Tribunal upholds NMBA decision to impose supervision conditions on aged-care nurse

17 Jul 2024

A tribunal has upheld the Nursing and Midwifery Board of Australia’s (the NMBA) decision to impose supervision conditions on an aged-care nurse.

In May 2021, the NMBA suspended the registration of registered nurse Graham Dickerson after being advised by his employer of two instances where he allegedly used unreasonable force against an elderly patient, one of which resulted in a criminal prosecution for assault.

In February 2022, Mr Dickerson was acquitted when the magistrate was not satisfied beyond reasonable doubt that what Mr Dickerson had done amounted to an assault.

Following his acquittal, Mr Dickerson asked the NMBA to revoke the suspension of his registration. In April 2022, the NMBA revoked the suspension, but imposed conditions on his registration instead, arguing an ongoing need to protect the public.

A month later, Mr Dickerson appealed the NMBA’s decision to the Tasmanian Civil and Administrative Tribunal (the tribunal), seeking to have the April 2022 immediate action decision overturned and to have the supervision conditions on his registration removed.

His said the conditions were ‘draconian, punitive and onerous’, effectively preventing him from practising. The NMBA maintained the conditions were appropriate and should remain in place, with some variations to simplify them.

Two personal care attendants gave evidence to the tribunal via statutory declarations. One said they saw Mr Dickerson being physically rough with an elderly patient and verbally aggressive. The other also said they saw Mr Dickerson shove the same patient from behind in the doorway to his room.

Mr Dickerson said a significant amount of relevant information had not been provided to the tribunal about the patient, including that he was prone to falls, was violent towards staff and managing his behaviour was extremely difficult. Mr Dickerson alleged the patient had assaulted him on two occasions and that he continued to be adversely affected, both psychologically and physically, by the assaults.

Mr Dickerson denied the allegations against him, saying his interactions with the patient were performed with care, diligence and respect, without harassment, victimisation or discrimination. Mr Dickerson disputed descriptions of the patient being fail, saying he ‘seemed pretty tough’.

The tribunal noted that in his own submissions, Mr Dickerson demonstrated a lack of insight into the vulnerability of aged and unwell patients. The NMBA submitted there was evidence of a serious risk of psychological and/or physical injury to patients in Mr Dickson’s care and that the alleged conduct suggested a lack of empathy and self-control. The tribunal accepted this submission.

‘… Mr Dickerson’s submissions disclose a lack of insight into the potential risk of harm to older patients that falls short of overt physical harm necessitating medical treatment. Patients may suffer attacks on their autonomy and dignity through inappropriate physical treatment, or a lack of respect in their care, which does not necessarily amount to a demonstrable physical injury,’ the tribunal said.

The tribunal found that despite Mr Dickerson’s denial of the allegations, the NMBA acted correctly in taking immediate action to suspend his registration and again when the suspension was lifted and supervision conditions imposed after the criminal matter was dismissed.

The tribunal acknowledged the delay in finalising the investigation into his alleged conduct would be aggravating to Mr Dickerson but that his apparent lack of regard for the regulatory system (as per his submissions about the notifier (his employer), the Australian Health Practitioner Regulation Agency and the NMBA) was concerning and further justified the NMBA’s immediate action.

‘Public confidence in the regulatory system and provision of health services by registered practitioners forms part of the public interest. Public confidence in health professions and health professionals is supported by an expectation that registered practitioners practise with awareness and respect for the regulatory system. The public interest would be undermined if practitioners who apparently hold little, or no, respect for the regulator or regulatory system were permitted to practise without restriction,' the tribunal said.

The tribunal found the conditions put forward by the Board were appropriate as they provided for a level of supervision to mitigate against the possibility of future, similar conduct being engaged in by Mr Dickerson.

Read the tribunal’s full decision on AustLII.