Nursing and Midwifery Board of Australia v Geary
[2012] QCAT 294
•11 July 2012
| CITATION: | Nursing and Midwifery Board of Australia v Geary [2012] QCAT 294 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant) |
| v | |
| James Anthony Geary (Respondent) |
| APPLICATION NUMBER: | OCR246-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 11 July 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Mr David McKenzie Ms Mary Sidebotham |
| DELIVERED ON: | 11 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Geary is reprimanded. 2. Mr Geary must pay the Board's costs of and incidental to these proceedings fixed in the sum of $3,500 within 28 days (or such further time as the Board may allow). |
| CATCHWORDS: | OCCUPATIONAL REGULATION – DISCIPLINARY – NURSE – Where nurse responded aggressively to a patient in a mental health unit – where Tribunal found the behaviour uncharacteristic – where nurse suffered employment consequences and had complied with the requirements of his employer and the Board – where the nurse had positive references from his supervisor and clinical educator – whether proposed sanctions, including suspension, were appropriate – where jointly proposed orders not made by the Tribunal – where the Tribunal reprimanded the nurse and imposed an order for costs Nursing Act 1992, s 104A(3) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
These proceedings relate to a single incident involving Mr Geary, a nurse in a mental health unit, which occurred in September 2009. Mr Geary, an employee of Queensland Health, has already faced other consequences of his action under the Public Service Act 2008. Both parties are legally represented, and are agreed on the relevant facts. They have made a joint submission about the findings the Tribunal should make and the penalty they say the Tribunal should impose. For the reasons that follow, the Tribunal is satisfied that there is a ground to take disciplinary action against Mr Geary. However, it declines to impose the sanction jointly proposed. In the circumstances of this case, the Tribunal reprimands Mr Geary but imposes no other order, except that he must pay the costs of the Board, fixed at $3,500. The Tribunal’s reasons for imposing a sanction less severe than that jointly proposed are set out below.
The conduct
This incident involved a female patient in her mid 20s with a history of disruptive and aggressive behaviour. In the past she had assaulted both other patients and staff. Twice, staff incurred minor injuries requiring medical attention. On the afternoon in question, Mr Geary approached the patient with her medication. He had two cups; one containing about 30-40 mL of water and the other her medication. After some verbal exchange, the patient threw the medication to the floor. Mr Geary momentarily lost control of his emotions. He threw the water into the patient’s face. He then picked up the medication and left the room. Later, the patient apologised to Mr Geary and he to her.
The findings
Although the Board initially proceeded on the basis his conduct amounted to professional misconduct, it withdrew that allegation against Mr Geary. The parties agree that his conduct constituted unsatisfactory professional conduct because it was:
(a) professional conduct of a lesser standard than might reasonably be expected of him by the public or his professional peers;
(b) professional conduct that demonstrates incompetence or a lack of adequate knowledge, skill, judgment or care in nursing practice; and
(c) conduct disreputable to the nursing profession.[1]
[1] Nursing Act 1992, s 104A(3), definition of unsatisfactory professional conduct
Having viewed the footage of the incident, which was recorded on CCTV, the Tribunal accepts those findings are open.
The patient was a mental health patient and, as such, was particularly vulnerable. She was also a patient with a history of challenging behaviour. The Board accepts that Mr Geary was frustrated and hyper vigilant because of earlier incidents involving the patient. Although there is no evidence of this before the Tribunal, it has proceeded on that basis, also.
Nevertheless, Mr Geary bore a responsibility to behave professionally in the face of difficult or challenging behaviour. Although there was clearly some form of verbal exchange, the patient was not physically aggressive towards Mr Geary. His response was not in self defence, nor was it a proportionate response to a verbal exchange.
Patients of mental health units are particularly vulnerable. The profession, the public and the patient reasonably expect they will not be at risk from their carers. Mental health nursing is a demanding occupation, but Mr Geary did not employ the strategies expected of those who care for such patients.
Sanction
Before the incident, Mr Geary had 31 years of nursing practice. He had not been the subject of prior disciplinary action. This was an isolated incident, which has already had serious repercussions for Mr Geary. After a lengthy investigation, somewhat complicated by some concerns about Mr Geary’s own health, his employer reduced his employment classification from Clinical Nurse grade 6 to Registered Nurse grade 5.
The stress of the investigation itself took its own toll on Mr Geary. Dr Slack, who conducted a health assessment on the instigation of Queensland Health, diagnosed Mr Geary as suffering from an anxiety condition resulting from the investigation of his conduct. He predicted the condition would resolve upon Mr Geary returning to work. Although he noted Mr Geary had some personality features suggesting a generalised social anxiety disorder, Dr Slack did not think this contributed to the incident or affected his ability to safely practise nursing. That assessment seems to be borne out by Mr Geary’s lengthy history of good conduct and his successful return to work.
It is not clear why it has taken so long for these proceedings to come to the Tribunal. The incident occurred in September 2009. Dr Slack provided his health assessment report in April 2010. Since June 2010, Mr Geary has practised under limited registration requiring supervision. The application was not filed until November 2011. The Tribunal convened an on the papers hearing within a month of the parties filing their material. Given the incident was captured on CCTV and Dr Slack recommended the matter was dealt with expeditiously, the Tribunal is concerned by the delay in this matter.
The lengthy delay in dealing with an apparently uncontested matter and the evidence of Mr Geary’s performance since his return to work have influenced the Tribunal’s decision about what further action is necessary in Mr Geary’s case.
Since his return to work in June 2012, Mr Geary has performed creditably. He has earned the respect and support of his manager, who described the humility and decorum with which Mr Geary has dealt with the downgrading of his classification; which, the Tribunal accepts, involves a loss of status as well as income.
The manager reported that Mr Geary had completed all mandatory training prior to his return and has done a further 28 hours since his return. Mr Geary has maintained enthusiasm for his monthly supervision sessions. There is no question of his diligence and no issue has been raised about his competence. He is popular with patients and willingly assists to improve outcomes in their care. He provides support and education to carers and their families. He works well in a team and has returned to acute nursing well.
The training undertaken by Mr Geary included Aggressive Behaviour Management. A letter from the clinical facilitator at the unit in which he works records the balance of the diverse and comprehensive range of training units he has undertaken. He has completed all of them satisfactorily. Both Mr Geary’s manager and the clinical facilitator of the unit consider he is fit and competent to practise in mental health nursing.
Mr Geary has agreed to a reprimand, which will be publicly recorded. That is, in itself, a significant sanction for a practitioner. It expresses the Tribunal’s disapproval of his conduct and amounts to a professional censure. The Tribunal considers a reprimand is appropriate and sufficient, given the employment consequences Mr Geary has already suffered, the delay in the proceedings, the further training he has already undertaken and the strongly supportive references his managers have provided to the Tribunal.
The further sanctions proposed by the parties involved a suspension order that would not have taken effect provided Mr Geary fulfilled conditions requiring further education and counselling about anger management. They also required him to provide any employer within the first 6 months of active practice with a copy of the reasons and orders made by the Tribunal, and authorise the employer to report to the Board if it had a concern about his ability to practise competently and safely or if requested to do so by the Board.
The Tribunal does not accept that suspension (whether actually served or not) is warranted in Mr Geary’s case. This was an isolated incident in a lengthy career in nursing. Mr Geary has fully and willingly complied with the conditions of his limited registration.
There is nothing in the material before the Tribunal to suggest that Mr Geary has a particular issue that needs to be addressed through further counselling or training. Mr Geary has already undertaken significant retraining, including on anger management. His performance since his return to work is consistent with Dr Slack’s confidence in his ability to return to work safely.
The proposed orders regarding Mr Geary’s employment in the next 6 months seem unnecessary. Queensland Health is fully aware of the circumstances, having made the report to the Board. There is no suggestion that Mr Geary’s employment is at risk or that he is likely to change jobs within 6 months. An employer can play a vital role in supporting an employee after disciplinary proceedings. Mr Geary’s managers appear to have been constructive in Mr Geary’s return to work. The proposed orders do not add anything to what has already transpired.
Mr Geary has agreed to bear the Board’s costs. That is another consequence of his conduct that the Tribunal has taken into account in determining sanction.
There is no evidence that Mr Geary is predisposed to aggressive or inappropriate behaviour towards his patients; to the contrary, he had a long and satisfactory nursing career before this incident. He works in a challenging environment with patients who are both vulnerable and often difficult to deal with. Mr Geary has complied willingly with the requirements of his employer and the Board. His performance and attitude upon his return to work are impressive. The Tribunal sees little risk of recurrence of what appears to be uncharacteristic behaviour.
0
0