Director of Proceedings v Mr A

Health Practitioners Disciplinary Tribunal HPDT 1202/Nur21/513D (8 October 2021) and 1213/Nur21/513D (20 December 2021)

The Director filed a charge against a registered nurse in the Health Practitioners Disciplinary Tribunal (“the Tribunal”) concerning his use of unreasonable physical force against an elderly resident when redirecting him to his room in the high dependency unit (“HDU) at a Bupa hospital/rest home. The resident was the subject of an indefinite compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1995 because of chronic schizoaffective disorder and vascular dementia. The charge also concerned the nurse’s failure to use appropriate de-escalation techniques, and inadequate reporting of the incident.

In the afternoon on a day in April 2018, the resident slowly walked to a set of external glass doors and stopped in front of them. The resident then began to swing his lower right leg towards the lower glass pane of the left door for around six seconds. He kicked the glass pane approximately three times, causing the glass to break. The nurse walked from the nurse’s station, took hold of the back of the resident’s shirt collar with his right hand, and placed his left hand on the resident’s left arm. The nurse then “redirected” the resident away from the doors, causing him to drop the mug he was holding. The nurse then pushed the resident out of the lounge and down the corridor towards his bedroom, while still holding his collar. The incident was captured on CCTV footage. Later that day, the nurse made an entry into the resident’s progress notes and completed an incident report. The documentation omitted any mention that the nurse had physically removed the resident by grabbing and pushing him.

The charge before the Tribunal had three particulars, all of which the nurse accepted were established on the evidence. However, the nurse disputed that the established conduct met the threshold to warrant a disciplinary sanction.

In finding the charge of professional misconduct established, the Tribunal said that it had no hesitation in finding that the nurse’s behaviour warranted a disciplinary sanction, and that “any visitor to the residence would have been horrified to see a patient being handled in that way”. The Tribunal noted that it was not persuaded on the evidence that any restraint of the resident was required, and further, that the way in which the nurse removed the resident was not an approved form of restraint. The Tribunal found that it was an unreasonable use of physical force and amounted to negligence of a significant degree (as well as malpractice and conduct that undoubtedly brought discredit to the nursing profession).

In determining penalty the Tribunal commented that although it did not impose the penalty sought by the Director (namely, a suspension), it agreed with most of the submissions made on the Director’s behalf. In particular, the Tribunal was concerned at the nurse’s lack of insight and minimisation of his actions. The Tribunal said that a penalty of suspension would be somewhat problematic in this circumstance, given that the hearing had taken place some time after the events in question, the nurse had been employed by the same employer for three and a half years, and the employer endorsed his performance. The Tribunal considered that suspension would serve the purpose of punishment and therefore deterrence, but not rehabilitation, as absence from work at this stage was unlikely to bring about the reflection that the Tribunal agreed was required. The Tribunal said that it hoped that such reflection would be achieved by the conditions it imposed on the nurse’s practice, which included 12 months of supervision with a supervisor approved by the Nursing Council. In addition, the nurse was censured, fined $3,500, and ordered to pay a 40% contribution to costs.

The Tribunal granted the nurse’s application for permanent name suppression, taking into consideration the impact of stress on his documented health condition, and the risk of even greater stress should he or his wife be exposed to racist comments. The Tribunal considered that the risk of a significant adverse impact on the nurse’s health outweighed the public interest in publication “by a narrow margin” in this case.

The Tribunal’s decisions can be found here: