Health Ombudsman v Truscott[2022] QCAT 298

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (Qld) (“the Act”) s 103(1)(a), s 104.  At all material times the respondent was a Registered Nurse (“RN”), and hence a health service provider for the purposes of the Health Practitioner Regulation National Law (Queensland), (“the National Law”).  The applicant alleges that the respondent is guilty of professional misconduct, or in the alternative unprofessional conduct, in that on a particular date he used force on a patient which was not reasonable, proportionate or justifiable.  For the purposes of the proceeding, I constitute the Tribunal with the assistance of the assessors, Dr W Grigg, Mr J McNabb and Ms N Alexander.^[1]  The parties are both legally represented, and a number of the facts were agreed between them.^[2]  More recently, they agreed on a joint submission to the Tribunal.

Facts

2. [2]
   The respondent was at the relevant time working in the mental health ward at a provincial hospital, where he had worked for about seven years.  Among the inpatients at the relevant time was a twenty year old man (“the patient”) who had been diagnosed with major depression, Asperger’s syndrome and attention deficit hyperactivity disorder.  He was a vulnerable person.  On the relevant day the respondent worked a shift from 9 pm, together with three other RNs.  One nurse at a time would rotate through the high dependency unit of the ward. 
3. [3]
   The patient had been treated in the high dependency unit for about eight days prior to the relevant date, and had been on overnight leave with his family before returning to the ward early on the relevant day.  After his return he admitted to using cannabis while on leave.  He also smoked cigarettes when not in hospital, but in accordance with the usual practice he was not allowed to smoke in the ward.  After his return that day he had to be physically restrained and placed in seclusion on three occasions.^[3]  At about 11.30 pm he was given medication which ought to have been given to a different patient, which may have contributed to his disturbance.  He walked around the unit, and drank a lot of water, apparently to induce vomiting; he had a history of drinking water then making himself vomit. 
4. [4]
   The RN then working in the unit asked him to return to his room, and he began to push her and tried to grab her pass and keys.  She attempted to retreat to the nurses’ station in the unit, but the patient followed her and entered the airlock for the nurses’ station.  The respondent then intervened, pushing the patient back out of the airlock, and transitioned him to the floor.  The respondent held the patient’s hands at his side, and he kicked out with his legs.  The respondent stood up, and the patient got to his feet and walked towards the other RN.  The respondent then grabbed the patient’s shoulders and pulled him to the ground, and held him there for a short time. 
5. [5]
   When the patient was released he began to move towards the nurses’ station.  The respondent grabbed his gown from behind, pulling him back a couple of times, but the patient persisted.  The respondent then pushed the patient into the seclusion room and on to the bed.  The patient slid onto the floor, where he was restrained by the respondent, although he persisted in trying to get to his feet, and to grab the respondent’s swipe card.  He then tried to grab the respondent’s right foot, while the respondent backed out of the seclusion room, where the patient was secured.  

Consideration

6. [6]
   The parties agree that during the course of the incident the respondent used force on the patient which was not reasonable, proportionate or justifiable.  The joint submissions enlarge on this in certain ways.  In the circumstances, I will not depart from the conclusion in the joint submissions, but do not propose to set out the reasoning in the joint submission, as I do not necessarily agree with it, and do not consider that it should be used as a precedent.  One aspect of this is that the respondent was in the position of having to restrain the patient alone, in circumstances where it was reasonable for him to expect assistance from other staff.  Had that been provided, it would have been easier to apply more conventional restraint processes. 
7. [7]
   The submissions referred to the decisions of Health Ombudsman v Murphy [2022] QCAT 7 and Nursing and Midwifery Board of Australia v Smith [2020] VCAT 173.  I agree that the conduct in the present case was less serious than that in Murphy and in Smith, and do not necessarily agree with all the reasoning in the latter. 
8. [8]
   The respondent was born on 20 November 1969, and is currently 52.  He was first registered as a Registered Nurse on 28 January 2010.  He started work full time in the mental health unit at the hospital about six months later.  Between September 2010 and February 2019 he completed 100 training courses, including occupational violence training in September 2010, June 2018 and December 2018.  The other RN who was working in the unit at the time had been in the ward for about one year.  She had received training for restraining patients, but had not had any practical experience in dealing with patients who needed to be restrained.  As a result of this incident the respondent lost his employment at the hospital.  I assume he retains his registration.

Characterisation of conduct

9. [9]
   In this matter the parties are agreed that the respondent’s conduct the subject of the referral amounted to unprofessional conduct.  The National Law s 5 defines “unprofessional conduct” as “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.”^[4]  I accept that the use of force to restrain a mental health patient which is not reasonable, proportionate or justifiable falls within that definition, notwithstanding the extenuating circumstances in which the respondent found himself, where he had to act alone, and had little time to consider how best to respond to the actions of the patient.  Accordingly I accept the characterisation of his conduct agreed by the parties. 

Sanction

10. [10]
    In imposing a sanction, the health and safety of the public are paramount.^[5]  Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[6] The function of the Tribunal is protective, not punitive.^[7]  The respondent cooperated with the investigation, and in this proceeding.   
11. [11]
    The parties provided a joint submission to the Tribunal as to sanction. The effect of a joint submission as to sanction was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93], by reference to authorities, in terms with which I respectfully agree. I would merely add reference to the later decisions of Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29] – [31]. I do not propose to depart from the outcome proposed by the parties.   
12. [12]
    I acknowledge the assistance provided by the assessors in this matter.  The decision of the Tribunal is as follows:

1. The Tribunal decides that the conduct of the respondent the subject of the referral was unprofessional conduct.
2. The Tribunal reprimands the respondent.
3. The parties bear their own costs of this proceeding.