Health Care Complaints Commission v Ahuja

NCAT Occupational|2024-04-05

reasons for decision

By application dated 17 August 2023, the Health Care Complaints Commission ("the Commission") seeks orders pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law"), for the cancellation of the registration of Ms Sudiksha Ahuja ("the Respondent"), an Enrolled Nurse registered under the National Law with a non-review period of 6-12 months.
In addition, the Commission seeks a prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed, and an order that she pay the Commission's costs under clause 13 of Schedule 5D of the National Law, as agreed or assessed.
The application further specifies that in the event that only some of the particulars of the complaint are proved, the Commission may seek alternative protective orders under s 149A and/or section 149C of the National Law.
The Director of Proceedings of the Commission had determined to prosecute the complaint set out below against the Respondent pursuant to s 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct in an aged care facility within the meaning of s 139B(1)(l) and professional misconduct within the meaning of s 139E of the National Law.

Complaint 1

Complaint 1 is that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that she has engaged in improper or unethical conduct relating to the practice of nursing.
The particulars to Complaint 1 are as follows: 1. On or around 9 December 2021 at approximately 3:00 pm, the practitioner conducted herself improperly by banging the head of one of the dolls on a table: 1. in the presence of Patient A; 2. knowing that Patient A believed that the dolls were real babies; 3. with the intention of eliciting a response from Patient A; 4. in circumstances where the practitioner knew it was likely or was reckless to the likelihood that her actions would upset and cause distress to Patient A; 5. for the purpose of amusing herself and AIN-B at Patient A's expense. 1. On or around 9 December 2021 at approximately 3:00 pm, the practitioner conducted herself improperly by intentionally dropping one or more of the dolls on the ground: 1. in the presence of Patient A; 2. knowing that Patient A believed that the dolls were real babies; 3. with the intention of eliciting a response from Patient A; 4. in circumstances where the practitioner knew it was likely or was reckless to the likelihood that her actions would upset and cause distress to Patient A; 5. for the purpose of amusing herself and AIN-B at Patient A's expense. 1. On or around 9 December 2021 approximately 3:00 pm, the practitioner conducted herself improperly by laughing at Patient A's distress and her own conduct as particularised in particulars 1 and 2 above.
The complaint relies on the conduct set out in Particulars 1, 2 and 3 of Complaint 1 in combination as a course of conduct involving improper care of a vulnerable patient amounting to unsatisfactory professional conduct.

Complaint 2

Complaint 2 is that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that she has engaged in improper or unethical conduct relating to the practice of nursing.
The particulars of Complaint 2 are as follows: 1. On or around 2 March 2022 the practitioner attempted to collude in relation to the Murrumbidgee Local Health District ("MLHD") investigation of her conduct ("the investigation") by contacting AIN-B via Snapchat with a message requesting AIN-B to call her. 2. On or around 2 March 2022 the practitioner attempted to collude in relation to the investigation by approaching AIN-B in the printing room at the JMS and asking her to provide false or misleading information about the incident to the investigation, by saying words to the effect of "can you please tell them that I just dropped it accidentally? And nothing. I didn't smack it on the table". 3. On or after 28 February 2022 the practitioner attempted to collude in relation the investigation by approaching AIN-C and attempting to discuss the incident including by mentioning the doll's head and attempting to minimise her involvement.
The Commission relies on the conduct in Particulars 1, 2 and 3 of Complaint 2 in combination as a course of conduct involving attempting to collude with other persons in relation to an investigation into the practitioner's conduct, amounting to unsatisfactory professional conduct.

Complaint 3

Complaint 3 is that the Respondent is guilty of professional misconduct under s 139E of the National Law in that she has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2. engaged in a more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
The particulars to Complaint 3 are the particulars of Complaints 1 and 2 and are repeated and relied upon both individually and in combination.
In the Reply to the Application filed by the Respondent she denies each of the particulars and sub-particulars of the complaints.
The Commission carries the burden of proving the allegations in the complaints. The applicable standard of proof is proof on a balance of probabilities (see Bronze Wing International Pty v SafeWork of NSW [2017] NSWCA 41).

Relevant Legislative Provisions

In relation to s 139B(1)(l), the terms "improper conduct" and "unethical conduct" are not defined in the National Law. They should be given their ordinary meaning (Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 at [16]-[18]).
The relevant ordinary meaning of improper includes "not in accordance with truth, fact, reason or rule; abnormal, irregular, incorrect, inaccurate, erroneous, wrong" (Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494). If a practitioner's conduct was not in conformity with the standards of professional conduct and practice it may be regarded as improper (R v Byrnes [1995] HCA 1; (1995) 183 CLR 501 at 514-515).
Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct.
Professional misconduct is not defined in the National Law.
In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20, Basten JA explained: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct."

Evidence

The Commission relied on the evidence of six witnesses who were Assistants in Nursing employed at the time, described in these reasons as AIN-A, AIN-B, AIN-C, AIN-D, AIN-E, and the relevant Nurse Manager on duty at the time described as NUM.
Each of these practitioners, who were in attendance at the facility on 9 December 2021, provided statements and were cross-examined.
The incident complained of occurred shortly after 3:00 pm on 9 December 2021. It was a time when there was a handover taking place from one shift of practitioners to another. Some of the practitioners were engaged in preparing reports or documenting relevant information for the purposes of completing their shifts.
The handover occurs in the nurses' station which overlooks the common area or dining room in which certain of the residents were at the relevant time including Patient A.
It will be apparent from the evidence which we detail below that no one member of staff observed the entire incident from beginning to end. It is more a case of particular aspects of the incident being observed and heard by individual practitioners or heard without necessarily observing what other practitioners were doing or observing at the relevant time.
The incident appears to commence whilst the Respondent and AIN-B were in the nurses' station.
One staff member, AIN-E, described what occurred from her perspective as follows: On the day she was in the nurses' station sitting at the desk completing her notes on the computer and filling out the nurses' and carers' book. She describes the nurses' station as right next to the residents' dining room and that one could see the whole dining room from inside the nurses' station.
AIN-E stated in her written evidence dated 2 November 2022 that the Respondent and AIN-B, who was also on duty at the time, were in the nurses' station as well and they were behind her and were just chatting. She says that she then heard AIN-B say to the Respondent, "[Patient A] hates it when people mess around with the dolls. Go move the blanket and see".
This conversation appears to relate to the fact that there were dolls in a crib under a blanket in the dining room.
AIN-E then said that after AIN-B had made that comment to the Respondent, AIN-B followed the Respondent out to the dining room where the dolls were. There were, at the time, a few residents sitting in the dining room including a resident described in these reasons as Patient C.
From where she was sitting inside the nurses' station, AIN-E said she saw the Respondent walk over to the dolls and pick one up. She said that the Respondent grabbed it around the back of the neck, holding the face of the doll facing away from her. The Respondent then walked over to the table in the dining room, lifted the doll up and slammed it hard, face first on the table. It was quite loud when she did it.
AIN-E stated that the dining room is made up of two rectangular tables. Patient C was sitting at the table directly across from where the Respondent slammed the doll's face into the table. She says that Patient C saw what occurred and said, "I'm really disappointed in you".
AIN-E stated that she saw AIN-B standing to the side of the Respondent when she slammed the doll's face into the table. AIN-E says that she was "kind of in shock" at what the Respondent had done so she does not really remember what AIN-B did, or said, at this point but she does remember that AIN-B seemed to be a bit shocked that the Respondent "took it that far".
AIN-E also identified Patient A as sitting at the other table in the dining room and she was facing the Respondent when she slammed the doll onto the table.
AIN-E stated that whilst the dolls are communal for all the residents to use, Patient A is one of the residents who is most attached to the dolls and would use them the most. Patient A would say hello to them every morning.
AIN-E said she did not know if there were other staff who saw or knew what happened and she was of the understanding that Patient A was upset by what the Respondent had done, other staff went to console her.
AIN-E said that after the Respondent had slammed the doll's head into the table, she and AIN-B both came back into the nurses' station. She did not see them interact with any of the residents after the incident and they did not say anything to AIN‑E about it.
Later, and after the incident, AIN-E looked at the dolls and says that she did not notice any damage to the face of the doll that the Respondent had slammed on the table. She says that she knew that one of the dolls had a broken leg, but that was the only issue or damage that she knew about and saw on any of the dolls. She says that the doll with the broken leg was not the doll that the Respondent had slammed onto the table.
On or about 25 May 2022, AIN-B communicated with AIN-E via a Facebook Messenger, and a short telephone conversation ensued in which AIN-B identified that she was under investigation because of the dolls and that she was being accused of elder abuse.
According to AIN-E, AIN-B asked her what she would say if AIN-E was called upon and asked about the incident. She was asked if she would say that it was the Respondent because the Respondent was the one who smashed the doll into the table and not AIN-B. AIN-E told AIN-B in response that if she was called up about the incident she would tell the truth about what she saw.
AIN-E also prepared a diagram of the work station and where the various persons were as described in her evidence.
In oral evidence AIN-E stated that Patient A was looking at the Respondent when the doll was slammed on the table in the manner described. She says that the Respondent did not say anything that AIN-E heard at the time. Patient A was upset as she was "tearing".
AIN-E in cross-examination confirmed that she could pretty much see the whole of the dining room from where she was seated in the nurses' station. There was some stained glass as a partition but that did not obscure her view of the doll being banged on the table.
She confirmed that she saw the hitting of the doll's head on one occasion. AIN-B looked in shock when that occurred, she had her hands up towards her cheeks and mouth open.
Another member of staff, AIN-C, gave an account of what she heard at the time. This practitioner did not see what happened.
At the relevant time she was in the nurses' station trying to write an important report.
She stated that she heard AIN-B giving as much encouragement to the Respondent as she could and this witness could hear the banging of the doll on the table whilst AIN-B was saying to the Respondent "do it, do it".
AIN-C says that she also heard Patient A being distressed. She thought she was crying out.
AIN-C later walked into the dining room as Patient C was commenting and told the Respondent and AIN-B that she was disappointed in them because she thought they were more professional than that. When she walked into the room, the two staff members who had participated in the incident "sort of disappeared out of the dining area".
AIN-C stated that she was familiar with Patient A's habits in relation to dolls. She said that Patient A liked to dress them nicely and tuck them into bed.
There was an internal investigation into the incident.
AIN-C was interviewed by the professional practice support manager. AIN-C stated at the end of her interview that some time after the event, the Respondent approached her. The following is the relevant extract from the transcript of her account: "Sudi did approach me after when she found out she was being investigated, she approached me and said, you know, that the doll's head didn't, um, she she, she said. She mentioned the doll's head. I'd [sic] wasn't taking much notice because I knew that she was involved in it and she was trying to make out she wasn't."
In oral evidence AIN-C tried to explain this statement as a reference to the head of the doll coming off before and that the Respondent was trying to make out that she was not involved. AIN-C had never observed the doll's head coming off before.
In cross-examination, AIN-C made clear that she did not see what happened but what she heard initially and then what she saw and observed after she walked into the room. She said she was in the nurses' station on her own and she could hear what was happening in the dining room approximately 6 metres away. She could not see where the practitioners accused of the conduct were standing but she could hear. She said she could hear banging repeatedly on the table, five or six times and that AIN-B was encouraging the Respondent to do so.
She said that to her knowledge Patient A favoured one of the dolls, the doll she was hugging when observed by this practitioner, it appears after the doll was slammed onto the table. AIN-C could not remember any other staff member being in the room, and she tried to console Patient A. Patient A had tears in her eyes at the time and was showing signs of distress by crying out.
Another member of staff, described in these reasons as AIN-A was on duty at the relevant time and she, in her evidence, describes being in the dining room at the time of the alleged conduct on the part of the Respondent and AIN-B. In an interview with the professional practice support manager of the MLHD which was transcribed she gave the following account of the incident in which the names of persons identified have been anonymised: "It was about 3:00 o'clock that I went into the kind of communal dining room area. Uh hum. And that's when AIN-B and Sudi (Ahuja), um were grabbing the dolls from there's like a little crib set up in the corner of the dining room. And Patient A, the resident, always like attends to the dolls and shows people them and is really proud of them and, shows a lot of care for them, 'cause she is a really caring, nurturing person. And they knew that about Patient A, so they were intentionally were grabbing the dolls and going "Patient A, Patient A look at this" and smashing their heads into the edge of the table. And UM, dropping them on the floor and like making sure she was looking when they did it. And then as she reacted and she was quite distressed, they were laughing and kind of egging each other on. Uhm. And then I asked them to stop three times. But I have described this to NUM as well. I think she's the NUM out there that like, in hindsight, I wasn't, forceful enough, and I think that's because I was so new there and I was still kind of learning the dynamics and the relationships and um. I hadn't really been exposed to, something like this, like this elder abuse before. So while I can totally recognise that's what it was now, at the time I was, I could tell it was wrong, but I wasn't um, as yeah, maybe forceful as I should have been asking them to stop, I was more like, oh, guys, stop. No, don't do that. Uhm. And then one of the other residents, Patient C was um, was asking them to stop as well. They got the dolls and they were giving them to some of the other residents and not letting Patient A have them. She was going over to try and collect them back and and they wouldn't let her have them. Uhm. So that was like the main part of the incident and then the ongoing effects were just that, [Patient A] was very unsettled for that shift up and a little bit more going forward into, you know, the next weeks as well and she was yeah continuously checking on the babies and. Uhm, that shift she went to bed early and then got back up at 9:30 to come out and check on them. So you could really tell that it had really affected her."
This practitioner, AIN-A, in her interview said that she could not pick a motivation of the two practitioners other than like two immature people trying to make each other laugh at the expense of someone else.
New South Wales Health ("NSW Health") requires progress notes to be completed at the end of every shift to record any particular events that have occurred in relation to the particular patient on the relevant shift. These documents form part of the proper documentation of the care given to aged care residents.
AIN-A, who took over care of Patient A on 9 December 2021, and who witnessed at least part of the incident as described above, completed a Progress Note towards the end of her shift at approximately 10:00 pm. The contents of the progress note (whilst replacing the names of the residents and others with the references adopted for the identification of those persons in these reasons) is as follows: "Progress Note Care taken over at 1430. Mobility: Pt mobilising independently with 4WW. Nutrition: Pt ate afternoon tea and dinner independently. Cognition: Patient A has been alert and confused this shift as per her baseline, but more agitated and upset than normal. Elimination: M pull up in situ. Other: Patient A has been upset and agitated this shift. At 1500 Patient A appeared to be intentionally upset by 2 staff members who deliberately 'hurt' the babies/dolls in front of her by banging their heads on the table and dropping them on the floor. I asked the staff members to stop three times as Patient A became visibly upset, and another resident (Patient C) also raised her voice to ask the staff members to stop. Patient A remained agitated and upset for the rest of the shift. At 2100 Patient A got herself out of bed and came out to the dining room "to check if the babies were okay". Patient A settled back to bed following this but required more reassurance than is usually required."
An Enrolled Nurse commenced her care at the facility on 10 December 2021 at approximately 7:30 am and prepared a Progress Note in relation to Patient A as follows: "Progress Note Cares taken over at 0730hrs (Patient A's) When attending to Patient A's morning Medication, Patient A started crying stated that they should not do that when I asked Patient A what was the matter she further stated that the girls were hurting the babies they were hitting there heads on the tables and laughing Patient A was very upset she remained crying and shaking her head Patient A was given reassurance +++ " (The Tribunal has anonymised this Note.)
After returning from leave on 3 February 2022, AIN-A prepared an incident report which set out details of the incident on 9 December 2021 commencing at 1500 hours.
The details entered into this incident report by AIN-A, as the notifier, were as follows: "AIN-B and EN Sudi Ahuja were seen tormenting a resident, Patient A. Patient A loves to 'take care' of the dolls in the dining room, as she believes they are babies and loves them. The 2 staff named were intentionally making Patient A watch as they bashed the dolls' heads against the table and dropped them on the floor. They knew this would elicit a response from Patient A who was clearly upset and distressed and asking them to stop repeatedly. I asked them to stop three times, while they continued to do it and laugh at Patient A's response. Another resident, Patient C, also asked Sudi and AIN-B to stop several times, and commented to me later in the shift that she "thought there might be a riot in the dining room", referring to the incident above. For the rest of the shift, Patient A was very agitated and upset. She constantly checked the dolls for the rest of the shift. She went to bed around 1900 and then got herself up again at 2130 to check on the babies again. This is out of character for Patient A, she usually sleeps through the night once in bed. Since the incident staff members have reported that she has been very regularly checking on the babies and seems concerned about them."
In cross-examination, AIN-A said that she could not remember who banged the dolls on the table and she could not remember who dropped any dolls onto the floor. She said that she saw two staff members with a doll each trying to get Patient A's attention. She said that the dropping of the dolls occurred when they were trying to get the dolls off Patient A and then were passing the dolls to someone else and purposely not letting Patient A have the dolls. They were passing the dolls to other residents, she could not remember who.
In relation to the incident report made on 3 February 2022, which we have recorded above, AIN-A said that the purpose was to formally report the incident. In relation to the use of the words "intentionally" she came to that view because AIN-B and the Respondent were mentioning the name of Patient A to get her attention, making Patient A watch.
AIN-A said that she saw that Patient A looked upset and anxious and was distressed asking the two practitioners to stop.
The incident report referred to above also contained a statement by AIN-A that the two staff members trying to make each other laugh at Patient A's expense by getting a reaction out of her contributed to the incident.
AIN-A indicated that she and other staff members provided reassurance and support to Patient A.
In relation to the description in her interview transcribed and set out above AIN-A said that both the Respondent and AIN-B were saying the words, "Patient A, Patient A, look at this".
AIN-A was not able to identify, or remember, who smashed the doll's head onto the table. She was of the opinion that both of the practitioners were egging on Patient A. They were not letting Patient A have the dolls because they were passing them to someone out of her reach. Patient A walked to where they were and tried to get the dolls back she said.
AIN-A said that Patient A was saying "stop" but was struggling to get the words out. AIN- A asked these two practitioners to stop three times she said.
In cross-examination AIN-A said that she had got to know Patient A in the previous weeks that she had worked at the facility. She was asked on what basis she stated that these practitioners had intentionally set out to upset Patient A and she responded that they had worked with Patient A for some time and they were saying her name to get her attention. Based on what AIN-A could see, her opinion was that they knew that Patient A cared for the dolls. She made that assumption from what she could see and she also assumed that they were deliberately setting out to hurt Patient A.
AIN-A maintained that the word "tormenting" was appropriate to describe what occurred. She did not, however, speak to the staff members to find out what they were trying to do at the time.
In re-examination AIN-A said that what she recorded in the Progress Note for 9 December 2021, which we have set out above, was the best memory of the incident. When she made the incident report, she could still remember the incident because she also said that it was not a very pleasant thing to happen and not something that she would forget.
The staff member identified as AIN-D was told of the incident by AIN-A the day it happened.
On 26 January 2022, AIN-D wrote a letter to the Regional Manager of the MLHD. She set out a number of concerns, one concern was an account of the incident based on what she had been told by AIN-A at handover on 10 December 2021.
At the time of the incident, AIN-D was a few doors away and did not witness anything. However, AIN-A explained to the morning shift on 10 December 2021 what she knew of the incident as reported by AIN-A.
AIN-D also spoke to Patient C.
In the account conveyed to AIN-D by AIN-A, AIN-A indicated that Patient C had yelled at the two practitioners to stop and also that AIN-A had told the two practitioners to stop during the incident.
AIN-D wrote in her letter also that at 21.30 on the day she found Patient A in her nighty in the dining room. Patient A told her she was checking whether the babies are safe. AIN-D took Patient A over to the babies and tucked them in (in their crib).
AIN-D also wrote about an encounter the following morning. She was asked by another AIN to explain what happened. As she started explaining, obviously based on what had been told to her, AIN-B called out "to stop right there, I had nothing to do with it, it was all Sudi."
After the incident, the other practitioner who participated in the alleged conduct with the Respondent, AIN-B, was the subject of a complaint about her conduct on the day. In an undated letter addressed to the Commission's investigation officer dated 25 May 2022, AIN-B set out to highlight that she had been incorrectly identified as a participant in the event.
In her letter AIN-B gives this account: "I was documenting on one of the computers in the nurses' station when Sudi came up to me and said she was going to do something to prank Patient A. She then went out to the RAC dining room and I continued doing my notes, she re-entered the nurses' station after about five minutes and asked me to come into the RAC dining room because she had something "funny to show me". I obliged, knowing that the next shift would be here soon and they would need the space in the nurses' station. Another colleague of mine came as well. Her name is AIN-E. Both AIN-E and myself stood next to Patient B, a male patient in a fallout chair, while Sudi began to throw the dolls around in front of Patient A."
AIN-B prepared a diagram indicating where she claimed the various participants were standing.
AIN-B then continued by explaining her role thus: "I then went and grabbed one of the dolls from the bassinet to give Patient B, as he is a dementia patient and he loves to cuddle the dolls. This is when I noticed that the doll I had grabbed had a leg that had come out of the socket. I then set the doll down on the table and began to undress it so I could fix it. This doll was known to have this happen from time to time. I never once actually interacted with Patient A during this, I spent my time with Patient B and attempting to fix the doll. From memory AIN-A came in and asked Sudi to stop but I was distracted with the doll I was fixing. One resident made a comment to me stating "I thought she was more professional than that". To which I replied that "I'm trying to fix this doll, see the leg has popped out". To which she nodded and continued to colour in. I then gave the doll back to Patient B (pt) and noticed that Patient A was very upset. This is when I suggested to Patient A that we throw the ball back and forth (with Patient B) to which she lit up and we continued this for about 10 minutes, I noticed Sudi joined us but I was paying more attention to Patient A and attempting to make her happy by throwing the ball and interacting with me. The next morning during handover one of my colleagues AIN-D began stating facts that were incorrect about the event and I asked her to stop. Unfortunately, myself and AIN-D haven't always gotten along so to me what she was saying felt very personal towards myself, this is why I requested that she stop."
AIN-B was also interviewed by representatives of the MLHD on 8 March 2022, an interview which was transcribed. In this interview AIN-B stated that around 2:15 pm on 9 December, the Respondent came up to her and they had a conversation in which the Respondent said that she sort of thought that it would be funny to, "I do not know, drop the doll". AIN-B said that the Respondent said that it would be a funny prank but as she, AIN-B, was sitting in the nurses' station typing away on the computer, she sort of was not acknowledging it too much.
AIN-B then said that the Respondent left the nurses' station going into the dining room and picked up the doll. She said that "from what I know and then it started whatever she was doing with it, she then came back to me and said, oh, come and look at this". In this account AIN-B says, "I think she (the Respondent) then did it again," and when asked what she did, AIN-B indicated that she did not react as she should have, a fact she acknowledged at the time. Asked what she did, she said she was "sort of in shock".
AIN-B described that she then picked up one of the babies and handed it to another resident being Patient B who was in a fallout chair and suffers from dementia as well. She said that she then noticed that the leg of that doll had sort of come off "which is quite common, it is a bit of a dickey leg". She then began to undress that doll so she could put it back together. AIN-B stated that that is when another resident said "you are not being very professional" to which she replied that she was sorry, she was just fixing the doll.
When asked whether anyone else stepped into the situation, AIN-B said she believed so, it was another AIN in the dining room but she was not 100% sure.
In relation to what the Respondent was said to have done, AIN-B identified her as an endorsed Enrolled Nurse engaged from an agency and what she could remember was that the Respondent grabbed one of the dolls and put it, "like slammed it into the table and then dropped it, which was just so traumatising for Patient A and I know that I should have stepped in but I did not". As to Patient A's reaction she said it was awful, she was traumatised. AIN-B then saw a ball that is sometimes used to entertain residents. She called over to Patient A and said let us throw the ball and it was a means of diffusing the situation. They were just throwing the ball and Patient A seemed to enjoy that. AIN-B said she felt awful about what happened.
AIN-B said that she would never allow that situation to happen again. She remembers going home that night and just having her heart in her mouth "feeling so, so dreadful for Patient A" and she knew immediately that she needed to take accountability for the fact that she did not step up when she should have. She claimed that the first thing she did when she came back to work the following morning was to advise her NUM.
Whilst in the witness box, AIN-B demonstrated the process by which she claimed the Respondent grabbed the doll and slammed it face down onto the table in the dining room area. The demonstration was to indicate that the doll was slammed down hard onto the table.
In earlier correspondence to a person from the MLHD conducting an investigation into the conduct of AIN-B, she said that the only time she had a doll in her hand was when she was handling it to another resident in a fallout chair or when she was fixing the one with a broken leg. She said that she believed that AIN-A saw her with the doll and assumed that she was participating. She denied that she "egged" or encouraged the Respondent to act as she did and further denied that she was laughing during the incident. In this written document she acknowledged that the dolls meant "so much to Patient A".
AIN-B denied in this investigation that she had ever said to AIN-D that she had nothing to do with it and it was "all Sudi".
In cross-examination AIN-B said that the Respondent banged the head of the doll on the table and was dropping it on the floor for between 5 and 10 minutes.
In relation to the account given by AIN-D this practitioner claimed that AIN-D was making up a story and not telling the story correctly.
The nurse manager, the NUM, also made a statement dated 19 March 2024 and gave oral evidence and was cross-examined.
In her oral evidence she indicated that if a practitioner was in the nurses' station, she could see into the dining room. She indicated that Patient B was usually in a fallout chair and Patient C used two types of chairs, a recliner chair, the same as used by Patient B or her own wheelchair.
In her written statement, NUM stated that she was on duty on 9 December 2021 but she did not witness the incident involving the Respondent and AIN-B on 9 December 2021. She did not remember being aware that anything had occurred until the next day.
On 10 December 2021 at around the commencement of the morning shift at 7:00 am AIN-B approached her and told her about an incident that had occurred on the previous day. In accordance with her usual practice, she made a handwritten note in her physical diary on the same day and then typed it up later. The file note records that AIN-B said words to the effect that "I need to talk to you about an incident". Later the same day, sometime around morning tea and after speaking with AIN-B, the NUM was approached by AIN-D about the incident. AIN-D said words to the effect of "I need to speak to you… They were being really rough with the dolls… Excluding Patient A from playing… I am really upset." Later, the NUM had a further conversation with AIN-B who said words to the effect that "there was no rough play with the dolls".
On 11 December 2021, the NUM had a conversation with the Respondent about the incident and prepared a file note of the conversation. In this conversation, the Respondent is recorded as having indicated that there was no rough play with the dolls and they were playing with Patient B with the dolls.
On 4 February 2022, after reading the incident report submitted by AIN-A which we refer to above, the NUM had a conversation with that practitioner and made a file note that sets out the summary received from Practitioner AIN-A as follows: "Discussion between NUM and AIN-A Summary from AIN-A 04/0/2022 Incident date 09/12/2021 approx. 15:00 hrs In the dining room Patient A was sitting at the table Sudi and AIN-B were calling "Patient A Patient A" watch this They proceeded to hit the dolls on the table and dropped them on the floor. Patient A was becoming distressed. AIN-A asked them to stop three times. They were then giving the dolls to Patient B and not Patient A. AIN-A felt they started to realise that Patient A was really distressed by the situation and they then started including her. Patient C (resident) commented that she thought there was going to be a riot. NUM"

Respondent's Evidence

The Respondent is currently an Enrolled Nurse working on a casual basis of between 20 and 24 hours a week at a different facility.
In evidence in chief she was asked to describe what she remembers of the incident of 9 December 2021. She stated that just after handover on 9 December 2021, she went into the dining room of the facility. She saw a resident picking up a doll. One fell on the floor, its leg came off and head separated. On this account, it is not clear who the resident was and it appears to be Patient A.
The resident got upset. The Respondent took the doll away and tried to put it together.
The Respondent then went to play with this resident with the ball. She saw that she had got upset and the Respondent told the resident that she was only trying to fix the doll.
They played with the ball for 5 to 7 minutes and the other practitioner, AIN-B was there.
The Respondent was investigated by the MLHD. In a written statement, undated, she stated that on the day of the incident, it was never her intention to torment or upset Patient A or any other patient. On reflection she should have tried a different approach with Patient A considering her emotions and keeping the consequences of her actions in mind.
The Respondent said that she understands that her actions must surely have distressed Patient A and she was truly sorry for that. She apologised for her actions which "clearly hurt Patient A". She did not believe that anyone should feel this much misery especially for "someone who I really care about".
The statement recorded that the Respondent respected the statements of the witnesses for the investigation of the incident but she strongly believed that there has been a misunderstanding and lack of communication "somewhere".
The Respondent also prepared a document addressed "To whom it may Concern" on 11 March 2022.
We set out below the contents of this document (as it is not easy to reconcile with some of the other evidence of the Respondent). "On the date mentioned, I was working an AM shift in the residential aged care section of Junee Hospital. I was working with one RN and three AINs. At 1500hrs the afternoon staff went for their tea break. As none of the other staff members were in the dining room at the time, I decided to go in there and supervise the residents. Shortly after I went in there, an AIN came into the dining room to assist the residents. I noticed that one of the residents, who lives with dementia, was taking out a doll from the crib in dining room and handing it over to another resident sitting in his fallout chair. The resident then took another doll out of the crib and as she did so, the head and the leg of the doll came off and fell on the floor. The resident seemed upset because of this so to cheer her up, the AIN and myself started laughing to try and make it a humorous situation to light up the resident's mood and distract her from the broken doll. We thought that if the resident saw us laugh, then she might laugh also at what happened instead of being upset. The AIN and I then took the doll and put it on the table to try and fix it. We tried to connect the doll's head and leg back onto its body. I understand now that this may not have been an appropriate strategy. We then saw that the resident was feeling sad and was thinking that the doll was a real baby and was thinking that something has happened to the baby. When I noticed this, I immediately put the doll back into the crib and tried to reassure the resident by telling her that the baby is going to sleep and was ok. After this, the resident was still feeling low, so in order to cheer her up, the AIN and I encouraged the resident to play a ball catching game. The resident started feeling much better and was engaging well in the game and she was happy after. I have read in the complaint that it says that the resident asked us to stop and that a second AIN came into the room and asked us to stop. At no point during this incident did the resident ask us to stop trying to fix the doll. There was no other staff member present at the time, and no one asked us to stop. Particularly as a new member of the staff and as a junior nurse, if anyone had asked me to stop doing something, I would immediately stop and discuss what was occurring. Since being made aware of this complaint, I have reflected on the incident and I can understand how someone looking from the outside might perceive the situation differently to what I felt was happening at the time. I now can see that trying to encourage the resident to laugh about the broken doll was not the best way to engage with her at the time. I also now realise that trying to fix the broken doll or putting the doll into bed may have caused the resident distress due to her perception of the doll being a baby due to her dementia. I can see how myself and the other staff member trying to make the situation humorous was insensitive as the resident was upset. It was never my intention to be insensitive to the resident or not aware of her care needs. I always try to provide the highest level of care to patients and residents. This incident has highlighted to me that I would benefit from more specific learning in relation to caring for patients with dementia. I would like to enhance my knowledge, skills and clinical practice in this area. I also aim to engage more in providing person-centred care in my clinical practice and will incorporate this more into my future learning. Yours sincerely, Sudiksha Ahuja"
The Respondent acknowledges that she was laughing while Patient A was upset but claims she was laughing when the leg fell off, or to cheer Patient A up. That explanation should be rejected.
In the interview of 10 March 2022, the Respondent stated that when Patient A picked up the second baby, and its head fell off and leg fell off, it was a humorous situation and "myself and there was another AIN and we were just laughing humorously, but she got upset".
In her first response to the Nursing and Midwifery Council on 10 March 2022, the Respondent claimed that she and AIN-B started laughing to try and make it a funny situation to light up the residents' mood. She then claimed that when she and AIN-B took the doll from Patient A and put it on the table to try and fix it, as it was hard to put the head together they started laughing with each other as it was a humorous situation.
Later, the Respondent also claimed in the interview that they were laughing "because we were trying to reassure" Patient A and they tried to make it a funny situation because Patient A "made the face that "oh my god" what happened?".
The Respondent also claimed that they tried to make it a laughing situation to lighten up Patient A's mood and were trying to do it to take her mind off the babies.

Cross-Examination of the Respondent

The Respondent stated in cross-examination that she was aware of the code of conduct applicable to her profession and of the standards of practice required of a registered nurse.
She commenced working at the facility as a full-time casual on 6 September 2021 and thereafter had a fair relationship with each of the other staff members, namely, AIN-A, AIN-E, AIN-B, and AIN-C, a cordial relationship with AIN-D. She had a good working relationship with her NUM.
Patient A was known to her. She knew that Patient A would get upset by little things depending on how she was feeling on the day. By 9 December 2021, the Respondent knew that Patient A thought that the dolls were real babies and cared for them. She would take them on her walker, would sometimes take them into her room and tuck them into her bed. She cared for the dolls in the dining room where they were kept. She believed they were babies. She would show the dolls to other people and enjoyed looking after them. She liked to ensure that the dolls were dressed nicely and was most attached to the dolls.
The Respondent had noticed that Patient A did not like it if another resident held the dolls. She did not like it if Patient B was holding the dolls directly.
On 9 December 2021, the Respondent started her shift at approximately 7:00 am. She recalls later seeing Patient A in the dining room. Patient A sometimes stood without her walker.
At the beginning of this incident, the Respondent was in the nurses' station. She could not remember having a conversation with the other practitioner AIN-B but that practitioner was in the nurses' station with her (this is consistent with the account of AIN-E set out above). She cannot remember talking to her and does not remember the time. She denied saying "I have something funny to show you". She claimed that AIN-B did not say anything to her and does not remember AIN-B saying that "Patient A hates it when people mess around with the dolls".
Around 3:00 pm she went into the dining room. She said there were no other staff members around. She then described that she stood in the middle of the dining room and was facing towards the bassinet where the dolls were stored. The dolls were in the bassinet.
Patient A was at her usual position. The Respondent says she stood by another resident, Patient C near the television on the right of the dining room near where Patient A was standing.
Patient B was in a fallout chair. She did not remember where Patient C was but she was in some sort of chair.
The Respondent then said that AIN-B came into the dining room. The Respondent said she did not remember where AIN-B went initially but she thought that she picked up a doll in the bassinet. She denied saying to AIN-B come and look at this and denied saying words, "Patient A, Patient A look at this". She did, however, admit saying at some point "Patient A, Patient A, watch this" to show that they were trying to fix the doll. The Respondent denied that she banged the doll on the table and did not throw the doll. She said she did not slam the doll and she did not drop the doll.
The Respondent was asked to demonstrate how she placed the doll on the dining room table. She said that she was holding the doll with her hand on the back of the doll's head. She placed the whole doll back on the table. When asked to again demonstrate how this occurred, she went on to say that if she was holding the doll with one hand and it landed on the table it would make a loud noise. She was holding it with only one hand and therefore it made a loud noise. She denied that the face hit the table.
In respect of the leg of the doll being, or coming off, she explained that that occurred "when we were handling the doll." When asked when this occurred, she said it was perhaps when it was being given to someone else.
Later, the Respondent said that the doll which she took out of the crib was the one that the leg came off and which she put on the table. The leg fell on the floor.
She indicated that Patient A was distressed before and after the baby landed on the table. When asked whether she giggled when the leg came off, the Respondent indicated that she thought it was a natural response that occurred. As to why Patient A became upset, the Respondent said it was when the doll was put on the table and it made "a bit of a noise".
When asked about the file note prepared by the NUM in respect of her conversation on 11 December 2021 in which it was recorded that the Respondent said that she was playing with the dolls with Patient B and AIN-B, and Patient A was distressed by this, she admitted that she might have said that but she did not remember passing the doll.
The Respondent was also interviewed on 10 March 2022 (and a transcript was kept prepared of that interview) by representatives of the MLHD.
In answering questions in that interview, the Respondent gave amongst other things the following account. "Sudi Ahuja: So I decided to go in the dining room to supervise her and other residents present in the dining room so she gets up from her chair and there's a crib in the dining room with babies. So she takes one of the babies out and give to another resident who was in a fallout chair, and she then takes out a second baby out of it. And. When she picks up the 2nd baby, the baby's head fell off and the leg fell off of the baby and it was just a humorous situation. My, myself and there another AIN and we were just laughing humorously, but she got upset. She just thought that the baby was real and we were trying to console her, that it's OK, Patient A. We took the baby from her and put on the table and try to put the head and the leg together and. But then she got upset because of her behaviour. And then we just backed off, and then she was still upset and anxious. And then we tried to reassure her. We got the ball and we started playing catch or we just started playing with her with the ball. And there were some auditors that from infection control. And they also saw us playing with her. After that was the incident. Uhm, that I suppose that was happened that day. Emily Wilson: OK so. Why would another AIN uhm say that she saw you and AIN-B, tormenting a resident? Like why? Why would she say that you were, uhm, bashing the dolls heads against the table and dropping them on the floor? Could you give us a reason why she might have said that? Sudi Ahuja: Uh, maybe she was not around the environment where we were in. She might have misinterpreted the situation when we were putting the doll's head together with the body of the doll. She must have been misinterpreted from the other end of the corridor or something because according to me there was no one around instead of me and the other AIN. Emily Wilson: OK, 'cause the information that we have is that there was another AIN who told you to stop three times and that there was also a resident who was telling you to stop. Sudi Ahuja: Yeah. Yep. Emily Wilson: So I just I wonder where that information could have come from. Sudi Ahuja: Uh, I've no idea. Uh, because if someone would have asked us to stop, we would have stopped. Or like we weren't doing anything wrong, that someone should ask us to stop. But there was another resident, but no one asked us to stop because we were not bashing the dolls and we were not putting them on the floor. As mentioned in the report, the reported incident. And it's just. Like uh, I've no idea why they have just misinterpreted the situation and they have made this up to think. That's mentioned in the story. Catherine McDonald: Why would they make it up Sudi? Sudi Ahuja: Uh. First of all. I have no idea. Like I have no bad."
Asked to clarify the position concerning the doll's head and leg having fallen off, the Respondent said: "No, no. Uh, it was when Patient A at the 1st place picked up the doll. The doll is, ah there's a broken doll in the crib. So the head fell off and the leg fell off. And then we thought it's a humorous situation. We try to make it funny because, you know, she made the face that. Oh my God, what happened? And we were like, oh, it's OK, Patient A. We took the baby. We pick up the doll from the the head from the floor and then we put on the table and we try to put it together and she was anxious and upset that we're doing something to the doll, but we were just trying to put in it. Put the doll together and she was just getting, you know? Oh no, no, don't do it. And then she took the doll, put it back in the crib, and then we then was the time when we got the ball and tried to reassure her and we started playing with her. "
In cross-examination the Respondent said she could not recall the words, "oh, no, no, don't do it." She said she had her back towards Patient A but looked over her shoulder towards her. The Respondent was just trying to fix the doll.
The Respondent accepted that Patient A was visibly upset, but did not accept that she was raising her voice.

Commission's Evidence

We accept the evidence of AIN-E to this effect: 1. she could, from the nurses' station, observe what was occurring in the dining room; 2. she saw and heard the Respondent after she entered the dining room, namely, going to the crib to pick up a doll, walking over to the table in the dining room, lifting the doll up and slamming it hard face first on the table, quite loudly; 3. Patient A was looking at the Respondent when the doll was slammed onto the table and that Patient A was upset.
It was submitted that the Tribunal should reject AIN-E's evidence because it was inconsistent with that of AIN-C who was also sitting in the nurses' station.
The suggestion that the evidence of AIN-E should not be relied upon because in her oral evidence she could not remember any other staff members being present is rejected. We accept the Commission's submission that it is quite understandable that nursing staff have a good recollection of seeing the Respondent, who was engaging in poor conduct, but unable at the hearing to recall any other staff members being present. We accept that submission. It is particularly artificial to make this submission in circumstances where there was no dispute that other staff members did enter the dining room.
We reject the submission on the part of the Respondent that AIN-E's evidence should be treated with caution because she did report what she allegedly saw and her first written account was not until 6 months later after she was contacted by AIN-B. We do not consider that she manufactured her evidence. We also do not accept that there was anything untoward in this witness's evidence because of her contact with AIN-B. We do not accept that there was a relationship "much closer than that of just colleagues" between these two and, in particular, reject the Respondent's efforts to discount this evidence in circumstances where it was never put to AIN-E that there was such a relationship which undermined her evidence, or that such a relationship encouraged her to lie.
In her evidence, AIN-E maintained that she told AIN-B that she would say what she saw - a statement which, in our view, was borne out in her evidence.
The Respondent argued that we should not accept the evidence of AIN-E because she testified that while she was sitting in the nurses' station working on her computer she was alerted to a loud noise and that she looked up after hearing the noise. It was said that that was inconsistent with her evidence, in detail, as to exactly what she saw. We do not, however, accept that we should reject AIN-E's evidence given the detail in which she was able to describe what she saw and heard, the diagram that she prepared as to where various persons were standing and the absence of any suggestion to her that her account was not truthful.
We accept the evidence that AIN-E mentioned that she heard a loud noise alerting her to events in the dining room. It was not suggested to her that this loud noise was the one occasion that she saw what was happening. In fact, she was cross examined about what she saw as set out at paragraph [38] above. She was asked in reference to that evidence where she is describing what she saw, having observed the Respondent walking over to the table, and then said that the doll was slammed down hard - once.
In addition, she said that when that occurred she saw that AIN-B looked shocked and had her hands on her cheeks and her mouth open. That evidence, in our view, was not concocted.
We reject the Respondent's submissions in respect of the witness AIN-E.
In relation to the evidence of AIN-C, we accept the criticism by the Respondent that we should treat her evidence with some caution given that the investigators when questioning her had read out verbatim the incident form completed by AIN-A. That was clearly not the most desirable way of interviewing a witness. However, the evidence about what AIN-C then did is not inconsistent with the introductory remarks made by the investigators and we have accepted that evidence, and not the criticism made by the Respondent.
We accept the evidence of AIN-C that she heard banging and that she heard AIN-B say to the Respondent "do it, do it". We also accept her evidence when she walked into the dining room she witnessed Patient C expressing disapproval at the conduct of the Respondent and AIN-B.
We accept the evidence of AIN-A that: 1. she observed a doll being slammed onto the table; 2. she heard one of the practitioners saying "Patient A, Patient A look at this" to get her attention and note that this is consistent with what AIN-A told the NUM on 4 February 2022; 3. the Respondent said those words to draw attention to what was to happen to the doll; 4. both of the practitioners were laughing; 5. she asked them to stop; 6. Patient A was upset and unsettled by the conduct; 7. Patient A was trying to get the two practitioners to stop but was struggling to get words out; 8. she observed Patient A trying to get the dolls back when the Respondent and AIN-B were passing them to someone out of reach, an observation which undermines the Respondent's version of immediately putting the doll back.
In relation to AIN-A, we do not think that the fact that she made an incident report approximately 2 months later alters acceptance of her evidence to the extent as outlined above.
We accept that AIN-A's evidence consistently referred to both the Respondent and AIN-B. We do not, however, accept AIN-A's evidence in isolation but when taken together with other evidence it is clear that it supports a conclusion that the Respondent was the person banging the doll's head on the table.
The fact that this witness could not recall if this doll was banged once or on more than one occasion does not lead us to reject her evidence as a whole.
Further, the fact that AIN-A did not report or escalate any apparent concern to either registered nurses on duty or her NUM immediately does not alter the veracity of her evidence. In addition, a brief discussion with the NUM by AIN-A does not alter the acceptance of her evidence.
The fact that AIN-A was unable in the witness box to recall what she had put into the incident report to the effect that Patient A was "asking them to stop repeatedly", does not suggest that at the time of the incident report her memory was defective or that what she had written was not true.
At the time AIN-A lodged her incident report she could still remember the incident. She explained in re-examination that the incident was "not very pleasant and not something you forget".
It is also understandable that AIN-A made a Progress Note on the same shift but did not lodge her incident report until later because she was on leave. She was a new staff member learning the process and her NUM, who was aware of the incident the next day, was very busy around that time.
In response to the Respondent's submission to the effect that AIN-A had removed Patient A from the situation and that it was inconsistent with the evidence of AIN-B (whose evidence we treat with great caution), that a ball catching game was played with Patient A to try and cheer her up we note that it was never put to AIN-A that her evidence was not true in respect of removing Patient A from the situation. It was never put to AIN-A that Patient A was playing a ball catching game and therefore what was said by her was not true, or that AIN-A did not remove Patient A, for example, after the ball catching game.
We accept AIN-A's evidence because of the following: 1. she and the Respondent had a good working relationship; 2. AIN-A was understandably concerned about what she saw; 3. AIN-A promptly reported her concern by typing a Progress Note during her shift, about 7 hours after the incident, when her memory would be reasonably fresh and she wrote her Progress Note because she wanted to document what had happened; 4. AIN-A spoke about the incident in the nurses' station during her shift concerning Patient A being upset; 5. AIN-A also reported her concern to her NUM; 6. AIN-A subsequently participated in an interview and signed the transcript as accurate; 7. AIN-A made reasonable concessions during her evidence; 8. AIN-A firmly resisted the suggestion that she had made an incorrect assumption about the Respondent's intention to cause distress; 9. it was not suggested to her that she had any animosity towards the Respondent so as to make up her evidence or that she had lied.
We are of the view that AIN-A's evidence was credible.
Although AIN-A could not, at the hearing, identify who was "bashing" the dolls heads against the table, it is our view clear from the evidence of others, including the Respondent herself, that the Respondent was at the table holding the doll with the leg off and therefore, if any banging did occur, it was done by the Respondent.
We accept the evidence of the Enrolled Nurse, as recorded in the Progress Note on 10 December 2021, both as to the adverse impact on Patient A and what was recorded as said by Patient A that "the girls were hurting the babies they were hitting there (sic) heads on the table and laughing".
In relation to the evidence of AIN-B, and her account of what happened, we are cognisant there is a great deal of self-interest on the part of this practitioner to minimise her own role and place all the blame on the Respondent. In our view, AIN-B was an active participant in what occurred. We treat the evidence of AIN-B with caution.
However, with that caution in mind, we accept AIN-B's evidence that: 1. she and the Respondent left the nurses' station to go and observe something "funny" - to engage in a funny prank; 2. she grabbed one of the dolls from the crib in the dining room; 3. another AIN came into the dining room and "asked Sudi to stop", more likely a request addressed to both of these two practitioners; 4. she did observe the Respondent slam the doll hard onto the table, although we do not accept that this was carried on for between 5 and 10 minutes as suggested.
We do not accept the evidence of AIN-B to the effect that the Respondent was engaging in this conduct on more than one occasion, "doing it again".
The Respondent puts forward a different version of events. In relation to Particular 1 of Complaint 1 it was submitted that the Respondent's evidence can be summarised as follows: 1. she was not "banging the head of one of the dolls on the table"; 2. she was holding a doll; 3. the leg fell off the doll and onto the ground; 4. she put a doll down onto the table and the sound of that made a loud noise; 5. she understood that Patient A was becoming upset; 6. she tried to get Patient A's attention to reassure her that they were trying to fix the doll; 7. she did not intend to elicit a response from Patient A, although it is unclear what type of response is alleged; 8. she used laughter to try and diffuse the situation, however acknowledges now that this was not an appropriate strategy; 9. she never intended to upset or cause distress to Patient A; 10. her actions were not for the purpose of amusing herself and AIN-B at Patient A's expense.
We reject this as an accurate reflection of the evidence.
In relation to Particular 2 the Respondent denies that she intentionally dropped any doll on the ground and otherwise that her evidence was to the same effect as set out in the immediate paragraph above.
There are a number of inconsistencies in the Respondent's own evidence in respect of her handling of the doll or dolls. On the one hand, she says that a resident picked up a doll which then fell on the floor and the leg came off. On the other hand, she testified that the doll that she, the Respondent, took out of the crib is the one that the leg came off. Later she said that the leg came off when "we were handling the doll" and when perhaps it was being given to someone else.
At one point it is said that Patient A put the doll back in the crib and later that she, the Respondent, put it back in the crib. The Respondent said that Patient A became upset when the doll was put on the table but earlier that she was upset when the leg came off.
Further, the Respondent's explanation and demonstration of how the damaged doll was handled on the table resulting in the making of a noise was totally unconvincing. In her demonstration she changed the manner in which the doll was being held. In addition, the manner in which she said she held the doll was, in our view, wholly inconsistent with the loud noise which she admitted occurred when she put the doll back onto the table.
It was apparent that in her attempts at demonstrating what she was doing with the doll, the Respondent became aware of the difficulty she was having in reliably telling the truth and changed the manner in which she was giving the demonstration on a number of occasions.
In relation to Particular 3 it is submitted that the Respondent's evidence could be summarised as her laughing in response to the doll falling apart, as she perceived it to be an amusing situation. It was also submitted that the Respondent used laughter to try and diffuse the situation, however, she acknowledges now that it was not an appropriate strategy for a patient with dementia. The Respondent also denies that at any point she laughed at Patient A's distress.
We reject this categorisation of the evidence. Not only is it inconsistent with the Respondent's own evidence but it requires us to reject the evidence, which we do not, of the other practitioners who observed what was occurring.
In relation to Particular 3 we are satisfied that the Respondent was laughing at Patient A's distress and her own conduct as particularised in Particular 1.
The Commission submitted that the Tribunal should not accept the Respondent's evidence where it is contrary to the evidence of other nurses for the following reasons: 1. when the patients and the other nurses saw the conduct they reacted in shock or did something to stop it. Patient A was upset and tried to grab the doll, Patient C thought it was unprofessional and said "stop", AIN-A thought it was wrong and said "stop", AIN-C went into the dining room and tried to console Patient A and AIN-E was in shock and frozen; 2. if the Respondent's version was correct, merely placing the doll on the table with two hands and reattaching a leg which had previously broken, the patients and nursing staff would not have reacted in that way; 3. when the NUM questioned the Respondent the next day about whether there was any dropping or banging of the dolls she said "no, there wasn't any of that", which is inconsistent with the evidence of the other nursing staff we have identified above.
The Respondent's evidence is also not consistent with those of a number of the others witnesses: 1. her first response claimed that "no one asked us to stop" but that was clearly not the case; 2. the Respondent claimed that there were "no other staff members present at the time" but that is inconsistent with the evidence of AIN-A and AIN-E; 3. the Respondent repeatedly claimed that the doll's plastic head came off but the doll's head was actually stitched onto the calico body and no doll had a damaged or missing head.
There is also no plausible hypothesis for AIN-A typing a false Progress Note put forward by the Respondent.
We reject the evidence of the Respondent that she said "Patient A, Patient A look at this" to draw attention to her trying to fix the broken leg of the doll.

Findings

On the evidence before us which was thoroughly tested, we are satisfied and make the following findings: 1. Patient A was an aged resident of the facility suffering from advanced stages of dementia in 2021. 2. Patient A regarded the dolls that had been used for doll therapy in the facility as babies. She cared for them. She felt attached to them and was protective of anyone mishandling the dolls. 3. The Respondent and the practitioner AIN-B were two staff members who were, together with others, responsible for the care of residents at the facility, not all of whom suffered from the same affliction as Patient A. 4. As at 9 December 2021, the Respondent and AIN-B were well acquainted with Patient A, they knew she suffered from dementia, they knew that Patient A regarded the dolls as her "babies", they knew that she cared about her babies and knew that she could easily be upset by conduct which affected her view of the dolls as her babies. 5. Around 3:15 or 3:30 on 9 December 2021, one or other, either the Respondent or AIN-B initiated the conduct which the two practitioners then engaged in. It is not entirely clear who mentioned that Patient A hates it when people mess around with the dolls but that was clearly known to each of them. 6. These two practitioners therefore set about engaging in conduct knowing that they could get an adverse reaction from Patient A by the conduct they were about to engage in. 7. Having entered the dining room, and having removed one of the dolls from the crib, the Respondent proceeded to bang the head of that doll on the dining room table in the presence of Patient A. The evidence of how often this occurred, and for how long was unclear. 8. The Respondent did so knowing that Patient A believed that the dolls were real babies and with the intention of eliciting a response from Patient A. 9. The Respondent knew it was likely that her actions would upset and cause distress to Patient A. 10. The Respondent engaged in this conduct for the purpose of amusing herself and AIN-B at Patient A's expense. 11. The conduct of the Respondent in concert with AIN-B did in fact cause significant angst and distress to Patient A. 12. Other staff members had to step in to stop the Respondent and AIN-B from engaging in the conduct and they were told to stop both by AIN-A, by Patient C and by Patient A herself.
Accordingly, we find that Particular 1 of Complaint 1 has been made out. That conduct was improper or unethical conduct relating to the practice of nursing and was unsatisfactory professional conduct within the meaning of s 139B(1)(l).

Particular 2 of Complaint 1

In order to prove this particular the Commission must establish, in the first instance that the Respondent intentionally dropped one or more of the dolls on the ground.
There is some evidence that a doll, or a doll's leg or head fell to the ground at some point during the prank. However, in our view, the evidence does not rise to the level of establishing to the requisite standard that the dropping of a doll by the Respondent was intentional, as opposed to her intentional slamming of a doll onto the table.
Particular 2 is thus not made out.

Particular 3 of Complaint 1

There is no doubt that the Respondent and AIN-B were laughing during the conduct they were embarking on. We do not accept that this laughing was to try and reassure Patient A or the lighten her mood, or cheer her up.
From the outset the Respondent and AIN-B were bent on getting an agitated reaction from Patient A by mishandling the dolls. They thought it was amusing.
We find that Patient A was distressed by their conduct. The Respondent thought the situation was humorous and was laughing at Patient A's distress in the circumstances particularised in Particular 1 of this complaint.
The Respondent was also laughing at her own conduct as particularised in Particular 1 of this complaint.
The conduct the subject of Complaint 1 was improper and in breach of the Codes of Conduct and Standards set out above.
Accordingly, we are satisfied and find that the Respondent's conduct was unsatisfactory professional conduct.

Complaint 2 - Attempted Collusion

A request by the Respondent to AIN-B to contact her is established by mobile phone evidence "Snapchat". It is not evidence of an attempt to collude. The request is, however, part of the context leading to a conversation in the print room described by AIN-B in her interview with MLHD on 8 March 2022.
A conversation then took place on 2 March 2022 in the print room after the request but before the interview on 8 March 2022. The events were thus fresh in AIN-B's mind when she reported them in that interview.
In that conversation the transcript records AIN-B saying that the Respondent said "Can you please tell them that I just dropped it accidentally? And nothing. I didn't smack it on the table …".
In cross examination AIN-B described this as the Respondent wanting her to lie.
The Respondent submitted that the Tribunal could not rely on the statements made by AIN-B in the interview on 8 March 2022 because AIN-B's account was "only after being asked a very specific leading question by one of the investigators", namely, "has Sudi ever contacted you about this?" and the investigators had no basis for this question.
The question was not a leading question. It did not suggest an answer. There is no merit in the submission that in the course of an investigation that question could not be asked.
The Respondent also cautions against the acceptance of AIN-B's evidence because of the unreliability of that practitioner's evidence. We accept that caution is necessary. However, not all of AIN-B's evidence is motivated by self-interest.
To collude is to act secretly in order to deceive, or co-operate in a secret way in order to deceive. The phrase "collusion" is defined in the Australian Concise Oxford Dictionary as "fraudulent secret understanding".
In our view, that is what the Respondent was attempting to do, namely, enlist AIN-B to support a version of events which was not true and in order to deceive.
It was improper and unethical conduct.
In respect of Particular 3, the evidence about the Respondent's approach to AIN-C, which was not given much attention by her, does not support a finding that what was said was an attempt to get AIN-C to act secretly. This Particular is not made out.
We accept and find that the Respondent engaged in the conduct as particularised in Particulars 1 and 2 of Complaint 2. The conduct was improper and unethical and amounted to unsatisfactory professional conduct.

Complaint 3

Complaint 3, namely, that the Respondent has engaged in professional misconduct relies on the particulars of Complaints 1 and 2 of which we have found Particulars 1 and 3 of Complaint 1, and Particulars 1 and 2 of Complaint 2 as established.
In our view, that conduct as found is sufficiently serious to justify a finding of professional misconduct.
First, the Respondent was entrusted with caring for very vulnerable patients, particularly Patient A.
Secondly, her conduct was deliberately aimed at Patient A for her own amusement and that of AIN-B who was a participant in the conduct.
Thirdly, the conduct was callous and deplorable. It set out to, and did, cause agitation and distress to Patient A.
Fourthly, it was conduct that was the antithesis of what is required of carers in Aged Care Facilities where patients may be frail, and challenged both physically and mentally. The conduct was significantly below the Codes of Practice and Standards by which the Respondent was required to abide.
Although the conduct, their "prank", occurred only on one day, the Respondent's attempt to collude with AIN-B to avoid responsibility compounds her culpability.
We therefore find that the Respondent did engage in professional misconduct.
The matter will therefore be set down for a Stage II hearing on 14 October 2024 for a one day hearing.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW). 2. The Respondent is guilty of professional misconduct. 3. The application is set down for further hearing on 14 October 2024 at 10:00 am.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2024

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Cases Cited (7)

Cited By (1)