Health Ombudsman v Bevins[2025] QCAT 102

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the referral about?

1. [1]
   On 29 May 2024 the Director of Proceedings on behalf of the Health Ombudsman (‘Director’) filed a referral alleging the respondent had used ‘unnecessary and/or excessive and/or unjustifiable force’ against a patient (‘Patient A’) whilst working in the inpatient mental health unit of a hospital in Southeast Queensland on 22 September 2022.  The alleged force was that he struck Patient A with two hands to the chest and pushed him to the ground.

Is it appropriate to determine this matter on the papers?

2. [2]
   The respondent appeared in person at the directions hearing on 23 August 2024.  The respondent thereafter failed to comply with directions or to respond to any communications from the Health Ombudsman’s office in the period between 23 August 2024 and 3 October 2024.^[1]
3. [3]
   The respondent did not appear at the directions hearings on 4 October 2024.  On that occasion the Tribunal made directions affording the respondent a further opportunity to file a response and listed the matter for a further directions hearing on 1 November 2024.  The respondent did not file a response to the referral and did not appear at that directions hearing.
4. [4]
   On 1 November 2024 the Tribunal made further directions to progress the preparation of the referral.  It noted in those directions that the matter would be progressed to a hearing and it may finally deal with the matter in the respondent’s absence.  The Tribunal set out for the respondent how he could indicate if he wished to participate in the proceeding.  The respondent has not given any notification he intends to participate in the proceeding and has not filed any material in accordance with the directions to do so.
5. [5]
   Once the Director had taken steps to file the hearing brief, the Tribunal emailed the parties asking the respondent to indicate if he wished to make any submission to the Tribunal and advised that if he wished to do so, the matter would be set down for an oral hearing.  Further, the Tribunal advised that if he did not respond to the email, the Tribunal would act on the basis he did not wish to be heard on the determination of the referral and would arrange for the referral to be heard and determined without an oral hearing.  The respondent was asked to advise within 10 days whether he wished to be involved.
6. [6]
   The respondent did not respond to the email.
7. [7]
   In those circumstances, the Tribunal proceeds to determine the matter on the papers in accordance with s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

What law applies to the referral?

8. [8]
   The referral proceeds before the Tribunal pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (‘HO Act’).
9. [9]
   The Tribunal is exercising original jurisdiction.^[2]  The Director has the burden of proof of the allegation.  Because of the potential consequences to the respondent of adverse findings, the Tribunal may only find that the respondent engaged in the alleged conduct and that it should be characterised as professional misconduct or unprofessional conduct if it is satisfied of these matters according to the standard of proof articulated in Briginshaw v Briginshaw (‘Briginshaw’).^[3]
10. [10]
    Further, there is no obligation on the respondent to provide any evidence, either by giving evidence or calling evidence.  As noted earlier in these reasons, the respondent has not participated in the proceeding beyond appearing at the initial directions hearing.  The respondent provided a written statement containing an account of the events dated 2 November 2022^[4] and, through solicitors, provided an account of the events in a letter dated 14 February 2023 to the relevant hospital and health service.^[5]  The Director has included that material in the hearing brief and the Tribunal has had regard to that material, however, in doing so, notes the respondent has not assumed any burden of proof.  The Tribunal considers all the evidence before it and it is only if, after doing so, the Tribunal is satisfied the matters the Director alleges are established by the Director on the Briginshaw standard, that the allegation can be proven and any finding of professional misconduct or unprofessional conduct can be made.  
11. [11]
    The Tribunal must observe the rules of natural justice,^[6] is not bound by the rules of evidence^[7] and may inform itself in any way it considers appropriate.^[8]

What facts does the Tribunal find the referral proceeds on?

Background to the incident the subject of the referral

12. [12]
    The facts in [13] to [16] do not appear contested in any of the accounts given by the respondent in the filed material.  I make them as findings.
13. [13]
    The respondent had been an enrolled nurse at the relevant mental health inpatient unit of the hospital for about 14 months.
14. [14]
    Patient A was a 44-year-old, unemployed, homeless man known to the relevant mental health service, with a background of depressive symptoms, Cluster B personality traits, emotional instability, self-harm and alcohol dependence, who had been admitted to the hospital with chronic suicidal ideation and was an inpatient at the relevant unit.
15. [15]
    The hospital’s progress notes in the days prior to the incident record:

    1. Approximately 36 hours prior to the incident, the resident medical officer recorded Patient A had experienced an increase in suicidal ideation over the last three weeks, had broken hospital rules by using alcohol and unprescribed medication he obtained from a friend the night before and he may need to be discharged the next day, which Patient A was unhappy about as he requested to be discharged two days later;
    2. Approximately 24 hours prior to the incident, a nurse manager recorded he had been sleeping, his mood was otherwise euthymic and he had had minimal contact with nursing staff spending time in his room watching television;
    3. Approximately 8 hours prior to the incident, a registered nurse recorded that Patient A had made ongoing suicidal threats secondary to his perceived needs not being met, having requested admission for the purpose of temporary accommodation.  He was observed to be asleep, presenting as irritable when wakening and apologising for his behaviour.  Patient A was otherwise compliant with medications, interacted well with nursing staff and had kept a low profile.
16. [16]
    The respondent had completed occupational violence training in the 12 months prior to the conduct, the latest of which had been completed two weeks prior to the conduct.^[9]  The content of that training is not apparent, which will come up later in these reasons.

The events on night shift on 22 September 2022

17. [17]
    It is not contested by any of those who have given statements and I find that on 22 September 2022, the night of the incident, Patient A approached the respondent at the nurse’s station window shortly after the start of night shift.  Patient A was discussing his dissatisfaction with the care from some of the nurses and doctors on the unit.  He began to raise his voice and become argumentative.
18. [18]
    The respondent’s two colleagues gave different accounts of the respondent’s response to Patient A at this time.  One says that the respondent was trying to de-escalate the situation^[10] and that Patient A was focused on arguing with the respondent,^[11] whilst the other says the respondent did not want to engage with Patient A and was dismissive but not rude.^[12]  I am not prepared to find, given the divergence in accounts, that the respondent was dismissive of Patient A at this time. 
19. [19]
    It is not contested by any of those who have given statements and I find that the nurse in charge offered Patient A medication, observing his behaviour to be escalating.  Patient A took the medication.  The respondent then left the nurses station to undertake a round of visual observations of the patients on the ward, which was part of his duties that night.^[13]  The CCTV footage shows Patient A, who at that time was seated stolidly in the corridor, gesticulating towards the respondent after he had walked past him by thrusting his arm outwards, and looking down towards where the respondent had evidently gone.  The Tribunal finds that these actions indicate Patient A was indicating an ongoing fixation on the respondent.
20. [20]
    The other nurses on shift say that as the respondent was doing his visual observations round, at some point Patient A shouted at the respondent words to the effect “stay out of my f**king room”^[14] or was continuing to say “don’t go into my room” whilst walking up to where the respondent was.  The respondent’s account is that Patient A stated in a loud voice using an aggressive tone “stay out of my f***king room”.^[15]  I find that, whatever the precise words used, Patient A was challenging the respondent, in relatively strong terms, not to enter his room.  It is not contested that the respondent did not enter Patient A’s room.  The respondent did nothing to escalate the situation at this time.
21. [21]
    There is no dispute that the respondent pushed Patient A using two hands shortly after this occurred, as the respondent says he did so in a written statement dated 2 November 2022.^[16]  He also says that Patient A fell down on his buttocks.^[17]  Each of these things can be observed in the CCTV, which does not contain any audio.
22. [22]
    The dispute arises as to the anterior circumstances which caused the respondent to do this.  At about this point, the nurse in charge attended to other duties and so was not an eyewitness to what occurred whilst the other nurse was observing what was occurring.
23. [23]
    The assessors^[18] and I have watched the CCTV.^[19]  The incident itself is captured in exhibit TS1c.  The nurse who was watching is visible in the CCTV.  She was some little distance behind Patient A and, as she says, could not see what Patient A’s facial expressions were.  In the CCTV footage itself I observe that the top of the footage is dark, and it is not readily possible to discern Patient A’s facial expressions from that footage.
24. [24]
    Essentially, the respondent’s version^[20] is that Patient A was walking towards him in the middle of the corridor, when he got to the fire smoke door he moved over to one side to allow Patient A to walk past, Patient A moved over in front of him blocking his path, he told Patient A to “back off” twice, to which Patient A responded “or what”.  Patient A kept walking towards him and then he pushed Patient A, using a two-hand palm strike.  He was shocked that Patient A fell as he did not push Patient A that hard.^[21]  In the progress notes which were made the night of the incident, the respondent  has evidently recorded that Patient A had taken a step towards him and assumed a threatening stance, and after he said to Patient A to ‘move back’ loudly a second time Patient A immediately began to raise both of his hands and at that time the respondent pushed Patient A to avoid being struck.^[22]
25. [25]
    The nurse who was the eyewitness confirms that she heard the respondent ask Patient A to stand aside when he was quite close to him.^[23]  The other nurse on shift cannot be seen in the CCTV at this time.
26. [26]
    On a review of the CCTV footage, the vision captured differs from the account(s) given by the respondent in the following respects:

    1. Patient A is stationary when the respondent comes up close to him.  He steps neither forward nor backward;
    2. the respondent does not move to the side to allow Patient A to pass.  However, consistently with the respondent’s version, Patient A has in fact stepped from the side of the corridor into the middle of it effectively blocking the respondent’s path; and
    3. Patient A does not begin to raise both of his hands.
27. [27]
    Further, the CCTV footage shows that Patient A had his arms and hands by his sides and that the respondent walked towards him purposefully.  The professional assessors inform the Tribunal that the respondent’s action is consistent with training to take control of a situation and reduce the impact of any physical assault.  The consequence of taking this course is that it is highly likely that the situation will escalate.  The CCTV footage also shows the respondent standing over Patient A whilst he is on the ground after being pushed.  Again, the professional assessors inform the Tribunal that this is consistent with the respondent’s account of checking on Patient A’s welfare and that Patient A, through his actions in moving his legs further in the corridor after the fall, effectively continues to block the respondent.  
28. [28]
    The professional assessors also inform the Tribunal that the physical layout of the ward in question, as seen in the CCTV footage and on the plan, is of an older style and the security measures involving keys are not contemporary.  Each of these factors in the built environment limited the available options to the respondent in the difficult circumstances in which he found himself.  The professional assessors also observed that the nurse in charge should have ensured at the outset of the shift that each of the nurses were carrying a duress alarm.
29. [29]
    In the circumstances I find that:

    1. Patient A had been verbally aggressive towards the respondent at the medication station;
    2. Patient A had continued to be verbally heightened with the respondent prior to the respondent making physical contact with Patient A;
    3. Patient A, by stepping into the middle of the corridor as the respondent approaches, was trying to control the situation and exert his authority;
    4. The respondent struck Patient A with both hands in the chest with force which was sufficient to cause him to fall backwards and land on the floor.
30. [30]
    It is not contested that after the respondent struck Patient A, Patient A punched the respondent on the chin, a code black was called, the respondent did not engage physically further with Patient A and the nurse in charge went to Patient A and was able to lead Patient A back into his room.
31. [31]
    There is an opinion from a specialist nurse in mental health that:^[24]

    1. the respondent did not use appropriate de-escalation techniques before physically engaging with the patient;
    2. the level of force used was not clinically justified or necessary;
    3. even if the respondent was feeling physically intimidated, as he stated, this did not justify what was visible on the CCTV footage where Patient A was not raising his fists or demonstrating any other observable aggressive behaviour;
    4. the force the respondent used was excessive, placed Patient A at increased risk of injury and escalated the situation; and
    5. the respondent’s conduct was below the standard reasonably expected of a health respondent.
32. [32]
    The respondent did not challenge this opinion however, the professional assessors take issue with it.  This is because:

    1. Of the evidence that Patient A was fixated on the respondent from the outset of the shift;
    2. Their experience is that people with Patient A’s mental health conditions need to be managed consistently by the whole team of care providers;
    3. The evidence demonstrates that the different nurses on the shift managed Patient A differently and perhaps did not appreciate the potential significance of Patient A’s fixation on the respondent;
    4. The evidence is that the respondent, according to the training records, had only undertaken OVP training at a basic level (OVP Physical Skills Low) when there is an OVP Physical Skills High level course available to nurses, which is expected to be available to nurses working in inpatient mental health units;
    5. The physical technique the respondent adopted was a technique which he may well have been trained to use as it is a technique that can form part of basic training.  Without detail of the training, it is not possible to be definitive.  The Tribunal notes, however, the respondent’s account that he acted in accordance with his OVP training.^[25]
33. [33]
    The assessors advise the Tribunal that the respondent’s shortcoming on the evening is related to making the decision to engage Patient A rather than a decision to call a code black or ask one of the other nurses to do so.   The Tribunal accepts that advice and makes that finding.

What is relevant about the respondent?

34. [34]
    The respondent is presently 51 years old and was 49 when he engaged in the conduct.^[26]
35. [35]
    He was first registered as an enrolled nurse on 17 June 2007.  He is presently unregistered,^[27] having failed to renew his registration in May 2023.
36. [36]
    Arising from the events giving rise to this referral, the Health Ombudsman took immediate action against him on 16 March 2023, imposing conditions on his registration.^[28]  These conditions were removed once the respondent did not renew his registration.^[29] 
37. [37]
    The respondent resigned from his employment at the hospital on 1 August 2023.^[30]
38. [38]
    The respondent has no prior disciplinary history.

How should the Tribunal characterise the respondent’s conduct?

39. [39]
    The Director submits that the respondent’s conduct the subject of the allegation in the referral constitutes professional misconduct, being conduct that is substantially below the standard which might reasonably be expected of a registered health respondent of an equivalent level of training or experience.^[31]
40. [40]
    The Director submits that professional misconduct under this limb of the definition, must be shown to be, “to a high degree”, below the standards expected of a registrant with equivalent training or experience.^[32]  It requires “a large or considerable departure” from the standard required and may be the result of the extent and seriousness of that departure, the deliberateness of the conduct, the consequences for a client or other aspect of the conduct.^[33]  In deciding whether conduct should be characterised as “unprofessional conduct” or “professional misconduct”, the Tribunal is required to make a judgment as to the degree of departure from the standard reasonably expected of the respondent by the public or the respondent’s peers.^[34]
41. [41]
    In this case, the Director submits, in contending for a finding the conduct was substantially below the expected standard:

    1. the respondent has demonstrated a lack of insight and remorse by continuing to dispute that the force he used was excessive or unreasonable despite having been provided with a copy of the CCTV of the incident; and
    2. the push was very forceful and sudden in circumstances where there was no indication that Patient A posed any immediate physical threat.
42. [42]
    The Tribunal does not accept that submission for a number of reasons.  The first is because it is not possible to determine on the evidence what remarks Patient A had been making to the respondent in the immediate lead up to the respondent’s action of pushing him in the chest.  The second is that the respondent has not maintained that Patient A raised both his hands just prior to the push.  This appears only in the progress notes which were completed on the night of the incident, and presumably before the respondent viewed the CCTV.  Thereafter, the respondent has not continued to assert that point.  This is consistent with the CCTV and suggests the respondent is disputing only that which he believes to be so.  Third, the CCTV does show Patient A stepping into the line of travel of the respondent.  The Tribunal adopts the analysis set out at [26] to [33] above.
43. [43]
    Consistent with the expert opinion obtained by the Director, but for different reasons, the Tribunal finds the respondent’s conduct was unprofessional conduct, being professional conduct of a lesser standard than that which might reasonably be expected of the health respondent by the public or the respondent’s professional peers.

What orders are appropriate to address the conduct that has been established?

44. [44]
    The purpose of a sanction is to protect the public; it is not to punish the respondent (although a respondent may experience a protective action as a punishment, in the sense of negative consequences towards them).  The Tribunal’s disciplinary jurisdiction is exercised for the paramount purpose of protecting the health and safety of the public^[35] and the protection of the reputation of the profession in the public mind. 
45. [45]
    There are well established considerations for the Tribunal on a disciplinary referral:^[36]

    1. preventing respondents who are unfit to practice from practising;
    2. bringing home to the respondent the seriousness of their conduct;
    3. deterring the respondent from future departure from appropriate standards or others who might be minded to act in a similar way; and
    4. imposing restrictions on the respondent’s right to practice to ensure public protection.
46. [46]
    An assessment of ongoing risk posed by the respondent is essential to any determination of sanction.  In performing that assessment, the degree to which the respondent has acquired insight will be relevant.^[37]
47. [47]
    The Tribunal will consider a range of factors in a given case including the nature and seriousness of the alleged conduct, the extent to which the respondent has shown contrition, insight or remorse for their conduct, the need for general or specific deterrence, evidence of rehabilitation and otherwise good character, including co-operation with the disciplinary process and the regulator and any mitigating factors which are personal to the respondent. 
48. [48]
    In this case the Director seeks:

    1. a reprimand; and
    2. disqualification from applying for registration for six months from the date of this order.
49. [49]
    The Director has referred the Tribunal to a number of authorities,^[38] with the submission that the respondent’s conduct is less serious than that in the cases of Nursing and Midwifery Board of Australia v Hughes-Fischer,^[39] Nursing and Midwifery Board of Australia v Smith (Review and Regulation) (‘Smith’)^[40] and Health Ombudsman v McDonald^[41] where the patients were more vulnerable by virtue of age and physicality; and is similar in seriousness to Nursing and Midwifery Board of Australia v Jones (Review and Regulation) (‘Jones’)^[42] but meaningfully more serious than in Health Ombudsman v Truscott (‘Truscott’).^[43]
50. [50]
    In Smith the respondent was dealing with a wheelchair bound and mentally unwell patient who was cognitively impaired at the time, verbally and physically aggressive and insisting on leaving the hospital to smoke a cigarette, before being examined and despite being at risk of collapse from a serious condition (having deliberately overdosed on drugs).  The patient lashed out at the respondent who, instead of taking steps to de-escalate the developing conflict, unnecessarily restrained the patient and slapped the patient across the face.  The respondent, who had worked as a registered nurse in the emergency department of a regional hospital for 15 years, self-reported her behaviour and, as a result of the incident, lost her employment.  The referral proceeded on agreed facts, findings and determinations.  The parties agreed and submitted to the Tribunal the respondent’s conduct was an isolated event (having considered expert evidence that given matters particular to the respondent, similar conduct was unlikely to recur) and the patient’s behaviour had been extremely challenging.  The Tribunal observed it was ‘comfortably satisfied’ that the conduct amounted to professional misconduct within subparagraphs (a) and (b) of the definition.  The parties jointly proposed the respondent be reprimanded and that her registration be subject to an education condition, which was that the respondent provide a reflective practice report based on education she had already completed in occupational and aggression management.  (The respondent in fact completed the education before the Board had determined to take disciplinary action).  The Tribunal observed that the primary focus was on general deterrence and was satisfied the sanction was appropriate and made the orders.
51. [51]
    In the Tribunal’s assessment, Smith is not a ready comparator.  That respondent’s immediate recognition and reporting of the event, the undertaking of relevant education prior to any referral being implemented and the co-operative approach to the determination of the referral were accepted to mark the respondent in Smith with insight and remorse which is absent from the case presently before this Tribunal.  Here, however, the Tribunal has found that the gravamen of the respondent’s shortcoming was in the split-second choice he made to step in, as opposed to removing himself from the situation, rather than that the force he used was excessive.
52. [52]
    Truscott proceeded on agreed facts, characterisation and sanction and the Judicial Member decided not to depart from the parties’ agreement, given the authorities about that, although he made some comments in the context of consideration which suggested he did not agree with how the parties analysed the nature of the force used.^[44]  The conduct was characterised as unprofessional conduct and the respondent was reprimanded.  Because of the level of agreement between the parties and the Tribunal’s approach it does not assist in this case.
53. [53]
    Jones is the only case provided by the Director where the respondent received a period of suspension, and that was of two months.  In that case, a registered nurse intervened in what he considered to be a sexually inappropriate conversation between two patients in a mental health unit.  Failing to de-escalate the situation by trying to divert the first patient’s (‘Patient 1’) attention away from the second patient (‘Patient 2’), he pushed Patient 1 once with a single hand into his shoulder, and then, when Patient 1 fell back into him a second time, forcefully pushed Patient 1 using a single open hand to the head, causing Patient 1 to fall to the ground.  The respondent inaccurately and misleadingly recorded in the clinical records that Patient had run at him before taking a “controlled fall” and did not mention he had made conduct with Patient 1’s head.  The incident was captured on CCTV.  The respondent was suspended from his employment which was thereafter terminated and he faced two allegations – the first of a failure to engage in appropriate de-escalation techniques and the second of preparing inaccurate and misleading clinical records.  There were agreed facts, findings and determinations, as a consequence of which the first allegation was amended to remove a reference to the physical force being used as being ‘excessive”.  The parties agreed that each allegation involved professional misconduct within the meaning of section 5(a) of the Health Respondent Regulation National Law (‘National Law’) and proposed an agreed sanction of a reprimand, a two-month suspension of registration and the imposition of conditions.  The Tribunal broadly adopted the parties’ agreement, making an alteration to one of the conditions only.  The Tribunal observed that it was unnecessary physical force.^[45]  The Tribunal found that the conduct was professional misconduct, reprimanded the respondent, suspended him from practising for two months and placed conditions on his registration requiring him to undertake education and be subject to mentoring.  The Tribunal determined that the period of suspension out of practice was necessary largely for reasons of general deterrence and to assure other patients with mental health issues and their families that appropriate standards are maintained in mental health settings.^[46]
54. [54]
    The Tribunal notes that the force in Jones had an equivalence to the matter presently before it, and the recording of the incident in the patient’s records in an inaccurate manner were similar.  However, in Jones the parties had agreed characterisation within subparagraph (a) of the definition of professional misconduct, whereas in this case the Tribunal has determined the appropriate characterisation of the respondent’s conduct is that it was unprofessional conduct.
55. [55]
    A reprimand is not a trivial penalty.^[47]  It represents a ‘serious form of censure and condemnation.’^[48] It is a serious matter for a professional person.
56. [56]
    The Tribunal will impose a reprimand to mark the seriousness of the conduct.
57. [57]
    The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards.^[49]
58. [58]
    The aspects of the respondent’s conduct which show the departure from the proper standards are:

    1. there were other staff present from whom he could have called for assistance, rather than choosing as he did to engage physically; and
    2. in the investigation report into his conduct, there was a conclusion that there were alternative actions available to the respondent, although the view of the professional assessors is that they were much more limited than those found by the investigation.
59. [59]
    The Tribunal notes that the respondent stated he was recovering from a previous injury at work and did not want to get injured.^[50]  Whilst this well may be so, it is hard to see how proactively engaging in physical conduct towards Patient A advanced this desire.
60. [60]
    The Tribunal is satisfied that, given the respondent’s departure from proper standards the sanction of a reprimand is appropriate in the circumstances and no disqualification period is called for.  
61. [61]
    The Tribunal thanks the assessors for their significant and thoughtful assistance in the determination of this referral.