Charge

On 4 October 2021, the Health Practitioners Disciplinary Tribunal (the Tribunal) considered a charge laid by the Director of Proceedings of the Health and Disability Commissioner’s office (DP) against Mr A registered nurse (the Nurse).

The charge alleged the Nurse:

1. The patient kicked and broke a glass panel in a lounge door, the nurse applied unreasonable restraint and/or physical force to the patient when he:

1. took hold of the back of the patient’s collar with his right hand; and/or
2. pushed the patient out of the lounge while still holding the patient by the back of his collar; and/or
3. pushed the patient down the corridor towards his bedroom, while still holding him by the back of his collar.

And/or

2. After the patient kicked the glass panel the nurse failed to appropriately manage and/or respond to his patient’s behaviour when he:

1. Failed to use de-escalation techniques in a way that was suitable and/or reasonable in the situation; and/or
2. Consider that his patient was in an aggressive state without assessing whether he was in fact in an aggressive state; and/or
3. Used restraint and/or physical force that was disproportionate to any risk to the safety of his patient, himself, other patients and/or other staff members; and/or
4. Did not consider the option of escorting other patients out of the lounge; and/or
5. Failed to ask available staff members to assist him.

And/or

3. On or immediately after the incident the nurse failed to accurately report the care he provided to his patient, insofar as he omitted from the incident report:

1. The restraint and/or physical force used to remove his patient;
2. The nurse’s reason for using such measures.

Background

The hearing proceeded on the basis of an agreed summary of facts. The Nurse accepted that each of the particulars was established.

The patient who had been a resident of a specialist level two high dependency unit (HDU) at a dementia hospital and rest home, suffered chronic schizoaffective disorder and vascular dementia.  On the day of the incident, the patient was in the HDU lounge.  He slowly walked to a set of external glass doors, stopped in front of them, began to swing his lower right leg then kicked the glass panel approximately three times, breaking the glass.

The nurse came out from the nurse’s station walking towards the patient, took hold of the back of the patient’s shirt collar. The nurse pushed the patient away from the doors causing him to drop the mug he was holding then pushed the patient out of the HDU lounge towards the patient’s bedroom, still holding his collar.

The nurse told the Tribunal that the reason for his actions was the patient having broken the glass started to swing his body which the nurse considered was a warning sign of aggression.  The nurse explained this was only a minor movement and that is why it was not evident on a video of the incident that was shown to the Tribunal.  Another patient was also becoming aggressive.

The nurse later made an entry into the patient’s notes of the incident and also completed an incident report stating he had ‘redirected’ the patient to his room.

Findings

The Tribunal did not accept the nurse’s evidence that the patient started to swing his body.  The Tribunal was not persuaded that any restraint was required and determined that unreasonable physical force was used to remove the patient from the lounge.  The Tribunal also found the nurse failed to use de-escalation techniques in a way that was suitable and/or reasonable in the situation.

The Tribunal found that particular 1 of the charge was established and was a clear departure from accepted standards amounting to negligence of a significant degree.

Particular 2 for the most part is subsumed by particular 1.  The Tribunal did not make findings on particular 2(iv) as it was reluctant to make findings of professional misconduct for a practitioner’s thoughts.  Taken in conjunction with particular 1, particular 2(i), (ii) and (v) meet the disciplinary threshold.

Particular 3 also met the disciplinary threshold.  The use of restraint must be properly recorded and monitored.  The nurse did not record he had physically removed the patient.  His note states he had ‘redirected’ the patient. The Tribunal found this was disingenuous and misleading and amounted to malpractice.

Penalty

The Tribunal met again by audio-visual link on 2 December 2021 to consider submissions on penalty.

The Tribunal ordered the nurse be:

• censured
• fined $3,500;
• meet conditions on his practice;
• meet 40% of the total costs amounting to $18,710.40.

The Tribunal directed publication of its liability and penalty decisions and a summary.