Health Ombudsman v Kimpton

Case [2018] QCAT 405


QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Health Ombudsman v Kimpton [2018] QCAT 405

PARTIES:

HEALTH OMBUDSMAN
(applicant)

v

DAVID PAUL KIMPTON

(respondent)

APPLICATION NO/S:

OCR020-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 December 2018

HEARING DATE:

15 February 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan, Deputy President
Assisted by:
N Brook
J McNab
W Sanderson

ORDERS:

1.   Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Mr Kimpton has behaved in a way that constitutes professional misconduct.

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

3.   The parties must pay their own costs of these proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – where respondent enrolled nurse engaged in a boundary violation with a vulnerable patient – where respondent admitted professional misconduct – whether the boundary violation occurred during or after the therapeutic relationship – whether the respondent should be subject to a period of suspension – where the applicant seeks its costs – whether the interests of justice require the tribunal to make an order for costs

Health Ombudsman Act 2013 (Qld), s 103(1)(a), s 104, s 107(2)(b)(iii), s 107(3)(a)
Health Practitioner Regulation National Law (Queensland), s 5, s 225
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(1), s 102(3)

Health Ombudsman v Antley [2016] QCAT 472
Medical Board of Australia v Wong [2017] QCA 42
Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191
Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423
Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161
Psychology Board of Australia v Wakelin [2014] QCAT 516

APPEARANCES & REPRESENTATION:

Applicant:

S L Lane of the Office of the Health Ombudsman

Respondent:

S Robb instructed by Roberts & Kane Solicitors

REASONS FOR DECISION

The proceedings

  1. On 24 December 2014, the applicant Health Ombudsman received a notification regarding the professional conduct of the respondent enrolled nurse, Mr David Kimpton.  On 31 July 2015, the respondent was advised that the applicant was investigating his conduct.  As a result of that investigation, on 23 January 2017, the applicant referred to the Queensland Civil and Administrative Tribunal (the Tribunal) disciplinary proceedings against the respondent. The referral was made pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act).

    Background circumstances

  2. Mr Kimpton obtained registration as an enrolled nurse in 1985, and has worked as an enrolled nurse now for some 33 years.  In 1989, Mr Kimpton became employed at The Park – Centre for Mental Health Research, Treatment and Education (the Park), a specialist secure mental health facility, forming part of the West Moreton Hospital and Health Service (WMHHS). 

  3. On 7 December 2011, the patient was transferred from the Townsville Womens Correctional Centre (TWCC) to the Park under an Involuntary Treatment Order (ITO).[1]  It was at this…

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AGLC
Health Ombudsman v Kimpton [2018] QCAT 405
Case
[2018] QCAT 405
Decision Date

CaseChat Overview and Summary

The Health Ombudsman brought an application against an enrolled nurse, Mr Kimpton, in the Queensland Civil and Administrative Tribunal. The Ombudsman alleged that Mr Kimpton engaged in a boundary violation with a vulnerable patient, amounting to professional misconduct. The case required the tribunal to decide whether the alleged boundary violation occurred during or after the therapeutic relationship, and whether Mr Kimpton should be subject to a period of suspension. Additionally, the tribunal had to determine whether the interests of justice required it to make an order for costs.

The tribunal found that Mr Kimpton had admitted to professional misconduct by engaging in a boundary violation with a vulnerable patient. The tribunal considered the nature of the relationship between the patient and Mr Kimpton, and whether the misconduct occurred during or after the therapeutic relationship. The tribunal concluded that the misconduct did occur during the therapeutic relationship, and thus fell within the scope of professional misconduct. The tribunal also considered the appropriate penalty, and decided that a reprimand was sufficient. The tribunal found that a period of suspension was not necessary in this case.

The tribunal rejected the Ombudsman's application for an order for costs. The tribunal found that the interests of justice did not require it to make an order for costs, as both parties had incurred significant costs in the proceedings.

The tribunal made several orders pursuant to the Health Ombudsman Act 2013 (Qld). Firstly, the tribunal found that Mr Kimpton had behaved in a way that constituted professional misconduct. Secondly, the tribunal reprimanded Mr Kimpton. Thirdly, the tribunal ordered that the parties must pay their own costs of these proceedings.

Orders

Orders of the court

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Mr Kimpton has behaved in a way that constitutes professional misconduct.

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

3. The parties must pay their own costs of these proceedings.

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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