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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Roper v State of Queensland (Queensland Health)  QIRC 137
Roper, Benjamin Derek
State of Queensland (Queensland Health)
Public Service Appeal – Fair treatment decision
9 April 2021
9 April 2021
Industrial Commissioner Dwyer
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
INDUSTRIAL LAW – Public Service Appeal – appeal against a fair treatment decision – use of force – excessive force – allegation substantiated – mitigating circumstances not considered – consideration of penalty – change in classification not fair and reasonable – temporary change in duties fair and reasonable.
Industrial Relations Act 2016 (Qld) s 562B, 562C
Mental Health Act 2016 (Qld)
Reasons for Decision
Delivered ex tempore on 9 April 2021
- Mr Benjamin Derek Roper was, until recently, employed by the Central Queensland Hospital and Health Service (‘CQHHS’) as a clinical nurse. His classification level in his employment was described as ‘NG6-1.03’.
- Mr Roper worked at the Central Queensland Mental Health, Alcohol and Other Drugs Services unit. His role involved the treatment and supervision of patients with mental illness. It goes without saying that some of these patients can be, and were, at times violent in their behaviours. Mr Roper is a senior, well trained practitioner. He has extensive experience.
- I note that there are statements from his colleagues that have formed part of the materials in this matter that generally speak highly to him as a practitioner, and I will come to those in more detail shortly.
- On 31 December 2019, Mr Roper was involved in an incident with a patient in the high dependency unit at the facility where he worked. The relevant particulars in relation to this incident are summarised in the following paragraphs.
- Earlier in his shift, the patient in question made an unprovoked physical assault on Mr Roper by attempting to punch him as they passed in a corridor. Because of the patient’s behaviours on this morning, he was moved to the high dependency unit so that he could be better supervised given his ongoing displays of aggressive behaviour.
- Approximately one hour after the patient was moved to the high dependency unit, Mr Roper was summonsed to assist other staff with this patient because he had become upset. After initially settling the patient down using appropriate de-escalation techniques, the patient then suddenly became aggressive again and attempted to strike Mr Roper with a sturdy plastic chair. The stills of the CCTV footage that have been provided with the materials in this appeal show that Mr Roper appropriately engaged in a defensive manoeuvre by blocking the patients action with his arms, and ultimately convinced the patient to drop the chair.
- Shortly after, when the patient had put the chair down, the images reveal the patient turned away from Mr Roper. At that moment, the images show the patient is approximately 1 to 1.5 metres from Mr Roper. Notably, two other staff are also present in the immediate vicinity, each being within 1 to 2 metres of the patient.
- At this point, Mr Roper decides to exercise his powers of restraint. He called on the assistance of another staff member, but for reasons unknown, the other staff member did not assist. Mr Roper stepped across the one to 1.5 metre gap separating him from the patient and attempted to physically restrain the patient. The patient struggled and resisted, and he and Mr Roper were momentarily engaged in something of a tussle. At or about that moment, a clinical nurse consultant, Ms Parish, entered the room and directed the patient and Mr Roper to stop and to separate. They did, and the incident was then subsequently defused.
- As a consequence of this incident, an investigation into the validity of Mr Roper’s action was undertaken. Mr Roper was then confronted with an allegation of use of excessive force. Following the provision of the formal allegations and particulars, Mr Roper underwent a show cause process in which he had the opportunity to comprehensively respond to the allegation.
- On or about 30 September 2020, a decision was issued by Ms Kerry-Anne Franks, the executive director of the Rockhampton Hospital. The decision found the allegations substantiated and proposed a penalty of:
- (i)A reduction in classification level from NRG6-1.03 to NRG6-1.01 for a period of 12 months, and
- (ii)A consequential change in duties which excluded the nomination of Mr Roper as a shift coordinator for a period of 6 months.
- Mr Roper was given seven days to respond to the proposed penalty which he did. In a letter from Ms Franks dated 22 October 2020, Mr Roper was informed that the proposed penalty had been confirmed.
- Mr Roper’s appeal concerns both the decision to substantiate the allegation of misconduct and the penalty imposed. The question for me in dealing with this appeal is whether the decisions to substantiate the allegation and the decisions with respect to the penalty are fair and reasonable.
What decisions can the Industrial Commissioner make?
- These appeals are conducted pursuant to the provisions in chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). Section 562B of the IR Act provides that these appeals are conducted by way of a review of the decision appealed against. The term review takes its ordinary meaning. It is not a rehearing of the matter. It is not a rehearing of the merits in respect of the allegation and the findings.
- In respect of the orders that I can make in relation to this appeal, s 562C(1) the IR Act provides that I can make the following orders:
- (a)confirm the decision appealed against; or
- (b)set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or
- (c)set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Submissions of the parties
- Each of the parties in this matter filed written submissions. I have read those submissions, but I do not intend to reproduce them in detail in these reasons.
- The singular point of difference between the parties is the characterisation of Mr Roper’s conduct. Suffice is to say, Mr Roper does not dispute that he attempted to physically restrain the patient. While CQHHS says that it was excessive force, Mr Roper says his actions were in accordance with the relevant policy and in keeping with his authority to restrain patients under the Mental Health Act 2016 (Qld).
Allegation of excessive use of force
- I now turn to my consideration of the findings of the decision maker in respect of excessive force. The policy and legislation regulating the use of force to physically restrain patients in a mental health setting invariably provide that physical restraint is only to be used as a last resort. Anything falling on the wrong side of this cornerstone condition is necessarily excessive.
- The term "excessive force" in this context encompasses a broad range of behaviours from deliberate or malicious harm inflicted by carers or nurses in the form of an assault, through to minor or brief physical restraint arising from e.g. a momentary lapse of judgment. It is not difficult to understand how Mr Roper might object to a finding of excessive force in these circumstances particularly when, in my view, his actions fall in the latter of these categories.
- Having regard to the statements of the witnesses and also having regard to the images from the CCTV footage, it is abundantly clear to me that Mr Roper was dealing with a volatile patient who was engaging in physically threatening behaviour.
- I have enormous sympathy for Mr Roper. Those who work in his industry are routinely subjected to such behaviour and they daily face the threat of serious assault. Mr Roper himself is all too aware of this, having been seriously assaulted some years ago in a similar setting. In my experience it is an all too common feature of this line of work.
- On the other hand, as the policy and legislation say, maintaining the wellbeing, safety and dignity of patients is a matter of high priority. Standards regulating physical restraint must be high and must be rigidly adhered to.
- Mr Roper is experienced and well trained in de-escalation techniques. He clearly understands the importance of minimising conflict. As a professional working in this particular industry, he has to be held to a higher standard with respect to his actions.
- Having regard to the statements made by other staff who were present at the incident and having regard to the stills from the CCTV footage, it is my view that the restraint that Mr Roper attempted was not his last resort. At that moment, when he undertook the restraint, the patient had moved away and was not immediately threatening. At that time, Mr Roper had two other staff nearby, and whether he was aware of it or not, one of them had already activated a distress alarm. Having regard to these matters, and notwithstanding that it comes with the benefit of some hindsight, it appears to me that Mr Roper had other options at that time, but he failed to exercise them.
- I hasten to add this: I do not think that there was anything malicious, negligent, or wilful about Mr Roper’s conduct. I am entirely convinced that given the stressful events immediately preceding the incident, Mr Roper had a momentary lapse of judgment. I would add that this is something that is common amongst most senior, competent, and well qualified professionals in all fields. It was a simple error of judgment in my view.
- Given there is no evidence that Mr Roper has a history of such conduct, and the very positive and sympathetic comments made by his co-workers in their statements, I am left in no doubt that this conduct was a rare aberration in his otherwise excellent work history. While this is not relevant to the question of the finding in respect of excessive force, it is highly relevant to the question of penalty.
- In all of the circumstances, I consider that the decision maker’s finding that Mr Roper used excessive force was open to her on all of the evidence and it follows that I find that her decision (with respect to the substantiation of the allegation) was fair and reasonable.
Penalty – reduction in classification
- With respect to the penalties imposed on Mr Roper, there were two. The first of those was a reduction in his classification level from NRG6-1.03 to NRG6-1.01 for a period of 12 months. There was no common submission as to how such a penalty would impact on Mr Roper financially, although it stands to reason that any reduction by two classification levels would have to have a financial impact.
- As best as I can tell from the submissions that the parties made at hearing, the gross amount certainly will exceed an amount of $3,500.00 in that 12 months period, and it is potentially as much as $20,000.00 according to Mr Roper (although I note that the CQHHS disputes that).
- In light of my comments about Mr Roper that I made above, I consider the imposition of this penalty is excessive. I do not think that the full range of mitigating circumstances applying to Mr Roper (i.e. the conduct of the client, Mr Roper’s otherwise good work record, and the nature of his offending conduct being objectively appreciable as a lapse of judgment) were fully taken into account by the decision maker.
- In the circumstances, I find that the decision to impose a reduction in classification was unfair and unreasonable.
Penalty – change in duties
- In respect of the second part of the penalty imposed on Mr Roper, the penalty is a consequential change of duties in that Mr Roper will not be nominated as a shift coordinator for a period of 6 months.
- I accept that the vulnerability of patients in mental health facilities demands a high standard of regulation of the staff charged with caring for them. Even a minor and rare lapse of judgment by a staff member in this setting, such as the one that I believe took place in respect of Mr Roper, should be cause for concern.
- It may be that the lapse of judgment is a simple aberration, but it may also be an indication of the emergence of any number of concerning issues with the staff member concerned that require attention. For example, a staff member suffering from fatigue, or a staff member suffering with the emerging effects of their own mental health issues. These are matters which, in my experience, can oftentimes present as a lapse of judgment in such circumstances.
- In those circumstances and in the circumstances of this matter, I would consider it entirely appropriate that Mr Roper have a short period where he is divested of his seniority so that he can reflect on his actions, and so that he can be monitored (either formally or informally) in the course of conducting his duties.
- In those circumstances, it follows that I consider that the penalty, in this respect, was fair and reasonable.
- In the circumstances I make the following orders:
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
- The decision insofar as it substantiates the allegation of inappropriate workplace conduct, is confirmed;
- The decision insofar as it imposes a penalty of reduction in classification, is set aside and I replace that decision with a decision that there be no reduction in Mr Roper's classification; and
- The decision insofar as it imposes a penalty of consequential change of duties for a period of six months, is confirmed.
 Statement of Donna Kurkowski dated 8/2/20 at paragraph 7; Statement of Charles Phillips dated 13/1/20 at paragraph 7.
 Brandy v Human Rights and Equal Opportunity Commission  HCA 10.
 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
- Published Case Name:
Roper v State of Queensland (Queensland Health)
- Shortened Case Name:
Roper v State of Queensland (Queensland Health)
 QIRC 137
Member Industrial Commissioner Dwyer
09 Apr 2021