On 25 October 2022 the Tribunal published reasons for its findings that the respondent Registered Nurse, Mr Francis Bernard Balagtas, is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law) and professional misconduct as defined in s 139E of the National Law: Health Care Complaints Commission v Balagtas [2022] NSWCATOD 125 (Balagtas Stage 1).
The Health Care Complaints Commission (HCCC) submitted that the appropriate protective order in all the circumstances is that RN Balagtas' registration is suspended for a period of six months. RN Balagtas opposed such an order. The HCCC sought an order for payment of its costs, as agreed or assessed. RN Balagtas opposed a costs order.
The Tribunal decided to reprimand RN Balagtas, and suspend his registration for a period of three months, and to order that he pay the costs of the HCCC as agreed or assessed. Our reasons follow.
[2]
Background
The proceedings against RN Balagtas were commenced in the Tribunal in April 2020 by the HCCC in relation to a mandatory notification made on 4 March 2018 that he and four other RNs and one Enrolled Nurse employed by Justice Health and Forensic Mental Health Network (JH&FMHN) at Parklea Correctional Centre (PKA) were involved in the care of an inmate, Patient A, who was found deceased on 7 December 2017.
The background to the proceedings against RN Balagtas and the other five nurses is set out in Balagtas Stage 1. That decision includes discussion of the agreed and disputed facts, the evidence provided by RN Balagtas and each of the other nurses and the expert evidence provided on behalf of the HCCC, and identifies the various NSW Health and JH&FMHN policies relevant to the complaints. The detail is not repeated in these reasons, and these reasons assume familiarity with those earlier reasons.
In summary, Patient A, a 37 year old man with a documented medical history of epilepsy, asthma, Crohn's disease, hypertension and opioid dependence, was transferred to PKA from Sydney Police Cells on 6 December 2017, arriving at about 11.38am. In December 2017 PKA was privately managed by The GEO Group Australia Pty Ltd (GEO) on behalf of Corrective Services NSW (CSNSW). PKA houses approximately 800-900 remand, minimum and maximum security inmates. Health services at PKA were operated by JH&FMHN.
At about 2.07pm Patient A was taken from a holding cell to the Processing Area at Reception. Patient A was too unwell for reception screening assessment to be undertaken, and he was taken to the Main Clinic where he was assessed by the Drug & Alcohol Medical Officer (MO) and the Clinical Nurse Specialist D&A (CNS D&A).
The CNS D&A recorded baseline clinical observations, noting in Patient A's clinical/progress notes that he was "extremely unwell - in opiate withdrawal". The treatment plan recorded by the MO and the CNS D&A in the progress notes was that Patient A was to remain in detox, with four hourly observations, with Panadeine and Stemetil for opiate withdrawal, and to be reviewed in the morning.
RN Balagtas was Nurse Unit Manager (NUM) on the afternoon shift, rostered 1.30pm-10.00pm. The clinical handover from the morning shift JH&FMHN staff to the afternoon shift took place in the Clinic tearoom between 2.00pm to 2.30pm. Patient A was in Reception at that time, and he was not included in the handover. Just after the shift handover concluded the CNS D&A asked for someone to come and give an intramuscular (IM) injection. RN Gallagher, NUM on the morning shift, administered IM Stemetil to Patient A at approximately 2.45pm, recording that in Patient A's medication notes.
At approximately 2.46pm Patient A was placed in Cell 34, one of 14 observation cells in the Main Clinic. Cells 34-39 are "Detox" cells.
At approximately 4.20pm, as she was leaving for the day, the CNS D&A provided a verbal handover of Patient A to RN Stratten, who was rostered on the afternoon shift, (1.30pm-10.00pm) and allocated PKA Areas 3 and 5 and the Clinic. RN Stratten was in the medication room packing medications. The handover provided to RN Stratten included the information that Patient A was detoxing and was unwell and that four hourly observations were required and that the next set was due at approximately 7.00pm: see discussion in Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [135].
After the shift handover and during the afternoon shift RN Balagtas was in his office responding to emails and other tasks. In the circumstances discussed in Health Care Complaints Commission v Nguyen [2022] NSWCATOD 127, RN Nguyen, who was also rostered on the afternoon shift, packed the Clinic medications on behalf of RN Stratten. RN Nguyen also administered the Clinic medications, including to Patient A at approximately 7.00pm. The Tribunal was satisfied that RN Nguyen was not aware at that time of the need for observations, nor asked to complete them as part of the medication round that she undertook on behalf of RN Stratten: Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [138].
The clinical handover from the afternoon shift to RN Nuevo and EN Day, the night shift staff rostered on from 9.30pm to 7.30am the following morning, took place between 9.30pm and about 10.00pm. RN Stratten provided the handover. It was not in dispute that neither RN Nuevo nor EN Day had any interaction with Patient A during the night shift. After his assessment by the MO and CNS D&A on being brought to the Clinic, the last recorded interaction by nursing staff with Patient A was the administration of medication by RN Nguyen at approximately 7.00pm on 6 December 2017.
Patient A was found deceased in his cell at approximately 7.11am on 7 December 2017. It was not in dispute that none of the nursing staff on duty on the afternoon or night shifts on 6 December 2017 had read Patient A's progress notes in which the treatment plan, which included the requirement for four hourly clinical observations, was recorded. It was not in dispute that no clinical observations were taken after the baseline observations by the CNS D&A at approximately 2.30pm on 6 December 2017.
The HCCC commenced proceedings against the five RNs (RN Balagtas, RN Nuevo, RN Nguyen, RN Gallagher and RN Stratten) and EN Day on 7 April 2020. An order was made by consent on 8 May 2020 that the six matters would be heard together with evidence in each to be evidence in the others. At a subsequent directions hearing, the Tribunal noted that transcripts of the evidence of the RNs and EN Day in those matters may be used in the proceedings concerning EN Day, which, pursuant to s 165B(3) of the National Law required a differently constituted Tribunal panel. The HCCC was represented by counsel and a solicitor; three of the respondents were represented by NSW Nurses and Midwives Association (NSWNMA) legal officers; and three, including RN Balagtas, were self represented. The six proceedings were the subject of case management, and by consent an Agreed Statement of Facts and Issues to be determined by the Tribunal was provided.
The Stage 1 hearing of the five RN matters, including the evidence of EN Day, was initially listed for two weeks in September 2021. That listing was vacated when COVID-19 restrictions meant that the hearing could not proceed as an in-person hearing, and the hearing was re-listed for May 2022. Transcript was provided in July 2022.
Following the Stage 1 findings, a further hearing was held in relation to the appropriate protective orders for each of the respondent practitioners. The HCCC did not tender any further evidence in relation to protective orders proposed for RN Balagtas, and provided written and oral submissions on protective orders and costs. RN Balagtas provided a statement dated 20 December 2022, updated CPD details, and a reference dated 14 December 2022 (ex FB 4). He gave further oral evidence and was cross examined, and made oral submissions.
[3]
Summary of Stage 1 Decision
There were two complaints against RN Balagtas. Complaint One was a complaint of unsatisfactory professional conduct. The particulars of Complaint One were (1) that RN Balagtas as NUM failed to carry out his duties in that he failed to read the clinical notes and health records of Patient A; (2) that he failed to ensure that the afternoon shift nursing staff, namely RN Stratten and RN Nguyen, and the night shift staff, RN Nuevo and EN Day, were provided with a clinical handover of Patient A in accordance with JH&FMHN Policy 1.075 Clinical Handover; and (3) that he failed to ensure that clinical information regarding Patient A was recorded in the written handover or in the progress notes in accordance with NSW Health Policy Directive Health Care Records - Documentation and Management, JH&FMHN Policy 1.075 Clinical Handover, and JH&FMHN Policy 1.340 Accommodation - Clinical Recommendation (Adults).
RN Balagtas admitted particulars (1), (2) and (3). The Tribunal was independently satisfied on the evidence that particulars (1), (2) and (3) were established. The Tribunal found that whether or not RN Balagtas had been in the tearoom when the CNS D&A came seeking assistance for Patient A, RN Balagtas had an obligation as NUM on the afternoon shift to be aware of the clinical presentation and management plans for all the patients housed in the Clinic for clinical management, and that included reading the notes for Patient A, a new admission to the Clinic. The Tribunal found that RN Stratten as Clinic nurse on the afternoon shift had been provided with a handover by the CNS D&A, and RN Nguyen was not the allocated primary care nurse for the Clinic patients on that shift. As NUM, however, RN Balagtas had a responsibility to oversee the care provided by the delegated nurses which included being aware of the care plans and ensuring they were followed. He played no active role in the handover to the night shift, and the Tribunal found that he could not rely on the fact that a handover occurred, led by RN Stratten, as sufficient discharge of his obligations, which were to ensure that the oncoming shift had a sound clinical picture of the patients housed in the Clinic. That required that the clinical notes and the written handover sheet were updated, and that did not occur.
The Tribunal concluded that RN Balagtas' failure to ensure that he was aware of the clinical presentation and management plans for each of the patients in the Clinic; to ensure that the required care was being provided by the RNs on the shift; and to ensure that the handover document was updated and that appropriate record was made of relevant clinical information relating to Patient A's care during the shift, was in each instance conduct that demonstrated that his knowledge, skill and judgment, and care exercised, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and was unsatisfactory professional conduct.
Complaint Two was that RN Balagtas was guilty of professional misconduct. The Tribunal was satisfied that the conduct established in each of the particulars of Complaint One was conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and concluded that he is guilty of professional misconduct. In reaching that finding, the Tribunal concluded:
[126]The Tribunal acknowledges the challenges of providing comprehensive nursing care for patients in a custodial setting, clearly identified in the evidence of Ms Muller (see [90] above), not least being the difficulty in accessing patients to carry out review and monitoring both as directed in the patient's treatment and management plan and in response to issues arising during the shift. It is not clear on the evidence before the Tribunal what RN Balagtas actually did for the duration of the shift, other than to work in his office. RN Balagtas was, as NUM 1, the supervisor on the afternoon shift and had a responsibility to both the staff and patients that he did not meet. The Tribunal is satisfied that the conduct established in each of the particulars of Complaint One is conduct that when all are considered together amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. RN Balagtas is guilty of professional misconduct under s 139E of the National Law.
[4]
Legislation and principles
The Tribunal's powers on finding "the subject matter of a complaint against a practitioner" to have been proven are set out in Part 8, Division 3, Subdivision 6 of the National Law. The Tribunal may, under s 149A(1) of the National Law:
149A General powers to caution, reprimand, counsel etc [NSW]
(1) …
(a) caution or reprimand the practitioner;
(b) impose the conditions it considers appropriate on the practitioner's registration;
(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);
(d) order the practitioner to complete an educational course specified by the Tribunal;
(e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal;
(f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
…
As a consequence of the finding of professional misconduct, the Tribunal's powers include, under s 149C(1)(b) of the National Law, the power to suspend or cancel RN Balagtas' registration, and if registration is cancelled, to specify under s 149C(7) a period before an application for review may be made.
The power to make any of these orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held:
[20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:
1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.
2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.
3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
[21] The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a): to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A.
In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said:
[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".
The finding of professional misconduct does not mandate the making of an order to suspend or cancel a practitioner's registration. The conduct must have the capacity to justify such an order, whether or not such an order should be made in the particular circumstances: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. In determining whether to suspend a practitioner's registration or cancel it, it is appropriate for the Tribunal to take into account the consequences of the order being considered. As Basten JA noted in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [21], unless a period of suspension is made conditional renewal of the practitioner's registration will occur automatically on completion of the period of suspension, whereas an order of cancellation will require the practitioner to justify re-registration.
[5]
Protective orders sought
The HCCC seeks an order that RN Balagtas' registration be suspended for a period of six months, submitting that at the time of the incident he had been registered as an RN for more than seven years, with five years previous experience as an EN; he was working in a supervisory capacity on the afternoon shift on 6 December 2017 and had a responsibility to both staff and patients that he did not meet; and, as the Tribunal found, it was not clear what he actually did for the duration of that shift. The HCCC submits that a reprimand is not sufficient to reflect the protective purpose, especially in light of the finding of professional misconduct.
RN Balagtas submits that he is remorseful about what happened, he worked under restrictions for a year and a half, and he has tried to improve his skills and is a safe clinical nurse, and he should not have his registration suspended.
[6]
Consideration
In applying the relevant principles, the Tribunal takes into account:
1. Seriousness of the misconduct:
RN Balagtas' misconduct was objectively serious. While he was, as NUM, the person responsible for ensuring that the required care was being provided by the RNs on the shift, and that the oncoming night shift nursing staff were provided with an adequate clinical handover of Patient A, he had no idea about Patient A and was not even aware he was in the Clinic. His role was to provide clinical leadership, and to do that he needed to know the care plans for the patients housed in the Clinic and check with the RNs that they were being followed; to ensure that RN Stratten, allocated as primary care nurse for patients housed in the Clinic, and RN Nguyen, once she assumed that care by administering medication to Patient A, had had an appropriate handover; and to ensure that the oncoming night shift were aware of the clinical observations and management plan for the Clinic patients.
At [126] in Balagtas Stage 1 the Tribunal commented that it was not clear what RN Balagtas actually did during the shift. In cross examination his response to that comment was that he is confident that he made contact with the staff after handover to make sure everything was OK and was told it was all under control. He accepted that he could have been more proactive. He could have been in his office, but could also have gone to prioritise the patient. He did speak to RN Stratten, to ask if she had had her lunch break.
1. What has occurred since December 2017:
From March 2018 RN Balagtas' registration was subject to conditions imposed under s 150 of the National Law including that he practise under supervision, which could be remote, of a registered nurse, and that he be supervised by a nurse manager authorised to notify the NSW Nursing and Midwifery Council (the Council) of any breach of conditions or unsafe practice and to provide a report about his performance at three monthly intervals. Those conditions were removed in an application under s 150A of the National Law in October 2019, the Council delegates noting the extensive continuing professional education RN Balagtas had undertaken, and that he had provided consistently positive reports from his supervisor.
Since 2018 RN Balagtas has been employed by JH&FMHN working at Long Bay Hospital, as NUM in the Medical Appointment Unit (MAU) and Patient Enquiry Line in Integrated Care Service. In that role he supervises and works with MAU clerks when they are liaising with medical officers and external providers to schedule appointments and manage waiting lists, and provides management and clinical supervision of RNs and ENs, including on drug and alcohol issues, in the Patient Enquiry Line. He has no direct contact with patients. He has been involved in committees on patient safety, and mentored new staff. He has attended training including on Between the Flags and Identifying Deteriorating Patient, and attended NUM Education Forums.
1. Insight and remorse:
In his statement of 20 December 2022 RN Balagtas expressed his sincere apology to Patient A and his family. The incident has affected his personal and professional life including his young family. It has opened up the realisation and reminders that life is precious. In oral evidence to the Tribunal RN Balagtas stated that as a drug and alcohol trained nurse he could have done something for this patient. He has changed his attitude of assuming that staff know what to do, and he now supports staff. He reads clinical notes, and ensures appropriate follow up, and is determined to be able to deliver appropriate care. He has practised safely with no complaints. He believes he was not performing at the appropriate standard, and is truly remorseful about what happened.
1. Character:
RN Balatas has provided references from the JH&FMHN Nurse Manager Operations, Access and Demand Management, and Team Leader Integrated Care Services dated 14 December 2022 (ex FB 4), and August 2020 (ex FB 1). Those references attest to RN Balagtas being a highly competent clinician and manager who delivers safe, effective and patient centred care, and that he is a caring and professional individual.
In considering the appropriate protective order, the Tribunal must ensure that any order is protective in the public interest, and is not punitive with respect to the individual. As Basten JA commented in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102, an order may have punitive effects which may be directly relevant to the need for protection. The present case is an illustration of the example provided by his Honour, in which the experience of these disciplinary proceedings, together with the real threat of loss of livelihood through suspension or cancellation as a consequence of the finding of professional misconduct, appear to have opened RN Balagtas' eyes to the seriousness of his conduct, and produced a level of insight. Having regard to his evidence to the Tribunal, RN Balagtas is genuinely remorseful, and has recognised that he needed to be more proactive in his supervision of the shift on 6 December 2017. Had he done so, including by taking steps to familiarise himself with each of the patients under his care on that shift, he would have been better able to support his staff managing what was clearly a significant workload.
As the Court of Appeal explained in Do, the objective of protecting the health and safety of the public is not confined to protecting patients of a particular practitioner from a possible repetition of the misconduct: it includes providing a deterrence to the profession generally, and promoting public confidence in the maintenance of proper professional standards. That is a broader purpose than any orders made after a hearing under s 150 of the National Law, which serve the immediate purpose of protection of the health and safety of the public.
The Tribunal is satisfied that denunciation of RN Balagtas' conduct requires that a reprimand be imposed. A reprimand provides an official rebuke for past wrongful conduct and under s 225(j) of the National Law appears on a practitioner's record of registration maintained by the Australian Health Practitioner Regulation Agency: Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156. Such an order denounces the conduct, serving as deterrence for both the practitioner and the profession.
The Tribunal agrees with the HCCC that a reprimand alone would not be sufficient in the context of RN Balagtas' comprehensive failure to fulfil the responsibilities of his role as NUM on the afternoon shift on 6 December 2017. The HCCC seeks an order that RN Balagtas' registration be suspended for a period of six months. Having regard to the evidence, which was not contested, of his diligent and competent discharge of his continuing role in JH&FMHN since 2017, the Tribunal considers that period to be longer than warranted. RN Balagtas' registration should be suspended for a period of three months.
[7]
Costs
The HCCC sought an order that RN Balagtas pay its costs, acknowledging that the costs of preparing for and attending the five day hearing in May 2022 will be apportioned between the five RN matters. The HCCC submits that the three particulars, which were admitted, were found to have been established and that both complaints of unsatisfactory professional conduct and professional misconduct were proved.
RN Balagtas submits that meeting any costs order would be difficult for him financially.
The Tribunal's power to make an order for costs is conferred by cl13 Sch 5D of the National Law. As a general rule, costs of the proceedings should follow the event unless there is a justifiable reason for departing from that rule: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. Costs are intended to compensate a successful party and are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made: Philipiah at [44]. In this matter the particulars of the complaint were proven, and findings of unsatisfactory professional conduct and professional misconduct were made. There was no disentitling conduct in the way in which the HCCC pursued the proceedings. An order for costs should be made.
[8]
Orders
1. The respondent is reprimanded, pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW).
2. The respondent's registration is suspended for a period of three months from the date of these orders, pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW).
3. The respondent is to pay the costs of the Health Care Complaints Commission, as agreed or assessed.
[9]
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: 14 March 2023