Health Ombudsman v Danaher

[2023] QCAT 563

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Danaher [2023] QCAT 563

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

MITCHELL PATRICK DANAHER

(respondent)

APPLICATION NO/S:

OCR167-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 December 2023 (ex tempore)

HEARING DATE:

18 December 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM
Assisted by:
Mrs C McKenzie
Ms K Nielsen
Ms M Ridley

ORDERS:

1.     In respect of allegations 1 and 2, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2.     The respondent is reprimanded.

3.     Each party bear their own costs of the proceedings. 

APPEARANCES & REPRESENTATION:
Applicant:	V Dutta, solicitor of the Office of the Health Ombudsman
Respondent:	No appearance

REASONS FOR DECISION

1. The Health Ombudsman (‘applicant’) makes an application for sanction against Mitchell Patrick Danaher (‘respondent’).  The matter has come on for hearing this morning.  The allegation is that the respondent used a disproportionate and/or excessive force against a patient and communicated with the patient in a manner which was disrespectful towards the patient.  The patient was being assisted in circumstances where she appeared to be highly intoxicated or drug-affected to the hospital by Queensland Ambulance Service (‘QAS’). 

2. In the course of transporting the patient to the hospital, the patient started vomiting.  She expressed her verbal agitation, had slurred speech, and made unintelligible loud outbursts.  At one point, she flicked an oxygen saturation probe off her finger towards the respondent. 

3. In response, the respondent struck the patient with the back of his right hand to the patient’s face or head, and mocked her by using slurred, unintelligible speech in response to, presumably, the way that the intoxicated patient was speaking.  This was observed by other paramedics and reported, hence the action taken against the respondent. 

4. The respondent was born on 6 June 1964 and is 59 years of age.  He was 56 years of age at the time of the conduct.  He was registered as a paramedic in Queensland in June 2019.  The respondent has not applied for reregistration since 3 November 2022, when he failed to renew his registration with the Paramedicine Board of Australia (‘Board’). 

5. The respondent has some history of issues associated with QAS and his behaviour as a paramedic.  In summary, the allegations against the respondent are that:

   (a)the respondent’s use of force on the patient was disproportionate and/or excessive force when he used his hand to strike the face/head of the patient;

   (b)the use of force was not reasonable, proportional or justifiable in that the respondent failed to access the hazard or appropriately manage the risk, failed to de-escalate the incident with the patient, and used his right hand to strike the right side of the patient’s face/head; and

   (c)the respondent communicated with the patient in a manner that mocked the patient and/or was disrespectful conduct towards the patient in that he used slurred speech for the purpose of mimicking the patient; and/or used words or sounds with the purpose of mocking the patient. 

6. It is apparent from the material that the patient became quite agitated as a result of both the strike to the head and also the mocking of her.

7. The Tribunal is satisfied on the material that the allegations as stated are made out, and is satisfied that, having regard to those actions, the proper characterisation of the overall conduct is professional misconduct.  I note, in particular, the reference to the characterisation and the often-quoted authorities that are set out in [25] and following of the applicant’s submission; all of which are accepted by the Tribunal as being appropriate in this case. 

8. In addition, the respondent was subject to the code of conduct that applies to the practitioners regulated by the Board, which requires conduct to be courteous, respectful, compassionate and honest; it further requires that practitioners display a standard of behaviour that warrants the trust and respect of the community.  Again, the Tribunal is satisfied that the respondent has failed to comply with the code of conduct, having regard to his actions on this occasion.

9. I note that disciplinary proceedings are protective and not punitive.  The Tribunal has regard to the matters which sanction may address as set out in [34] of the applicant’s submissions, as well as issues of insight and remorse and general and specific deterrence.  There does not appear that there is substantial insight or remorse, although the respondent does appear to have accepted that what he did was completely wrong and unacceptable.  General and specific deterrence are important here, although the respondent has not renewed his registration, and so specific deterrence is probably of lesser importance.  General deterrence however and impressing upon paramedics that this behaviour is completely unacceptable and will not be tolerated, is important. 

10. I note that the applicant has provided a number of comparatives, although none were in specific factual terms as this current case, but it was noted that the comparatives are a yardstick.  Having regard to that, it does appear that the sanction which has been sought in this case, to the Tribunal, is appropriate. 

Orders

1. The Tribunal, therefore, is satisfied that the following orders should be made:

2. In respect of allegations 1 and 2, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

3. The respondent is reprimanded.

4. Each party bear their own costs of the proceedings