Health Ombudsman v Murphy [2022] QCAT 7

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 449

Nursing and Midwifery Board of Australia v Smith [2020] VCAT 173

C Templeton, instructed by the Office of the Health Ombudsman

• [1] On 14 May 2018, Raymond Murphy was employed as an agency nurse and was working a shift at the high dependency unit (HDU) known as 2L which is a secure unit within the general mental health unit known as 2C at the Logan Hospital. He had worked in the same unit the day before between 2:30 pm and 11 pm and had commenced duties on the 14th at 7am. He was fatigued, having had only 5 hours sleep between shifts.
• [2] He was born on 14 July 1957, so is currently 64 years of age. He was aged 60 as at 14 May 2018.
• [3] He was then a highly qualified nurse who had worked his whole 24 year career up to 2018 in mental health.
• [4] Mr Murphy completed a certificate of psychiatric nursing at Baillie Henderson Health Service School of Nursing, Toowoomba in 1994. This is equivalent to a current Bachelor's Degree in mental health nursing. He obtained registration as a registered nurse on 25 May 1994. He had previously worked, amongst other roles, as a registered psychiatric nurse at the Baillie Henderson Hospital Toowoomba, as a registered nurse in mental health with Oxley Nursing Agency, and as a casual mental health nurse at Toowong Private Hospital.
• [5] In September 2017, he completed (over a three day period), three courses in dealing with occupational violence prevention, namely, awareness and de-escalation, basic personal safety, and team restrictive practices.
• [6] As at 14 May 2018, there were three male and 2 female inpatients in the HDU.
• [7] TJ was 29 years of age. He had a long standing diagnosis of schizophrenia, which was complicated and exacerbated by polysubstance abuse. He had a history of acting physically and verbally aggressively and experienced auditory and visual hallucinations. He had had multiple admissions over the course of his mental health history and presented risk of escalating and aggressive tendencies when unwell due to his increased paranoid thoughts and feelings. He was known to not engage well with the mental health services.
• [8] He was admitted to the HDU on 11 May 2018 following noncompliance with his medications, having most recently been discharged on 24 April 2018. Progress notes entered by HDU staff recorded that following his admission to the HDU the patient had acted aggressively and engaged in threatening behaviour.
• [9] On 12 May 2018, progress notes recorded by a registered nurse at 8:51 pm indicated that during the evening the patient had been observed pacing corridors and was talking to himself. The patient had refused medication for his diabetes and accused nursing staff of lying to him about medication which was prescribed to assist with his weight. He had also threatened staff with assault. Security staff were called and he was reviewed by the psychiatric registrar. The patient provided a verbal undertaking that he would not assault staff. The registered nurse noted that patient was a low risk of suicide, a high risk of aggression and a high risk of absconding from treatment.
• [10] On 13 May 2018, progress notes recorded by another registered nurse at 9:23 pm noted that the patient had been guarded and very suspicious of nursing staff. The patient had been observed to respond to unseen stimuli (e.g. laughing to himself and air punching, pacing the ward and frowning). The progress notes recorded that despite high acuity on the ward at this time, the patient had remained non aggressive and not threatening to nursing staff and other patients.
• [11] One of the other male patients in the HDU on 14 May 2018 was SR. During 13 May 2018 this patient was reported as having been unsettled for the majority of the day, and was agitated and was punching walls from which he sustained some minor injury. Following a psychiatric registrar review, during which the patient presented as psychotic, paranoid and agitated, a decision was made to seclude the patient from the HDU.
• [12] Also present in the HDU on 14 May 2018 was another male patient, LA. In the early morning of 14 May 2018 at about 1:30 am LA was reported as having become physically aggressive towards staff after attempting to enter a co-patients room and being redirected by a nurse. He chased staff down the corridor, and attempted to punch staff. A punch connected with the arm of one nurse causing no damage. Security officers on the ward witnessed the event and moved to assist and perform a take- down of the patient.
• [13] For the day shift on Monday 14 May 2018 commencing at 7 am, there were initially four staff in the HDU. There was Mr Murphy; Carole Falvey (CF) a placement registered nurse from agency Mediserve Nursing; Registered Nurse (RN) Sheldon Smith; and enrolled nurse Sharon Bates (SB).
• [14] At the time the day shift commenced SB was aware that three of the patients in the HDU were extremely aggressive and agitated; namely the patients LA and SR and another female patient as well as TJ. The nursing staff initially moved to medicate these patients when they started the shift, with CF observing.
• [15] LA remained extremely agitated and assaulted RN Sheldon Smith after breakfast in the courtyard, requiring the nurse to go to the emergency department. RN Sheldon Smith did not return to the shift and was not replaced in the HDU.
• [16] Progress notes dated 14 May 2018, entered at 9:45 am, indicated that TJ was subject to a consultant psychiatric review by a consultant psychiatrist, a psychiatry registrar and an intern that morning. The specialist noted that the patient had recently threatened harm to his unnamed case manager. The case manager had also advised the specialist that the patient was still psychotic and had been assaulting people when on high doses of Zulco. The treating team noted that the patient posed a high risk of aggression and violence.
• [17] From approximately 12:11 pm, there was an incident between Mr Murphy and the patient TJ starting at the entry to the nurses station. At the time of the incident SB was inside the nurses station, and CF was in the ward observing.
• [18] The incident was recorded on closed circuit television (CCTV). The CCTV camera was positioned inside the HDU foyer.

• [19] As a direct consequence of the incident and after an initial investigation, on 7 June 2018, the Health Ombudsman (HO) suspended Mr Murphys nursing registration pursuant to section 58 of the Health Ombudsman Act 2013 (Qld) (HO Act), having formed a reasonable belief that because of his alleged conduct he posed a serious risk to persons and immediate registration action was necessary to protect public health and safety.
• [20] On 3 December 2020, the Health Ombudsman varied the immediate registration action by ending Mr Murphy's suspension and imposing a condition prohibiting him for working in an authorised mental health service.
• [21] On 11 February 2021, Mr Murphys nursing registration expired due to his decision not to renew his registration. On 23 February 2021, the Health Ombudsman removed the conditions on the Respondent's registration.
• [22] At the hearing on 23 November 2021, Mr Murphy told the Tribunal that he now works as a disability support worker.

• [23] On 30 May 2019, the Applicant director filed a referral in the Tribunal which contains one allegation, and that is that on 14 May 2018 while Mr Murphy was working as a registered nurse he "used excessive force whilst physically restraining the patient (TJ) by punching or striking the patient at the Logan (HDU)" [1]and as a consequence he has engaged in professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law 2009 (Qld) (National Law), or, alternatively, unprofessional conduct as defined in section 5.
• [24] On 14 June 2019, Mr Murphy filed a response in which he sought dismissal of the referral application and costs for the reasons:

the Respondent denies that his conduct on 14 May 2018 constituted professional misconduct and/or unprofessional conduct within the meaning of the Health Practitioner Regulation National Law 2009 (QLD), because the Respondents response was reasonable and commensurate with the imminent risk of harm to himself and other workers in the workplace by reason of the aggressive, threatening and intimidating behaviour of the said patient[2]

• [25] The Tribunal is required to determine which of the parties' competing assertions is correct, bearing in mind that it is the Applicant that bears the onus of proof. On the one hand, the Applicant contends that Mr Murphy used excessive force whilst physically restraining the patient TJ by punching and/or striking him; and on the other hand, the he says that he was the subject of aggressive, threatening and intimidating behaviour and he defended himself and othere staff from the imminent threat to his and/or their safety by using reasonable and proportionate force.

• [26] It is accepted that the Applicant has the onus of proving the allegation that Mr Murphy used excessive force whilst physically restraining TJ by punching and/or striking him and as a consequence has behaved in a way that constitutes professional misconduct or unprofessional conduct. The relevant standard of proof is that articulated by Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362: that is, on the balance of probabilities, subject however to what is now known as the "sliding scale." Put simply, the more serious the allegation, the more towards the higher end of sliding scale of the civil standard will lie the responsibility of proving the allegation. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, the High Court (at 449-50) explained the principle thus:

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [3]

• [27] The Tribunal notes that neither party addressed this issue in its written or oral submissions; however, the law is trite and uncontroversial. It is for the Applicant to prove that Mr Murphy used excessive force, not for him to prove that the force used was "reasonably necessary to make effectual defence against (an) assault". This is a reference to section 271(1) of the Criminal Code, which was the subject of discussion during the hearing, and referred to in oral submissions.

• [28] As noted the whole incident was recorded on CCTV and the relevant footage is exhibited to the affidavit of Mr Darren Ferguson, an authorised officer under section 188 of the HO Act, who investigated the incident on behalf of the Health Ombudsman.[3] This evidence is the best evidence of what occurred, although I accept, for some of the reasons articulated by Counsel for Mr Murphy, that there are aspects of the incident that are not entirely clear on the footage which is understandable given that the camera was positioned inside the HDU foyer.[4] In the Statement of Agreed Facts (SOAF), it was disputed (by the Applicant) that there was also a camera positioned inside the HDU nursing station "on the basis that there is no evidence that confirms that a camera had been installed as at 14 May 2018". Exhibited to Mr Murphy's affidavit filed in these proceedings on 23 June 2021 is an apparent shot from a camera positioned on the roof of the nursing station, which gives a view of parts of the area in which the incident took place[5].
• [29] At the time of the incident RN Shiree McGinness was acting unit manager of Wards 2C and the HDU Ward 2L, and arrived upon hearing the duress alarm and saw Mr Murphy on top of TJ on a cream lounge suite in the common area of the HDU. She was called to give oral evidence and confirmed that there was CCTV in the nurses station. This was otherwise not taken any further by Mr Van Grinsven, counsel for Mr Murphy, nor was there any explanation sought as to whether or not that camera was then operating, nor was it suggested that there was any prejudice to Mr Murphy as a result of evidence from that camera that might have been available.
• [30] Both parties recognised the importance of the CCTV evidence to the Tribunal's task of determining what happened. This is reflected in both final written submissions in which each counsel gives a detailed summary of what they each submit can be seen in the footage.
• [31] The camera had no time signature but it is agreed that the incident (relevantly) commenced at approximately 12:11 pm. The video runs for 9 minutes and 57 seconds but the relevant incident occurs between 1:40 and 3:12 on the video time record.
• [32] Present at relevant times were Mr Murphy , Patient TJ, and Patient LA (who remains seated on a black couch in the HDU facing the cream coloured couch on which RM and TJ ended up). LA had a blanket over his legs and made no move throughout to get up. Also present was patient SR who, shortly after the exchange between RM and TJ commenced, took up a standing position some distance from the door to the nursing station where he remained throughout, perhaps, as Mr Murphy suggested to me in his evidence "enjoying the show".
• [33] Also present at various positions was agency nurse CF, and SB, who was an employed enrolled nurse at the hospital in the HDU. Both provided affidavits and were cross-examined by Mr Van Grinsven. SB made a statement on the day at the direction of RN McGinness[6]. The Applicant also called RN Gino Richter as an expert who provided two affidavits, the second of which was only produced a few days before the hearing[7] in response to paragraph 57 of Mr Murphy's affidavit.[8] It was agreed that I would determine the admissibility of the opinion expressed by Mr Richter in the second affidavit as part of these reasons.
• [34] As noted above, Mr Murphy provided an affidavit and made a number of statements which form part of the Applicant's case, and he was cross examined by Mr Templeton. I will return to an analysis of the evidence of various witnesses later in these reasons.

• [35] The assessors and I have viewed the video many times, and I have viewed it again a number of times after receiving the analysis of it in the submissions handed up at the end of the trial. By reference to the time recorded on the video itself, I will set out the factual findings based on my observation of the CCTV evidence, and for clarity will refer to some of the uncontentious evidence from the witnesses as I proceed and record relevant commentary and impressions. For convenience's sake I will use the same acronyms that are in the reasons to describe the participants. I will describe Mr Murphy as RM.
• [36] In the opening sentence of his written submission, Mr Van Grinsven submits:

"We have no evidence to establish that what we are watching is realtime or whether the frames/seconds can alter the perception."

• [37] It was not suggested by or to any witness that the video was not recording in "real time". It appears that it records the incident from start to finish without any interruption. It was not suggested to any witness that the video had been altered or tampered with in any way. No such suggestion was made in any submissions.
• [38] I accept that for various reasons (e.g. angle of the camera, positioning of the various protagonists, absence of sound), the video does not give a perfect record of what occurred, but that primary submission in his final argument can not be accepted as there is no evidence to support such a contention.
• [39] I accept that, for the reasons set out in the SOAF,[9]the two remaining nurses in the HDU at the time of the incident would have been very conscious, and even anxious and hypervigilant about the risks to them and other posed by the three male patients TJ, LA and SR. As noted earlier, LA had assaulted RN Sheldon Smith that morning causing injury requiring him to go to emergency, and resulting in three rather than four nurses being present at the time of the incident.
• [40] I also accept that RM would have been similarly very conscious, anxious and hypervigilant about the risk posed to him and other members of the staff and other patients the three male patients on the basis of what had occurred earlier, which is referred to earlier in these reasons.
• [41] Having said that, despite being in the position to observe the whole incident as it unfolded, neither LA or SR moved from their positions to in any way advance on RM and/or TJ.
• [42] Both parties submit that the evidence of CF should be rejected as unreliable. She gave some evidence that inferentially had all three male patients around the door of the nurses station when clearly they were not. I am not being critical of her when I accept that submission however, as what occurred was sudden violent and unexpected, in an already heightened environment and both she and SB were shocked and upset by what occurred.
• [43] My observations and commentary by reference to the CCTV are as follows;

TJ, dressed in what appears to be a thick black hooded jacket with the hood up, approaches the door to the nurses station. CF is with SR and SB is with LA at the black couch. TJ either knocks or bangs on the door to the nurses station near what appears to be the entry swipe.

CF is returning to the door to the nurses station from the common area of the HDU.

RM opens the door and, as he does that, CF walks between him and TJ and into the nursing station. While there is no sound, it can be accepted from RM's affidavit that the patient politely requests to use the phone to make a call. Due to the time and situation (e.g. medications being prepared, understaffed) RM tells him he will have to wait until after lunch.[10] RM closes the door.

TJ appears to strike the door in the area of the entry swipe. RM opens the door again and TJ asks for the "fucking phone". RM declines his request because the unit is understaffed. RM tells him he can use the phone later and closes the door.[11] At around this time and while RM is engaging with TJ, patient SR turns around and looks towards them. He stays in that position for the rest of the time.

TJ remains at or near the door of the nurses station. He appears to touch or knock at the door again, and he looks through the glass into the nurses station. CF is walking away to the right of the picture with a tray.

TJ turns and begins to walk away from the door, and then turns and kicks it with his left foot in a martial arts type side kick. He then walks away past SR, who does not move.

RM opens the door and says "(TJ) you're not going to get a phone call that way"[12] TJ turns around and walks towards Mr Murphy "with purpose"[13]. The door remains opened. As TJ comes close to RM he (RM) puts up his left hand. It appears to be a pointing motion, but could be a "stop there" open hand type gesture. TJ slaps the hand down. RM raises his left hand again and appears to be pointing to TJ's chest and saying something. Only TJ's right arm can be seen at this point which is down his side.

Mr Murphy places his left hand on the patient's chest and turns him to his right, away from the door, also using his right hand. Just prior to this, CF enters the nursing station from another door to the right of the picture and appears to look through the window just to the left of TJ and RM.

TJ turns back and pushes out at RM, who raises his hands in a defensive motion and blocks the push. RM suffered a mallet style injury to a finger in his right hand and this is probably when it occurred. TJ again pushes RM with some force forcing him back into the nurses station. At this point, both CF and SB are in the nurses station and can be seen to step back as TJ pushes RM into the station.

RM takes hold, with his left hand, of TJ by the front of his hoodie collar[14], and his right hand takes hold of TJ's left arm. I agree with RM that he then "charged" TJ out of the doorway[15], and into the common area and towards the cream coloured couch. It is also clear, as RM conceded in cross examination, that once TJ was on his back on the couch, his right arm was pinned against his chest under RM's left arm. RM still had hold of TJ's left arm with his right hand.

As TJ is on his back on the couch, RM places his left knee on TJs thigh or stomach area

RM punches TJ with his right hand, at or near TJ's head.

• [44] In his affidavit[16] Mr Murphy states:

57. (TJ) was still grabbing me when I pushed him onto the couch, so I fell on top of him. He started to strike out at me, attempting to punch me with his hands in an effort to control the situation. Accordingly, in an attempt to subdue him, I began to strike at him with a closed fist. This is known as "closed hand tactics" in the training we are given (exhibit 002 OVP training manual - basic personal safety attached to this affidavit).

58. The struggle on the couch continued for a number of seconds and both (TJ) and I struck at each other multiple times. I felt that it was necessary in this moment to strike back at (TJ), not only as a defensive technique for me but also to create a distraction for (TJ), as he continued to strike at and resist me. Given that (TJ) was not only 30 years younger but also much larger and heavier than me, I felt that striking him in this manner was the only course of action to take in the circumstances to subdue him and keep him distracted momentarily until help arrived for me and to minimise the serious threat of injury to myself and the other female nursing staff.

59. After a few moments, (TJ) started to calm down and we stopped striking at each other. I continued to kneel over (TJ), restraining him from making any more aggressive movements until help arrived.

• [45] RN McGinness gave evidence, and annexed to her affidavit[17] is a statement she made on the day of the incident. She was not present, and saw nothing of the incident but responded at 12:15 pm to a duress alarm being activated in the HDU. She stated

When I entered the nursing station again I asked (RM) what had occurred and he stated "it's not going to look good". He was shaking his head. I asked him what he meant and he stated that he had hit (TJ) to get him off him. (RM) advised me at this time that he had been hit in his head several times throughout the incident. I suggested to (RM) at this time that he should go to emergency department to be reviewed but he declined.

• [46] On 25 May 2018 and, I infer, as part of the process leading up to the immediate registration action taken on 17 June 2018, the Health Ombudsman wrote to RM and invited him to respond if he wished.
• [47] RM did so on 29 May 2018.[18] At the first page of his submission, and at a time when he clearly didn't have access to the CCTV footage, he states (relevantly):

(TJ) had said in a quiet and precise tone prior to his attack - "I will kill you and get out of here" - indicating that he would abscond through the office and potentially out of the hospital with possibly a swipe card from one of the nursing staff.

I did not have time to press my duress alarm, as he punched me in the face at least twice before I could defend myself instinctively.

At that stage I realised that I was fighting potentially for my life.

(TJ) was 30 kilograms heavier than me and 29 years of age.

I am 60 years of age and at that stage had 2 middle aged women with me in that office. They were potential targets for (TJ) if he had continued into that office.

The nearest unit to K also had at least 2 middle aged women working there. I had seen them there earlier when I was on a break. Both are intelligent confident nurses, however would be at high risk of being injured during any serious altercation.

Fortunately I was able to get (TJ) out of and away from the office and subsequently overpower him and bring him down on a soft surface. He continued to punch me whilst on his back causing me to continue to struggle with him. There was no other way to deal with his aggression with a less combative approach, without the likelihood of my getting seriously injured.

• [48] He accepted in answer to questions from me that he was there saying he was punched in the head by TJ prior to moving him out of the nurses station and onto the couch. Clearly that account, much closer to the event, is at odds with what he says now in his affidavit and in particular he does not say now that he was punched twice before moving TJ out to the couch. In his initial statement to the Health Ombudsman, he also does not refer to punching TJ although in the notification form he had received from the Health Ombudsman to which we was responding that was the clear allegation: namely, that he had delivered 6 to 7 punches to TJ whilst he was on the couch.
• [49] I cannot see any evidence in the footage that at this point, apart from what had occurred just prior to TJ pushing RM into the nurses station, of TJ striking out or punching, or attempting to punch RM. I agree with Mr Templeton that once RM "charged" out of the station, into the unit and onto the couch RM was in full control of the patient and any response by TJ was to fend off the attack on him by RM.
• [50] Mr Van Grinsven submits that at this point it is difficult to see the actions of TJ particularly with his left arm because the black sleeves of the hoodie obscure his arm. It is difficult to see exactly what TJ is doing at this point, however that is because he is on his back by this point, his feet off the ground, and completely under the control of RM.

Just prior to the first punch, TJ's left arm does appear to come up into the air, however that seems to me to be an instinctive reaction, as he appears to fall to his right on the couch and that hand does not appear to connect with RM's body. RM punches TJ for a second time with his right hand at or near TJ's head. RM then punches him with his right hand a third time. I cannot see anything in the video that would support the suggestion that TJ at this point was attempting to fight back. This third punch was a particularly powerful blow which seemed to propel TJ's head into the right-hand corner of the couch.

It is common ground that TJ suffered no discernible injuries as a result of the punches delivered on him by RM. Mr Van Grinsven made much of that fact in his argument. In my opinion, given the force clearly demonstrated in the video footage, particularly with the third punch, the fact that the patient was not injured is indeed fortuitous for both parties. Common sense and human experience informs us that a single punch to the head can cause death, whereas a flurry of punches, depending on the circumstances, may lead to no or very minor injury.

The fact that TJ was wearing his hoodie with the hood up (for at least some of the time he was on his back on the couch), and that the couch was clearly a soft and malleable surface, and the fact that some or all of the blows although clearly directed to the head, may not have actually landed on his face but may have landed in the upper part of TJ's body which was protected by the jacket. It follows that any suggestion that in commencing to punch TJ, RM was "retaliating", is not borne out by the clear evidence of the footage.

RM punches TJ for a fourth time at or near the patient's head with his right fist. Just prior to this, TJ appears to be scrambling to get away from the blows and can be seen to be putting up his hand to protect his face.

RM punched TJ with his right fist for a fifth time at or near the patient's head. TJ remains on his back. RM is in a completely dominant position. SB comes through the door from the nurses station and moves towards the couch.

TJ is punched a sixth time by RM using his right hand at or near the patient's head. SB is now next to the couch and CF also comes out of the nurses station and approaches the couch. Both nurses are in a position to see the sixth strike, and SB is looking directly at the two men when the fifth punch is delivered.

RM punches TJ for a seventh time this time with his left hand. This was a far less forceful blow than the other blows and it is difficult to see where it landed.

CF appears to reach out and touch RM on his shoulder. RM continues to struggle with TJ but is in a completely dominant position being on top with his right knee on TJ. TJ appears to stop resisting all together.

Another male member of the staff arrives and commences to engage with the patient.

Many other staff arrive. TJ seems completely controlled RM finally gets off him soon after security arrive at 4:30.

• [51] She provided a short account on 14 May 2018 which is annexed to her affidavit[19]. In her oral evidence, she said that she did not want to change anything in her affidavit. She was cross-examined at some length by Mr Van Grinsven and he was critical of her credibility in his final oral submissions. If her brief account made on the day is to be read as describing sequentially what she saw and did, then I agree that her account in some respects is in conflict with the CCTV evidence. In that contemporaneous statement she says (in part):

Patient (TJ) knocked on nursing station door. (RM) answered door and (TJ) requested to use patient phone. (RM) stated to (TJ) "no I'm busy" and then allowed the door to shut whilst (TJ) still standing in front of door.

(TJ) then kicked the door approximately once or twice, then myself the writer saw (RM) turn around and open the door up and he went up to patient who was still standing near patient door. (TJ) and (RM) were standing very close to each other, they were saying something to each other but I could not hear what they were saying.

(RM) returned to the office and then (TJ) kicked the door again, (RM) went out again.

I continue to start what I was doing in office and a moment later (CF) come [sic] running into office panicked and said something was going on between (RM) and (TJ).

I press my duress and ran out to lounge area. I ran over to where (TJ) and (RM) were.

They were both on cream lounge in lounge area. (RM) was on top of patient (TJ). (TJ) was not resisting at all. As duress was activated and patient (TJ) not resisting. [sic] I went to speak with co-patient who was sitting on lounge. I walked co-patient sitting on black lounge and turned to look over at (RM) and (TJ).

And I witnessed (RM) striking (TJ) with a closed fist to head area, whilst he did this he was saying something (TJ) but I couldn't make it out. Moments later other staff had attended duress.

• [52] The CCTV evidence which I accept does not support more than one kick at the door although TJ did knock or bang on the door on at least 2 occasions prior to the one kick. At the point of confrontation between RM and the patient on the last occasion prior to the incident, SB was in the nurses station in a position to witness at least some of the incident. She had not seen the CCTV at the time she wrote her statement. The CCTV does not support her statement (if it is read as a sequential account) to the effect that RM struck TJ after he stopped resisting.
• [53] It also does not support her statement that LA was not seated throughout the incident. At about 1:15 (i.e. well after the incident), she does walk over behind LA but he does not get up or move away with anyone.
• [54] In cross-examination she agreed that all three male patients in the HDU at the time were very high-risk patients and that TJ has a history of absconding and is a patient with a high risk of aggression. In her statement on that day, she didn't mention RM being frustrated at the time he first opened the door to TJ which is something she said in evidence. She mentioned nothing in that statement of actually going between RM and TJ on the occasion when the door was open for the first time. She said nothing in that statement at all about the second time between 1:57 - 2:12 on the CCTV when TJ knocked and/or banged on the door for a second time. At the time she made this report she was clearly shocked and upset by what had occurred. It was clear from the video that at around 2:59 she entered the common area and was clearly in a position to directly witness the sixth and seventh punch and possibly the fifth. The CCTV also supports her account made on 14 May 2018 to the effect that TJ was not resisting at all when he was on the couch and that Mr Murphy was on top of him. She was not challenged about that evidence in cross-examination.

• [55] Both parties submit that her evidence should be regarded as unreliable. There are many inconsistencies between her account and the objective facts that I can see on the CCTV video. She did not make a statement on the day. Her affidavit is dated 25 March 2021. There are many inconsistencies in her account, and also with the evidence of SB and more significantly the CCTV evidence. For example, she says that when TJ came to the door he was shouting, and the other male patients came "in a group" to the door area and there was a lot of shouting including from RM. No other witness says this. There are many other inconsistencies which I need not identify. I agree with the parties that her evidence should be disregarded as unreliable.

• [56] He gave opinion evidence as an expert. He is presently the nursing director at the mental health ATODS at Cairns. His CV[20] establishes that he is a highly experienced health professional in the mental health field. I do not understand that there is any objection to his status as an expert to provide the opinion he did provide to the Health Ombudsman on 1 March 2019 which is annexed to his affidavit[21]. That is, there has been no suggestion that he does not qualify as an expert under the court rules or a common law. His second affidavit ,[22] which is a very late response to what Mr Murphy says at paragraph 57 of his affidavit, [23] which refers to the occupational violence prevention training manual (OVP training manual) is certainly under objection. In my view, because of the concessions made by Mr Murphy in cross-examination by Mr Templeton in relation to the Manual, the opinion expressed by Mr Richter in relation to paragraph 57 or RM's affidavit does not add anything to the Applicant's case. In that event I will disregard his second affidavit for that reason, but not as a reflection of his reliability generally.
• [57] Mr Richter gave oral evidence via video link from Cairns at the hearing. In my opinion he was a careful and fair witness. He accepted that he had no qualifications in the use of force, but he was clearly very familiar with the manual. In re-examination he spoke of multiple experiences of dealing with agitated and aggressive patients in mental health wards over many years. He has helped develop strategies within Queensland Health for responses to concerning behaviours in clinical settings including devising strategies involving aggression by patients that develops suddenly.
• [58] The Applicant's case, which coincides with Mr Richter's opinion, is that Mr Murphy's behaviour was an appropriate response to TJs behaviours until the point on the couch just before the first punch was thrown. Mr Richter's opinion is expressed in response to questions posed to him by the HO. Question 2[24] states:

Based on the information provided, was the practitioner's use of physical restraint appropriate in the circumstance? If not, what restraint options would have been appropriate in the circumstances, if any?

• [59] Mr Richter's opinion is expressed thus: [25]

In this instance, it could be argued that the practitioner used reasonable physical force to prevent the consumer from entering the office area irrespective of events leading up to the consumer's intrusion into the office space.

However once the consumer had been removed from the office, the subsequent physical force does not represent the use of appropriate or reasonable physical restraint.

In fact, the practitioner continues to escalate the use of physical force as opposed to disengaging, de-escalating or removing himself from the encounter and retreating to reconsider alternate engagement options.

In my opinion, the practitioner had the opportunity to consider alternate methods or the timing of further engagement to avoid escalating the encounter into a physical altercation.

I believe the physical engagement (restraint) should and could have been avoided all together.

• [60] I accept Mr Richter's opinions based primarily on my factual conclusion based on my assessment of the CCTV footage.

• [61] In cross-examination, Mr Templeton took Mr Murphy carefully through the CCTV footage. He agreed with the basic proposition that his training and the manual provided that de-escalation was the first resort in the face of an aggressive patient and that a physical response was the last resort. He conceded (appropriately, in my view) that by the time he was taking TJ out of the nurses station towards the couch, he had his collar gripped with his left hand and he had hold (or took hold) of the left hand as he charged him back into the room and on to the couch so that he had control. Once on the couch, he agreed that TJ's right hand was pinned under his (My Murphy's) left hand, and he had his right knee on the right thigh or stomach of the patient. He conceded that he was then in a totally dominant position, and did not then see TJ as posing a threat, although he expected SB to activate the duress alarm.
• [62] Mr Templeton took him to paragraph 57 of his affidavit. He was given plenty of time to locate reference to "closed hand tactics" in the manual which he appears to reference in that paragraph. Mr Templeton pointed out that the only reference to this expression in the manual is under the Basic Personal Safety Module which states in the introduction:[26]

The focus will be on physical responses to maintain basic personal safety when verbal skills have failed. The main focus is on withdrawing from the danger area as soon as possible. It is important that communication skills, negotiation skills, de-escalation skills continue to be practiced and reinforced. The objective is to build on the information covered in the awareness and de-escalation course (s) and contextualise the information, specifically physical defensive skills.

• [63] Although that introduction could be said to be almost incomprehensible, it is clear, as Mr Murphy conceded, that the manual emphasises that de-escalation is the first resort in the face of physical violence or aggression from patient and a physical response is a last resort.
• [64] In the diagram at page 44 of the manual[27] which is under the "use of force" heading the term "closed hand tactics" is used at the bottom of the blue box and is linked to physical response under what appears to be the general descriptor of "lawful intervention".
• [65] Mr Murphy agreed that when interviewed by Mr Ferguson from the Office of the Health Ombudsman on 18 October 2018, he did not mention closed hand tactics. He also agreed that the only descriptor that could come within this classification is a reference at page 51 of the manual[28] to the "hammer fist" which he agreed he did not use at all during the incident. The word "punch" is used[29], but only in relation to defensive punch "e.g. from a patient", and nowhere in the manual is it suggested that the health practitioner use a punch to the head as a defensive mechanism let alone a flurry of punches on a patient who is restrained, and under control. Mr Murphy would not accept that he could have held TJ on the couch, where he had both limbs restrained, without striking him and wait for assistance, assuming (reasonably) that one of the other nurses would have activated a duress alarm which is what had occurred. In re-examination, he appeared to say that in paragraph 57 of his affidavit he was referring to his training in 2017 in which he was told to use appropriate force if he felt in a life-threatening situation. That is not clear from the wording in paragraph 57 in his own affidavit.

• [66] The manual specifically refers to various sections of the Criminal Code under the heading "assault of a health care worker", including section 271(1) of the Criminal Code. Mr Van Grinsven took the Tribunal to Direction 94 in the Supreme and District Court bench book. The only real issue in these proceedings is whether the Applicant is approved for the requisite standard that the force used was more than was reasonably necessary to make effectual defence.[30]
• [67] The relevant test is an objective one, and does not depend on what Mr Murphy thought was reasonably necessary. Mr Van Grinsven referred to this part of the model direction 94;

In considering whether the force used by the Defendant was reasonably necessary to make effectual defence, bear in mind that a person defending himself/herself cannot be expected to weigh precisely the exact amount of defensive action that may be necessary. Instinctive reactions and quick judgements may be essential. You should not judge the actions of the Defendant as is he/she had the benefit of safety and leisurely consideration.

• [68] Clearly, it was the patient TJ who escalated the violence by kicking on the door. Although SB did not hear it, I'm prepared to accept that around the time that the two men came together, TJ did make some sort of threat in a quiet voice to the effect that he would "kill Mr Murphy" and "get out of here".[31] I accept that he was a large man and much younger than Mr Murphy with a history of violent acts which were known to Mr Murphy. I accept that, up to the point when Mr Murphy had TJ pinned and (in my opinion) controlled on his back on his couch, Mr Murphy had acted professionally and in a manner consistent with the dignity of all persons present including TJ.[32]
• [69] However, in light of my factual findings above by reference particularly to the CCTV video, once Mr Murphy started to punch TJ he stepped over the line and used force that was not reasonably necessary to effectively defend himself or anyone else. Prior to that first punch, TJ was completely controlled and, contrary to Mr Murphy's evidence, and by reference to the CCTV, I have concluded that TJ did nothing (e.g. punch Mr Murphy), that necessitated what was really a sustained and violent attack on him by Mr Murphy which occurred over a very short time. His training dictated that de-escalation was the first option and, at that point, he had the opportunity to continue to hold TJ until assistance arrived. For some unknown reason, perhaps due in part to fatigue, this very experienced mental health nurse with a 24-year, unblemished disciplinary history, cracked and then rained 6 to 7 punches on the patient who appeared only to be defending his face and be attempting to avoid being hit.
• [70] Although not part of Mr Murphy's case, I should also refer to the issue of provocation as that term is understood in sections 268 and 269 of the Criminal Code (Qld). Mr Murphy does not say he lost control when TJ shoved him into the nurses' quarters and/or threatened him, but a reasonable view of what he then did suggests that soon after he did lose control. The difficulty for him is that if he did rely on the defence of provocation - in the sense that his actions in punching TJ on the couch did not constitute an unlawful assault - the evidence as discussed above clearly establishes that his response, in punching TJ when he had him restrained on the couch, was completely disproportionate to the provocation which includes the threat.
• [71] The allegation and referral filed on 30 May 2019 is that Mr Murphy used excessive force by punching or striking the patient TJ on 14 May 2018 at the Logan Hospital HDU.[33] The Tribunal finds that this allegation is proved.
• [72] The effect of that finding is that the actions of Mr Murphy constituted an assault on the patient.
• [73] Once his actions went beyond reasonably defending himself they constitute an assault on the patient. As was said in Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419:

... put simply, such physical abuse of a patient cannot be tolerated under any circumstances. Even if Dr Swieca's conduct was a one of isolated outburst that started without undue malice but developed quickly out of hand, it cannot be characterised as being an insubstantial failing by reference to the ordinary standards of professional conduct. It was inexcusable and it was a failure "to a substantial degree". Reference Nursing and Midwifery Board of Australia v Smith [2020] VCAT 173 at [63].

• [74] Mr Richter (himself a very experienced mental health nurse with extensive experience with dealing with aggressive and violent patients) was asked this question by the Office of the Health Ombudsman:

Considering all matters above and material available to you, in your opinion, was the practitioner's knowledge, skill or judgement possessed, or care exercised in the practice of his health profession in which he is registered, below the standard reasonably expected of a health practitioner of an equivalent level of training or experience? Please explain opinion. If yes, was it substantially below the standard reasonably expected of a health practitioner of training or experience? Please explain opinion.[34]

• [75] His opinion[35] is expressed as follows:

Given the practitioner's history or experience, previous training and long term work in the mental health setting, the care delivered by the practitioner in this instance was substantially below what is considered a reasonable and expected standard.

Practitioners with a similar history of experience and skill deliver clinical care in a considerate, thoughtful and planned manner. Additionally, practitioners with a history of experience are normally looked up to and impart their knowledge/expertise to assist fellow clinicians in managing difficult or aggressive behaviour.

The actions by the practitioner in this instance are not commensurate with the level of expected judgement, knowledge or experience. In this instance there is no evidence that the practitioner delivered appropriate care to a consumer who may be emergent and at risk of unpredictable behaviour.

• [76] The Tribunal is satisfied to the requisite standard that Mr Murphy's conduct constitutes professional misconduct as defined by section 5 of the National Law

• [77] Proceedings of this nature are protective in nature and not punitive. The paramount guiding principle that informs this Tribunal's discretion to impose sanctions on health practitioners for professional misconduct is the health and safety of the public.
• [78] Mr Murphy has already paid a huge price for his conduct. As a result of immediate action taken by the Health Ombudsman, his nursing registration was suspended on 7 June 2018. On 3 December 2020, the Health Ombudsman varied the action by lifting the suspension and imposing a condition prohibiting him from working in an authorised mental health service. Given that his whole 24 years as a nurse had been in the mental health area, this effectively ended his career in the nursing profession. Unsurprisingly, he didn't renew his registration on 11 February 2021.
• [79] Specific deterrence is not applicable in the circumstances here. Although Mr Murphy defended the proceedings, and it could therefore be said that he shows no insight, my assessment of him and his responses is that his immediate reaction was to justify his action, and he has then basically maintained that line since. I do not think he is a liar or even careless with the truth. He struck me as a decent man, who, in a moment of complete loss of control, did something that was out of character for a professional who, until then, had had a successful career in what is obviously a demanding and difficult area of healthcare. He has convinced himself that he did not overreact which, as I have found, flies in the face of the best evidence, namely the CCTV footage of the incident.
• [80] I agree with the Applicant that a reprimand is the appropriate sanction, primarily to address considerations of denunciation and general deterrence. The maintenance of public confidence in health practitioners who work in this difficult and demanding area is also a relevant consideration. Pursuant to section 41 of the National Law, relevant codes of conduct are admissible as evidence of appropriate practice and its not disputed here that Board's code of conduct for nurses has been breached in a number of ways as particularised in the referral: [36]
  1. Principle 4.1 (j) of Board's code of conduct for nurses in that the Respondent failed to maintain appropriate professional boundaries by assaulting the patient;
  2. Principle 2.1 (b) of the code of conduct for nurses in that the Respondent failed to ensure the delivery of safe and quality care to the patient
• [81] In its trial submission,[37] the Applicant seeks costs. In his final written submission, Mr Templeton did not refer to costs. Mr Van Grinsven in the circumstances in which his primary submission failed, argues in his trial submission that there be no order for costs. In those circumstances I will give the parties liberty to apply within 7 days with 7 days to respond and order that any such application be determined on the papers.
• [82] The orders and the decision of the Tribunal are as follows:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the Respondent has behaved in a way that constitutes professional misconduct;

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the Tribunal orders that the Respondent be reprimanded;

3. Liberty to apply within seven (7) days, with any response within seven (7) days of receipt of the application, and any application to be heard and determined on the papers pursuant to section 32(2) of the QCAT Act.

[4] Statement of agreed facts (SOAF) para 24 HB page 13.