This case concerns the conduct of a non-registered therapist who repeatedly sexually assaulted his patients whilst they were in a state of vulnerability and trust.
With no resistance from the respondent, the Tribunal found that the respondent posed a likely risk to persons.
This matter was referred to QCAT by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The matter concerned a prohibition order pursuant to s113(1) and (4) of the Health Ombudsman Act 2013 (Qld) (HO Act).
The respondent to the matter was formerly a non-registered therapist practising hypno-psychotherapy and massage. The respondent has various diplomas in hypnotherapy, psychotherapy and massage therapy. His practice ran out of his homes in Warwick between 2005 and 2013 and then in Torquay until 2016. He provided services including acupuncture, counselling, massage, psychotherapy, hypnotherapy, cognitive behavioural therapy and pain management. Pursuant to the Health Practitioner Regulation National Law (Qld) (National Law) and meaning of a health service provider under s8(a)(ii) of the HO Act, the respondent was not required to be registered.
The Tribunal was required to decide if, because of the health practitioner's health, conduct or performance, whether they pose a serious risk of persons under s113(1). Section 113(2) provides that 'the serious risk posed to a person by a health practitioner may be a serious risk of harm caused by the practitioner-' by (amongst other things) '(c) engaging in a sexual or improper personal relationship with the person.' Pursuant to s113(4), QCAT may make a prohibition order to prohibit the practitioner (a) from permanently or for a period from providing a health service/stated health service or (b) impose restrictions on the provision of the health service/stated health service.
The applicant alleged that the respondent poses a serious risk to persons because of the following events:
- A 17 year old girl sought treatment from the respondent for back problems and a painful sciatic nerve in her left leg in 2010. During two separate massage appointments, the respondent sexually assaulted the patient. In March 2012, the respondent was found guilty of two counts of sexual assault in the District Court and was sentenced to 12 months imprisonment and was suspended for three months.
- The respondent also sexually assaulted a 31 year old female patient during a massage appointment. In 2013, the respondent was sentenced to six months imprisonment and suspended for a period of 12 months.
- The respondent reoffended again by sexually assaulting a 33 year old female patient in March 2011. The respondent plead guilty to one count of sexual assault. He was sentenced to 12 months imprisonment and was suspended for three months to be concurrent with the sentence imposed on the respondent with respect to the 17 year old patient.
- The fourth victim was a 30 year old female patient who attended his clinic for hypnotherapy. The respondent sexually assaulted and raped the patient by inserting a finger inside her vagina. The respondent plead guilty to one count of rape and one count of sexual assault in April 2017. He was sentenced to two and a half years of imprisonment and a lesser concurrent sentence for the other offence of sexual assault with eligibility for parole after six months.
The learned sentencing judges each took into account the respondent's facioscapulohumeral muscular dystrophy which led to him being wheelchair bound. The Queensland Police Service notified the respondent in September 2016, that he had been charged with one count of rape and one count of sexual assault in relation to the 30 year old patient. The applicant issued the respondent with an interim prohibition order pursuant to s68 of the HO Act in December 2016. The order prohibited the respondent from engaging in any employment in a clinical or non-clinical capacity relating to the provision of a health service.
In this matter, the respondent did not resist a finding that he poses a serious risk to persons pursuant to s113(1) of the HO Act or resist an order under s113(4)(a) of the HO Act.
The Tribunal considered the nature of the risk, being whether in the course of providing massage or other health services, the respondent will sexually assault and/or rape future patients. It was considered that this risk is high because the respondent had shown a tendency to offend patients when they are in a vulnerable and trusting state. The respondent's reoffending conduct also shows a propensity towards deviant behaviour.
The Tribunal decided on the circumstances of his tendency to reoffend, the serious consequences if he was to reoffence and the vulnerability of the patients, that the respondent poses a serious risk to persons pursuant to s113(1) of the HO Act.
The Tribunal ordered:
a) the respondent poses a serious risk to persons under s113(1) of the HO Act, because of his conduct;
b) the decision to issue the interim prohibition order on 14 September 2016 was set aside pursuant to s73(2)(a)(ii) of the HO Act;
c) that the respondent is permanently prohibited from providing any health service pursuant to s113(4)(a) of the HO Act; and
d) each party is to bear their own costs of the proceeding.