A Practitioner v The Health Ombudsman [2017] QCAT 265

CITATION: A Practitioner v The Health Ombudsman [2017] QCAT 265 PARTIES: A Practitioner (Applicant) v The Health Ombudsman (Respondent) APPLICATION NUMBER: OCR018-16 MATTER TYPE: Occupational regulation matters HEARING DATE: 2 August 2016 HEARD AT: Brisbane DECISION OF: Judge Suzanne Sheridan, Deputy President DELIVERED ON: 21 August 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to set aside the decision of the Health Ombudsman to impose an interim prohibition order is dismissed. 2. A non-publication order is made in relation to the publication of any material forming part of the record of proceedings and evidence given before the Tribunal to any person other than a party to these proceedings, a member of the Tribunal or staff of the registry for the Tribunal, except as required by s 79 of the Health Ombudsman Act 2013 (Qld). 3. The Health Ombudsman is to file submissions on costs by 4:00pm Monday 4 September 2017. 4. The practitioner is to file submissions on costs by 4:00pm Monday 18 September 2017. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the practitioner was an unregistered health practitioner – where the Health Ombudsman took immediate action by issuing an interim -- 1 of 9 -- 2 prohibition order in relation to the practitioner under s 68 of the Health Ombudsman Act 2013 (Qld) – where the interim prohibition order prohibited the practitioner from engaging in any employment or providing any services (paid or otherwise) in a clinical or non-clinical capacity, which relates to the provision of a health service – whether the Tribunal believes the action is necessary to protect public health or safety PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the practitioner sought a non-publication order prohibiting the publication of her name, medical information and the names of her children, step-child and partner – where s 79 of the Health Ombudsman Act 2013 (Qld) requires the Health Ombudsman to publish certain information on the Health Ombudsman website – whether a non-publication order should be made Health Ombudsman Act 2013 (Qld), s 68, s 79 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Zaphir v Health Ombudsman [2017] QCAT 193, cited APPEARANCES: APPLICANT: D Burrell RESPONDENT: L Crowley instructed by the Office of the Health Ombudsman REASONS FOR DECISION Background [1] The practitioner commenced casual employment with a company in the position of Housekeeper working at a rehabilitation retreat in early 2014. The company provided a range of education based residential programs for people suffering mental illnesses including depression, anxiety, substance abuse and stress. -- 2 of 9 -- 3 [2] The practitioner signed a contract of employment with the company in the position of Housekeeper and Massage Therapist two months later. At or about that time, the practitioner commenced providing massage services to clients and acting as an overnight chaperone for clients at the facility. [3] The complainant, AD, participated in a four week program at the facility for, amongst other things, treatment for drug and alcohol addictions. During that program, the practitioner provided AD with massage services and acted as his overnight chaperone. [4] The practitioner’s employment with the company was terminated, without notice, following AD having informed the company that the practitioner had engaged in a personal and sexual relationship with him. [5] Some seven months later, AD made a telephone complaint to the Health Ombudsman, subsequently lodging a written complaint. The complaint alleged, amongst other things, that the practitioner had engaged in a sexual relationship with him. [6] The Health Ombudsman gave the practitioner notice of an intention to issue an interim prohibition order (IPO) and invited the practitioner to provide written submissions. Written submissions were received by the Health Ombudsman. [7] The Health Ombudsman issued an IPO to the practitioner under s 68 of the Health Ombudsman Act 2013 (Qld) (HO Act), prohibiting her from engaging in any employment or providing any services (paid or otherwise) in a clinical or non-clinical capacity, which relates to the provision of any health service. [8] The practitioner filed an application in the Tribunal seeking a review of the Health Ombudsman’s decision to impose an IPO and an order for the removal from the website of the Health Ombudsman of any reference to the making of the IPO and/or an order preventing any other information regarding the IPO being made public. [9] The Health Ombudsman did not oppose the making of an order by the Tribunal extending the time for the bringing of the application for review. [10] Further, it was not disputed that, through her employment with the company, the practitioner had provided a health service and, therefore, for the purposes of the HO Act the practitioner was a health practitioner.1 The nature of the proceedings [11] Pursuant to s 74(1) of the HO Act, if the Health Ombudsman decides to issue an IPO to a health practitioner, the practitioner may apply to the Tribunal for a review of that decision. 1 HO Act, s 8(a). -- 3 of 9 -- 4 [12] The Tribunal’s jurisdiction to review an IPO is confirmed by s 94 of the HO Act.2 Pursuant to s 94, any review by the Tribunal of an IPO is to proceed as a review of a decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). [13] The terms of s 94 of the HO Act, read together with s 20(2) of the QCAT Act, make the approach to be taken by the Tribunal very clear. The review is to be conducted by way of a fresh hearing on the merits. The purpose of the review is to produce the correct and preferable decision. The Tribunal can confirm, or amend, set aside or substitute the decision or return the matter for reconsideration, with such directions as the Tribunal considers appropriate. [14] The Tribunal is able to take into consideration evidence of matters which have occurred after the decision under review was made. It is not limited to the evidence before the Health Ombudsman at the time it made the IPO. [15] Being a fresh hearing on the merits, the Tribunal must make its decision applying the test prescribed by s 68 of the HO Act. Relevantly, the Tribunal must decide whether it is satisfied on reasonable grounds that because of the practitioner’s conduct or performance she poses a serious risk to persons, and that to take immediate action in the form of a prohibition from practicing is necessary to protect public health or safety. Subsection 68(2) contains a non-exhaustive list of the types of conduct which may constitute a serious risk of harm which includes “engaging in a sexual or improper personal relationship”. [16] The proper approach for the Tribunal to take in immediate action reviews was most recently considered by the Tribunal in Zaphir v The Health Ombudsman.3 There, like in previous matters, I referred to the fact that immediate action was interim in nature, and as such, it will not always require a detailed enquiry by either the initial decision maker or this Tribunal. The appropriate course will depend on the facts of each case. [17] Here, the matter proceeded before this Tribunal by way of an extensive agreed statement of facts. [18] The issues in dispute primarily concerned the need for the continuance of the IPO and the making of a non-publication order. Given the issues which remained in dispute, the practitioner gave oral evidence and was cross- examined. The practitioner’s treating general practitioner and her treating psychologist both gave evidence and were cross-examined. The continuance of the IPO [19] In the statement of agreed facts, the practitioner has admitted to the conduct as alleged by AD. She has admitted to having both a personal and sexual 2 Section 94(1)(a)(ii). 3 [2017] QCAT 193. -- 4 of 9 -- 5 relationship with AD while he was a residential client at the facility and after he left the facility. [20] She admitted to meeting up with AD at an agreed location, after AD had walked from the facility. The practitioner admitted to purchasing alcohol and to consuming alcohol at her home with AD. She admitted they spent the night together at her home and had sexual intercourse several times during the night. The next morning at 5.00am she drove AD back to the location where they met and AD walked back to facility. [21] The practitioner continued her relationship with AD after he had left the facility. The practitioner admits to on more than one occasion supplying alcohol to AD. [22] At the time of making his decision, the Health Ombudsman had the full details of the complaint and written submissions from the practitioner which contained admissions by the practitioner on the critical details. At the time of making her written submissions, the practitioner was of the view that both AD and her employer should take some responsibility. In her submissions, she referred to AD having instigated their relationship and having manipulated the events that had occurred. [23] The practitioner said, on the occasion when AD walked from the facility to meet her, it was only ever intended they would spend a few hours together. She said it was AD who had requested to go to her home. In cross- examination, there was significant focus on whether the first evening together had been pre-meditated by the practitioner. The Tribunal accepts the practitioner’s evidence that, in agreeing to meet up with AD, she had not intended they would spend the night together. The Tribunal accepts that the events which unfolded that evening were not pre-meditated by her. [24] The practitioner was questioned at length in cross-examination about various statements made by her in her initial submissions to the Health Ombudsman and certain admissions in the Statement of Agreed Facts. The questioning was clearly directed to challenging the truthfulness of any of the evidence being given by the practitioner to the Tribunal, including the acceptance of responsibility by the practitioner and the genuineness of her remorse. The Tribunal accepts the evidence of the practitioner on these matters as well. [25] The Tribunal found the practitioner to be a very honest and reflective witness, who as a result of these events had herself suffered a period of depression, participated in counselling and undertaken self-education. The counselling had enabled the practitioner to gain an understanding of the enormity of her misconduct giving rise to these proceedings. The Tribunal accepts that, by the time the matter came on for hearing before the Tribunal, the practitioner had gained insight into her conduct and was truly remorseful for the events which had occurred. [26] During cross-examination, in referring to her submissions to the Health Ombudsman, the practitioner commented that she was “extremely terrified -- 5 of 9 -- 6 at the time of what this was all about”. In cross-examination, the practitioner said, “Since then, I have grown and changed and learnt so much, and my compassion has increased greatly for the complainant and for anyone who might be in this situation. And I take full responsibility. Completely”.4 Later, the practitioner said that she had “no ill will or blame whatsoever for anyone but me”.5 [27] The practitioner’s treating psychologist also referred to the level of the practitioner’s remorse and the increase in her emotional awareness. When asked in cross-examination, the psychologist did not accept that the practitioner was saying one thing and meaning another. In terms of the practitioner’s expressions of remorse, the psychologist said, “I do believe her.” She expressed the view that she considered it was extremely unlikely that the practitioner will ever find herself in this position again. [28] Given the admitted misconduct, there can be no doubt that it was necessary for the Health Ombudsman to impose an IPO. Agreeing to meet up with a client who is sneaking out of a rehabilitation facility, commencing a sexual relationship with that person and supplying alcohol to that person knowing they are struggling with substance abuse is a very serious abuse of a position of trust. [29] There is no doubt that by the time of this hearing, the practitioner had developed much greater understanding. The Tribunal accepts the practitioner’s evidence of remorse and insight. She had undertaken counselling and had gained much appreciation of her own emotions and the needs of people suffering from addiction. Having regard to the evidence of the practitioner’s treating psychologist, there is every reason to be optimistic about the practitioner’s future. [30] However, by the time of this hearing, the practitioner still had her own vulnerabilities and the Tribunal is not satisfied on the evidence before it that the practitioner had completed sufficient structured counselling directed to acquiring the necessary skills to ensure the maintenance of professional boundaries, particularly when treating highly vulnerable clients. [31] Given the inappropriateness of her behaviour, her lack of understanding that led to her initial willingness to blame others rather than take full responsibility herself, her own admitted vulnerability and lack of strength to prevent the events which unfolded, means that at the time of this hearing the practitioner continues to pose a serious risk to persons. [32] In evidence, the practitioner had said she was not interested in working again as a massage therapist nor that she was likely to pursue studies in a health-related field. Her psychologist, however, stated that through the counselling sessions, the practitioner had expressed that she was interested in that field but the IPO cut off those options. Whilst the 4 Transcript of Proceedings 2 August 2016, 1-26 LL23–25. 5 Ibid, 1-46 LL37–38. -- 6 of 9 -- 7 practitioner was prepared to offer an undertaking, the HO Act makes no provision for the giving of an undertaking. [33] Given the view expressed by the practitioner, at the time of the hearing, no proposal was placed before the Tribunal, which would enable a more limited prohibition order to be imposed. There is no basis for the imposition of conditions on the supply of health services as opposed to the absolute prohibition order continuing. [34] The Tribunal is satisfied that immediate action by way of a prohibition order is necessary to protect public health and safety. Non-publication Order [35] At the commencement of the hearing, the practitioner sought a non-publication order prohibiting the publication of her name and details of her medical information and the names of her children, step-child and partner. [36] The Tribunal has a power to make a non-publication order pursuant to s 66 of the QCAT Act. The Health Ombudsman indicated it did not oppose the making of an order in respect of the publication of any medical information regarding the practitioner and in respect of the publication of the names of her children, step-child or partner. The Tribunal accordingly made an order prohibiting the publication of the names of her children, step-child and partner and prohibiting the publication of any medical information regarding the practitioner. [37] The Health Ombudsman opposed the making of a non-publication order in terms of her name. At the commencement of the hearing, by agreement of the parties, an ex tempore decision was given in relation to the Health Ombudsman’s obligation under s 79 of the HO Act to publish the details about the practitioner on the website of the Health Ombudsman. [38] The Health Ombudsman made written submissions on the issue. Ms Burrell, as the representative of the practitioner, provided to the Tribunal submissions and case authorities. Those case authorities did not address the issue of the interpretation of s 79 of the HO Act. [39] Pursuant to the requirements of s 79(1), upon the making of the IPO, details of the order were placed on the website of the Health Ombudsman. Section 79(1) of the HO Act provides that, where the Health Ombudsman has issued an IPO, the Ombudsman must publish on the Health Ombudsman website the name of the health practitioner, the day the order took effect and the details of the order.6 Section 79(3) provides that the information ‘may’ also be published to the public in any other way the Health Ombudsman considers appropriate. 6 HO Act, s 79(1). -- 7 of 9 -- 8 [40] Section 79 falls within Division 2 of Part 7 of the HO Act. Part 7 contains two divisions: Division 1 dealing with immediate registration action in relation to registered health practitioners and Division 2 dealing with IPO’s in relation to health practitioners other than registered health practitioners. Division 1 does not contain a similar provision to s 79. Rather, any requirement for publication of information by the Health Ombudsman in relation to immediate action orders made in relation to registered health practitioners is found in s 273. [41] Section 273(1) of the HO Act provides that the Health Ombudsman may publish information about – (a) immediate action taken under part 7; or (b) a decision of QCAT under part 10 or the National Law. ‘Immediate Action’ is defined to include ‘immediate registration action’ and ‘interim prohibition order’. [42] Section 273(2) states that subsection (1) applies ‘subject to any non- publication order under the QCAT Act or court order about publication of the information.’7 In contrast to the language used in s 273(1), s 79(1) provides that the Health Ombudsman must publish information regarding the issue of an IPO. The use of the word must indicates that it is a power required to be exercised by the Health Ombudsman. [43] The language used in s 273 does not appear to be such that it should be interpreted as altering the very clear obligation under s 79. To do otherwise would require the clear power in s 79 to be read subject to the general power under the QCAT Act to make a non-publication order. If that had been intended then the power in s 79 should have been made subject to any non-publication order under the QCAT Act; just as the discretionary power in s 273 was made subject to any non-publication order under the QCAT Act. [44] Where an IPO has been issued, the Tribunal does not have power to make a non-publication order which would have the effect of requiring non-compliance with the obligations imposed on the Health Ombudsman under s 79. [45] Having expressed that view at the commencement of the hearing, at the conclusion of the hearing, counsel for the Health Ombudsman stated that the Health Ombudsman would agree to the non-publication order being made in respect to these review proceedings but so as not to effect the obligation of the Health Ombudsman under s 79 of the HO Act. It was stated, on behalf of the Health Ombudsman, that this position was being taken because these proceedings were interim in nature. 7 Ibid, s 273(1)–(2). -- 8 of 9 -- 9 [46] In the circumstances, at the conclusion of the proceedings, the Tribunal considered it was appropriate to make an order prohibiting the publication of the name of the practitioner in these proceedings, except as required by s 79 of the HO Act. In recognition of that order, these proceedings have been de-identified. [47] Without affecting the obligations of the Health Ombudsman under s 79, a non-publication order should also be made in relation to the publication of any material forming part of the record of proceedings which would disclose the name of the practitioner or the names of the children, step-child and partner of the practitioner. In view of the fact that no redacted material was filed in the proceedings, in order to give practical effect to such an order it will be necessary to make an order for the non-publication of any material forming part of the record of proceedings, except as required by s 79 of the HO Act. Orders of the Tribunal [48] The Tribunal orders that the application to set aside the decision of the Health Ombudsman to impose an interim prohibition order is dismissed. [49] The Tribunal orders that a non-publication order be made in relation to the publication of any material forming part of the record of proceedings and evidence given before the Tribunal to any person other than a party to these proceedings, a member of the Tribunal or staff of the registry for the Tribunal, except as required by s 79 of the HO Act. [50] The Tribunal orders that the Health Ombudsman file his submissions on costs by 4 September 2017 and the practitioner file her submissions on costs by 18 September 2017. -- 9 of 9 --