Health Ombudsman v McDonald [2019] QCAT 287

Health Ombudsman v Carter [2019] QCAT 52

Health Ombudsman v Levick [2017] QCAT 88

Medical Practitioners Board of Victoria v Kelly [2009] VCAT 2109

Nursing and Midwifery Board of Australia v Millikan [2011] SAHPT 20

DA Holliday instructed by the Director of Proceedings, on behalf of the Health Ombudsman

[1] This is a referral of Dr Glenda Patrice McDonald pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) ("the Act") by the Director of Proceedings on behalf of the Health Ombudsman ("the applicant"). The applicant seeks that the Tribunal make disciplinary orders against Dr McDonald pursuant to s 107(2)(b) of the Act. The parties have reached agreement as to the material facts and the characterisation of the conduct and proposed sanction. It remains, however, for the Tribunal to be satisfied as to whether, in fact, the charge is made out and to determine appropriate orders for sanction.

[2] Dr McDonald is 60 years old, born on [redacted]. Dr McDonald obtained a Bachelor of Medicine and Bachelor of Surgery degree in 1982, and was first registered as a medical practitioner in 1984. Dr McDonald is currently registered with the Medical Board of Australia, holding general registration as a medical practitioner. She was employed as an intensive care unit/coronary care unit medical officer by Mater Health Services North Queensland ("MHSNQ") from 1997. During the relevant period of 3 to 6 August 2014, Dr McDonald was the duty medical officer of the intensive care unit at MHSNQ.

[3] There is one charge alleging that, between 3 and 6 August 2014, Dr McDonald slapped a patient in the face while caring for the patient in the intensive care unit ("ICU") at MHSNQ. Dr McDonald has admitted that charge and admitted that her conduct should be found to constitute professional misconduct. The material facts are as follows.

[4] The 82 year old patient was in the ICU over the evening of 4 August 2014, having had surgery earlier in the day. The respondent was on duty as the duty medical officer in the ICU. During the night, the patient was disorientated, confused and, at times, screaming out.

[5] At around 11.45 pm, Dr McDonald was asked by a registered nurse to attend to the patient. She did so and attempted to calm the patient down and ordered medication, which was administered intravenously. The patient continued to be unsettled and the respondent ordered IV Valium, which was administered. The respondent and nursing staff made several attempts to settle the patient with verbal reassurance. The respondent was present in the ICU monitoring the patient for an extended period of time.

[6] Dr McDonald was in the registrar room and at 3.30 am she received a telephone call from a registered nurse about the patient, who was again agitated. Dr McDonald ordered medication to be administered, and this was done at 3.55 am. At around that time, Dr McDonald slapped the patient on the left side of the face twice with an open right hand in the presence of four registered nurses. As a result of Dr McDonald slapping the patient, the patient had marks on her face consistent with tissue trauma from a slap being the primary cause. The tissue trauma was petechial haemorrhage.

[7] It is clear that Dr McDonald found herself in a difficult and highly stressful situation. Dr McDonald has deposed, and the Tribunal accepts, that there was no anger or malice in her actions. She was concerned about the patient's agitation escalating despite the medication administered to sedate her. Dr McDonald was concerned about the possibility that the patient's continued agitation and distress could seriously jeopardise her fragile post-surgical state by opening her sutures and causing abdominal bleeding. Dr McDonald was extremely concerned for the patient's wellbeing and obvious distress, as well as the visible distress of the other patients in the room. The other patients in the room were also placed at risk as they were also in the ICU for continuous monitoring of their acute medical conditions.

[8] Dr McDonald deposes, and the Tribunal accepts, that there was no planning or forethought in her actions and she did not reason that slapping a patient was an appropriate physical restraint for a patient suffering from delirium. Dr McDonald believes that she slapped the patient in difficult and distressing circumstances and, while the action was not planned, on reflection, believes that she acted to try and re-orientate the patient to her surroundings. Dr McDonald does not seek to justify her actions, but explain why she acted in a way that was so out of character for her. Dr McDonald has admitted from the outset of the proceedings that her conduct in slapping the patient amounted to a breach of the relevant provisions of the applicable code of conduct.

[9] The Tribunal accepts that Dr McDonald is a caring and compassionate doctor and that this was an isolated incident in extreme circumstances. No similar incident has occurred in the 22 years of Dr McDonald's practice prior to the incident or five years since. Nevertheless, the conduct of Dr McDonald was a serious departure from the professional standards expected of a medical practitioner of her experience, and the Tribunal readily accepts the joint submissions of the parties that such conduct should be characterised as professional misconduct.

[10] On 5 August 2014, Dr McDonald's employment with the MHSNQ was suspended pending an investigation of her conduct. On 19 August 2014, MHSNQ made a decision to terminate Dr McDonald's employment and Dr McDonald's employment was terminated on 25 August 2014. On 11 September 2014, the respondent was notified that her accreditation at the MHSNQ had been terminated.

[11] On 24 September 2014, the Health Ombudsman decided to take immediate registration action by imposing conditions on Dr McDonald's registration. Those conditions included chaperone conditions and educational requirements. Dr McDonald was required to undertake education addressing the following areas of conduct and performance:

• (a) management of delirious patients;

• (b) appropriate and safe restraint of such patients;

• (c) settling patients safely who are sedated and become aroused and aggressive;

• (d) mindfulness training;

• (e) working with and treating patients who are sedated, lack capacity, and/or who are diagnosed with dementia; and

• (f) effective communication with patients within a high pressure working environment.

[12] The education program conditions and chaperone conditions were satisfactorily completed and, on 2 October 2015, the Health Ombudsman decided to remove the conditions in accordance with section 65 of the Act, as he was satisfied that the immediate registration action was no longer necessary.

[13] Dr McDonald deposes, and the Tribunal accepts, that she is extremely remorseful about the incident and has spent a great deal of time recalling the events and her actions. She is remorseful for the impact of her actions on the patient and that she did not deal with the situation differently. She has been unable to move on from the incident due to the protracted nature of the proceedings and the uncertainty regarding the outcome and feels that her life has been put on hold for over four years since the incident. Hopefully, the conclusion of these proceedings will mean that Dr McDonald will be able to move on. Dr McDonald has been so affected by the incident that she has not considered a return to practice in the ICU. She continues to feel deeply ashamed for her actions and feels that she has suffered permanent and irreparable damage to her reputation.

[14] In relation to the question of sanction, disciplinary proceedings are protective, not punitive, in nature. The protection of the health and safety of the public must be the main consideration of the Tribunal. Principles of general deterrence are relevant in this case.

[15] The patient was elderly and in a vulnerable position. A clear message must be sent to practitioners that conduct of this nature, which is both unprofessional and unacceptable, will be taken seriously by the Tribunal, and that the consequences of such conduct include the recording of their misconduct on a public register.

[16] The joint submission of the parties is that the appropriate sanction in all the circumstances is a reprimand. The Tribunal ought not ordinarily depart from orders agreed between the parties unless they fall outside of a permissible range of orders. A reprimand is not a trivial sanction, and a finding of professional misconduct together with a reprimand amounts to a public denunciation, which will forevermore mark Dr McDonald's professional reputation.

[17] Dr McDonald has demonstrated insight and remorse. She has not sought to excuse her conduct, but rather to explain what occurred. The conduct in question was an isolated incident in extreme circumstances. The risk of Dr McDonald posing any physical or other threat to patients in the future is very remote. She has satisfactorily completed the education requirements placed upon her registration and been subject to those and other conditions for a substantial period of time. In those circumstances, and the passage of time since the conduct, specific deterrence is of little significance.

[18] The parties have referred to decisions of Health Ombudsman v Levick [2017] QCAT 88; Nursing and Midwifery Board of Australia v Millikan [2011] SAHPT 20; Health Ombudsman v Carter [2019] QCAT 52; and Medical Practitioners Board of Victoria v Kelly [2009] VCAT 2109 in support of their joint submission that an appropriate order for sanction is one of a reprimand.

[19] The Tribunal accepts that a reprimand, in all the circumstances, adequately addresses the seriousness of the misconduct whilst recognising those mitigating factors in favour of Dr McDonald which have been discussed.

[20] The parties have also reached agreement that each party should bear their own costs of the proceeding.

[21] Accordingly, the Tribunal orders that:

• (a) Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct;
• (b) Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded; and
• (c) Each party bear their own costs of the proceeding.