Geary v State of Queensland (Queensland Health)
[2024] QIRC 250
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- Geary v State of Queensland (Queensland Health)[2024] QIRC 250
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Geary v State of Queensland (Queensland Health)[2024] QIRC 250
Geary v State of Queensland (Queensland Health)[2024] QIRC 250
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Geary v State of Queensland (Queensland Health) [2024] QIRC 250 |
PARTIES: | Geary, James Anthony (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2024/90 |
PROCEEDING: | Public Sector Appeal – Appeal against a fair treatment decision |
DELIVERED ON: | 10 October 2024 |
HEARING DATE: | 9 October 2024 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: | The Orders contained in paragraph [111] of these Reasons for Decision |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – allegations in relation to appellant’s conduct – where Appellant suspended on normal remuneration – allegation in relation to inappropriate use of force and improper restraint of mental health patient – allegations in relation to failure to manage restraint – allegation of fraudulent or misleading incident report – allegation of failure to report physical take down of mental health patient – allegations of disregarding order of medical officer – multiple policies regarding restraint – failure to comply with policy – conflict in policy language – no formal investigation undertaken in relation to restraint issue – extensive reliance on CCTV footage – some conclusions of the decision maker not supported by CCTV footage – meaning of misconduct – finding of misconduct not open – contravention of Code of Conduct – two allegations incapable of substantiation – decision otherwise confirmed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562B, s 562C Mental Health Act 2016 (Qld) Public Sector Act 2022 (Qld) s 91, s 92, s 101 |
CASES: | Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Irving v State of Queensland (Queensland Corrective Services) [2024] QIRC 033 Malcolm v State of Queensland (Queensland Health) [2024] QIRC 097 Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264 |
APPEARANCES: | J. Reith, Queensland Nurses & Midwives’ Union, on behalf of the Appellant D. Williamson, Crown Law, on behalf of the Respondent |
Reasons for Decision
ex tempore
Introduction
- [1]Mr James Geary has been employed with Queensland Health (‘the respondent’) since February 1993. At the relevant time to these proceedings, he was employed as a Clinical Nurse with the Mental Health and Alcohol and other Drugs Service.
- [2]On 6 October 2023, Mr Geary was suspended on normal remuneration following a series of allegations relating to his conduct and performance. On 3 November 2023, Mr Geary was invited to show cause why disciplinary findings should not be made in relation to six allegations, which are summarised as follows:
Allegation 1 - On 18 August 2023 he engaged in an inappropriate use of force against a mental health patient (‘patient 1’);
Allegation 2 - On 18 August 2023 he failed to manage the physical restraint of patient 1;
Allegation 3 - On 18 August 2023 he submitted a fraudulent and/or misleading report detailing the physical restraint of patient 1;
Allegation 4 - He failed to report the physical takedown of another mental health patient (‘patient 2’) on 18 August 2023;
Allegation 5 - On a night shift from 5-6 October 2023 he acted outside of his scope of practice in the provision of care for a mental health patient (‘patient 3’);
Allegation 6 - On a night shift from 17-18 May 2023 he acted outside of his scope of practice in the provision of care for a mental health patient (‘patient 4’).
- [3]The particulars of each allegation are dealt with later in these reasons.
- [4]Following a comprehensive show cause process Mr Geary was advised by correspondence dated 2 May 2024 (‘the decision’) that determined:
- he was guilty of misconduct with respect to allegations (1)-(3); and
- that he had contravened, without reasonable excuse, a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action in relation to allegations (4)-(6).[1]
- [5]The decision further informs Mr Geary that consideration is being given to the termination of his employment.
- [6]Mr Geary now seeks to appeal the decision. To be clear, only the findings that Mr Geary is liable to disciplinary action are the subject of this review. The penalty of termination being considered by the decision maker is not a decision and therefore is not a matter that can be reviewed in this appeal.
Relevant legislative provisions
- [7]Chapter 11 of the Industrial Relations Act 2016 (Qld) ('IR Act') provides the Commission with jurisdiction to deal with public sector appeals.
- [8]
- [9]Section 562C of the IR Act prescribes the types of orders that the Commission can make. In deciding this appeal, s 562C(1) of the IR Act provides that Commission may:
- confirm the decision appealed against; or
- …; or
- for another appeal - 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.
…
- [10]It is trite to observe that in a review of this nature I am confined to a determination as to whether the decision under appeal was fair and reasonable. It follows that even where I might have decided the matter differently, the decision must be objectively unfair or unreasonable before it can be disturbed.
Submissions
- [11]Following directions issued on 28 May 2024, the parties filed written submissions in this appeal. Additionally, a hearing of the matter was conducted on 9 October 2024 during which each party had the opportunity to answer questions and to make further submissions in relation to the matter.
- [12]All of the written submissions filed in the proceedings have been considered however I do not intend to summarise them in these reasons in full. The salient parts of each parties’ submissions are referenced later in these reasons.
Consideration
Preliminary matters
- [13]The allegations dealt with in the decision fall into two groups. Allegations 1-4 arise out of a single incident that occurred in the workplace on 18 August 2023. Allegations 5-6 arise out of two separate incidents albeit they relate to conduct of Mr Geary that is similar in its character.
- [14]Notwithstanding the interrelated nature of the allegations contained within the decision, for the purposes of this appeal it is proper to consider each allegation separately and make a discrete determination as to whether each finding within the decision was fair and reasonable.
- [15]Before considering the findings of the decision maker with respect to allegations 1-4, it is necessary to make some observations about the evidence that was relied on by the decision maker.
No formal investigation
- [16]It would appear from the submissions that the respondent did not conduct an extensive investigation in respect of allegations 1-4. It is fair to say that the incident and its aftermath were clearly captured by CCTV camera, and that the footage is very informative. However, the footage is without sound and does not fully assist with respect to certain aspects of allegations 1-3.
- [17]It appears that allegations 1-4 have been formulated entirely from the respondent viewing the CCTV footage. If there were statements taken from any of the multiple other staff present throughout the incident, there is no indication they were considered by the decision maker. The consequence of this is discussed later in these reasons.
CCTV footage
- [18]Allegations 1-4 all arise from a single incident on 18 August 2023 whereby Mr Geary restrained patient 1 following an assault by patient 1 on his colleague. Additionally, in the immediate aftermath of the restraint, Mr Geary was present while two security guards restrained patient 1 in a prone position. He also observed a security guard tackle patient 2 to the ground. All of this was captured by CCTV.
- [19]Given that the decision maker appears to have largely based her conclusions about the appropriateness of Mr Geary’s conduct from (her opinion) of what the CCTV footage depicts, I have also taken the opportunity to study the CCTV footage. For reasons that follow there are conclusions of the decision maker about what is depicted in the CCTV footage that are plainly wrong.
- [20]Because I have concluded that some of the decision makers conclusions are wrong, it is necessary to summarise what I have observed in the CCTV footage. Having viewed the CCTV footage I can conclude that it relevantly depicts:
- Patient 1 striking a male nurse in the face (‘the assault’);
- The assault was entirely unprovoked;
- The assault was entirely unexpected having regard to the demeanour and body language of patient 1 immediately before the assault. It was in every sense a classic ‘sucker punch’;
- The male nurse appears stunned by the assault and momentarily staggers backwards into a confined space that appears to be approximately 3m x 3m;
- Patient 1 also steps back into that space and remains within striking distance of the male nurse;
- Mr Geary, who was seated within a space of 1-2 metres of the assault immediately leaps to his feet and proceeds into the confined space where both the male nurse and Patient 1 are still in backward motion following the assault;
- Mr Geary proceeds directly towards patient 1 who is facing him and moving backwards. At the same time, the male nurse is still staggering from the punch and moves into the space between Mr Geary and Patient 1;
- By the time Mr Geary begins to reach for patient 1, the only part of patient 1’s body not blocked by the male nurse is his upper chest, neck, and head;
- Mr Geary grabs Patient 1 in a hold around his neck typically described as a headlock in approximately the same moment that the male nurse moves out of the way;
- While still holding Patient 1 around the neck Mr Geary manoeuvres him against the side wall and uses his body weight to pin Patient 1 in an upright position;
- The male nurse then appears to try to force Patient 1 into a prone position by grabbing his right leg.
- At this point Patient 2 rushes in to join the melee and begins to grab at the left leg of patient 1. Mr Geary, the male nurse, and patient 2 all continue to grapple awkwardly at patient 1 who continues to resist.
- By this point of the footage, less than 20 seconds have elapsed since the assault;
- At approximately 24 seconds after the assault two security staff arrive at the scene along with what appears to be some nursing staff;
- Patient 1 is then placed in the prone position by the security staff and he ceases any physical struggle once he is placed on the floor in the (face down) prone position;
- Patient 2 is apparently directed to step away but does not respond. At this point Mr Geary has ceased his grip on patient 1 and is stepping back away from the security staff holding Patient 1 on the ground;
- In response to patient 2 failing to step away, one of the security staff then crash tackles Patient 2 to the ground. This occurs directly in front of Mr Geary.
- The remainder of the footage depicts (with a brief exception) Mr Geary either sitting or standing at the scene where patient 1 is in a prone position on the floor and talking to the various other staff present. He leaves for a brief period but then returns.
- Patient 1, at all times after being placed in the prone position on the floor appears subdued and free of any distress;
- A senior member of the nursing staff who has also been present throughout most of the relevant period eventually administers a sedative and patient 1 is then lifted to his feet and escorted away by security staff.
- [21]Having viewed the CCTV footage and considered Mr Geary’s submissions explaining his conduct, it is clear that the decision maker has reached some conclusions that are unsustainable.
Allegation 1
- [22]Allegation 1 is that Mr Geary engaged in an ‘inappropriate’ use of force in respect of his restraint and handling of patient 1. This allegation is in reference to Mr Geary’s immediate response to the assault whereby he placed patient 1 in a headlock and held him against the wall.
- [23]The decision maker appears to measure the appropriateness (or otherwise) of this conduct against compliance with the Queensland Health Chief Psychiatrist Policy – Physical restraint (‘the Restraint Policy’), the ‘Least Restrictive Practices Procedure’ (‘the Procedure’), and the ‘Physical Restraint Flow Chart’ (‘the Flow Chart’).[5]
- [24]I note that the limitations on restraint contained in the Restraint Policy do not apply in ‘urgent circumstances’ and that authorisation for restraint under the Mental Health Act 2016 (Qld) is not required to restrain a patient who is physically aggressive.[6]
- [25]I note the Procedure contemplates the Registered Nurse in charge being authorised to implement restraint in ‘an emergency situation’. Unhelpfully, the term ‘emergency situation’ is not defined and nor does the Procedure contain any express exclusions or exceptions that might reasonably be expected to apply to restraint rules where e.g. a patient is continuing to be violent and at risk of harm to themselves or others. I note also the Procedure is said to ‘not apply’ to the ‘restrictive practice of restraint’ under the Mental Health Act.[7] While not clear, I can only presume this is intended to convey that the Restraint Policy prevails over the Procedure with respect to circumstances requiring or justifying restraint and more particularly, any relevant exclusions.
- [26]I note the Flow Chart contemplates the use of restraint to protect against harm or injury to the patient or others.
- [27]Mr Geary contends that his intervention was an emergency and necessary to protect the health and safety of his colleague. The decision maker appears to disagree and relevantly concludes:
I have carefully reviewed the CCTV footage, and even if I were to accept the patient assaulted another nursing staff member, I am not satisfied there was an imminent threat to the safety of persons within the immediate proximity that warranted your physical restraint intervention. Of significance, there are no other patients in the immediate proximity and the male nurse that had been struck had retreated. Further, the patient did not direct aggression toward you….
(Underlining added)
- [28]The decision maker’s conclusion is wrong for a number of reasons.
- [29]Firstly, it appears the decision maker does not accept the male nurse was assaulted. That conclusion is plainly at odds with the incontrovertible vision on the CCTV. Not only does the footage depict the forceful and sudden impact of the blow from patient 1 on the face of the male nurse, but there is plainly vision of the male nurse touching his face in the aftermath. This action unmistakably depicts the male nurse, having been struck with some force, checking the extent of injury to his nose or lip. Additionally, another member of nursing staff also inspects the face of the male nurse to check for injuries.
- [30]It is therefore incomprehensible that the decision maker would be equivocal about the assault.
- [31]Secondly, immediately after the assault, patient 1 and the male nurse who was assaulted both retreat into the same confined space and the male nurse remains within striking distance of patient 1 until Mr Geary steps in. There was therefore a very plausible risk of further assault against the male nurse.
- [32]It is equally incomprehensible that the decision maker would conclude there was ‘no imminent threat to persons within the immediate proximity’.
- [33]Finally, it is true that the body language of patient 1 after the assault does not preview further aggression. But that was also the case immediately before he first struck the male nurse. The lack of a ‘fighting stance’ or other indicators of aggression in this instance is by no means a guarantee he will not perpetrate further violence.
- [34]Further, Mr Geary contends that patient 1 continued to use verbally aggressive language while restrained. Incredibly, the decision maker fails to make any attempt to independently verify this. The decision maker simply dismisses this (very relevant) assertion by baselessly speculating that if there was abuse, then it was in response to being improperly restrained.
- [35]In circumstances where no investigation was conducted, the decision maker has denied herself the opportunity to hear from others present whether there was (or was not) abusive language, and to evaluate what threat (if any) patient 1 continued to present.
- [36]These conclusions are collectively so at odds with the CCTV footage that it is tempting to speculate that the decision maker has not viewed it or worse, if she has, she has done so with a predetermined prejudice against Mr Geary. There are very few other possibilities to explain such unsustainable conclusions. But ultimately it is not necessary for me to understand why the decision maker so badly mischaracterised the CCTV footage. It is enough to simply conclude that she got it very wrong.
- [37]The decision maker concludes in the decision that Mr Geary should have engaged de-escalation techniques. Having viewed the footage, I am of the view that the situation was urgent within the meaning contemplated by the Restraint Policy and therefore an exception to the guiding principles relevant to avoiding restraint. I am of the view that in those moments immediately following the assault, Mr Geary was justified to physically intervene to prevent further injury to his colleague.
- [38]However, while I consider physical restraint was warranted on an urgent basis, I ultimately agree with the respondents that the form of restraint employed by Mr Geary was improper.
- [39]While I recognise that Mr Geary had limited options in the brief moment that he had to act, and that he was impeded by both the confined space and the presence of the (still stunned) male nurse staggering in front of him, the use of a headlock on patient 1 ought to have gone against all of Mr Geary’s instincts given his years of experience and extensive training.
- [40]Further, despite being impeded by the presence of the male nurse, in the last moment before he places the headlock on patient 1, the CCTV footage reveals that Mr Geary manages to step between them. In that moment he had the option to use a less dangerous restraint e.g. hold patient 1 by the shoulders or arms.
- [41]Unfortunately, Mr Geary denies the use of a headlock in his response to the show cause. The CCTV footage plainly demonstrates it. This response reveals a troubling lack of preparedness to accept responsibility for his actions.
- [42]Consequently, while I consider that Mr Geary was justified in using restraint in those urgent circumstances, his choice of restraint was inappropriate. But I do not consider his conduct meets the standard of ‘misconduct’ as concluded by the decision maker.
- [43]In my view, the decision maker’s conclusion that Mr Geary is guilty of ‘misconduct’ fails to properly take account of the difficult situation he was in. The decision maker concludes that Mr Geary is guilty of misconduct pursuant to s 91(1)(b) of the Public Sector Act 2022 (Qld) (‘PS Act’). This conclusion is founded inter alia on the multiple erroneous conclusions referred to earlier. In the circumstances, while I consider Mr Geary’s use of a headlock warrants disciplinary action, I am not satisfied his conduct rises to the level of ‘misconduct’ within the meaning of the PS Act.
- [44]Section 91(5) of the PS Act relevantly provides:
misconduct means -
Inappropriate or improper conduct in an official capacity.
- [45]It is noted that the meaning of the term misconduct as it appeared in the Public Service Act 2008 (Qld)[8] used identical terminology to s 91(5) of the PS Act. In Coleman v State of Queensland (Department of Education) ('Coleman'),[9] Deputy President Merrell concludes that the definition of misconduct contemplates:
…a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.
(Emphasis added)
- [46]Having regard to the circumstances evident from the CCTV footage I am not satisfied that Mr Geary’s conduct was ‘deliberate’. The ordinary meaning of that term generally carries with it a connotation of choice or forethought. While Mr Geary has failed to act in accordance with his training and comply with the strict policies prohibiting inter alia headlocks, the hectic circumstances surrounding his conduct are more consistent with him having suffered a momentary lapse of judgment. Further, I do not consider that there is anything about his conduct that suggests he was negligent ‘to the point of indifference’.
- [47]I accept that the rules and policies governing restraint are of critical importance to maintain the safety and dignity of persons confined against their will, both in secure psychiatric units and correctional facilities. Further, employees in these environments, who are trained in these rules and policies ought to be held to a high standard when it comes to compliance. But employers must never lose sight of the fact that volatile working environments will, from time to time, present situations that rob even the most well-intentioned employee of the benefits of their training and their otherwise good judgment.[10]
- [48]In my view, in concluding that Mr Geary is guilty of misconduct, the decision maker has not taken proper account of the urgent nature of the circumstances facing Mr Geary at the time he restrained patient 1. In particular the speed at which events unfolded and the confined space in which they occurred all contributed to Mr Geary’s conduct. These factors played a significant role in depriving Mr Geary of better options.
- [49]This is not simply a case where I would have decided this matter differently to the decision maker and now seek to impose my own view. The failings by the decision maker to acknowledge the circumstances impacting on Mr Geary and to accurately interpret the CCTV footage are significant. They have been the foundation of her decision and have caused her to unfairly and unreasonably conclude Mr Geary was guilty of misconduct within the meaning of the PS Act. I propose to set the finding of misconduct aside.
- [50]Mr Geary’s conduct still warrants discipline. The use of a headlock requires applying pressure to the neck, which in turn impacts the cervical spine and airways. It is inherently dangerous and, in this instance, posed an unacceptable risk to the health and safety of patient 1. Even in the urgent circumstances of the event, Mr Geary ought to have known this given his training and his experience. Having seen the CCTV footage I cannot accept that the headlock was applied without unacceptable levels of pressure. It is irrelevant that it was brief and caused no apparent harm.
- [51]While I fully appreciate Mr Geary was acting in the heat of the moment, that is not a defence for his conduct but rather, it is a mitigating factor relevant to penalty.
- [52]In my view, any sanction for Mr Geary’s actions should not be on the basis that he is guilty of misconduct. In my view, in all of the circumstances, the proper conclusion is that Mr Geary has contravened clause 1.5(c) of the Code of Conduct for the Queensland Public Service.
- [53]In those circumstances, fairness dictates that Mr Geary’s liability for discipline in relation to Allegation 1 arises under s 91(1)(h) of the PS Act.
Allegation 2
- [54]Allegation 2 is that Mr Geary failed to appropriately manage the physical restraint of patient 1. This allegation relates to the restraint performed by security personnel who, in the immediate aftermath of the assault and Mr Geary’s restraint, placed patient 1 in a (face down) prone position and held him there for a period of just over 9 minutes.
- [55]On an objective view of the relevant portion of the CCTV footage the scene appears to be uncontroversial. Once patient 1 is placed in the prone position, he appears subdued. Moreover, the security personnel are seen to apply little to no force, reassuringly pat his back, and speak to him. Patient 1 is plainly not in any type of distress or discomfort and appears willing to comply.
- [56]During the relevant period, the CCTV footage shows Mr Geary moving about the immediate space where patient 1 is restrained. He interacts at length with a female member of nursing staff who is apparently the senior nurse team leader. Mr Geary also interacts with the two security officers restraining patient 1. It is plain that a decision is made to sedate patient 1 because the CCTV footage reveals that, following Mr Geary’s conversation with the senior nurse team leader, she departs the scene but later returns to administer the sedative.
- [57]Throughout the relevant portion of CCTV footage none of the security or nursing staff demonstrate any concern for the manner in which patient 1 is restrained. There are as many as five security staff in attendance at one point. In particular, I note the senior nurse team leader appears entirely unperturbed by the restraint and plainly appears to agree with the clinical response to sedate patient 1. She unhesitatingly administers the sedative when it is handed to her.
- [58]I do not think it unrealistic to assume that any of the other staff present, including the senior nurse team leader, could (or should) have intervened if they considered the restraint was improper or too long. I would assume all of the staff depicted in the CCTV footage had the same or similar training to Mr Geary. To the extent that Mr Geary is said to have failed to properly manage the restraint, it does not appear that any of the numerous staff at the scene had any difficulty with the technique or duration of the restraint. The CCTV footage reveals no body language from any other staff that would suggest any opposition or discomfort about the manner in which the incident was being managed.
- [59]But the great problem for Mr Geary, according to the decision maker, is that he was apparently in charge of the scene by virtue of his seniority and the Procedure provides that a face down prone restraint must cease ‘as soon as practicable’, and ‘should’ not exceed 2 minutes. The relevant portion of the procedure reads as follows:[11]
If in the course of physical restraint, a person is placed in a face down position, this must cease as soon as practicable and should not exceed 2 minutes.
(Emphasis added)
- [60]Curiously the Procedure is in conflict with the language in the accompanying Restraint Flowchart. The Restraint Flowchart provides:[12]
Prone (face down) restraint is avoided wherever possible, and where it occurs it must not exceed 2 minutes.
Physical restraint is ceased as soon as it is no longer required and ensure total restraint does not exceed 5 minutes.
(Emphasis added)
- [61]It seems Mr Geary’s failure to end the prone restraint in under 2 minutes is at the heart of the finding that he failed to manage the restraint appropriately. According to the decision maker Mr Geary was required to coordinate a controlled transition of the prone patient to a safer position. This conclusion appears to rely on the standard set by the Procedure and/or the Restraint Flowchart.
- [62]The difficulty with that conclusion is that the Procedure says ‘should’ not exceed 2 minutes while the Restraint Flow Chart says ‘must’ not exceed 2 minutes. Why Mr Geary would be expected to disregard the Procedure and follow the Restraint Flow Chart is not explained by the decision maker. They are two very different standards. One is mandatory, the other carries a degree of discretion. It is inherently unfair to hold Mr Geary to a standard that cannot be clearly or consistently enunciated by the respondent.[13]
- [63]Moreover, the conflict in the language reveals a flaw with mandating compulsory time limits for such procedures. It is entirely within the realms of foreseeability that there will occasionally be circumstances where a prone restraint might need to exceed 2 minutes. Similarly, there will inevitably be occasions where restraints longer than 5 minutes cannot be avoided e.g. due to ongoing risks to safety.
- [64]Whether a restraint is appropriate should not be determined by a stopwatch. The appropriateness (or otherwise) of the length and type of restraint will depend on the circumstances of each case. Of course, in striving for best practice, employees should take all reasonable steps to comply with the guiding policy or procedure. But a departure from policy or procedure does not, of itself, render the actions of an employee inappropriate.[14] In each case it will be the circumstances of the departure or the reasons for it that determines the appropriateness of the conduct.
- [65]In this instance patient 1 was restrained in a prone position for just over 9 minutes. The footage reveals patient 1 to have full and free movement of his head. It reveals patient 1 to be sufficiently unrestrained to look up and, at one point, make himself comfortable by resting his head on his hands. It reveals the security personnel routinely patting his back and talking to him. The CCTV footage reveals not danger to patient 1 at all.
- [66]One might ask in those circumstances, why the restraint was not released. Plainly it is because a clinical decision had been made to sedate patient 1 in the wake of his unprovoked assault on the male nurse. Given patient 1 was in the prone position because of an unprovoked assault only minutes before, his immediate behaviour could not be predicted. In my view, patient 1 remained a very plausible risk of further violence until such time as he could be sedated. His continued restraint, pending the administration of the sedative, was therefore justified while patient 1 posed such a risk to others.
- [67]If one were to rigidly apply the standard set by the Restraint Procedure or the Restraint Flowchart, the length of the restraint in this incident is excessive. But having regard to the circumstances, the delay is plainly necessary and is further explained by reference to the CCTV footage.
- [68]Shortly following the assault and prone restraint, a discussion can be seen on the CCTV footage to take place between Mr Geary and the senior nurse team leader. The senior nurse team leader then briefly departs the scene. She is then observed to return later and is handed the sedative by another nurse. The CCTV footage reveals that the single factor precipitating the end of the restraint is the administration of the sedative. Immediately upon administration of the sedative, patient 1 is lifted upright and removed.
- [69]Having regard to the CCTV footage the length of the restraint is plainly explained by two combined factors:
- the need to keep patient 1 restrained until he is sedated to manage the risk to others; and
- the time taken to procure the sedative.
- [70]Additionally, the CCTV footage depicts Mr Geary leaving the scene for a few minutes. The decision maker is critical of him for doing this. It was submitted at hearing (and not contradicted by the respondent) that this departure was to enable him to locate proper secure accommodation for patient 1 to have ‘time out’. In all of those circumstances, the restraint of 9 minutes, while less than ideal, was unavoidable.
- [71]Interviews with the staff concerned may have gone some way to confirm (or contradict) these conclusions but again, I note the respondent undertook no investigation into the reasons for the length of the prone restraint.
- [72]Ironically, in my view, rigid compliance with the policy in this instance would have been unsafe. Had security staff attempted to reposition patient 1 before he was sedated, and had patient 1 again engaged in the same degree unprovoked violence, a blow to the head of another staff member may have produced a significant or even fatal injury. Imagine explaining to a coroner that a staff member was killed by a single punch to the head from a violent patient (who was yet to be sedated after a recent assault) who was released from his restraint because 5 minutes had elapsed and the policy required it.
- [73]The criticism of Mr Geary’s handling of the restraint also extends to his broader management of the scene. The CCTV has no audio. It is impossible to ascertain what is being said. On my observations of the footage, there is nothing about Mr Geary’s conduct that suggests he is being anything less than attentive to the situation.
- [74]The respondent conducted no investigation into the incident. The respondent could have spoken to the multiple other personnel present to ascertain whether they held concerns about the restraint, or whether they considered Mr Geary was inattentive to the situation, or whether they were given clear instructions by Mr Geary. The failure by the respondent to take the opportunity to obtain such evidence leaves only the CCTV footage to guide a decision.
- [75]The decision maker’s characterisation of Mr Geary’s conduct, gleaned from her viewing of the CCTV footage, strikes me as particularly unfair. On my viewing of the footage, Mr Geary appears to be properly engaged with the incident notwithstanding he is both physically and (probably) emotionally affected by his recent physical tussle with patient 1. He can be seen sitting and trying to regain his composure while also talking to the senior nurse unit manager. His hand gestures would suggest he is explaining to her what has just occurred. He can also be seen talking to the security staff supervising patient 1 while he is on the floor.
- [76]Yet the decision maker somehow manages to conclude that Mr Geary did not e.g. give clear instructions to staff etc. There is a particularly uncharitable comment by the decision maker to the effect that Mr Geary was ‘more interested in what was on the TV’ than he was in managing the restraint. I see no evidence of Mr Geary being distracted in that manner or at all. The comment is particularly unnecessary and again hints at the possibility of the decision maker holding prejudicial views about Mr Geary.
- [77]Having said that, I am ultimately not required to conclude why the decision maker arrived at such unsustainable and unfavourable conclusions about Mr Geary, just that they are not supported by the CCTV footage that was relied on to reach them.
- [78]In those circumstances I consider that the finding of misconduct in relation to allegation 2 is incapable of substantiation on the evidence. In those circumstances I intend to set that decision aside accordingly and substitute it with a decision that allegation 2 is not substantiated.
Allegation 3
- [79]Allegation 3 is that Mr Geary submitted a ‘fraudulent and/or misleading’ incident report on 18 August 2023 regarding the incident with patient 1.
- [80]The use of the term ‘fraudulent’ is significant. It implies a deliberate intent to deceive. Indeed, that is precisely the finding of the decision maker. In essence the decision maker surmises that Mr Geary has been deliberately untruthful in his report to conceal what she considers to be his departure from policy and procedure with respect to restraint. She concludes this based on her consideration of Mr Geary’s report, his responses to the show cause, and her viewing of the CCTV footage. Again, no other investigation appears to have been conducted.
- [81]Mr Geary was required to complete the report at sometime within a few hours of the incident on 18 August 2023. The report is annexed to the respondent’s material filed on 24 June 2024.[15] The report form is in a template format and appears to have been completed electronically by way of ticking applicable boxes.
- [82]In response to the question “record the duration of time the patient was in the prone position” Mr Geary records “00:04” (which is 4 seconds). Mr Geary has explained that his reference to 4 seconds is the time he estimated patient 1 was forcibly restrained on the floor (as opposed to the whole period patient 1 was lying on the floor).
- [83]Immediately below this entry, in response to the question “Patient’s positions during restraint event (tick all that apply)” Mr Geary ticks prone (face down), standing, sitting, and on the floor.
- [84]In his description of the event Mr Geary states:
Patient was taken to the floor following serious assault of an RN staff. Assault was unprovoked and in response to delusional themes. Patient was continuing to assault those around him. Patient was unable to modify behaviour. Patient was kept on the ground but not physically restrained until he was medicated…
- [85]Again, an investigation including statements from staff who were present might have provided valuable insight into this issue. But having only the benefit of the CCTV footage and Mr Geary’s responses, I am at a loss to understand how the decision maker came to the very serious conclusion of intentional dishonesty.
- [86]If one accepts Mr Geary’s response about why he nominated 4 seconds in the prone position, then the CCTV footage broadly supports that. Once held down, patient 1 quickly becomes calm and the security guards relax the force applied. It is therefore an extraordinary leap by the decision maker to conclude this was deliberate deception.
- [87]Beyond that, Mr Geary has comprehensively and accurately described the positions in which the patient was held during the restraint event to the limited extent the form will allow.
- [88]As to his written description of the incident, it is objectively an entirely accurate account of what is depicted on the CCTV footage. A question might arise as to the accuracy of the part that says “patient was continuing to assault those around him”. It is important to note that the sentences making up the short version of events uploaded into the form within hours of the incident are not necessarily a chronological description. As I read this part of the report, the opening sentence is the ‘headline’. Objectively the sentence about patient 1 continuing to assault those around him most obviously describes the period between when patient 1 was moved from the wall to the floor. There was a clear struggle with Mr Geary and the male nurse, and then briefly with security, which plainly could constitute further assaults on those trying to restrain him.
- [89]Additionally, the reference to the failure of patient 1 to moderate his behaviour is wholly consistent with Mr Geary’s account of the use by patient 1 of ongoing abusive language.
- [90]An investigation could have verified this. But is seems that rather than speak with other staff who were available for the decision maker to fact check her serious allegation of dishonesty levelled at Mr Geary, she has simply decided to assume he has been dishonest. The low point of this procedural failure is where the decision maker sweeps aside Mr Geary’s assertions of an ongoing threat indicated by the aggressive language used by patient 1. Instead, the decision maker (quite unfairly) dismisses this assertion with speculation that if patient 1 was being abusive, it was probably in response to him being improperly restrained.
- [91]I accept that the report completed by Mr Geary is a less than detailed account of the incident. It is a restrictive form that is not conducive to or intended for expansive detail. But if one accepts Mr Geary’s explanations about the content (and there is no reason not to) there is nothing about his report that is inconsistent with the CCTV footage.
- [92]Additionally, it is a perilous practice to hold employees to the veracity of incident reports completed within hours of a dramatic event such as an assault. It is invariably the case that witnesses will often struggle to recall accurately events that have unfolded quickly and in a dramatic manner (such as assaults). Often the immediate aftermath will involve reconstructions of events by witnesses that are not entirely accurate but equally, are not intentionally dishonest or misleading.[16]
- [93]Having regard to the content of the form in question, the response from Mr Geary, and the CCTV footage, the finding that Mr Geary submitted a report that was fraudulent, or even misleading is utterly unsustainable. It follows that I consider the decision in respect of allegation 3 is unfair and unreasonable. I intend to set that decision aside and substitute it with a decision that allegation 3 is not substantiated.
Allegation 4
- [94]Allegation 4 is that Mr Geary failed to report the physical take down of patient 2 during the incident on 18 August 2023.
- [95]It is not controversial that patient 2 was physically taken to the ground by a security guard in the immediate aftermath of the assault by patient 1. The CCTV footage plainly depicts this occurring in plain view of Mr Geary.
- [96]It is further not in dispute that Mr Geary saw this. His response has been simply that patient 2 was not his responsibility and that he instructed staff to make their own reports as necessary. It was his understanding that they would report the take down of patient 2.
- [97]The decision maker did not find this response satisfactory and neither do I. The physical takedown of patient 2 was plainly part of the same event involving patient 1. Mr Geary’s responsibility to record all relevant incidents within this event in his report cannot be doubted.
- [98]I would have had more sympathy for Mr Geary if he had simply admitted his failure and explained it as an oversight after an eventful day. But his elaborate explanation about telling other staff to report it confirms he was both aware of the take down, and that it needed to be reported.
- [99]Even if others were expected to report the incident, it was plainly a responsibility that he also had. For all the reasons about report accuracy that I have discussed earlier in these reasons, the facts of an incident are best established when all available witnesses provide their account of events. In those circumstances, there is no good explanation for why an employee of Mr Geary’s experience and training should omit to record such an incident.
- [100]In the circumstances I consider the decision in respect of allegation 4 to be fair and reasonable.
Allegation 5 & 6
- [101]Allegations 5 and 6 can conveniently be dealt with together. They each involve an allegation that Mr Geary acted outside his scope of clinical practice in the provision of care for mental health patients.
- [102]The particulars are that in May 2023 (allegation 6) Mr Geary countermanded the orders of a medical officer and ceased hourly observations on a patient. Mr Geary was admonished for this in an email from his supervisor on 22 May 2023 and given clear instruction about the procedure to vary orders for observation, namely, to elevate a request to do so to the proper person before putting it into effect. I find it difficult to believe that an experienced nurse like Mr Geary could require such instruction.
- [103]On 5 October 2023 (allegation 5) Mr Geary did the same thing.
- [104]It is not controversial that Mr Geary has unilaterally made a decision in both cases to cease routine observations of patients in his care. It is not controversial that he did so contrary to the supervising doctor’s orders.
- [105]Mr Geary seeks to justify his conduct by saying the patients were agitated and that ceasing observations was in the interest both calming the patients and protecting the health and safety of staff required to do the observations.
- [106]Mr Geary may well have had legitimate reasons to consider ceasing observations of these patients. But his willingness to simply contradict orders of a medical officer (rather than go through proper channels to seek permission) demonstrates an alarming lack of insight into the danger he creates for these patients.
- [107]Hourly observations typically serve as a ‘safety net’ to ensure a patient’s condition does not deteriorate beyond a point where clinical intervention will be ineffective. While risks of missing observations will be different in each case, it is not the place of nursing staff to dismiss that risk where a doctor has evaluated the patient and made the order. Mr Geary should have sufficient experience and training to appreciate his responsibility is to balance his concern for staff safety with his obligation to keep patients safe.
- [108]What is particularly concerning about the conduct of Mr Geary on 5 October 2023 is that he already had the benefit of an explicit direction not to override doctors orders for hourly observations and yet, he seemingly unapologetically repeats this conduct a mere 5 months later.
- [109]It is irrelevant that, on the second occasion, his order was overridden within a brief period of time. The fact remains that he plainly determined to cease the hourly observations on 5 October 2023 without first obtaining the proper authorisation.
- [110]In all of the circumstances I consider the decision in respect of allegations 5 & 6 is fair and reasonable.
Order
- [111]Pursuant to s 562C of the Industrial Relations Act I make the following orders:
- The decision in relation to allegation 1 is set aside and substituted with another decision, namely:
In relation to allegation 1 pursuant to s 91(1)(h) of the Public Sector Act 2022 (Qld), Mr Geary contravened, without reasonable excuse, a relevant standard of conduct that is sufficiently serious to warrant disciplinary action, specifically, clause 1.5(c) of the Code of Conduct;
- The decision in relation to allegation 2 is set aside and substituted with a decision that allegation 2 is not substantiated;
- The decision in relation to allegation 3 is set aside and substituted with a decision that allegation 3 is not substantiated;
- The decision in relation to allegation 4 is confirmed;
- The decision in relation to allegation 5 is confirmed; and
- The decision in relation to allegation 6 is confirmed.
Footnotes
[1] Public Sector Act 2022 (Qld) ss 91(1)(b), (h).
[2] Industrial Relations Act 2016 (Qld) s 562B.
[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[4] Industrial Relations Act 2016 (Qld) s 562B(3).
[5] Respondent’s submission filed 24 June 2024, 271, 319, 320.
[6] Respondent’s submission filed 24 June 2024, 271-2.
[7] Respondent’s submissions filed 24 June 2024, 320 (‘the Procedure’).
[8] Now repealed.
[9] [2020] QIRC 032, [62].
[10] Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264, [103].
[11] Respondent’s submission filed 24 June 2024, 328.
[12] Respondent’s submission filed 24 June 2024, 319.
[13] Irving v State of Queensland (Queensland Corrective Services) [2024] QIRC 033, [44].
[14] Ibid [58].
[15] At page 362.
[16] Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264, [62], [92]. See also Malcolm v State of Queensland (Queensland Health) [2024] QIRC 097, [161].