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 Act2013 (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 Act2013 (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
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
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).
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…
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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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.