Health Ombudsman v Bevins - [2025] QCAT 102

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Bevins [2025] QCAT 102

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

GAVIN BEVINS

(respondent)

APPLICATION NO/S:

OCR128-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 April 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President
Assisted by:
Ms S Hopkins
Mr S Lewis
Dr P Glazebrook

ORDERS:

1. Pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes unprofessional conduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a registered enrolled nurse – where the applicant alleges the respondent used unnecessary and/or excessive and/or justifiable force against a patient at an inpatient mental health unit – whether it is appropriate to determine the matter on the papers – whether the conduct constitutes professional misconduct – where the physical environment where the conduct occurred limited the options the respondent had to respond to the escalating situation – whether the respondent should be disqualified

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw (1938) 60 CLR 336

Craig v South Australia (2001) 79 SASR 545
Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Health Ombudsman v McDonald [2019] QCAT 287
Health Ombudsman v Niem Quoc Tang [2020] QCAT 165
Health Ombudsman v Truscott [2022] QCAT 298
Medical Board of Australia v Bromeley [2018] QCAT 163
Nursing and Midwifery Board of Australia v Hughes-Fischer [2011] QCAT 627
Nursing and Midwifery Board of Australia v Jones (Review and Regulation) [2022] VCAT 498
Nursing and Midwifery Board of Australia v Lockie [2022] QCAT 391
Nursing and Midwifery Board of Australia v Smith (Review and Regulation) [2020] VCAT 173
Pharmacy Board of Australia v The Registrant [2012] QCAT 515

Psychology Board of Australia v Cameron [2015] QCAT 227

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

What is the referral about?

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?

The respondent appeared in person at the directions hearing on 23 August 2024. The respondent thereafter failed to comply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QCAT 102
Decision Date: 10 April 2025

CaseChat Overview and Summary

In the case of Health Ombudsman v Bevins, the applicant, the Health Ombudsman, brought proceedings against the respondent, a registered enrolled nurse, alleging that she used unnecessary and/or excessive and/or justifiable force against a patient in an inpatient mental health unit. The matter was heard and determined by the Queensland Civil and Administrative Tribunal. The primary issue before the tribunal was whether the matter could be appropriately decided based on the evidence presented in the papers, and if the respondent's conduct constituted professional misconduct warranting disqualification.

The tribunal considered the nature of the incident and the physical environment in which it occurred, which the respondent argued limited her options in responding to the escalating situation. The tribunal had to weigh the severity of the allegations against the respondent's explanation for her actions, and whether the conduct fell below the standard expected of a registered nurse in her position. In assessing the evidence, the tribunal needed to determine if the respondent's conduct was indeed unprofessional and if so, what the appropriate disciplinary action should be.

The tribunal found that the respondent's behaviour did constitute unprofessional conduct, as outlined in section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld). Despite the physical constraints of the environment, the tribunal concluded that the respondent's actions were not justified under the circumstances. However, the tribunal did not consider the conduct severe enough to warrant disqualification. Instead, the tribunal issued a reprimand to the respondent in accordance with section 107(3)(a) of the Act. The tribunal made no order as to costs.

Orders

Orders of the court

1. Pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes unprofessional conduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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