[4] 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:

1. A non-displaced fracture of the right angle of the mandible;

2. A displaced left body of mandible fracture;

3. Reduced sensation in the inferior alveolar nerve (numbness in the lower lip and chin);

4. Swelling in the left side mandible (bottom jaw); and,

5. Sublingual (beneath the tongue) haematoma (bruising).

[5] 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.

[6] 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.

[7] 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.

[8] 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]

[9] 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.

[18] 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.

[19] 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.

[20] 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.

[21] 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.

[1] Health Practitioners (Professional Standards) Act 1999 definition of unsatisfactory professional conduct (b).

[2] Statement of Mr Hughes-Fischer dated 4 May 2011.