Health Ombudsman v Culey

[2023] QCAT 543

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Culey [2023] QCAT 543

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

RICHARD CULEY

(respondent)

APPLICATION NO/S:

OCR200-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Dick SC

Assisted by:
Dr M Sidebotham, Midwifery Panel Assessor
Ms B L Soong, Midwifery Panel Assessor
Mr R Ashcroft, Public Panel Assessor

ORDERS:

1.   Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act2013 (Qld), the respondent is reprimanded.

3.   Each party bears their own costs of the proceeding.

4.   A non-publication order is made with respect to the relevant patient’s name.

CATCHWORDS:

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — NURSES — DISCPLINARY PROCEEDINGS — where the respondent was a registered nurse in an aged care facility — where the respondent struck a patient — whether the conduct constitutes professional misconduct — where parties have agreed as to an appropriate sanction — professional misconduct and reprimand 

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Introduction

1. The applicant has referred this matter to the Tribunal.  The parties have filed an agreed statement of facts and agree the respondent’s conduct constitutes professional misconduct.  The respondent is currently aged 43; he was 41 at the time of the incident.  He has held registration as a registered nurse since November 2014. 

Background

1. The patient is an 80-year-old woman who had been a resident at Eidsvold Health Service for 12 months leading up to the assault.  The patient had dementia, several physical ailments, personal hygiene issues and was reluctant to shower.  During the patient’s 12-month-residency, the patient had bitten, punched or screamed at nursing staff.  In October 2020, the patient was placed on a person-centred care and lifestyle plan — a management plan.  The respondent was aware of the requirements of the patient’s management plan.  It should be noted that on a previous occasion, the patient had attempted to strike the respondent during a shift.

The conduct the subject of the referral

1. On the morning of 28 December 2020, an Assistant in Nursing (‘AIN’) was experiencing difficulties in her attempts to change the patient in the aged care toilets and called for assistance.  The respondent responded to that call, and in order to assist, squatted down in front of the patient to facilitate the removal of the continence paid, and while he was moving towards the pad, the patient screamed and motioned towards him.  He then spontaneously reacted to that screaming and slapped the patient’s face.  The respondent immediately apologised.  The AIN who witnessed the assault described the slap as not hard.  The patient did not sustain injuries.  On 30 December 2020, the patient was examined by a General Practitioner who could not see any injury or markings. 

Discussion and Sanction

1. The respondent was issued a show cause notice. 

2. During the submissions on his behalf, it was said that:

   (a)the respondent deeply regretted his action;

   (b)it was a spontaneous reflex rather than a conscious act;

   (c)it was an isolated act; and

   (d)he was a type 1 diabetic who, on the evening before the shift, had experienced a hyperglycaemic episode resulting in disturbed sleep.

3. As a result of the show cause notice, a restriction of higher duties for 12 months was imposed and a requirement to attend Maybo training with a focus to de-escalation techniques.  The respondent did those things.  His restriction conditions have since been removed, and he is working as a registered nurse at Gin Gin Hospital.  The respondent has admitted his conduct. 

4. The parties agree that the respondent’s behaviour was substantially below the standard expected of a registered health practitioner of similar training, in that the patient was vulnerable and it was a significant breach of trust.  Further, that the respondent failed to undertake adequate risk assessment when attending the patient, and that his response was disproportionate to the patient’s non-physical actions.

5. The purpose of disciplinary proceedings is to maintain professional standards and public confidence in the profession.  It is not a punitive function. 

6. The parties have agreed as to an appropriate sanction, and where there has been an agreement between the parties as to an appropriate sanction, that should not be disturbed except for compelling reasons.  Having read the documents, the Tribunal is satisfied that there is no reason, much less a compelling reason, to interfere with the proposed jointly submitted orders. 

7. In addition, the parties have agreed that the Tribunal should impose a reprimand.  A reprimand is not a trivial penalty and satisfies the need for general deterrence by maintaining public confidence in the profession by deterring other members of the profession engaging in similar conduct. 

8. In those circumstances, the Tribunal:

   (a)finds that the respondent engaged in professional misconduct;

   (b)reprimands the respondent; and

   (c)makes no order as to costs. 

Non-publication order

1. There is also an auxiliary application for the Tribunal to make a non-publication order with respect to the relevant patient’s name.  The default position is that matters before the Tribunal are in public to allow for transparency in the Tribunal’s proceedings.  However, in light of the circumstances surrounding the conduct and the health of the patient, it is in the public interest and in the patient’s interest to make a non-publication order with respect to the relevant patient’s name. 

Orders

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

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

3. Each party bears its own costs of the proceedings.

4. A non-publication order is made with respect to the relevant patient’s name.