Nursing and Midwifery Board of Australia v Hughes-Fischer
[2011] QCAT 627
•7 December 2011
| CITATION: | Nursing and Midwifery Board of Australia v Hughes-Fischer [2011] QCAT 627 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant/Appellant) |
| v | |
| David Peter Hughes-Fischer (Respondent) |
| APPLICATION NUMBER: | OCR158-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Jenny Goodwin Michael Weir Susan Young |
| DELIVERED ON: | 7 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Hughes-Fischer is reprimanded. 2. Mr Hughes-Fischer’s registration is suspended for a period of 2 years from the date of these orders (‘the suspension period’) but that suspension, subject to paragraph 3, is suspended. 3. Mr Hughes-Fischer must satisfy the following requirements within 12 months from the date of these orders: 3.1 Mr Hughes-Fischer must complete a course or courses of education addressing professional ethics and patient rights, such course or courses to be nominated by Mr Hughes-Fischer and approved in writing by the Board; 3.2 Mr Hughes-Fischer must provide a report from the convenor of the course or courses at paragraph 3.1 confirming successful completion by Mr Hughes-Fischer; and 3.3 Mr Hughes-Fischer must engage in mentoring for 12 months with a nurse (more experienced in age-care than he), nominated by Mr Hughes-Fischer and approved in writing by the Board. The purpose of the mentoring is to develop strategies for dealing with difficult patient behaviour to enable Mr Hughes-Fischer to develop insight into why he engaged in the behaviour which is the subject of these proceedings. The mentoring is to take place at a frequency determined by the mentor but no less than 1 hour per month. 4. Mr Hughes-Fischer must provide to the Board a report of the mentor about the mentoring. 5. If: 5.1 Mr Hughes-Fischer fails to comply with paragraphs 3.1, 3.2 or 3.3; or 5.2 At any time during the suspension period the Board takes any action against Mr Hughes-Fischer pursuant to the Health Practitioner Regulation National Law (‘National Law’) including: 5.2.1 Immediate action pursuant to s 156 National Law; 5.2.2 Action pursuant to s 178 National Law; 5.2.3 Refers Mr Hughes-Fischer to a performance and professional standards panel pursuant to s 182 National Law; or, 5.2.4 Refers Mr Hughes-Fischer to a Tribunal pursuant to s 193 of the National Law; the Board must bring this matter before the Tribunal as soon as is reasonably practicable for review. 6. Mr Hughes-Fischer’s registration is subject to the following conditions during the suspension period: 6.1 Within 2 business days of gaining employment as a nurse (including a continuation of any employment he was engaged in before these orders were made), Mr Hughes-Fischer must notify the Board in writing of: 6.1.1 The name and address of the employer; 6.1.2 The address of his place of employment as a nurse; 6.1.3 The position description at the place of employment; 6.2 Within 2 business days of a change in any of the details required pursuant to paragraph 6.1 of these orders Mr Hughes-Fischer must notify the Board; 6.3 Within 7 days of these orders or upon commencing employment (as the case may be) Mr Hughes-Fischer must provide his employer with a copy of the Tribunal’s reasons and orders in this matter and a written authority to his employer to provide a written report to the Board about his ability to practise the profession competently and safely on the following occasions: 6.3.1 If the employer holds a concern about his ability to practise the profession competently and safely; and, 6.3.2 If requested by the Board. 7. Mr Hughes-Fischer must bear the costs of complying with paragraph 3. 8. Mr Hughes-Fischer must pay the Board’s costs fixed in the sum of $13,500.00, within 28 days from the date of these orders (or such further time as the Board may allow). |
| CATCHWORDS: | OCCUPATIONAL REGULATION – DISCIPLINARY – NURSE – where Nurse attended elderly patient with dementia – where patient believed himself threatened – where Nurse responded physically – where elderly patient sustained serious injury – where altercation could have been avoided had Nurse approached patient differently – where incident occurred years before disciplinary proceedings – where Nurse not subject to any other disciplinary proceedings since – whether Nurse demonstrated sufficient insight into deficit in own practice – whether Nurse at risk of like response in future Health Practitioners (Professional Standards) Act 1999 |
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
Mr Hughes-Fischer is a nurse with 21 years experience. He had been practising for approximately fourteen years when the events which led to these proceedings occurred. He was then working as a registered nurse in a nursing home. In attending to an elderly patient an incident occurred which resulted in that patient being seriously injured. His jaw was broken and surgery was required to prevent permanent injury.
Mr Hughes-Fischer has not contested these proceedings and the parties have made a joint submission about the orders they say the Tribunal should impose.
This matter proceeded as a hearing on the papers. The Tribunal has considered the material provided by the parties. For the reasons that follow, the Tribunal is satisfied that grounds have been established to take disciplinary action and, with some refinement, that the orders proposed by the parties are suitable.
The Conduct
The patient was 85 years of age and suffered mild dementia. He also had impaired hearing. At the time of the incident he was seated and using a ventolin nebuliser. Mr Hughes-Fischer crouched down to check the nebuliser and, apparently, startled the patient who responded by placing his hands on or around Mr Hughes-Fisher’s throat. Mr Hughes-Fischer’s response was to push against the patient’s jaw and, in doing so, caused the following injuries:
a) A non-displaced fracture of the right angle of the mandible;
b) A displaced left body of mandible fracture;
c) Reduced sensation in the inferior alveolar nerve (numbness in the lower lip and chin);
d) Swelling in the left side mandible (bottom jaw); and,
e) Sublingual (beneath the tongue) haematoma (bruising).
There were other actions Mr Hughes-Fischer could have taken in response, such as breaking the patient’s hold by raising his arms or simply standing and moving away from him. Mr Hughes-Fischer was then a 51 year old man and the physical discrepancy between the two was substantial.
It was some time after the incident that the patient’s injuries were attended to. It seems he was not examined until around 4:30 pm (more than 4 hours after the incident) when an agency nurse raised an issue with other staff of the nursing home. Two nurses who attended on him noted he was extremely breathless, was unable to swallow and had a painful jaw. They arranged for a doctor to examine him and the patient was transferred to Redcliffe hospital for preliminary assessment, X-rays and treatment.
Disciplinary Finding
Mr Hughes-Fischer worked as a casual nurse at the nursing home but had been there for some 8 to 9 weeks before this incident occurred. The patient was vulnerable and suffered from conditions which should have put the nurse on alert about how he should be approached. The nurse approached a patient with a hearing impairment and dementia without, effectively, announcing his presence or purpose. The elderly patient responded as if he was under threat. That could have been avoided if he had been properly approached.
The obligation rests with the nurse to understand the conditions and idiosyncrasies of the patient so that they may be appropriately cared for. Mr Hughes-Fischer’s conduct in approaching the patient demonstrated a lack of adequate knowledge, skill, judgement or care in the practise of his profession.[1]
[1]Health Practitioners (Professional Standards) Act 1999 definition of unsatisfactory professional conduct (b).
Mr Hughes-Fischer’s response to the patient’s hold on him also demonstrates a lack of knowledge, skill, judgement or care. He accepts there were other means he could have taken to break the hold. Instead he pushed hard and then harder in order to break the patient’s hold.
The Tribunal is concerned, particularly, by Mr Hughes-Fischer’s conduct after the incident. He characterised his response as a defensive protection reflex action against a patient assaulting him. He still believes he did not use unnecessary force.[2] He described as exaggerated, the accusation that he showed gross negligence in the resultant medical care of the patient. He said he twice asked the patient if he was alright and was told to go away both times, although not in those words.
[2] Statement of Mr Hughes-Fischer dated 4 May 2011.
It seems that Mr Hughes-Fischer did report the incident to another nurse shortly after the event. He disputes that nurse’s recollection of their conversation. Given the way the matter has proceeded, the Tribunal has not acted on the other nurse’s recollection. It is evident, however, that neither Mr Hughes-Fischer nor the nurse to whom he described the incident considered there was a need to check on his condition, even though he suffered from osteoporosis.
Mr Hughes-Fischer’s conduct in pushing against the patient’s jaw showed a lack of competence and performance below the standard that could reasonably be expected of him but, of itself it did not demonstrate any improper motive.
However, it was discreditable to the nursing profession that Mr Hughes-Fischer did not follow up after the incident properly. He did not formally report the incident or ensure the patient was examined and treated for any injury, despite the patient clearly complaining of pain after the event. Given the patient’s dementia and his inability, therefore, to properly describe what had occurred, the nurse’s lack of candour is particularly reprehensible.
It seems Mr Hughes-Fischer faced criminal proceedings for some time before the Director of Public Prosecutions discontinued its action against him. In his statement, the nurse equates the decision to discontinue criminal proceedings with an assessment that he did not use unreasonable force. That confuses criminal and disciplinary proceedings and their purpose.
The offence he would have been pursued for was an assault causing grievous bodily harm. To succeed, the prosecution would have had to have demonstrated, beyond reasonable doubt, that Mr Hughes-Fischer assaulted the patient. He had some prospects of successfully defending a criminal charge relying on self defence. However, that is not relevant to the disciplinary proceedings the Tribunal is now considering. Here the question is not whether a crime has been committed but whether Mr Hughes-Fischer has failed to meet the standard of conduct expected of members of the nursing profession. It seemed to the Tribunal that Mr Hughes-Fischer felt somewhat put upon by the Board’s decision to pursue disciplinary proceedings, and to do so so long after the event. The Board delayed commencing these proceedings until the criminal process concluded, a practice often adopted by disciplinary boards in such matters.
Whilst these proceedings were commenced many years after the incident, there is still a purpose in considering the disciplinary issues. It is also to Mr Hughes-Fischer’s advantage that there has been a delay. The Tribunal has the benefit of taking into account his practice since the incident. It seems he is well regarded by his present employer, an agency that provides community health services, and that he has not been the subject of any other complaint before or after this incident. Because the conduct is isolated, the Tribunal finds Mr Hughes-Fischer has not engaged in misconduct in a professional respect.
Sanction
The parties have proposed orders they agree upon, which they consider will address any future risk to patient or public safety, while denouncing the conduct.
They involve a reprimand and an order to suspend his registration for two years, with that order itself being suspended subject to compliance with conditions that will be imposed upon Mr Hughes-Fischer’s registration, and further subject to continuing good conduct.
The Tribunal is, largely, satisfied with the orders proposed. As a community nurse, Mr Hughes-Fischer will be working in a mostly unsupervised capacity. Although there have been no further complaints about his conduct, the incident revealed an alarming lack of knowledge of appropriate responses to difficult patient behaviour. Elderly patients receiving community nursing services are in a vulnerable position. Many will be frail and some will have a particular vulnerability because of their health conditions. It is likely that visits will not be observed by another person and that patients might have difficulty, as this one did, in describing what had occurred during a visit.
Although Mr Hughes-Fischer has accepted responsibility and cooperated in these proceedings, his statement in May of this year gives rise to a lingering concern by the Tribunal. He seems to lack, still, an appreciation that his response was improper and insight into the deficit in his own practice. His confidence that he has achieved a very high standard of nursing care, in that context suggests a potential future risk.
Although the parties have agreed Mr Hughes-Fischer should undertake a course of education and counselling to address anger management techniques, the Tribunal is not convinced this addresses the risk. Rather, it considers Mr Hughes-Fischer would benefit from mentoring by a nurse experienced in care of elderly patients to develop his knowledge of strategies for managing difficult patient behaviour. The Tribunal considers Mr Hughes-Fischer would also benefit from mentoring about the importance of record keeping and reporting incidents and the proper response and follow up. Accordingly the orders proposed by the parties have been varied to focus on managing difficult behaviour rather than anger management and to add a mentoring rather than a counselling requirement.
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