Exit Distraction Free Reading Mode
- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Wallace  QCAT 286
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
FARREN JOHN WALLACE
Occupational regulation matters
21 August 2020
On the papers
Judicial Member D J McGill SC
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – unregistered health care professional – respondent an assistant in nursing – respondent had been convicted of offences against two residents of an aged care home where he worked – respondent administered unauthorised sedative to residents – respondent did not take part in the proceeding – whether Tribunal should make an order permanently prohibiting the respondent from providing any health service
Health Ombudsman Act 2013 (Qld) s 8, s 103, s 113
Colagrande v Health Ombudsman  QCAT 107
Health Ombudsman v Costello  QCAT 117
Health Ombudsman v MacBean  QCAT 300
Kaye v Health Care Complaints Commission  NSWCATOD 157
Office of the Health Ombudsman
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (“the Act”) s 103(1)(a), s 104. At the time relevant to this proceeding, February 2015, the respondent was working as an assistant in nursing at an aged care home. He was therefore providing a health service, that is, a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and wellbeing: s 7(1). So he was a health service provider, and a health practitioner: s 8. There was however no requirement in the Health Practitioner Regulation National Law (Qld) for him to register under that Law, since assistant in nursing is not a health profession for the purposes of that Law: s 5.
- This matter was referred to the Tribunal on 30 May 2019. The Tribunal therefore still has jurisdiction to decide it, despite the fact that, earlier this year, the Tribunal lost its jurisdiction in respect of health practitioners not required to be registered under the National Law.
- The respondent filed in the Tribunal a response to the referral, which deals with the various factual allegations in the referral. In that document, he consented to a prohibition order “as I have no intention of working as a health service provider in the future”. He did not provide any submissions in response to the applicant’s submissions, or file any other material. A non-publication order was made by the Deputy President on 15 July 2019, covering the identity of the relevant patients and members of their families. The proceeding is being dealt with on the papers.
- In February 2017 the respondent was working as an assistant in nursing at an aged care residential facility in a country town. At the time he was 55, and had been in that employment for the best part of eight years. Among the residents in the facility were two elderly people who suffered from severe dementia, and who were commonly restless at night and wandered the ward. On about 5 February the respondent was working night shifts at the facility.
- On 3 August 2018 the respondent pleaded guilty to two counts of unlawful drink spiking, brought on the basis that on about that day he had provided each of those residents with a warm drink, in which he had dissolved a quantity of Mersyndol. That is a Schedule 3 pharmacist only medication, which the respondent did not have instructions or authority to provide to them, and because of their dementia they did not have the capacity to consent to receive it. It was alleged that this was done to make them sleep, so that he would have a quiet shift. It had that effect. No doubt it also had the practical effect that they, and I expect the other residents of the ward, also had a relatively peaceful night.
- One of the residents was already taking codeine and other medication, so that with the dose of Mersyndol her level of opiates was higher than is medically recommended, putting her at risk of kidney and liver toxicity. She already had impaired kidney function. No particular harm to the other resident was alleged. This was a breach of the residents’ rights under the Australian Charter of Health Care Rights, in that they were not treated with respect and dignity, and did not receive safe and high quality care. It also involved a breach of the National Code of Conduct for Health Care Workers.
- In his response to the referral, the respondent denied that he had done this, and said that he had pleaded guilty to the charges “on the advice of my solicitor as I was unable to afford to defend the charges in court.” I expect the solicitor’s advice was that there would be a benefit in terms of sentence from an early plea of guilty. In a situation like this, it is appropriate for the Tribunal to proceed on the basis that the facts constituting the offence as particularised actually occurred. That appears to be accepted by the respondent.
- The applicant was notified of the charges against the respondent by the police on 8 June 2017, and acted promptly to prohibit the respondent from any employment which related to the provision of any health service. As a result of the offending the respondent lost his employment. It appears that at the time of the court proceeding he had not found other employment, and his prospects appeared bleak.
- This is a disciplinary proceeding, where orders are protective, not punitive in nature. When exercising its powers under the Act, the Tribunal has as its main consideration the health and safety of the public: s 4(2), s 4A. The Act provided in s 113 that if the Tribunal decides that the health practitioner poses a serious risk to persons, it may make a prohibition order prohibiting the practitioner, either permanently or for a stated period, from providing any health service or a stated health service. In the alternative, it may impose restrictions on the provision of any health service, or a particular health service, by the practitioner. Subsection (2) provides examples of conduct which may be regarded as posing a serious risk to persons. One of these is “practising the practitioner’s profession unsafely”: s 113(2)(a).
- The approach to this provision was considered by the Deputy President of the Tribunal in Health Ombudsman v MacBean  QCAT 300. His Honour said that, in assessing whether a respondent posed a serious risk to persons, it was helpful to consider the nature of the risk, the likelihood of its eventuating and the seriousness of the consequences if the risk did eventuate: . His Honour noted that the term “serious risk” was not defined in the Health Ombudsman Act 2013, in the National Law, or in the Acts Interpretation Act 1954, and said it takes its ordinary meaning. He quoted the definition of “serious” in the Macquarie Dictionary: “of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind.” In my opinion, it follows that it is not sufficient for there to be some risk, it must be a risk which fairly merits the description “serious risk”.
- In that case a massage therapist had been convicted and sentenced for a number of sexual offences committed in the course of his massage therapy practice. He pleaded guilty to 50 counts, including one of rape and eight of indecent treatment of a child under 16, involving 22 patients, five of whom were children. The risk of further similar behaviour was found to be high, because of the respondent’s persistence in offending against vulnerable patients, and the consequences if the risk eventuated were also very significance, because of the significant adverse psychological effects which sexual assault can cause: . A prohibition order was made. The same approach was adopted by His Honour in Health Ombudsman v Kirk  QCAT 301 and in Health Ombudsman v Newman  QCAT 397. All of these cases involved respondents who had been convicted of sexual offences against patients.
- I was referred to two decisions of the Health Care Complaints Commission in New South Wales. In a matter of Dana Gray, the practitioner was an assistant in nursing in an aged care facility who had committed a prolonged, gratuitous assault of an elderly, demented patient under her care. The Commission made an order permanently prohibiting her from providing any health service in any capacity. That was on the basis that she satisfied the test in the Health Care Complaints Act 1993 (NSW) s 41A(1), in that she had breached the relevant statutory code of conduct, and she posed “a risk to the health and safety of members of the public”. That is a different, and less stringent, test from that required by s 113. The other decision, involving Prakash Paudyal, was similar, involving the same sort of conduct, and the same statutory test. Given the differences in the conduct and in the statute, these decisions are of little use.
- In Kaye v Health Care Complaints Commission  NSWCATOD 157 the Civil and Administrative Tribunal, on a review of a decision of the Commission under s 41A(1), said at  that the section looks to the future rather than to the past, and continued: “This requires an assessment of the likelihood that any conduct found to have been in breach of the Code will be repeated and an assessment of whether that conduct poses a risk to the health or safety of the public.” At  the Tribunal’s finding was expressed in terms that there existed “a real and material risk” of harm as a result of the practitioner’s actions.
- As in that state, the test in s 113 looks to the future. I am not at all sure, however, that the assessment of the risk should be confined to the possibility of the repetition of the specific conduct in the past which gave rise to the concern. The fact that a person has engaged in inappropriate conduct of a particular kind may, depending on the circumstances, be seen as giving rise to the possibility of other inappropriate conduct in the future. Nevertheless, it is necessary for the material to provide a rational basis for any conclusion arrived at, and not to extend to mere speculation.
- The applicant’s case is that the respondent, if permitted to provide a health service, may practice in an unsafe manner by placing his personal interests above the safety of the patients, and put his patients at serious risk of harm. It was submitted that, in circumstances where the drug had been supplied to two patients, and a fellow worker had been provided with it and encouraged to use it, and there the respondent had a criminal history, there was an unacceptable likelihood of the risk eventuating.
- The use of sedatives as a form of restraint of the aged demented is controversial. It was criticised by the Aged Care Royal Commission, but is I expect widespread. There may be a risk of injury from a fall while sedated, although if the resident is at risk of a fall anyway, putting her to sleep for a few hours would remove that risk for that period. The issue has become more acute with the prospect of elderly demented residents who have been (or may have been) infected with COVID19 spreading it to other residents by their wandering. Concern about the human rights of demented residents should not mean allowing them to engage in conduct that risks infecting other residents with a deadly disease. At some point the demented have to be restrained, and I am not sure that having someone more or less permanently to guard each of them, and to encourage them to return to their rooms, is a viable option.
- This however needs to be properly managed, rather than being applied on an ad hoc basis by an individual who does not have authority to provide prescription medication, and who does not have the training and experience to know what medication is appropriate, particularly bearing in mind the other medication being taken by the resident. The actions taken by the respondent in this case were improper and inappropriate, and put the residents concerned at some risk. I do not however have any material directly from a medical practitioner about how serious the risk of harm to the first patient was, or about any risk of harm to the second.
- In the present case the nature of the risk is that the respondent would in the future administer unauthorised medication to patients, in circumstances where the patient has not consented to the medication. Indeed, the circumstances of this case justify an analysis on the basis of a slightly wider description of the nature of the risk, that the respondent would in providing health services act in a way which placed his own interest above the interests of those he was caring for. The evidence indicated that he did this in the past, although this was shown only on two occasions. There is little material suggesting a particular basis for expecting a further offence, other than the actions in the past, but on the other hand, there is no material to show that the respondent has taken steps to rehabilitate himself, or other positive material suggesting the respondent is unlikely to reoffend.
- The applicant also relied on the respondent’s criminal history, as disclosed in the hearing in the magistrates court, being convictions for breach of a domestic violence order in 2000, for which he was placed on a recognizance so it cannot have been a very serious breach, and assault occasioning bodily harm in 2007, for which he was fined. This is a minor and old criminal history, with no offences of dishonesty, and although not irrelevant I consider it is of little weight.
- In my opinion the issue must be approached on the basis that the purpose of the statutory power exercised by the Tribunal is the protection of the public, and in the exercise of the power, the health and safety of the public are paramount. When the matter is approached in that way, the absence of any positive evidence of rehabilitation, or otherwise showing that the risk of reoffending is relatively low, means that it is appropriate for the Tribunal to conclude that there is a real risk of future conduct of the relevant kind.
- As to the seriousness of the consequences if the risk eventuates, there is little assistance from the material. I doubt if one dose of Mersyndol was enough in itself to cause any significant harm. This was not a case where the practitioner was trying to do harm to the patient; he was doing something he regarded as harmless. The risk was that it may not have been as harmless as he thought it was, or that in another case, by putting his interests above those of the patients, he could cause harm to a patient, possibly serious harm.
- The question is then whether the respondent poses a serious risk to persons from providing a health service to them. It is not enough that there be some identified risk, there must be such a combination of risk of further inappropriate conduct in the future, and seriousness of the consequences of the conduct, that the risk of harm can properly be characterised as serious, in the ordinary meaning of that term. In view of the factual basis of the application, I think it is significant that the residents affected by this conduct were unable because of dementia to complain about what he did, and indeed not in a position to detect that something was amiss. There is no particular reason to conclude that he would have behaved in the same way to residents who were of sound mind.
- On the evidence I have I regard this as a marginal case, but bearing in mind that the respondent does not oppose the orders, I am prepared to find that the respondent does pose a serious risk to persons who were through illness or disability not of sound mind. I consider that it is sufficient, for the purposes of s 113(1), to find that the practitioner poses a serious risk to some persons. Further, the identification of the category of persons to whom the risk is posed is relevant to the scope of the order to be made under s 113(4).
- The remaining issues are whether a prohibition order should be made at all, what should its scope be, and whether it should be permanent or temporary, and if temporary, of what duration. Section 113(4) confers a discretion of the Tribunal to make a prohibition order, but I expect that, once a finding that a practitioner poses a serious risk to persons is made, a prohibition commonly would follow, in the interests of protecting the health and safely of the relevant persons: s 4A. I think it is sufficient to say that in this case there appears to be no good reason why a prohibition order would not be made.
- As to its scope, the order should cover only the category of persons covered by the finding of serious risk. In my opinion, a prohibition order should be no wider than is justified by the risk posed to persons which has been identified as the basis for it. Accordingly, the order in this case should only apply to the provision of a health service to persons who through illness or disability are not of sound mind.
- As to the duration of the order, the respondent has not opposed a permanent order, and there is no material before the Tribunal which would provide logical support for a prohibition for any particular period. In such a situation, the Tribunal has in the past commonly made a permanent prohibition order. There is authority that the Tribunal retains power to revoke a permanent order in the future, on application, if there was good reason to do so. In all the circumstances, it is appropriate to make a permanent prohibition order.
- The applicant also seeks a non-publication order in terms like the order made by the Deputy President on 15 July 2019. That order was expressed to operate “until further order”. Accordingly, unless some order is made modifying its terms or effect, it will continue to operate anyway. In that situation, since no modification of the terms of the order is sought by the applicant, or obviously appropriate, it is unnecessary for me to make any order for non-publication.
- Accordingly, the Tribunal orders as follows:
- Pursuant to section 113(1) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons who are through illness or disability not of sound mind.
- Pursuant to section 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision to issue the interim prohibition order dated 16 June 2017.
- Pursuant to section 113(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service to persons who are through illness or disability not of sound mind.
- Both parties must bear their own costs of the proceeding.
 The practical effect of that is that I can deal with this matter without the assistance of assessors: s 126.
 Health Ombudsman Act 2013, s 320G(2).
 Given recent revelations in the media, and the personal experience of a relative, I am beginning to wonder if anyone receives safe and high quality care in a residential aged care facility.
 I can have regard to these documents which are prescribed conduct documents for the purposes of the Act s 288: s 113(3). They assist in identifying the wrongfulness of the conduct, but throw little light on the risk posed by the respondent, the prospect of harm from future conduct or the seriousness of the harm which could eventuate.
 Colagrande v Health Ombudsman  QCAT 107 at , .
 The applicant submitted that the respondent had admitted the actions alleged in documents signed by him and sent by email to the applicant on 14 January 2020. I have looked at the documents, and they are not a clear admission, and in a phone call on 3 March the respondent maintained that he did not do it: Affidavit of Burgess paragraph 14, Exhibit LEB6.
 On 16 June 2017.
 As appears from the transcript of the Magistrates Court proceeding, fourth affidavit of Burgess Exhibit LEB1 page 10, where it was mentioned that the respondent’s union had said he would never be employed in such a position again.
 Decision of the Commission of 11 November 2019.
 Not, as stated in the submissions for the applicant, “a serious risk”.
 Decision of the Commission 24 June 2019.
 As in the matter of Gray (above).
 See by analogy Colagrande v Health Ombudsman  QCAT 107 at , dealing with the power to take immediate action under the Act, s 58. If anything, more leeway would be required in such a situation, which is interim in nature, whereas a prohibition order is final relief.
 Health Ombudsman v Costello  QCAT 117 at  – .
- Published Case Name:
Health Ombudsman v Wallace
- Shortened Case Name:
Health Ombudsman v Wallace
 QCAT 286
Judicial Member D J McGill SC
21 Aug 2020