Health Ombudsman v Mberi

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Health Ombudsman v Mberi  [2022] QCAT 179

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HELATH OMBUDSMAN

(applicant)

v

JEAN MBERI

(respondent)

APPLICATION NO/S:

OCR295-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 May 2022 (ex tempore)

HEARING DATE:

16 May 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

J McNab
L Dyer
M Ridley

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 section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Respondent is reprimanded.

3. Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the conditions in the attached scheduled of conditions be imposed on the respondents registration.

4.     No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PRACTITIONERS – NURSES – DISCIPLINARY PROCEEDINGS – where respondent was a registered nurse in charge of an enrolled person and on duty during a night shift at a private acute mental health unit – where patient was in a high risk category in accordance with the policy of the owner of the clinic – where policy required the patient to be sighted every 15 minutes throughout the entire shift – where respondent and/or her enrolled nurse colleague were required to complete a sighting sheet with the times noted – where respondent only undertook some sightings and signed for sightings she did not make – where patient came to nurses station at 3:54am and spoke to the respondent about certain medication and returned to her room at 3:57am – where respondent conducted a sighting of patient at 4:34am and discovered she was not in her bed – where patient was found hanging in the bathroom – where respondent and her colleague conducted resuscitation efforts – where patient was in a coma for some days but recovered with no evidence of permanent harm – where respondent alleged and the uncontested evidence suggested that the sighting and recording practices in the clinic were not strictly followed – where contrary to the policy and not as a result of the decision of the respondent or her colleague the patient was able to retain personal items from which she was able to obtain a ligature

SANCTION – where respondent resigned from the clinic but has worked always in mental health and is a highly qualified mental health nurse now working in child mental health an accepted area of high need in health care with a  shortage of trained nurses – where respondent has a prior disciplinary history in the UK and in Queensland – where the event occurred 4 years ago – whether the respondent has demonstrated insight and remorse – where general deterrence is important – whether a suspension is not required to protect the health and safety of the public

Health Ombudsman Act 2013 (Qld) 107

Craig v Medical Board of South Australia [2001] 79 SASR 545

Health Care…

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Details
Case
[2022] QCAT 179
Decision Date

CaseChat Overview and Summary

The case of Health Ombudsman v Mberi involves the Health Ombudsman, as the applicant, and Mberi, the registered nurse, as the respondent. The primary dispute concerns the appropriate disciplinary action to be taken against Mberi following a series of incidents that raise concerns about her professional conduct and the protection of public health and safety. The court hearing this matter is tasked with determining whether Mberi’s registration should be suspended and, if so, for how long. The parties have agreed on a reprimand and mentoring conditions, but disagree on whether a suspension of registration is necessary.

The central legal issue before the court was whether the respondent's registration should be suspended for up to 12 months, as the applicant argues, or if such a suspension is unnecessary given the circumstances of the case. This question required the court to consider the severity of the respondent’s actions, the impact of these actions on public health and safety, and whether a suspension would serve as an appropriate deterrent and safeguard against future misconduct. The court had to balance the respondent’s past disciplinary history, including a prior suspension in the UK, against her current employment and conduct since relocating to Australia.

The court concluded that, while the respondent’s past conduct warranted a reprimand and mentoring conditions, the specific incidents in question did not necessitate a suspension of her registration. The court found that the respondent’s current role and ongoing employment, coupled with the agreed mentoring conditions, sufficiently protect public health and safety without the need for a suspension. The court’s decision was influenced by the respondent’s commitment to her current duties and her efforts to maintain high professional standards. Therefore, the court rejected the applicant’s call for a suspension and upheld the agreed reprimand and mentoring conditions.

The court’s final order mandates that the respondent, Mberi, be subject to a reprimand and her registration must be subject to mentoring conditions, as agreed by the parties. No suspension of her registration will be imposed.

Orders

Orders of the court

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Background

Background to the litigation

The parties have signed and filed an agreed statement of facts. They agree that the respondent should be reprimanded and that her registration be subject to mentoring conditions. The applicant submits that the respondent’s registration should be suspended for a period of up to 12 months, whereas the respondent argues that the protection of the health and safety of the public in all the circumstances of this case does not require her registration to be suspended for any period. Background The respondent is currently 42 years of age. She is a registered nurse with the Nursing and Midwifery Board of Australia (Board), being first registered in March 2012. Prior to that, she had been registered as a nurse in the United Kingdom since 2008. She completed a Diploma of Higher Education in nursing (mental health) at the University of Hertfordshire (United Kingdom) in 2008. Respondent’s employment From 2012 until 2014, the respondent was employed at Townsville Hospital and Health Service and Logan Hospital as an RN in Mental Health Services. In April 2014, she commenced part-time employment at the Royal Brisbane and Women’s Hospital (Psychiatric Emergency Centre), (PEC). She told the Tribunal today in evidence that since 2014 until the present time, as well as her nurse navigator job, to which reference will be made later in these reasons, she has worked casually in the adult mental health unit at the Pine Rivers Private Hospital on night shift. Although her patient cohort are primarily in hospital for detoxification, and the risk category is generally low, nevertheless patients at moderate risk are placed on hourly observations, and she has never encountered the “practices” she encountered in her short time at NFC. She told me that any high risk patient at the Pine Rivers Private Hospital is transferred into the public health system. From January to July 2008, in parallel with her role at PEC and, I infer, her role at the Pine Rivers Private Hospital, the respondent was casually employed as an RN by NFC. Following events the subject of this referral, she resigned from NFC on the 16th of July 2019. She is currently employed in a full-time capacity at Gold Coast Hospital and Health Service as an RN (nurse navigator) in child and youth mental health services. In her evidence today she described her role as being, as it were, a conduit between the emergency services of the Gold Coast Hospital and Health Service and community facilities designed to assist young people with mental health issues. She described her role as involving dealing often with young people with highly complex mental health issues and families in crisis. Previous disciplinary action The respondent was the subject of disciplinary proceedings while registered as a nurse in the UK. In February 2012, she was dismissed from her employment and suspended by the nursing and midwifery council (UK) in relation to the misappropriation and use of a patient’s bank card on two occasions withdrawing 75 pounds and 100 pounds from the patient’s account.

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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