On 16 July 2019, the Queensland Civil and Administrative Tribunal (the Tribunal) found a practitioner engaged in conduct that amounted to professional misconduct by covertly recording female patients attending the practitioner's physiotherapy practice.

Background

The practitioner, who at the time was a registered physiotherapist, covertly recorded female patients of his practice underdressing in his treatment room between 2009 and 2015. The practitioner plead guilty in the Cairns District Court to eleven counts of making child exploitation material and recording in breach of privacy between 2009 and 2015 period.

During this time period the practitioner covertly filmed patients in his treatment room getting undressed. The practitioner positioned his camera phone at an angle that enabled him to record patients undressing and redressing when he left the room. Among ten videos recorded in the practitioners treatment room, three recordings involved three different girls under 16 years of age. The practitioner separately filmed "up skirt" videos of other women at a shopping centre.

The practitioner was sentenced to imprisonment for a period of two years and six months. The sentence of imprisonment was suspended after the practitioner served a period of six month's imprisonment.

The parties jointly submitted, and the Tribunal accepted, that the practitioner's conduct should be characterised as professional misconduct. The Tribunal held that the practitioner's actions amounted to unprofessional conduct, specifically, conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. Additionally, filming "up skirt" videos of other women at shopping centres amounted to, conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being fit and proper person to hold registration in the profession.

The Tribunal considered whether the sanctions proposed were appropriate in the circumstances, in particular the sanction that the respondent be permanently prohibited from providing a specified health service, that is, any health service in a clinical or non-clinical capacity (paid or otherwise) to any female persons, and to any male persons under 18 years of age.

The practitioner had been subject to an interim prohibition order prohibiting him from providing acupuncture, any massage therapy, physiotherapy services or any other health service involving physical contact to any patient under 18 years of age. The parties sought permanent prohibition given the seriousness of the practitioners conduct and the capacity of the practitioner to readily gain employment as a massage therapist, an unregistered profession without a registration body.

Categorisation of Conduct

Both parties submitted and Tribunal agreed that the practitioner's conduct amounted to professional misconduct.

Findings

The Tribunal accepted that the proposed order of a period of disqualification of three years, six months fell within a permissible range. The disqualification period was considered an appropriate sanction in the present case to satisfy the needs for deterrence, uphold the standards of the profession and maintain public confidence in the profession. The Tribunal shortened the sentence by two months to reflect the period of time that had passed since the hearing.

The Tribunal had concerns regarding the breadth of the permanent prohibition order sought by the parties, given the practitioner had not committed an offence against a male.

The Tribunal sought further submission from both parties in relation to that matter. The applicant provided further submission contending for the prohibition. The respondent's instructions were not to make any further submission but seek orders accordingly.

Orders

The Tribunal made the following orders:

  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2019 (Qld), the Tribunal decides that the practitioner behaved in a way that constitutes professional misconduct;
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2019 (Qld), the practitioner is reprimanded;
  3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2019 (Qld), the practitioner is disqualified from applying for registration as a registered health practitioner for a period of three years, four months;
  4. Pursuant to s 107(4)(b)(i) of the Health Ombudsman Act 2019 (Qld), the practitioner is permanently prohibited from providing any health service in a clinical or non-clinical capacity (paid or otherwise) to any female persons and to any male persons under the age of 18 years.
  5. Each party bears their own costs.