NSW Health, Suicide Risk Assessment and Management Protocols: Mental Health In-Patient Unit (2004)
Source
Original judgment source is linked above.
Catchwords
HCCC v BXD (No 1) [2015] NSWCATOD 134HCCC v Perroux [2011] NSWDC 99HCCC v Sadek [2017] NSWCATOD 181NSW Health, Suicide Risk Assessment and Management Protocols: Mental Health In-Patient Unit (2004)Hunter New England Local Health District, Mental Health Procedure: 1.140.03 Handover of Clinical and Safety Information in In-Patient Units (2014)Hunter New England Local Health District, Minimum Standards of Patient Care for Adult Mental Health In-Patients, Policy 12_04 PCP 1 (2013)Hunter New England Local Health District, Mental Health Procedure: MH_LP 1.137.94 Levels of Observation (2015)Category: Principal judgment
Parties: HCCC (Applicant)
Lainie DrinkwaterGraeme Davies
Judgment (14 paragraphs)
[1]
Background
This case arises from the death of Ahlia Raftery, a young woman who took her own life while an inpatient of the Psychiatric Intensive Care Unit (PICU) at the Mater Mental Health Centre in Newcastle on the morning of 19 March 2015.
At the time of her death, Ahlia was 18 years old and an involuntary patient of the PICU, having been placed there the previous evening on the basis that she was a high suicide risk. This assessment was made following an examination of Ahlia by a psychiatric registrar who was informed that Ahlia had recently made an attempt to hang herself while a voluntary in-patient at the hospital.
Despite the fact that she was under 'close observations' involving no more than 15 minute intervals between observations, Ahlia was able to construct a noose from a bedsheet, attach it to the doorhandle on the outside of her bedroom door, and then hang herself in the period between 6.30 am and 7.25 am on 19 March 2015. This took place in full view of the nurses' station in the unit, which was approximately 10 to 12 metres away. The sheet and bedroom door were both white and the hallway poorly lit. While the nurses present assumed that from 6.45 onwards Ahlia was standing half behind her half open door watching them, she was in fact dying, or already dead.
This shocking and tragic event was the product of a great many errors, failures and omissions in the care afforded to patients of the PICU at the Mater Mental Health Centre at that time. These failures were both institutional and individual; they compounded to produce an appalling situation in which as many as six nurses were present in and around the nurses' station at the time of Ahlia's death, all assuming that she was alive and all assuming that someone else had recently checked on her well-being. In fact, Ahlia was unattended between at least 6.30 and 7.25 am when another patient found her and raised the alarm.
A number of investigations ensued, including a Root Cause Analysis (RCA), an investigation into various staff by the Hunter New England Local Health District (HNELHD) in June 2015, and a Coronial Inquest in 2017. As a result of those investigations a number of systemic failings were identified and rectified. These included: painting the PICU bedroom doors a different colour, replacing the door handles with handles that could not be used as ligature points and improving the corridor lighting. Observation policy documentation has since been expanded and clarified to explicitly require 'engagement' with the patient, and shifts are now rostered to allow for 'protected handover time'; that is a period of time in which both the outgoing shift and oncoming shift are paid to be present for handover to occur. Patients are also allocated to specific nurses on every shift, as they should have been at the time.
It is not the role of this inquiry to comment upon institutional and systemic failures which contributed to this tragic situation, however they are noted when relevant to the context of the decisions that must be made here, for example when the peer expert took PICU general practice into account when assessing whether the actions of the respondents were below the standard reasonably expected. Nor is it the role of this inquiry to comment upon managerial failings, such as the significant delay that took place before relevant staff were interviewed, the failure to secure the patient's clinical records following her death, and the failure to secure CCTV footage of the unit, except to note that these failures all made the challenge of fact finding in this case more difficult.
These proceedings were brought by the HCCC against four of the registered nurses whose care Ahlia was under over the period from 6.30 pm on 18 March 2015 to 7.25 am on 19 March 2015 (the relevant period). The complaints allege unsatisfactory professional conduct comprising failures in the conduct of observations against Mr Davies and Ms Drinkwater from the night shift, and from the dayshift Ms Than and Mr Lilly.
Ms Drinkwater was the nurse in charge of the nightshift (NIC) and Mr Lilly was nurse unit manager (NUM) in charge of the overall running of the unit; he was also the NIC of the dayshift. The HCCC further alleges failures of supervision in the complaints against Ms Drinkwater and Mr Lilly. All of the respondents apart from Mr Davies also face complaints that the conduct amounts to professional misconduct.
At the heart of this case is what constitutes an 'observation' in an acute mental health hospital setting.
The position of the nurses was, in essence, that a 'sighting' of the patient every 15 minutes was sufficient to meet the literal minimum requirement of 'close observations' stated in the relevant observation policy, and thus discharge their professional duties. Such a sighting could be undertaken while walking past a patient's open door while the patient was inside the room, walking past the patient in the corridor, or observing that patient in any area visible from the nurses' station.
The position of the HCCC, accepted by the Tribunal, is that an 'observation' of a patient in an acute mental health setting involves an exercise of professional judgement that is necessarily qualitative as well as quantitative. As discussed below, we find that an observation, however often it is undertaken, requires an assessment of the state of health of the patient in order to determine whether they are deteriorating, or are at increased risk. As such we find that all four respondents have failed in their professional duties, but to varying degrees, relative to their levels of responsibility and their period of contact with the patient.
[2]
Hearing and Evidence
By consent, all four cases were heard concurrently, with evidence in each case treated as admissible in the others. All four respondents attended and gave oral evidence. The hearing addressed Stage 1 and Stage 2 for all respondents except Ms Than, whose representative requested a separate Stage 2 consideration.
The evidence tendered by the HCCC included statements made by all of the respondents to the police in May 2015 (except Davies which was in October 2015), transcripts of the interviews of all of the respondents and various other nurses to the HNELHD investigation in June and July 2015, the report of the HNELHD investigation, transcripts of all of the respondents' s 150 proceedings in December 2015, findings of the s 150 inquiries, s 40 submissions from the respondents from January and February 2017, transcripts of the evidence of Mr Lilly, Ms Drinkwater, Ms Than and other nurses to the Coronial Inquest, and peer expert reports concerning each of the respondents by Ms Muller.
The respondents all submitted further updated statements in July and August 2018 for these proceedings, along with a series of professional references.
The patient is identified in these reasons in accordance with the wishes of her family.
Before addressing the substance of the complaints it is necessary to resolve a number of factual conflicts to establish who observed Ahlia and when, as well as what information each respondent had, or had access to, about her recent history and risk factors.
The following facts are uncontested.
Ahlia was diagnosed with depression and anxiety in May 2014. Through 2014 she was admitted to HNELHD adolescent in-patient services on a number of occasions due to self harm and suicidal thoughts. Following a deterioration in her health and increased suicidal ideation, Ahlia was admitted to the Psychiatric Emergency Care Centre at the Mater Mental Health Centre on 12 March 2015. Her health deteriorated and on 14 March 2015 she was found with shoelaces that she was attempting to tie around her neck. Following this, Ahlia was transferred to Lake Macquarie Mental Health Unit.
On 15 March 2015 Ahlia attempted suicide by using a bed sheet in her room to try to hang herself from a door handle. She was found at 11.30 pm. After that time, she was placed on 'close observations' and made an involuntary patient.
Progress notes for March 16 and 17 2015 report that Ahlia slept for two nights in a lounge area outside the nurses' station as she did not 'feel safe' to sleep in her own room.
On 18 March 2015 Ahlia was again transferred, this time for administrative reasons, back to Newcastle Mental Health Unit (NMHU), where she was assessed at 6.21 pm by Dr Arghandewal the psychiatric registrar who determined that she should be transferred to the PICU. The notes of this assessment include:
[she] stated, '8/10 is my intention to kill myself. I am not gonna tell what or how!', stated 'very low' her mood, upon further questioning stated:
'I will do it again the same way I did it a few days ago with a towel. There is no meaning is left in life for me anymore.'
Stated she planned her attempt to suicide on the ward x2 days ago for at least 5-6 hours.
Clinical notes from earlier on 18 March record that Ahlia was interrupted at 2.30 pm by a nurse while she was sitting on her bed making a noose from a bed sheet.
Dr Arghandewal assessed Ahlia as being 'high risk of suicide (further attempt on ward) with intent/plan'. The transfer form to PICU recorded this reason for the transfer. The observation level remained at 'close'.
Nursing staff may increase, but not decrease, an observation level without consultation with an admitting medical officer.
The PICU is an acute short stay facility that housed a maximum of eight patients. In general the nurse to patient ratio was one nurse to two patients, but additional nurses could be assigned if patients were on 'constant' or 'special' observations, requiring one-to-one supervision. At the time there was one patient on the ward long term who was under special observation, meaning there were four nurses to attend to the remaining seven patients. Including Ahlia, four patients were on close observations during the relevant period.
At the relevant time, the PICU was staffed by three eight hour shifts of nurses, such that the afternoon shift began at 3 pm and ended at 11 pm, the night shift began at 11 pm and ended at 7 am, and the day shift began at 7 am and ended at 3 pm. Because there was no scheduled time for crossover between the shifts, it was customary for the oncoming shift to arrive 15 or 20 minutes earlier than the hour in order to allow time for handover between the shifts.
At the relevant time, the practice in the PICU was to assign specific patients to nurses on the day and afternoon shifts, but not on the night shift which utilised a 'team nursing' model. This was not in accordance with the HNELHD, Minimum Standards of Patient Care for Adult Mental Health In-Patients Policy 12_04 PCP 1, point 6 (2013) or HNELHD, Mental Health Procedure, Levels of Observation, 1.137.94 (2015) [6].
'Handover' comprises three elements: (1) a summary sheet of the patients, (2) a verbal handover comprising an oral report of the patients' status and (3) a 'walkaround' or physical safety check of patients on the ward.
The handover sheet is a summary document left permanently open on the computer at the nurses' station and able to be updated by any nurse on shift. The handover sheet records age, diagnosis, legal status, notes, risk to self and risk to others (low, medium or high), observation levels, bed number and comments. The sheet is printed out between shifts and physically handed over to the next shift; it acts as a summary which guides the information amplified by the oral handover. The verbal handover is undertaken between members of both shifts at the nurses' station and usually takes around 10 minutes. The walkaround may be undertaken before or after the verbal handover and is undertaken by at least one nurse from each shift walking together.
There was significant contest about the two shift handovers that occurred, from afternoon to night shift and from night to day shift.
[3]
PICU Afternoon Shift
Ahlia was transferred into the PICU at 6.35 pm and was received by the afternoon shift nurses. Ahlia's clinical file was transferred with her. She was calm and compliant in her dealing with staff. Her mother visited her later that evening, and spoke with two of the afternoon shift nurses about her concerns for her daughter.
An afternoon shift nurse mistakenly recorded Ahlia as a 'medium' risk to self (and to others) in the computer system and this error was carried over on the handover form to the night shift.
The handover document for Ahlia contains separate comments fields filled in by the 'B shift' (afternoon) and 'C shift' (night). The B Shift comments field on the handover sheet from the afternoon to night shift reads:
T/F 1830hrs from NHMU expressing SI [suicidal ideation] with plan. Fearful on arrival in PICU. Settled after short period visited by mother showered. Accepted medication. Close obs. Still plans to kill herself. Rates herself 7/10. Mother concerned - will call tomorrow Re plan Rx? ECT.
[4]
PICU Night Shift
Mr Davies arrived at 10.35 pm and he undertook the drug count and then the walkaround with a nurse from the afternoon shift at 10.45 pm.
Ms Drinkwater was the NIC of the night shift. Ms Drinkwater arrived on shift before 10.45 pm and her signature appears on Ahlia's observations sheet at fifteen minute intervals between 10.45 pm and 11.45 pm.
The statement of the afternoon shift NIC was that when she gave verbal handover to the night shift, she reported that Ahlia had made a serious suicide attempt prior to her transfer and that her mother was very concerned.
Ms Drinkwater's consistent evidence was that the oral handover from the afternoon shift included the information that Ahlia was a high suicide risk and that she had made a previous suicide attempt on another ward.
Mr Davies was not interviewed by the HNELHD until 23 June 2015. In that interview, three months after the events, he professed a poor recollection of events and gave a number of answers based upon his general practice rather than recall of the specific incident. Mr Davies did not make any contemporaneous notes of the events although he did discuss them with other staff on the night following Ahlia's death. He was reinterviewed on 23 July 2015.
In June 2015 Mr Davies stated that he was at the handover from the afternoon shift and that he was aware that Ahlia was on close observation for suicidal ideation. In his October statement for the police Mr Davies stated that he recalled handover from the afternoon shift reporting that Ahlia was a suicide risk but stated that he was not aware that she had 'attempted suicide in the previous days prior to PICU admission with a shoelace and a sheet.' In the December 2015 s 150 hearing, Mr Davies stated that he was definitely unaware from afternoon handover that Ahlia had a previous suicide attempt prior to her transfer to the PICU. In his oral evidence at the hearing Mr Davies stated that he could not remember if he was even at the handover from afternoon to night shift, and if he was, could not recall anything being said about Ahlia.
We prefer the evidence of Ms Drinkwater on this point, in particular as it is corroborated by the NIC of the previous shift, and reject the shifting and vague evidence of Mr Davies.
We find that the afternoon/night shift handover did include the information that Ahlia had attempted suicide on another ward prior to her transfer to PICU. Mr Davies was present for this handover. Thus, all of the night shift nurses were made aware through the handover sheet and verbal handover that Ahlia was a suicide risk, who had attempted suicide recently on another ward, and had a continuing intention and plan to kill herself. The method of those attempts was not conveyed through handover.
It was general practice at the time in the PICU that respiratory rates were not recorded on observation sheets during the night, but that staff checked for presence of breath. None of the observation sheets in evidence contain any marking in the respiration column for the night shift.
Ahlia's observation sheets indicate that observations from 10.45 to 11.45 pm were signed by Ms Drinkwater. From midnight to 5 am they were signed by another nurse who was not a participant in these proceedings. That nurse also signed the observation sheets for the three other patients on close observations for the same period.
At 3 am Ahlia was woken when Ms Drinkwater was conducting a check and opened her door, but she went back to sleep.
At 5 am Ahlia got up and spoke to another nurse in the hallway; she requested a glass of water and returned to her room. This interaction was observed by Ms Drinkwater as she was walking to the room of the patient on special observations.
From 5 am to 6 am Ms Drinkwater was in the room of the patient on special observations. It was uncontested that Ms Drinkwater made both the note in Ahlia's patient progress notes and the written comments in the handover document, and that she wrote both at around five minutes past 6.
The totality of Ahlia's progress notes for the night shift read:
Sleeping until 0500hr. Awake for H20. Currently sleeping. [06.00 hrs]
From 5.15 am to 6.45 am Ahlia's observations were signed by Mr Davies, who also signed observations sheets for the three other patients on close observations for the same period.
The combined evidence established that during the night shift there were three different ways in which observation forms came to be completed in this way: one nurse conducting the observations alone and then reporting back to a nurse at the nurses' station who signed off on the observation sheets; two nurses conducting rounds together and then one nurse signing all of the observation sheets for patients observed by both nurses jointly; or a nurse at the nurses' station observing another nurse walk around and undertaking signing of the sheets as they did so.
Mr Davies described a combination of the first and third of these methods in the PICU night shift in his June HNELHD interview as follows:
So there would have been somebody else that has gone past - either Linda, or Lainie or [other nurses] - as is the practice. So that person would have walked through, seen, done a round, I would have seen them doing that round [while seated in the nurses' station] and they would have come in, I would have gone 'all good'. They've gone, 'yes all good'. So I've, because [the observation sheet] is sitting right next to me, I've gone, 'right, there's another one' [and signed].
In the June 2015 HNELHD interview Mr Davies stated that Ahlia was up and about from 6 am and that he saw her moving around several times.
She was moving around. She was maintaining down in that lower part of the bedroom, but she was you know, outside the door, she was back in her room, she was back at the door, she was down to the toilet, she was back at the door. So there was movement.
In answer to questions, Mr Davies went on to say that he saw Ahlia moving around in the lower area of the corridor away from the nurse' station near the toilet and back to her room 'several times' and 'at several stages'.
In the July 2015 HNELHD interview Mr Davies volunteered that,
from somewhere after 5, ah 5.15, 5.30 that period, she was actually awake and up, and was quite visible in the corridor area.
In the June 2015 HNELHD interview Mr Davies stated that he conducted the 6.45 am observation of Ahlia from a position standing next to the nurses' station.
In the July interview Mr Davies stated that he conducted both the 6.30 and 6.45 am observations from within the nursing station. At the hearing he altered his account to say that that he was 'in and out' of the nurses' station between 6.30 and 6.45 am.
In the December 2015 s 150 hearing Mr Davies suggested for the first time that he had 'probably' spoken to Ahlia during the period from 5 am onwards. In that interview Mr Davies again stated that Ahlia was awake and up from 5 am onwards:
I found that most of the time she was awake and she was also meeting me on several occasions at the doorway to her bedroom…After 5 am, she spent most of her time in her room … or moving out to the toilet, which is just up the corridor from that bedroom or really watching down where we were, watching our area, down the office.
The interviewer asked whether Mr Davies had 'walked past'. Mr Davies replied 'Yes'. The interviewer then asked, 'Did you exchange words or acknowledgement or…' to which Mr Davies responded:
I believe I probably asked how she was in regards to being awake, but she wasn't her - she wasn't terribly talkative.
It was more just the fact that she was sighted and that she was okay, She didn't appear to be in distress at all, you know. There's usually an early morning cup of tea about 6.30. So I might have mentioned that, you know it was a little while before we get a cup of tea of coffee or a cold drink, but I can't recall.
Mr Davies did not document or report any of these observations in Ahlia's clinical notes or handover notes.
At the hearing Mr Davies affirmatively claimed to have had an interaction with Ahlia around 6 am in which he asked her whether anything was wrong, whether she was able to sleep, how she was, and let her know she could get a drink shortly. He described Ahlia as 'fairly closed, not really talking a great deal. She was just letting me know she was fine.'
Mr Davies asserted that this interaction was sufficient to ascertain that the patient was not in any distress and amounted to an assessment of her mental state. However he also stated that he made no record of this interaction in Ahlia's notes nor report of it to Ms Drinkwater as NIC because it wasn't 'relevant'.
The Tribunal rejects Mr Davies account of conversing with Ahlia around 6 am as a later embellishment based upon usual practice rather than any specific recollection, and finds that Mr Davies' interactions with Ahlia were limited to visual observations while walking past her room, walking past her in the corridor and sighting her movements while he was in and next to the nurses' station.
In her statement to the Tribunal Ms Drinkwater claimed for the first time to have observed Ahlia sleeping at 6.30 am. In her oral evidence Ms Drinkwater amplified this statement to say she saw Ahlia sleeping on her side, with the sheets pulled up to her shoulders (reflecting her original description of how Ahlia appeared during her 3 am observation.) This new claim is at odds with Mr Davies' account of Ahlia as moving around in and out of her room during that time, and also at odds with Ms Drinkwater's earlier claims that she was preparing for handover at 6.30 am. We reject the claim that Ms Drinkwater observed Ahlia to be sleeping at 6.30 am as one of recent invention.
[5]
PICU Day Shift
On the morning of March 19 2015, Ms Drinkwater as NIC was responsible for giving handover to the oncoming day shift.
Ms Than arrived at 6.45 am and went directly into the medication room adjacent to the nurses' station to conduct the drug count with a nurse from the night shift. Ms Than's unchallenged evidence was that it was customary for the first nurse of an incoming shift to undertake the drug count. She returned just after 6.50 am for the verbal handover.
Given the timing and manner in which handover took place, 7 am observations were regarded as a 'grey area'. In her HNELHD interview Ms Drinkwater stated that the handover walkaround acted as the 7 am observations, but this was contradicted by Mr Lilly who stated that the walkaround should occur before 7 am and the 7 am observations should occur and be recorded independently of the walkaround. This lack of clarity is borne out in the observation sheets: of the four patients on close observations one was signed at 7 am by Mr Davies, who had in fact left the unit at 6.48 am, two were signed at 7 am by nurses from the day shift, and Ahlia's was not signed at all.
It was the position of all the respondents that the lack of a protected handover time in which members from both shifts were paid to be present contributed to the lack of any 7 am observation of Ahlia.
On 19 March 2015, the night/day shift handover began at 6.50 or 6.55 am within the nurses' station. Mr Davies and two other night shift nurses left on or before 6.50. Mr Lilly arrived at 6.50 am.
Ms Drinkwater consistently claimed that Mr Lilly instructed her to begin handover even though two nurses of the day shift had not yet arrived. Mr Lilly denied this, but based on our findings below we prefer Ms Drinkwater's account on this issue.
Both of the other day shift nurses arrived shortly after handover commenced.
Mr Lilly's evidence to the Coronial Inquest and his oral evidence to the Tribunal was that when he arrived handover had already commenced and he did not hear the earliest patients on the handover sheet, possibly including Ahlia (as she was patient 3 of 8). However this stands in direct contradiction to his earliest statement on 15 May 2015 in which he detailed recalling the information provided by Ms Drinkwater at verbal handover as including: suicidal ideation, close obs and a diagnosis. When asked by the Tribunal which of these accounts was true, Mr Lilly stated that the earlier account was more likely to be accurate. We find that Mr Lilly was present during the night to day handover and was told at that time that Ahlia was a suicide risk.
The comments section in the handover notes from the night shift for Ahlia read in their entirety:
Slept til 05.00. Got water & returned to bed.
In her interviews and statements Ms Drinkwater gave increasingly detailed accounts of the information which she included in her verbal handover to the day shift, including that Ahlia had previous suicide attempts while an inpatient of other wards and that these attempts involved both a sheet and shoelaces. The Tribunal rejects Ms Drinkwater's account of her verbal handover as embellished and inaccurate. We do so for a number of reasons.
First, no other account of the handover to the day shift corroborates such a detailed handover concerning Ahlia's previous suicide attempts; rather other nurses present state that it was confined to: suicidal, self harm, close obs.
Second, in her oral evidence Ms Drinkwater referred to having made notes of the events in the week that followed. Later Ms Drinkwater produced handwritten notes which appear to reflect the content, language and structure of her police statement made in May 2015. Those notes make no mention of two previous suicide attempts nor of the methods used.
Third, the handover notes themselves contain no hint of what Ms Drinkwater stated were her grave concerns about suicide risk and the need for diligence. It transpired in the course of the hearing that the handover notes had been printed out by Ms Drinkwater at 6.09 am, some 40 or 45 minutes before handover. None of Ahlia's activity after 5 am appears in the notes, nor is there any record of her mental state or of staff engagement with her. This conduct belies Ms Drinkwater's account of herself as deeply concerned and as urging diligence in her own staff as well as the oncoming shift to 'keep a close eye' on Ahlia.
Finally, Ms Drinkwater stated in her oral evidence that she had obtained the information about the methods used in Ahlia's previous suicide attempts after reading through her clinical file during the nightshift. However this is contradicted by her evidence to the Coronial Inquest where she stated that she only found out about the shoe lace attempt later. We reject Ms Drinkwater's claim that she read the clinical notes during the night, and find that Ms Drinkwater accessed this information after Ahlia's death.
Both Ms Drinkwater and Mr Davies went to work on the night shift on 19 March 2019. Both acknowledged under cross examination that they then discussed the events surrounding Ahlia's death with other nurses, and had unrestricted access to both Ahlia's paper file and computer records. No allegation is made that these records were altered. We do however find that this situation affected the evidence given by these respondents and their ability to recall events independently.
We find that when Ms Drinkwater gave verbal handover to the day shift she did not report her knowledge (provided through verbal handover from the afternoon shift) of Ahlia's recent suicide attempt on another ward of the hospital.
The preceding factual findings mean that the day shift came on without any information as to the recency or methods of Ahlia's previous suicide attempts, with no information about her most recent state of mind since waking, nor of her activity from 5 am onwards.
During the night/day shift handover all nurses present were within the nurses' station for a 10-15 minute period, including Ms Than and Mr Lilly. Handover concluded at 7.05 am.
Ms Than noticed Ahlia 'standing by her door' at 6.50 am. Ms Than consistently described Ahlia as standing behind her door, appearing to be looking out from behind the door, with only half of her visible. Ms Than did not see Ahlia move from this position thereafter.
According to Ms Drinkwater during handover from night to morning shift one of the incoming day shift nurses said, 'Oh look there's that girl from bed 3 standing there looking at us.'
Accounts from the HNELHD interviews of the other day shift nurses present record discussion of Ahlia 'standing there' during the handover. There was 'conjecture' among the nurses as to why Ahlia remained stationary. Someone thought she might be waiting for breakfast. One nurse reported that they heard another nurse suggest that it might be attention seeking behaviour, but one other nurse, when asked, could not recall this remark nor recall having reported that remark to an investigator previously in an informal setting.
During handover Ms Than and another day shift nurse discussed a plan to lock Ahlia's bedroom door after breakfast at 7.30 am in order to bring her into the common areas. This plan was reiterated around 7.20 am.
At 7.05 am Mr Lilly allocated Ahlia to Ms Than for the day shift. At the time of handover Ms Than was unaware that she had met Ahlia on 14 March 2019 on another ward shortly after the shoelace incident.
No walkaround with members of the night and day shifts was conducted either before or after the verbal handover.
There was disputed evidence both about whose responsibility it was to undertake the walkaround and how it was usually done: Ms Than stated that it was customary for the second nurse to arrive from the incoming shift to undertake the walkaround with a nurse from the outgoing shift. Mr Lilly's evidence in his first HNELHD interview was that as NUM/NIC he usually undertook the walkaround when he was in the incoming shift. Ms Drinkwater's evidence in her first HNELHD interview was that it was the first person to arrive on the incoming shift with any nurse from the outgoing shift but in her s 150 interview, Ms Drinkwater said it was usually the second nurse to arrive. Mr Davies stated that it would be the NIC of both incoming and outgoing shifts.
Mr Lilly's evidence at the hearing was that he assumed a walkaround had been done prior to the verbal handover because night shift staff had already left and his understanding of walkaround practice was that it should be completed before any staff members from the outgoing shift had left.
At 7.05 am Ms Drinkwater left.
Both Mr Davies and Ms Drinkwater claimed to have made a final undocumented 'observation' of Ahlia as they left the unit; Mr Davies at 6.50 or 6.51 and Ms Drinkwater at 7.05 am. These claims are rejected as untrue. Mr Davies left at 6.48, having signed a 7 am observation for another patient. In order to depart the unit staff had to turn their backs to the corridor down which Ahlia's bedroom lay such that they could not see her even if she was standing at her door.
Mr Lilly set about organising the blood collection as the blood collector was due to arrive at 7.10 am. Between 7.10 and 7.20 am Mr Lilly supervised blood collection in one of the seclusion rooms.
Following verbal handover most of the day shift nurses remained in the nurses' station, where they were joined by the occupational therapist. At least two of the nurses present commented on Ahlia's behaviour during this time, asking why she was 'still standing behind the door' and/or 'still staring at us.'
Ms Than began reading Ahlia's file but was repeatedly distracted by another patient, in a manic state, who sought her attention between 7.10 and 7.25 am. We accept Ms Than's evidence that she intended to go and introduce herself to Ahlia as soon as she had familiarised herself with the clinical notes.
While the Coroner did not make a formal finding as to the time of death, he noted that the combined weight of the evidence suggested that by as early as 6.45 and by at least 6.50 am, Ahlia had already hanged herself.
This Tribunal is not required to, and indeed is unable to, make any finding as to when Ahlia died. However we determine that Ahlia could not have tied the ligature to the door handle on the outside of her bedroom door any later than 6.45 am as, from that time onwards, she was observed by everyone present except Ms Drinkwater to be next to and partially behind her bedroom door. No one except Ms Drinkwater reported seeing any movement from Ahlia after 6.45 am.
We reject Ms Drinkwater's timeline as inaccurate and find that the events she described, of Ahlia stepping in and out of her room repeatedly over a short period, to have occurred earlier than 7 am, most likely between 6 am and 6.45 am (ie during a period which Ms Drinkwater now claims to have seen her sleeping and Mr Davies reported her to be moving in and out of her room).
Between 6.45 to 7.25 am Ahlia was observed at a distance by at least eight different members of staff, in a standing position, partially obscured by her door. She was universally perceived as standing and staring towards the nurses' station. This behaviour was perceived by more than one nurse as odd and it was discussed on more than one occasion between those present at the nurses' station. No one went to Ahlia to ask why or to investigate.
[6]
Observations
The HNELHD Mental Health: Levels of Observations MH_LP_1.137.94 (2015, first ratified 2008) was the relevant mandatory procedure governing observations at the time. It provided as an 'outcome':
All patients will receive regular assessment, treatment and interventions that will ensure identified risks are managed in a way that minimises the likelihood of adverse incidents/events and promotes safe health outcomes. Levels of observation provide an opportunity for interactions and engagement between clinical staff and patients (p 2).
Under 'levels of observations' the procedure provided:
Levels of observation mean that a clinical staff member must sight the patient at a frequency specified in the assigned level. Observations must be recorded in the management plan and in the progress notes on each shift (p 2).
Under the heading 'close observations' the procedure provided:
The clinical staff member must sight the patient at random intervals of no more than 15 minutes.
This intervention may be an appropriate intervention when there are indications that the patient may be at risk either from suicidal or self harm behaviours, or they are particularly vulnerable within the inpatient environment but they do not require one to one nursing care (emphasis in original).
The respondents' collective position was that a mere sighting every 15 minutes was sufficient to fulfil the requirement of the close observation procedure.
In her written report the peer expert, Ms Muller, was not critical of the practice of staff in conducting sightings of patients, sometimes from a distance, as part of their close observations, on the basis that this was the literal and express minimum requirement of the procedure at the time.
In oral evidence Ms Muller stressed that the literal wording of the procedure had to be read against its 'spirit' which is to keep patients safe. Observations are to ensure that a patient is safe, alive and well. They provide an opportunity to assess mental state and risk factors.
Ms Muller expanded upon and explained her view that in undertaking close observations over a period of time mere sightings must to be interspersed with engagement in order for clinical staff to be able to undertake an assessment of a patient. Sometimes this involved direct questions, other times it could be 'therapeutic loitering', looking for non-verbal cues or changes in behaviour, letting the patient know that one was available, and trying to building trust over time. Indications of a decline or other change in state should be followed up with an increase in engagement.
Ms Muller noted that suicide risk is dynamic not static, changes may occur quickly and a suicidal patient must be continually assessed for changes in state. This is reflected in the 'principle' in the NSW Health Suicide Assessment and Management Protocol that, 'Re-assessment of suicide risk is regularly conducted throughout the admission' (at 6). The protocol further provides,
A history of suicide attempts or self-harm greatly elevates a person's risk of suicide. This elevate risk is independent of the apparent level of intent of previous attempts. Suicide often follows an apparent 'suicidal gesture' (at 8).
Ms Muller noted that Ahlia's previous suicide attempts on the ward had not been triggered by external stressors, and that Ahlia had recently identified to clinical staff on another ward that being on her own at night was a risk.
Ms Muller noted that a mental health patient stirring in the early hours of the morning was a factor which she would regard as an alert to trigger concern. She also noted that change of shift has been identified as a high risk period for suicidal patients. In making this observation Ms Muller was also drawing upon the protocol which provides,
Periods that are particularly dangerous for a person who is at risk of suicide include times of transition, such as staff handover, busy times when staff may be distracted and during the quiet hours of the night (at 13).
These observations informed Ms Muller's assessment of the conduct of each respondent, discussed below.
[7]
Submissions
Ms Marthur for the HCCC submitted that there was not a single systemic issue that contributed in a causal way to the death of Ahlia Raftery. None of the systems prevented any of the respondents from walking less than 10 metres to ensure that she was alive and safe. Ms Marthur submitted that the failure to attend upon an involuntary patient in an intensive care unit should be regarded as significantly below the standard of any registered nurse.
Ms Marthur submitted that the necessity to observe patients in the real sense is one of the key reasons for the admission of a patient into any ward. To interpret an observation as simply a sighting demonstrates a lack of skill and judgement. In this case four very experienced nurses placed insufficient or no weight upon their obligation to ensure close observation of the patient.
Neither Ahlia nor her family had the ability to remove her from the PICU. Her involuntary status as a patient meant an enhanced the duty of care on those providing such care.
All four nurses were very experienced registered nurses.
Further, the HCCC argued that if the usual practice of a unit is poor practice, and this compromises patient care, and/or is false or misleading conduct, the commonality of the practice cannot save a practitioner from a finding of unsatisfactory professional conduct.
Ms Marthur submitted that the conduct amount to misconduct because it occurred in an intensive care setting in which vigilance, indeed hypervigilance, was required, in order to keep a suicidal patient safe.
The position of all the respondents was that Ahlia ought to have been on constant or special observations.
As noted at the outset all of the respondents also submitted that the relevant procedure on close observations required sighting, did not state that the nurse should be close to or within reach of the patient, and did not explicitly require engagement.
Ms Doust for Ms Drinkwater submitted that Ms Drinkwater's admitted conduct did not meet the threshold of significantly below the standard expected, and so could not substantiate the complaint. Furthermore her failures were the product of longstanding culture and not intentional breaches, nor was there impropriety that could support a finding of improper or unethical conduct.
While Ms Drinkwater's recollections may have differed due to the passage of time, this was the product of the stress involved in the process and the impact of the traumatic events itself, she was not dishonest.
Mr Byrnes for Mr Davies submitted that particular 2 was not made out because Mr Davies had sighted Ahlia standing at her door and signed the observation sheet accordingly: it was therefore not misleading for him to say that the 6.45 am observations had been done.
Concerning Mr Lilly, Mr Byrnes submitted that his concessions of individual failures were all borne out of systemic failures. Particulars 1 and 2 arose out of established practice that arose because of the lack of protected handover time, particular 3 from practice that was widespread across the LHD, 4 and 5 were denied as delegated responsibilities. Many of the risk factors identified by the HCCC in relation to particular 5 point to the failure of medical staff to allocate a higher observation level.
Mr Dawson for Ms Than submitted that as Ms Than had worked solely within the HNELHD since graduating from nursing, the standard of what is reasonably to be expected from her skills and experience should be judged against the admittedly sub-optimal practices and standards in that LHD.
The imposition of handover duties upon nurses who were not paid to undertake that task was exploitative. As a direct result of this context, Ms Than was rushed and undertaking multiple tasks at the same time as failing to attend upon Ahlia. Ms Than's single failure of judgement occurred during a short period in which she was juggling her completing obligations but at all times attempting to fulfil her professional obligations.
[8]
Findings and Reasons
Whether a higher level of observation should have been accorded to Ahlia, given that she had been assessed as a high suicide risk, is no answer to the charge of a failure to properly undertake the level of observations which she was actually on.
We determine that an observation is a qualitative assessment of a patient's state that requires the exercise of clinical judgement. The inclusion in the procedure of a quantitative element, a minimum sighting every 15 minutes, did not limit the professional obligations entailed in undertaking patient observations to the element of sighting alone. Any rational reading of the text of the observation procedure makes this clear, for example in the text at the outset which states, 'Levels of observation provide an opportunity for interactions and engagement between clinical staff and patients'. Observations are also described as 'interventions'.
There may be occasions in which one or more close observations can be made by sighting a patient without engaging with them, for example if the patient is asleep, or the patient has been recently engaged with and assessed. We find that an observation of a patient who is awake cannot occur in circumstances where the patient is only partially visible and their facial expression cannot be seen. A 'sighting' in such circumstances is not an observation because it does not provide the ability for the necessary clinical assessment to be made.
Mr Davies acknowledged in oral evidence that he did not read Ahlia's file during the course of the night shift. We have rejected Ms Drinkwater's evidence that she did so. There is no evidence that any other nurse on the night shift read Ahlia's file.
Due to the following combination of factors:
no one nurse on the night shift was allocated to Ahlia;
nurses present were signing for observations they had not personally undertaken;
nurses were routinely making observations as mere sightings from a distance;
no clinical notes were made apart from the progress note, 'Sleeping until 0500hr. Awake for H20. Currently sleeping' and handover notes to almost identical effect;
there was no way of anyone on the either the night shift or day shift knowing accurately who had last seen Ahlia or what state she was in after 5 am.
The above factors, combined with the omission of a walkaround at handover between night and day shifts, meant that nurses from the day shift were misled into believing that Ahlia had been awake for a far shorter period than she likely had been, and had been observed far more recently than in fact she had been.
In addition, the omission of Ahlia's recent suicide attempt on another ward from the night/day shift verbal handover meant that the day shift proceeded with less information than the night shift in terms of her state of risk.
[9]
Davies
Mr Davies has been a registered nurse since 1982 and worked in the PICU from November 2014. He no longer works in that unit.
Mr Davies faces a single complaint of unsatisfactory professional conduct which is framed as including either or both of s 139B(1)(a) and (l) of the National Law, that is: judgement or care exercised significantly below the standard reasonably expected of a practitioner or equivalent training and experience and/or improper or unethical conduct.
The two particulars of this complaint comprise (1) completion of the close observation form for Ahlia in a misleading manner when he signed at 5.30, 5.45 and 6 am having not personally sighted her and (2) making a misleading statement to the NIC that an observation check round was conducted at 6.45 am.
Mr Davies conceded the factual accuracy of particular 1 but maintained that he had done nothing wrong in this, as he believed that the signature of observation sheets could properly be done by any of the three methods outlined earlier. That is, he saw them being done, or had them reported to him, even though he had not personally undertaken the observations.
Ms Muller the peer expert was strongly critical of this conduct, which she stated was poor practice, misleading, and in breach of Ministry of Health Policy Directive Health Care Records - Documentation and Management PD2012_069 (2012) Point 2 which requires practitioners to 'Distinguish between what was observed or performed, what was reported by others as happening and/or professional opinion'.
The Tribunal is independently satisfied that particular 1 is established.
Mr Davies denied particular 2. Counsel for the HCCC and for Mr Davies agreed that this particular referred to a failure to undertake all of the four close observations which Mr Davies signed for at 6.45 am, not a failure to undertake the walkaround component of the handover. The peer expert's report was premised on the basis that this particular concerned the walkaround, and so is disregarded on this issue.
Mr Davies and Ms Drinkwater both gave evidence that at shortly after 6.45 am Mr Davies said to her, 'I've done the quarter to sevens, can I go now?' Despite our reservations as to other aspects of each of those respondent's evidence, we accept this as truthful. Mr Davies had arrived around half an hour before the start of his shift and Ms Drinkwater was content to allow the night staff to go home before she conducted verbal handover.
The Tribunal is satisfied that particular 2 is made out on the basis of our finding that from 6.30 to 6.45 am Mr Davies did not walk down the corridor near Ahlia's room and was inside or next to the nurses' station from which he sighted Ahlia at a distance (and also looked down the other corridor by way of conducting close observations of patients in that direction). If Mr Davies had gone to or past Ahlia's room he would have been able to see the sheet attached to the door, which we have found was attached there by 6.45 am at the latest.
A sighting from the nurses' station some 10 metres away down a dimly lit corridor was manifestly inadequate even if the Tribunal accepted the respondents' position that the relevant observation policy only required a sighting of, and not engagement with, the patient.
While the peer expert was not critical of Mr Davies' 6.45 am observation of Ahlia from the nurses' station, we disregard this opinion in making the above conclusion. The expert was not asked to comment upon Mr Davies undertaking all four of the close observations from the nurses' station. She also accepted the evidence, which we do not, that at that time Mr Davies had recently had interaction with Ahlia.
Mr Davies did not undertake an observation from which any professional judgement could be exercised in order to determine whether or not the four patients under close observation were currently safe, never mind whether their respective states of health were in decline. Thus for him to say that the quarter to sevens were 'done' was misleading.
We find that the complaint is established to the required standard in that the particulars, taken together, demonstrate that Mr Davies failed to exercise the judgement and care reasonably expected. Mr Davies' failure to undertake adequate observations and to document them properly was significantly below standard, particularly given his very considerable experience as a nurse and in mental health nursing.
Mr Davies knew that Ahlia was suicidal and had made a recent suicide attempt on another ward. He also knew that she was up and about early in the morning, a known indicator of low mood or mood disturbance. Although not assigned to her care specifically, Mr Davies' failure to engage with Ahlia on any meaningful, therapeutic level during the 90 minute period in which he was signing her close observations sheets, and his failure to record or report on the change in her status in that time had profound consequences.
However we decline to find that the particularised conduct was improper or unethical. Those terms convey the additional elements of gross or intentional breach of standards, of malice, dishonesty or deliberate wrongdoing: see HCCC v Sadek [2017] NSWCATOD 181 [11]-[12]. Here, Mr Davies' practice of substandard care took place within a mutually reinforcing culture of poor practice, poor supervision and poor management.
[10]
Drinkwater
Ms Drinkwater has been a registered nurse since 1997 and has worked in the PICU since 2010. Following the s 150 proceedings she has worked under the condition that she not be the NIC.
The complaint of unsatisfactory professional conduct against Ms Drinkwater is also expressed in the alternative to encompass both conduct below the standard and conduct that it improper or unethical. The complaint comprises seven particulars. There is a further complaint of misconduct.
Ms Drinkwater conceded particular 1, which was that she failed to provide appropriate management of patient care by not allocating specific patients to nurses. The peer expert was originally strongly critical of this failure, but at the hearing revised this downwards on the basis that it reflected long standing practice of the night shift in the PICU. Ms Muller remained critical but not strongly so.
Ms Drinkwater conceded particulars 2 and 3, being that she failed to complete her close observations properly in that she did not record respiratory rates for sleeping patients and did not complete her signature identification details, and that as NIC she failed to ensure that the nurses under her supervision did so. The peer expert was strongly critical of these failures.
Particular 4, that Ms Drinkwater as NIC failed to provide appropriate management of patient care and/or supervision of nursing staff by knowingly allowing nurses to complete the close observation forms when they had not personally sighted the patient, was also conceded.
The peer expert was strongly critical of this failure. The Tribunal is strongly critical of this failure, in particular in the context in which no nurse was allocated specific patients, as it meant that for the entire night shift there was no accurate documentation of who had performed observations and no way of knowing from the documentation what a patient's current status was.
Particular 5 was that Ms Drinkwater as NIC had failed to complete handover from the night shift to the day shift, by not personally undertaking or ensuring that a walkaround was done around the time of shift change. Ms Drinkwater accepted that she had not undertaken a walkaround, her position at the hearing was that she assumed that one had been done.
While there was conflicting evidence as to who customarily undertook the walkaround we find that Ms Drinkwater's responsibility as NIC of the night shift to ensure that it was done. We find that Ms Drinkwater was well aware, indeed was the only person who could conclusively know at 7.05 am when she departed, that no walkaround had been done.
Mr Davies had told her that the 'quarter to sevens' close observations were done and he and the other night shift nurses were granted permission by her to leave shortly thereafter. Ms Drinkwater was present in the nurses' station as the day shift nurses arrived and was the only night shift nurse at the verbal handover. She didn't see the walkaround done prior to verbal handover and did not undertake it following verbal handover, so she knew that it was not done. This was a gross dereliction of her duty as NIC.
Ms Drinkwater denied the remaining two particulars.
Particular 6 was that as NIC Ms Drinkwater had failed to attend upon Ahlia in her room, or ensure that another staff member attended upon her, after 6 am in circumstances where she was aware that Ahlia had been awake at 5 am, was 18 years old, a new admission and a first time admission to the PICU and in the context of her diagnosis and the poor lighting.
Ms Drinkwater acknowledged the other contextual factors but denied that the lighting was poor. This was a somewhat surprising denial given the evidence of every other witness. We find that the poor quality of the lighting is self evident given that several people were unable to see the ligature or to notice the difference between a patient who was standing and one who was hanging.
Ms Drinkwater's position was that she had not failed to attend upon Ahlia as she had gone to her room at 6.30 am and was aware that Mr Davies had conducted observations at 6.45 am. As noted above, we find that Ms Drinkwater did not attend upon Ahlia at 6.30. Further, we find that as NIC she allowed the practice of conducting sightings of patients from within and next to the nurses' station. As noted above we find that this practice was inadequate.
The peer expert was of the opinion that, given Ahlia's multiple risk factors, Ms Drinkwater should have ensured that Ahlia was engaged with once she was awake. Ms Muller she was strongly critical of this failure. This particular is proved.
Particular 7 is that NIC Ms Drinkwater failed to attend upon Ahlia in her room, or ensure that another staff member attended upon her, between 6.50 and 7 am in circumstances where she was aware of several risk factors such as that Ahlia was a high risk of suicide, her recent inpatient attempts at suicide and her continued suicidal ideation and intent.
The nub of this particular is that Ms Drinkwater did not ensure that there was anyone on the floor attending to patients during the verbal handover process. This occurred in part because she had already allowed the night nurses to leave.
Ms Drinkwater acknowledged in her written response that she did not attend Ahlia's room between 6.50 and 7 am but denied that this was a failure of her duties, as she was undertaking verbal handover at that time and Ahlia was sighted by both herself and the morning nurses from within the nurses' station. Not acknowledged in this response is that this sighting should have, and in fact did, alert those present to something amiss in Ahlia's behaviour that no one reacted to. At the hearing, Ms Drinkwater conceded this particular based on her acknowledgement that she should have sent someone to check on Ahlia during the handover.
While the absence of a protected handover time in which both shifts were paid to attend to handover contributed to a situation in which Ms Drinkwater may have felt some pressure to allow night staff to leave early, it was still her responsibility as NIC to ensure that handover was properly done and that patients were safe while it was done. Ms Drinkwater failed in her duties as NIC in conducting handover in such a way that 7 am observations could not possibly be done and patients were unattended for that period. The peer expert was strongly critical of this failure.
The Tribunal is independently satisfied that all of the particulars are made out.
We find that particulars 1-3 if taken alone would not be so significantly below the standard as to amount to unsatisfactory professional conduct.
Concerning particular 1, although Ms Drinkwater was the NIC, we find below that the duties and role of the NUM to communicate, reinforce and monitor procedure mean that Mr Lilly bore a greater responsibility for this failure.
Concerning particulars 2 and 3 we accept Ms Drinkwater's evidence that the practice during night shift was to ensure that the patient was breathing, and to do so in a manner that was less likely to wake the patient (ie viewing them through the window in the door to observe chest rising and falling rather than opening the door or training a torch on them for a full minute to establish respiration rate). We also accept Ms Drinkwater's evidence that the failure to record signature examples on the observation sheets was an oversight.
Particulars 4-7 are more serious failures of care and judgement. As NIC, Ms Drinkwater had responsibility for the patients during the nightshift, she was fully aware of the risk factors from the afternoon handover and should have been aware of further risk factors through reading of Ahlia's clinical file. Because no nurse was allocated to Ahlia it was up to Ms Drinkwater to manage those risks through undertaking or allocating attendance on Ahlia, and she did not.
Taken together, the proven and admitted conduct is significantly below the standard reasonably expected of a nurse with the experience of Ms Drinkwater in a leadership role as NIC. Complaint 1 is made out to the required standard.
As with Mr Davies we decline to make any finding of unethical or improper conduct. In her evidence Ms Drinkwater characterised herself as lacking in the confidence and leadership to enforce standards of good practice in the face of what was, essentially, pervasive poor practice. We accept that Ms Drinkwater's expressions of regret are genuine.
Complaint 2 is that particulars 4, 5 and 7 individually, and particulars 1-7 cumulatively, amount to misconduct.
In making a finding of professional misconduct the Tribunal must determine whether 'when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration': HCCC v Perroux [2011] NSWDC 99 at [18]. This level of seriousness requires more than 'mere incompetence', and can include a deliberate departure from accepted standards, indifference to them, or serious negligence: HCCC v BXD (No 1) [2015] NSWCATOD 134 at [37], quoting Kirby J in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200.
We find that the proved and admitted conduct, taken together, is of such seriousness as to amount to misconduct.
Some failures, taken alone, may seem minor - such as not recording respiration rates for each patient every 15 minutes. Yet that omission allowed and contributed to other much more dangerous and substandard practices, such as sighting patients from a considerable distance and signing for patients not sighted.
Other breaches, such as the failure to allocate individual patients to nurses, did not attract the strong criticism of the expert because it was anchored in the longstanding practice of the unit and was not a matter which Ms Drinkwater understood to be within her control. But the cumulative effect of the 'team' nursing combined with the signing of close observations sheets by those who had not actually undertaken those observations, was an environment in which the exercise of professional judgement about a patient's state of heath in an acute setting was effectively substituted for a glance and a signature.
The ticking of boxes and filling of forms are not ends in themselves. They record the symptoms that patients are experiencing and the care that patients have received. Such a record enhances patient safety by, among other things, accurately documenting changes in their state of health and enabling another health practitioner to assume care. Ahlia's progress notes and handover notes did not accurately record the change in her state after 5 am, indeed they record nothing at all after 5 am, and so did not allow the oncoming shift to properly assume her care.
When Ms Drinkwater filled in Ahlia's clinical notes at 6 am and the handover sheet comments at the same time, she appears to be reporting on her own sighting of Ahlia at 5 am. The note that Ahlia was 'currently sleeping' may be no more than an assumption on her part, as Mr Davies' evidence is that Ahlia was up and moving about in her room and the corridor shortly after that time (although he made no record of that in her progress notes). Ms Drinkwater printed the handover notes at 6.09 am and paid no regard to what Ahlia did after that time. This appears to be symptomatic of a lackadaisical, caretaker culture in the practice and management of the nightshift of the PICU at that time.
In particular in a team nursing environment in which no one nurse was responsible for a patient, the NIC was responsible for overseeing that all patients were appropriately observed and attended to. It bears repeating that this was an intensive care unit. Yet Ms Drinkwater allowed observations to be recorded based on sightings made down dim corridors at considerable distances, and consequently allowed a patient who was a young suicidal new admission to remain unattended for over an hour, possibly as long as two hours, despite the fact that she was awake and up in the early hours of the morning.
Cumulatively, the conduct is of such gravity that it must be regarded as misconduct.
[11]
Lilly
Mr Lilly has been a registered nurse since 1979 and NUM of the PICU since April 2013. This is a position he still holds although he was on leave at the time of the hearing. As NUM Mr Lilly implemented numerous changes following the RCA to improve the physical environment and nursing processes at the PICU.
The complaint of unsatisfactory professional conduct against Mr Lilly is of conduct below the standard. The complaint comprises five particulars. There is a further complaint of misconduct.
Particular 1 is that as NUM Mr Lilly failed to ensure that appropriate procedures were in place to ensure that a handover, including walkaround, was completed between the night shift and day shift. While acknowledging that no walkaround had in fact occurred, Mr Lilly denied this particular on the basis that he was either not responsible for ensuring that it occurred or had not failed in this responsibility.
In his written response, Mr Lilly drew attention to the fact that he did not have an 'hours clause' in his contract of employment meaning that he did not work designated hours. While he usually worked between 7 am and 4 pm Monday to Friday his actual starting time was 8 am. His position at the hearing was that he was 'just one man' and could not be responsible for what occurred when he was not on the premises, such as on weekends and nights. His belief was that he should be able to assume that the NIC of every shift undertook appropriate handovers, including the walkaround. This was 'an implicit assumption'.
On the day in question Mr Lilly arrived later than usual, at 6.50 am, saw that a nurse from the night shift had already left and therefore assumed that the night/day shift walkaround had already occurred. He did not ask the NIC whether walkaround had occurred nor accept that he had any responsibility to ensure that it had occurred, stating, 'I don't see that I am meant to phone up after every shift to ask if there's been a handover done'.
Mr Lilly's evidence to the s 150 inquiry was that it is his practice to undertake the walkaround personally whenever coming onto a shift. He was also the NIC of the day shift. As noted above there was considerable variance in the evidence from different nurses as to who should undertake the walkaround.
The peer expert's opinion was that as NUM Mr Lilly was responsible for ensuring systems were in place and monitored to ensure that handover walkarounds had been attended. Moreover as the incoming NIC this was his responsibility. Ms Muller was strongly critical of this failure.
It is clear that no system was in place and that Mr Lilly did not undertake any form of monitoring, either that day or in general, to ensure that systems and procedures (such as the proper recording of observations, discussed below) were being adhered to. Mr Lilly expected that walkarounds were done, he did not ensure that they were done. This particular is established.
Particular 2 is that Mr Lilly failed to ensure that an observation round was conducted at 7 am. Mr Lilly admitted that 7 am observations of Ahlia did not occur, however he relied upon his answer to particular 1, that is the assumption that they had been undertaken prior to his arrival. In his statement Mr Lilly again relies upon his assumption that the task had been completed because night staff had left. He also states that no one informed him that 7 am observations had not been undertaken. This response makes little sense when Mr Lilly arrived at 6.50 am and so was present at the time that such observations should have occurred.
At 7 am Mr Lilly could see that all nurses present, which did not include most of the night shift, were at the handover in the nurses' station and there was literally no one who could have undertaken the 7 am observations.
While the lack of protected handover time between shifts contributed to this situation, we have previously found that the conduct of Ms Drinkwater as NIC was significantly below the standard expected in conducting handover in such a way that 7 am observations could not possibly be done and patients were unattended for that period. Mr Lilly is also responsible for that failure: as NUM he was responsible for putting in place a system to ensure that patients in his unit were safe during handover, he was also responsible for their safety as NIC of the incoming shift. Mr Lilly was present in the unit and fully aware of the absence of a 7 am observation. The peer expert was strongly critical of this failure. This particular is established.
Particular 3 is that as NUM Mr Lilly failed to provide appropriate supervision and/or management of patient care by ensuring that there was a process in place for the NIC to allocate patients to nurses. Mr Lilly admitted that this occurred but not that it was below standard, relying upon the fact that it was common practice to undertake team nursing during night shift and that at no time since 2009 had the mental health management or senior mental health management within the HNELHD informed him that the team model was inappropriate.
In his oral evidence Mr Lilly stated that he had not been '100% sure' about the policy concerning night shift patient allocation at the time, and that he had not thought that the team model compromised patient safety. Mr Lilly also stated that he would have been 'laughed at' had he raised this issue with senior management.
While the peer expert was not strongly critical of Ms Drinkwater on this point, Mr Lilly as NUM had a far higher level of control and responsibility over the running of the unit and we hold him to a higher level of accountability on this issue.
Mr Lilly could have, and did not, implement the required procedure to ensure that NICs were allocating patients to nurses in all of the shifts in his unit. This poor practice may have been common across a number of other hospitals during night shift, but this was an intensive care unit, housing a small number of high needs patients, including involuntary patients. The manager of such a unit should have turned his mind both to the required procedure and to the specific intensive needs of the patients in such a unit. This particular is proved.
Particular 4 is that as NUM Mr Lilly failed to provide appropriate supervision and/or management of patient care by ensuring that there was a procedure in place for the NIC to appropriately monitor compliance of the nurses undertaking close observations by ensuring that nursing staff would record respiratory rates.
Mr Lilly denied particular 4. He stated that it was his expectation that observation rounds would be conducted appropriately and that 'any concerns' would be brought to his attention by nurses or NICs. Mr Lilly stated that he did not routinely examine the observations sheets or clinical records of shifts that he did not attend.
The peer expert replied upon the position description of the NUM role to highlight that it was Mr Lilly's overall responsibility to ensure that staff were aware of their clinical responsibilities and had a working knowledge of relevant policies and procedures. This included through developing and conducting appropriate audits.
Even a cursory glance at the clinical records for the PICU night shift reveals that the failure to record respiratory rates was routine. Whether or not Mr Lilly was aware of this, as NUM he should have been. Mr Lilly had no system in place to ensure that observations were properly conducted. This particular is established.
Particular 5 is that as NUM Mr Lilly failed to provide appropriate supervision and/or management of patient care and safety in the period between 7 am to 7.25 am, in that he failed to attend upon Ahlia at her room or ensure that a staff member attended upon her in circumstances in which Ahlia was 18, was a new admission and first time admission to the PICU, and in the context of her diagnosis, the poor lighting and him having come within proximity of her room and having heard comments from staff that she had been stationary for some time.
Mr Lilly denied this particular, and in his written response to the Tribunal also disputed that various of the contextual factors relied upon in the framing of the particular were risk factors in the circumstances.
Mr Lilly noted in his written response that patients as young as 14 had been admitted to PICU, that the average length of stay was 2.5 days, meaning many patients were new admissions, and all patients come onto the unit with a serious mental health diagnosis. Mr Lilly argued that Ahlia's previous suicide attempts on other wards meant that she should have been assigned a higher level of observation. He categorically denied that he had heard staff discussing Ahlia being stationary. Rather his previous statements were that: he heard them discussing the fact that she was standing at her door, and the plan to lock the door and keep her in the common area after breakfast.
The crux of Mr Lilly's response was that as NUM and NIC he had undertaken his duty thoroughly by assigning Ahlia to the care of a nurse on day shift, Ms Than. He was busy overseeing blood collection, and he was entitled to rely upon the nursing staff to undertake any observations or attendance on their assigned patients.
We found above that Mr Lilly was present during handover where he heard comments during handover that Ahlia was standing at her door 'staring' at the nurses' station, and then after blood collection he returned to the nurse's station where he heard that Ahlia was 'still standing' at her door. Combined with his knowledge that no 7 am observation had been conducted, this should have been sufficient to alert him to the fact that Ahlia remained unattended when her behaviour required attention. As NIC of the shift Mr Lilly could have requested that Ms Than attend to Ahlia, or delegated another nurse to do so.
As with the conduct of Ms Than, discussed below, Mr Lilly's failure to ensure attendance upon Ahlia occurred over a brief period, and its effect was magnified by the previous failures of attendance during the night shift that could not be known from handover or from the clinical records. For this reason we do not find that the conduct in this particular alone would fall significantly below the standard expected.
Taken together, the proved and conceded conduct in the particulars is significantly below the standard reasonably expected of a nurse of Mr Lilly's experience and training, and of a NUM managing an acute mental health hospital unit.
It is clear that there were very serious systems failures, such as those concerning walkaround and the lack staff on the floor during handover, for which Mr Lilly was directly responsible as NUM. It was very concerning that throughout the hearing Mr Lilly still saw his role as a manger as expecting or assuming proper practice rather than as ensuring it, through systems, monitoring, auditing and follow up. Complaint 1 is made out to the required standard.
The complaint of misconduct is that particular 5 individually, or particulars 1-5 cumulatively, amount to misconduct.
Taken together, the conduct is of such gravity as to amount to misconduct. The staff on the day shift had limited time and limited information upon which to base their reactions to Ahlia's behaviour. Ms Drinkwater as NIC of the night shift has been held responsible for much of this, and Mr Davies for some of it. Many of Mr Davies and Ms Drinkwater's failures, and the responsibility for the poor practice of the night shift must fall also to Mr Lilly, as it was Mr Lilly's overall responsibility to ensure the safe running of the unit.
The situation which ensued, of several experienced staff all assuming that someone else had attended upon Ahlia, when no one had, occurred because of the lack of any overarching system or clear line of responsibility to ensure that close observations were properly done, walkarounds were undertaken, and observations during handover times were attended upon.
[12]
Than
Ms Than has been a registered nurse since 2005 and was employed in the PICU from November 2007 to October 2015. Ms Than was recognised as a clinical nurse specialist in March 2015. Ms Than was the only one of the respondents who did not immediately return to work in the unit; she was also the only one to face serious disciplinary action as a result of the HNELHD investigation. She currently works in a mental health unit in another hospital.
The complaint of unsatisfactory professional conduct against Ms Than relates only to s 139B(1)(a) of the National Law, that is of a failure of judgement or care.
There is only one particular to this complaint, which is that Ms Than failed to attend upon Ahlia at her room between 7.05 and 7.25 am and instead 'sighted' her from the nurses' station in circumstances where she ought to have attended upon her due to Ahlia being 18 years old, a new admission and first admission to PICU, her diagnosis and suicide risk and in the context of the poor lighting and Ms Than's observation that Ahlia had not moved since 6.45 am. The second complaint is that this amounts to professional misconduct.
At 7.05 am when she assumed care of Ahlia, Ms Than was unaware that a walkaround had not been conducted, as she had been in the medication room conducting the drug count prior to the verbal handover. Unlike Mr Lilly, we find that Ms Than was entitled to assume that such a walkaround had occurred: she was not the NIC of the shift, she was conducting the duties customarily undertaken by the first nurse of the oncoming shift, and the ward was not visible to her while she was in the medication room.
In her written report the peer expert was not critical of Ms Than for sighting Ahlia from the nurses' station as a regular observation, such as would have been necessary at 7.15 am, but was critical of her for failing to explore what appeared to be Ahlia's odd behaviour.
Shortly before the hearing Ms Muller revised this opinion as follows:
…CNS Than's sighting of Ahlia did meet the minimum standard as per HNE policies and procedures in the literal sense but did not meet the spirit of the policies, being to ensure the safety of the patient.
When I consider that RN Than was a clinical nurse specialist with 9 year experience working in a specialist PICU, I am of the opinion that Ahlia's 'odd' behaviour (ie standing behind the door staring toward the nurses station and not moving for an extended period of time) in a poorly lit corridor to be sufficient to alarm CNS Than that Ahlia required closer observation and engagement. CNS Than did sight Ahlia but did not actively explore the reasons for the abnormal behaviour that had been identified at handover as being odd. Suicide risk is dynamic, not static and any abnormal behaviour in a patient new to the unit with any degree of suicide risk would need to be explored as a priority. This would allow an experienced mental health CNS to re-evaluate and potentially increase the minimum observation and safety requirements for the patient.
As a result, Ms Muller was strongly critical and opined that the conduct was significantly below the standard reasonably expected.
In her written statement to the Tribunal Ms Than did not explicitly deny the particular, although she took issue with many of the contextual factors as establishing risk. She stated:
I allowed myself to become distracted on the morning of Patient A's death, both because we had little time to properly handover patients between shifts, and because I was attending to another patient and, at the same time, attempting to catch up on reading Patient A's notes. I was not ignoring my duties, or ignoring Patient A's care, because we could all see her standing (as we thought) at the door. It did not cross my mind that Patient A could have in any way harmed herself such that she was standing in the position she was in, nor did it occur to any of the other many nurse who sighted Patient A in that position that morning.
In her oral evidence Ms Than stated that sightings from the nurses' station were accepted practice at the time in the unit, and were also done by NICs. When asked in examination in chief what her response to the complaint was today, she replied:
I should have gone to see Ahlia. I would change everything. I should have gone to see her. Sighting wasn't enough. I had her for 20 minutes. I expected my colleagues had done sightings prior. I accept that, yes, I should have gone down to see her. I thought a round had been conducted. I thought they would have ensured that Ahlia was safe.
We find that, in the context of Ahlia's age, her new admission, identified suicide risk and ideation, the dark corridor and odd behaviour, Ms Than should have attended to her in this period.
While not every failure to undertake a single close observation, or to undertake one attendance, could be regarded as significantly below the standard reasonably expected of a nurse of Ms Than's training and experience, we find that in the setting of an intensive care unit and in the context outlined in the paragraph above, it was so. We find that complaint 1 is established to the necessary standard.
Having regard to the short period of time that Ahlia was under Ms Than's care, and the cascading failures of the night shift and of management outlined above that led Ms Than to believe that Ahlia had been recently attended, and to her not being informed that Ahlia had made a recent suicide attempt while on another ward, we do not find that her conduct rises to the level of misconduct. Complaint 2 is not established.
[13]
Further Submissions on Protective Orders
All of the respondents filed professional references in their materials and none of the referees were required for cross examination.
All of the respondents except Ms Than consented to having Stage 1 and Stage 2 considerations dealt with together at the hearing.
Ms Than's representative submitted that Stage 2 could be dealt with on the papers following the publication of Stage 1 reasons.
Oral submissions were made concerning appropriate protective orders for Drinkwater, Davies and Lilly.
Following the determination of the complaints and the formulation of reasons, the Tribunal is contemplating an order in relation to one of the respondents that was not canvassed at the hearing. Bearing in mind jurisprudence on procedural fairness from the Court of Appeal, such as King v HCCC [2011] NSWCA 353, and given the reservation of stage 2 for another respondent, we have determined that the fairest course is to allow all parties a further opportunity for written submissions before making a determination of the appropriate protective orders. The parties will be notified through the registry of the orders contemplated.
Submissions may also be made on costs, which are reserved until Stage 2 is determined.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 19 March 2019