HEALTH SERVICE PROVIDER SEEKS TO QUASH THE DECISION OF THE HEALTH COMPLAINTS COMMISSIONER TO INVESTIGATE A LETTER OF COMPLAINT INVOLVING HIM AND A WOMAN SHE MESSAGED ON SOCIAL MEDIA
Gilhooley v Health Complaints Commissioner [2021] VSC 232 (5 May 2021)
This is a judicial review regarding the decision of the Health Complaints Commissioner to investigate a letter of complaint about the general health service provider. It was due to the interaction between the complainant and the myotherapist on social media.
Facts:
Billy Gilhooley is a myotherapist and a ‘general health service provider’ for the purposes of the Health Complaints Act 2016. In late June 2020, he engaged with a woman (DB) on social media, and exchanged messages with her on Instagram and Snapchat. She ended the conversation after a few days, and they did not meet in person. On 1 July 2020, DB made a complaint to the Health Complaints Commissioner about Mr Gilhooley, based on a number of his messages. She felt that he had used his position as a myotherapist to entice her to meet him for sex, and also that he had breached an interim prohibition order that he does not offer massage therapy services to women or girls.
The Commissioner decided to investigate the complaint, under S.45 of the Act, and on 7 July 2020, she notified Mr Gilhooley of her decision and of the details of DB’s complaint. Mr Gilhooley responded, through his solicitors, to the effect that the messages were not exchanged in the context of him providing a health service to DB. He submitted that there was no ‘complaint’ for the purposes of the Act and that the Commissioner did not have power to investigate under S.45 of the Act. The Commissioner maintained that she was acting within her powers, and indicated that she intended to continue her investigation.
Mr Gilhooley commenced this proceeding, seeking judicial review remedies in respect of the Commissioner’s decision to investigate the complaint by DB. He seeks an order in the nature of certiorari, quashing the decision to investigate; an order in the nature of prohibition and an injunction, restraining the Commissioner from further investigating the complaint; and a declaration that the investigation is beyond power.
Issue: Was there a ‘complaint’ for purposes of the act which would give the Commissioner the power to investigate?
Law:
Analysis:
The court rejects Mr Gilhooley’s attempts to minimize the complaint as concerning no more than a flirtatious exchange of private messages on social media. The complaint is a substantial one, related to Mr Gilhooley’s behavior as a myotherapist. It is about his offer to teach massage and provide experience to a student who was keen to make industry connections, followed by a number of crude sexual comments that caused her to break off contact with him.
DB’s letter of complaint is a complaint within the meaning of S.5 of the Act. It concerns the conduct of Mr Gilhooley ‘in providing or failing to provide’ a health service, in offering and seeking to make arrangements to massage DB and to teach her remedial massage techniques and skills. DB’s complaint is a complaint within, at least, S.5(2)(b) of the Act. It may also be a complaint to the Commissioner under S.5(2)(a), about a matter that could have been the subject of a complaint under s 5(1)(c), concerning an unreasonable failure by Mr Gilhooley to act consistently with the health service principle that a person seeking a health service is to be treated with respect, dignity and consideration.
Conclusion: Hence, the proceeding must be dismissed.
