Board, in order to monitor his awareness and insight in avoiding boundary violations as a health professional; and

• Provide three monthly reports from that consulting practitioner.

[7] The link between those conditions and the ground for disciplinary action is somewhat tenuous. It was common ground that the convictions did not arise out of his practice as a pharmacist. Nor was it alleged that they indicated he presented some risk of violating professional boundaries. The Board was given the opportunity to submit further written submissions about the scope and purpose of the proposed course. Subsequently it did not pursue a condition requiring Mr Gordon to complete any type of course. It also modified the proposed condition for monthly consultations to specify its purpose was to monitor Mr Gordon's awareness and insight in avoiding boundary awareness as a health professional.

[8] Mr Gordon's offences did not involve any interaction with a patient. The Board did contest Mr Gordon's submission that it is not usual for a pharmacist to engage in one on one consultation with a patient. However, that is not beyond the realms of possibility. Mr Gordon relied on his counsel's submission, apparently accepted by the Court of Appeal, that he did not present a danger to the public. That does not appear to have been based on any medical or other expert opinion. Rather, it seemed to be an inference drawn from the nature of the offences, which did not involve personal contact with any child.

[9] Protection of the public is one purpose of disciplinary action. The Board has not led evidence to establish Mr Gordon presents a risk to the public if appropriate conditions are not imposed on any future registration.

[10] The other purposes of disciplinary action assume greater prominence in this case. They are to uphold professional standards and maintain public confidence in the profession.[[5]] Mr Gordon said he deeply regrets his actions. The Tribunal accepts his remorse is genuine.

[11] Conviction of an indictable offence establishes a ground for disciplinary action, regardless of the nature of the offence. This implies that a breach of the criminal law brings into question the professionalism of the registrant and, accordingly, public confidence in the profession.

[12] It is of some concern that Mr Gordon's submissions appeared to minimise the gravity of his offences. They involved downloading and possessing 3,290 images involving, the prosecutor estimated, more than 1,000 children. The images spanned the full range of child pornography from images depicting erotic posing and no sexual activity, at the least serious end of the scale, to images of children being subjected to sadistic sexualised violence, at the other extreme. Unfortunately this material is easy enough to obtain and download. The offences are not victimless. Each image is a permanent record of the humiliation and, for some of these images, the serious abuse of children.

[13] Whilst Mr Gordon was not involved in selling or sharing these images, the interest that he and others express in them sustains the industry. Mr Gordon took some steps to avoid detection, at least from his wife, by saving the offending material in a folder named, misleadingly, "Glock".

[14] While the offences were not connected with his practice and he has been punished by the criminal court, there remains a concern about Mr Gordon's professionalism, given his knowing engagement in criminal conduct.

[15] In that context, it is a proper for this Tribunal to consider whether conditions may be necessary to uphold professional standards and maintain public confidence.

[16] The conditions proposed by the Board are inappropriately directed towards awareness of and preventing the violation of professional boundaries. They are apparently derived from other cases to which the Tribunal was referred which involved quite different offending. Importantly, in those cases, there was either a professional boundary violation or conduct which clearly indicated the potential for that to occur in the future.[[6]]

[17] The utility of such conditions in the circumstances of this case is questionable. A better case can be made for counselling Mr Gordon about his professional responsibilities and about the connection between his personal conduct and both his own professional reputation and public confidence in the profession. Mr Gordon did voluntarily cease practice as a pharmacist, even before surrendering his registration. He submitted this minimised the extent to which his conduct might otherwise have brought the profession into disrepute. That indicates Mr Gordon does have some awareness of the connection between personal conduct and professionalism. Nevertheless, the Tribunal considers it would be appropriate to reinforce this through counselling by a senior pharmacist or professional ethics adviser.

[18] The Board sought an order for costs. While Mr Gordon expressed his concern about the amount of costs, he did not seriously contend an order against him was not appropriate. The Board seeks only the costs of these proceedings. The Tribunal is satisfied it is appropriate to order Mr Gordon to pay the Board's costs as agreed or assessed on a standard basis against the scale applicable in the District Court of Queensland.[[7]]

2. Mr Gordon may not reapply to be registered as a pharmacist for a period of two years from today.

3. A condition must be imposed on any future registration of Mr Gordon as a pharmacist that he must participate in four counselling sessions over a period of 1 year from registration, conducted by a Pharmacist or professional ethics adviser approved by the Board. The purpose of the counselling is to develop and reinforce Mr Gordon's understanding of professional responsibilities and reputation and the implications of personal conduct for professional reputation and public confidence in the profession. Mr Gordon is to bear the reasonable cost of the counselling sessions.

4. Mr Gordon must pay the Board's costs of these proceedings as agreed or assessed on a standard basis against the scale applicable in the District Court of Queensland.

[[1]] Convicted and sentenced in the District court at Hervey Bay on 4 February 2009 of three counts. Count 1: used a carriage service to access child pornography material (12 months imprisonment released on $100 recognisance provided the offender is of good behaviour for 3 years); count 2: used a carriage service to access child abuse material (12 months imprisonment released on $100 recognisance provided the offender is of good behaviour for 3 years); count 3: knowingly possessed child exploitation material (12 months imprisonment fully suspended with an operational period of 3 years).

[[2]] Health Practitioners (Professional Standards) Act 1999 s124(1)(i). This matter was referred to the former Health Practitioners Tribunal, now abolished, and is dealt with by the Tribunal pursuant to the Queensland Civil and Administrative Tribunal Act 2009 s256

[[3]] The Act applies to a registrant who is no longer registered. Health Practitioners (Professional Standards) Act 1999 s9.

[[4]] The Tribunal may decide conditions under which a person may reapply or the conditions which may be imposed on registration. Health Practitioners (Professional Standards) Act 1999 s243(2)(b)(ii)(iii).

[[5]] Health Practitioners (Professional Standards) Act 1999 s123

[[6]] Holms v Dental Board of Queensland BD 470/04, unreported decision of O'Brien DCJ, 20 February 2006; Dental Board of Queensland v Cullen [2006] QHPT 004

[[7]] Health Practitioners (Professional Standards) Act 1999 s255