Health Ombudsman v Truscott - [2022] QCAT 298

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Truscott [2022] QCAT 298

PARTIES:

director of proceedings on behalf of the health ombudsman

(applicant)

v

stephen allan truscott

(respondent)

APPLICATION NO/S:

OCR143-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 August 2022

HEARING DATE:

18 August 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

Assisted by:

Dr W Grigg

Mr J McNab

Ms N Alexander

ORDERS:

1.     The Tribunal decides that the conduct of the respondent the subject of the referral was unprofessional conduct.

2.     The Tribunal reprimands the respondent.

3.     The parties bear their own costs of this proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – use of inappropriate force when restraining patient in mental health ward – whether unprofessional conduct – sanction – joint submission

Health Ombudsman Act 2013 (Qld) s 103(1)(a), s 104

Health Ombudsman v Murphy [2022] QCAT 7

Medical Board of Australia v de Silva [2016] QCAT 63

Medical Board of Australia v Martin [2013] QCAT 376

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)

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

M Wilkinson instructed by CSG Law, solicitors

REASONS FOR DECISION

This is a referral of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (Qld) (“the Act”) s 103(1)(a), s 104. At all material times the respondent was a Registered Nurse (“RN”), and hence a health service provider for the purposes of the Health Practitioner Regulation National Law (Queensland), (“the National Law”). The applicant alleges that the respondent is guilty of professional misconduct, or in the alternative unprofessional conduct, in that on a particular date he used force on a patient which was not reasonable, proportionate or justifiable. For the purposes of the proceeding, I constitute the Tribunal with the assistance of the assessors, Dr W Grigg, Mr J McNabb and Ms N Alexander.[1] The parties are both legally represented, and a number of the facts were agreed between them.[2] More recently, they agreed on a joint submission to the Tribunal.
[1]For their function, see the Act s 127. See also the Act s 97, s 126.
[2]Statement of Agreed and Disputed Facts, I October 2021, Hearing Book p 11.

Facts

The respondent was at the relevant time working in the mental health ward at a provincial hospital, where he had worked for about seven years. Among the inpatients at the relevant time was a twenty year old man (“the patient”) who had been diagnosed with major depression, Asperger’s syndrome and attention deficit hyperactivity disorder. He was a vulnerable person. On the relevant day the respondent worked a shift from 9 pm, together with three other RNs. One nurse at a time would rotate through the high dependency unit of the ward.
The patient had been treated in the high dependency unit for about eight days…

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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Details

Case: [2022] QCAT 298
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) heard a referral of disciplinary proceedings against Stephen Allan Truscott, a Registered Nurse, under the Health Ombudsman Act 2013 (Qld). The Health Ombudsman alleged that Truscott used force on a patient in a mental health ward which was not reasonable, proportionate or justifiable. The case was heard and determined on the papers, with both parties legally represented. The primary legal issue for the Tribunal was whether Truscott's conduct amounted to unprofessional conduct as defined in the National Law.

The Tribunal concluded that Truscott's conduct did indeed amount to unprofessional conduct. The definition of "unprofessional conduct" in the National Law includes 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. The Tribunal found that Truscott's use of force to restrain a mental health patient, which was not reasonable, proportionate or justifiable, met this definition. The Tribunal accepted the characterisation of Truscott's conduct as unprofessional, despite the extenuating circumstances where he had to act alone and had limited time to consider how best to respond to the patient's actions.

The Tribunal imposed a sanction of a reprimand on Truscott. In considering the appropriate sanction, the Tribunal took into account the need to protect the health and safety of the public, as well as the importance of personal and general deterrence, maintaining professional standards and public confidence. The Tribunal noted that Truscott cooperated with the investigation and the proceedings. The joint submission of the parties regarding the sanction was considered, and the Tribunal did not depart from the outcome proposed by the parties.

The final orders of the Tribunal were that Truscott's conduct was unprofessional, a reprimand was issued, and the parties were to bear their own costs of the proceeding. The Tribunal acknowledged the assistance provided by the assessors in reaching its decision.

Orders