Health Ombudsman v Drever
[2023] QCAT 564
•28 November 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Health Ombudsman v Drever [2023] QCAT 564
PARTIES:
HEALTH OMBUDSMAN (applicant)
v
STUART ANDREW DREVER (respondent)
APPLICATION NO/S:
OCR189-21
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
28 November 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Rinaudo AM
Assisted by:
Mr B Dixon
Ms S Hopkins
Mrs K ThomsonORDERS:
1. Pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has engaged in unprofessional conduct.
2. Pursuant to s 107(3)(a) of the HO Act, the respondent is cautioned.
3. No order as to costs.
CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent registered nurse was working in mental health – where the parties have filed joint submissions and are agreed as to facts, characterisation of conduct and sanction – where the respondent otherwise has an unblemished disciplinary history – where the respondent ceased practising nursing due to the distress the incident caused him – whether the respondent’s physical handling of a patient was reasonable, proportionate or justifiable in the circumstances
Health Practitioner Regulation National Law (Queensland)
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 Act 2009 (Qld)
REASONS FOR DECISION
The parties have reached agreement that the respondent’s conduct, as alleged in the Amended Referral of the Disciplinary Proceeding, constitutes unprofessional conduct.
The parties jointly submit that the following finding and orders are appropriate:
(a)pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has engaged in unprofessional conduct;
(b)pursuant to section 107(3)(a) of the HO Act, the respondent is cautioned;
(c)no order as to costs.
In the circumstances, the Tribunal will make the joint orders sought by the parties.
Factual background of the patient
By way of brief overview, the relevant patient was 24 years old at the time, they had been diagnosed with autism spectrum disorder with moderate intellectual impairment and developmental delay (‘Patient A’). Patient A also had major depressive disorder and a tic disorder. Between October and December 2018, Patient A was admitted to a hospital that will not be identified (‘hospital’) due to presenting with suicidal ideation and was placed on a treatment authority. On 13 December 2018, Patient A was admitted to the Psychiatric Intensive Care Unit – Mental Health Inpatient Unit (‘PICU’) of the hospital on a long-term basis owing to him absconding from his accommodation. At this time, the respondent was working as a registered nurse at this facility.
Due to Patient A’s underlying neuro-developmental deficits, minimal skills and strategies to cope with frustration and distress, they would often respond with behavioural disturbances which ranged from minor levels of non-cooperation to extreme levels of aggression and violence. Patient A often required seclusion to minimise risks towards other co-patients, staff and themself.
The conduct the subject of the referral
In short, during nightshift on 14 July 2019, Patient A was demonstrating escalated behaviours such as banging on the doors and walls of another patient’s (‘Patient B’) room and becoming upset. Nursing staff were having difficulties managing Patient A’s behaviours on this day. The nursing team leader called after-hours assistance but was advised to manage the behaviour by contacting a male member of the Secure Mental Health Rehabilitation Unit. The respondent was coincidentally walking down a corridor near the PICU and was approached by the nursing team leader, who requested his assistance in managing Patient A.
Patient A continued banging on the door to Patient B’s room. The nursing team leader attempted to verbally deescalate Patient A without success including by advising them that if they continued with their behaviour, they would be secluded. Patient A ignored their advice.
Shortly after, the respondent grabbed Patient A’s arm and pulled him away from the door. Patient A then sat on the floor and shuffled along the floor back to Patient B’s door, the nursing team leader and the respondent blocked Patient B’s door to which Patient A kicked out at Patient B’s door.
The respondent used his foot to rotate Patient A and grabbed his leg to drag him away from Patient B’s door and towards the nurses’ station. Once at the nurses’ station, Patient A got to his feet and moved his arms in the direction of staff including the respondent. Both female staff moved backwards from Patient A, appearing to avoid Patient A’s arms.
The parties agree that the respondent’s actions, as described in paragraphs 8 and 9 above, were appropriate.
Patient A retaliated by pushing out at staff and appeared to turn and walk away from the respondent. With Patient A’s back to him, the respondent put his left arm around Patient A’s chest and used his right arm to grab Patient A’s right shoulder. At the same time, the respondent took a large step forward with his left leg behind Patient A’s left leg. Patient A then fell face forward onto the floor with the respondent still holding him from behind in a ‘bear hug’ style. The respondent remained on top of Patient A until security arrived.
The parties agree that the respondent’s action in performing a takedown, hip throw or trip on Patient A was not reasonable, proportionate or justifiable in the circumstances.
Patient A sustained a haematoma to his head and was later taken for a CT scan. No abnormalities were detected in the scan.
The incident was captured on several cameras positioned inside the PICU.
Discussion and sanction
The respondent’s take down of the patient was contextualised by the patient’s challenging behaviour directed towards the respondent and other nursing staff, Patient B and the lack of response by security staff.
In the circumstances, the Tribunal is prepared to accede to the characterisation as unprofessional conduct in that it was:[1]
professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.
[1]Health Practitioner Regulation National Law (Queensland) s 5 (definition of ‘unprofessional conduct’).
The respondent’s workplace, a Hospital and Health Service that will not be identified, conducted its own investigation into the incident and ultimately concluded that the respondent’s actions were not inappropriate. The report of the Hospital and Health Service included statements from other nursing staff who were asked about the respondent’s professionalism to which the respondent received stellar remarks including that he is ‘an exemplary staff member; a role model for all other staff’ and that he was ‘the sort of nurse [team leader of relevant night shift] would like to be one day’.
The respondent has not previously been subject to disciplinary proceedings.
The respondent worked one shift after the incident. The respondent then took long service leave for approximately three months. The respondent then obtained income protection insurance from his superannuation provider and did not work for 12 months due to the distressed caused to him by the incident.
The respondent made the decision not to return to nursing and returned to work as a personal trainer from June 2020 onwards.
At the time the parties filed their joint submissions, the respondent had not practised as a nurse for a period in excess of four and a half years.
The respondent maintained his registration as a registered nurse and is currently registered until 31 May 2024.
Consequently, the parties agree the respondent has suffered significant personal and professional consequences because of this incident.
The Tribunal also gives great weight to the fact the parties have come to an agreed position in respect of the facts, characterisation and sanction.
The Tribunal accepts that the proposed sanction falls within the appropriate range and serves the intended purpose of disciplinary proceedings.
Therefore, for those reasons, and generally of the reasons set out in the joint submissions, the Tribunal will accede to the orders that are proposed.
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