Health Care Complaints Commission v Sargeant [2019] NSWCATOD 140

Health Care Complaints Commission v Sargeant [2019] NSWCATOD 140

Mr Sargeant's unsolicited sexual comments and touching Patient A's breast during an X-ray were improper and unethical conduct in the practice of radiography and constituted unsatisfactory professional conduct. His failures to notify the Board within seven days of being charged with and convicted of the offence also constituted unsatisfactory professional conduct. The assault was objectively serious because it resulted in a conviction for indecent assault in circumstances of aggravation, occurred while Patient A was unwell, vulnerable and alone with him, and represented a serious violation of professional boundaries. Although his failure to notify was not by itself sufficiently serious to...

Jurisdiction
Australia
Judgment Date
09 September 2019
Procedural Posture
Disciplinary Complaint Against a Radiographer Concerning Unsatisfactory Professional Conduct and Professional Misconduct / Final Decision on Admitted Complaints, Disciplinary Orders and Costs
Outcome
Complaints admitted and disciplinary orders made; the Tribunal declared it would have cancelled Mr Sargeant's registration if he were still registered, imposed a 12-month period before review could be sought, required the National Board to record the fact of the cancellation declaration, and ordered Mr Sargeant to...
Legal Topics
['radiographer Registration' 'aggravated Indecent Assault of Patient' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'mandatory Notification Obligations' 'protective Disciplinary Orders' 'risk of Reoffending' 'costs Following the Event']
['health Practitioner Regulation' 'professional Discipline' 'administrative Law' 'costs'] ['radiographer Registration' 'aggravated Indecent Assault of Patient' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'mandatory Notification Obligations' 'protective Disciplinary Orders' 'risk of Reoffending' 'costs Following the Event']

Case Brief

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Procedural Posture

Disciplinary Complaint Against a Radiographer Concerning Unsatisfactory Professional Conduct and Professional Misconduct / Final Decision on Admitted Complaints, Disciplinary Orders and Costs

Legal Issues

  1. 1 ["Whether the conduct underlying Mr Sargeant's conviction constituted unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW)." "Whether Mr Sargeant's failure to notify the Medical Radiation Practice National Board of being charged with and convicted of the offence constituted unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW)." 'Whether the unsatisfactory professional conduct was of a sufficiently serious nature to amount to professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).' "Whether disciplinary orders should be made and, if so, whether the Tribunal would have cancelled Mr Sargeant's registration if he were still registered." "Whether Mr Sargeant should pay the Commission's costs and whether those costs should be fixed."]

Ratio Decidendi

Mr Sargeant's unsolicited sexual comments and touching Patient A's breast during an X-ray were improper and unethical conduct in the practice of radiography and constituted unsatisfactory professional conduct. His failures to notify the Board within seven days of being charged with and convicted of the offence also constituted unsatisfactory professional conduct. The assault was objectively serious because it resulted in a conviction for indecent assault in circumstances of aggravation, occurred while Patient A was unwell, vulnerable and alone with him, and represented a serious violation of professional boundaries. Although his failure to notify was not by itself sufficiently serious to...

Court Disposition

Complaints admitted and disciplinary orders made; the Tribunal declared it would have cancelled Mr Sargeant's registration if he were still registered, imposed a 12-month period before review could be sought, required the National Board to record the fact of the cancellation declaration, and ordered Mr Sargeant to...

Orders

  • ["If still registered, the Tribunal would have cancelled Mr Sargeant's registration as a radiographer pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW)." 'Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), Mr Sargeant cannot seek review of Order 1 above...