Health Ombudsman v Kumar[2022] QCAT 134

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This proceeding is concerned with a referral by the Health Ombudsman filed on 24 September 2020, concerning the respondent, Charles Neil Kumar.  The referral is concerned with the conduct of the respondent, who, on 24 March 2019, used disproportionate and excessive force against two adolescent patients on ward 2A of the Metro South Addictions and Mental Health Services at the Logan Hospital. 
2. [2]
   The relief sought by the applicant is as follows;

   1. (a)
      a finding that the conduct of the respondent amounted to professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld);
   2. (b)
      an order pursuant to section 1073(a) of the Health Ombudsman Act 2013 (Qld) that the respondent is reprimanded;
   3. (c)
      an order pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld) that the immediate registration action is set aside; and
   4. (d)
      no orders as to costs. 
3. [3]
   For the reasons that follow, the Tribunal considers it appropriate to make such orders. 
4. [4]
   This matter is to be dealt with on the papers.  Accordingly, no appearances were required.  It can be readily inferred that the reason that the parties consider this matter can be dealt with on the papers is because there is agreement as to the orders that should be made. 
5. [5]
   The allegations made against the respondent are as follows: 

   1. (a)
      allegation 1 involves the use of disproportionate or excessive force on the first of the 17 year old patients; and
   2. (b)
      allegation 2 is that he used unjustifiable force when he pushed the second of those patients.  The particulars in respect of both patients, save for who was involved, are in almost identical terms. 
6. [6]
   Before proceeding further, it should also be pointed out that part of the evidence included. CCTV footage of the incidents that brings the respondent before the Tribunal. For technical reasons, I and one of the other Members of the Tribunal were not able to view that footage.  However, two Members of the Tribunal were. 
7. [7]
   The Tribunal would also observe that whilst the footage that was seen is, in an overall sense, consistent with the agreed schedule of facts, the schedule of facts does not fully reveal the disproportionate size of the respondent when compared to that of the two adolescents.  There was clearly an imbalance of strength and power between the respective participants. 
8. [8]
   As the Tribunal has noted, the orders sought by the applicant are not disputed.  That said, it is for the Tribunal to be satisfied that those orders are appropriate.  The facts leading up to this proceeding are not in dispute, and can be summarised as follows. 
9. [9]
   There were two patients involved.  Both were 17 years of age at the time, and were in-patients at ward 2A of the hospital.  The two patients were involved in an altercation in the hallway outsides the nurse’s station.  In an effort to defuse that altercation the respondent reacted by forcefully taking one of the patients to the floor, then dragging him along the floor into a seclusion room, and pushing the other patient in the back three times when there was no direct threat from that patient.  That such disproportionate force was used, particularly when applied by a large, mature male, to adolescents, clearly falls within the meaning of professional misconduct. 
10. [10]
    The antecedents of the respondent and the circumstances leading up to this proceeding can be shortly stated.  The respondent is now 38 years of age.  He was 35 at the time of the incident.  He was a married man with a very young child.  The respondent has completed a Diploma in Occupational Health and Safety, a Bachelor of Chiropractic, and a Master of Health Management.  It was, and may still well be, the intention of the respondent to become a chiropractor.  However, unsurprisingly, until this matter has been finalised, the relevant authority has refused registration to practice in that profession. 
11. [11]
    It has been submitted on behalf of the respondent and, as the Tribunal understands it, none of this is in dispute, that at the time the respondent was returning to work after suffering physical and mental injuries as the result of a car accident.  He was also seeking treatment for anxiety and depression.  It is also uncontroversial that the working environment was a particularly challenging one and, on occasions, would involve serious physical confrontation. 
12. [12]
    As has already been referred to, a number of patients within the ward have both significant mental health needs, and substance addiction needing addressing.  It would also appear that there had been some previous provocative conduct on the part of at least one of the patients.
13. [13]
    At the time respondent’s intention was to provide physical protection for an older female nurse, also to diffuse a situation between the two youths and, of course, to protect himself.  All that may, of course, be accepted, but it cannot be disputed that the force used by the respondent was unnecessarily excessive. 
14. [14]
    Various references provided reveal that the respondent was a highly regarded and dedicated nurse and it can also be accepted that the behaviour of the respondent occurred when he was going through a particularly difficult phase in his life.  The work undertaken by the respondent, again, can clearly be stressful on occasions, requiring, as it does, the respondent having to deal with traumatised patients, many of whom suffer mental health issues and substance abuse issues and can be inclined to act on the impulse. 
15. [15]
    None of this provides an excuse for the respondent’s behaviour, but it does provide some relevant contextual background. 
16. [16]
    There are a number of other matters that work in favour of the respondent.  These include, in particular;

    1. (a)
       the respondent had had no prior complaints during his 12 years of employment at that ward;
    2. (b)
       he readily admitted that his conduct was unacceptable, but says further that it was out of character.  That would appear to be consistent with the fact that he had no prior complaint in the previous 12 years;
    3. (c)
       the respondent has gone on to retrain himself and, as already referred to, intends to work as a chiropractor and to leave the mental health nursing profession;
    4. (d)
       it can also be accepted that the respondent has insight in respect of his conduct and is also remorseful for reacting in the way that he did; and
    5. (e)
       it was also submitted, and it can be accepted, that the risk of reoffending is extremely low as the respondent has now removed himself from nursing and has completed what is described as a de-escalation course. 
17. [17]
    As has already been referred to, there was no controversy between the parties about the orders that should be made.  Where there is agreement is, of course, not the end of the matter.  It is for the Tribunal to be satisfied about what the appropriate orders ought to be in all the circumstances.  That said though, that the parties are in agreement is a relevant consideration.  In Medical Board of Australia v Martin^[1], the then Deputy President, Judge Horneman-Wren SC said as follows;

“The Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.”^[2]

18. [18]
    The Tribunal endorses and accepts those observations and, having regard to all of the facts and circumstances relevant to determining the outcome of this matter, the Tribunal is satisfied that the orders agreed by the parties are appropriate. 

Orders

19. [19]
    For the reasons given, then, the findings and orders of the Tribunal are as follows: 

    1. a finding that the conduct described in allegations 1 and 2 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld); 
    2. an order pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the respondent is reprimanded;
    3. an order pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld) that the immediate registration action is set aside; and
    4. No orders as to costs.