Health Care Complaints Commission v Borthistle

Non-disclosure of Patient A's name

1. With the consent of the parties, orders have been made prohibiting the disclosure and/or publication of the name of the patient referred to in the Complaint. In these reasons, we will refer to that patient by the pseudonym "Patient A".

Conduct of the hearing

1. On the application of the Commission, the Tribunal (Principal Member Britton) decided to hear concurrently the respective complaints about Ms Borthistle and Mr Burton. Each complaint related to the nursing care provided to Patient A in the eight hours before her transfer to the Hospital's Intensive Care Unit (ICU).

Overview of the HDU on the evening of 1 June

1. On the evening of 1 June 2014 there were eight patients in the HDU, including Patient A.
2. Shortly before midnight on 1 June, Ms Borthistle decided to place Patient A in one of the HDU's two seclusion rooms. This was the second time Patient A had been placed in seclusion on that day and the fifth time in that admission. The clinical notes reveal that Patient A was observed to be agitated and unsettled throughout much of the subject admission.
3. The seclusion room is approximately three by four metres in dimension. Once locked, it could not be unlocked from the inside. The room had no toilet, running water or any furniture apart from a mattress placed on the floor.
4. The room could be observed through two Perspex windows (or hatches) in separate doors, from the adjacent linen room and the seclusion room corridor. The latter, but not the former, could be opened.
5. On the evening of 1 June 2014, the seclusion room and its adjacent corridor were being monitored by closed circuit television (CCTV). The linen room and the bathroom running off the seclusion corridor were not monitored by CCTV. CCTV footage of the seclusion room and its adjacent corridor could be viewed on one of two monitors positioned in the nurses' station. On the evening of 1 June 2014, a monitor in an elevated position displayed the CCTV footage of the seclusion room and corridor; the second monitor displayed the footage of the Art activity room, where another patient was under observation.

Overview of the period the subject of the complaint

1. The conduct which is the subject of the Complaint covers two discrete periods: (i) the period in seclusion (23:56 to 05:10), and (ii) the period from the end of seclusion to Patient A's transfer to the ICU (05:10 to 07:24).

Period 1: the seclusion period

1. The parties agree that during the seclusion period (23:56 to 05:10):

• Patient A fell about 20 times, often on her head;
• Neither Ms Borthistle nor Mr Burton nor any other person entered the seclusion room;
• Neither Ms Borthistle nor Mr Burton conducted regular face-to-face or "baseline observations" - temperature, pulse, respirations, blood pressure and oxygen saturation levels - of Patient A;
• Patient A was offered neither water nor food nor the opportunity to use the bathroom;
• Patient A was naked;
• Patient A did not settle;
• When seclusion ended at 05:10 Patient A and the room were covered in faeces. She was dishevelled and staggering (which Ms Borthistle asserts was her usual gait).

1. Tendered in these proceedings was a copy of a record completed by Ms Borthistle and Mr Burton, covering the seclusion period (the seclusion observation record). It contains initialled entries said to have been made every 10 minutes. All but those for midnight and 00:50, and the periods 01:40 to 02:10 and 04:00 to 0510, bore Mr Burton's initials. Ms Borthistle and Mr Burton each testified that the observations were made from the CCTV footage. None of the entries mention Patient A falling or hitting her head. In contrast, a time line prepared by police for the coronial inquest, based on the CCTV footage of that evening (the Police time line), records Patient A falling to the floor about 20 times while in seclusion. The timeline records the first fall occurring about five seconds after Patient A entered the seclusion room: "Staggers against wall. Possibly hits her head."
2. Also tendered in these proceedings was a copy of the CCTV footage covering the seclusion period, together with the period up to Patient A's final fall. We concluded after review that there were no material discrepancies between the CCTV footage and the Police time line.
3. At the commencement of the seclusion period, Ms Borthistle instructed Mr Burton to neither enter the seclusion room nor to observe Patient A from either the hatch in the linen room or the seclusion corridor. Ms Borthistle gave as the reason for that instruction the need to maintain a "low stimulus environment" and her concern that Mr Burton's presence, or, indeed, any stimulus, might "stir up" Patient A.
4. In a written statement dated 7 January 2015, Mr Burton claimed Ms Borthistle directed him not to approach Patient A to conduct the 10 minute observations "usually performed when a patient is placed in seclusion". He claimed that when he questioned that direction and proposed that he sit in the corridor outside the seclusion room for the first hour, Ms Borthistle replied they had insufficient staff resources. On his account, she said he should restrict his observation to the CCTV monitor: it was "simply not always possible to follow policy to the letter".
5. Ms Borthistle does not dispute that account.
6. According to Mr Burton, while Ms Borthistle was on a break, he twice entered the seclusion corridor in defiance of her instruction to attempt to observe Patient A through the hatch from the seclusion corridor. He claimed that on each occasion, as he approached the door, Patient A's behaviour escalated as predicted by Ms Borthistle. He stated that from then on he followed Ms Borthistle's directive.
7. The seclusion observation record contains no mention of a fall. However, when interviewed by Hospital investigators on 3 July 2014 Ms Borthistle disclosed she observed a fall on the video monitor at around 03:00. She claimed she went immediately to the linen room and observed Patient A through the hatch. She claimed she asked Patient A from the linen room whether she was OK and could hear her "muttering and talking to herself".
8. A junior medical officer, Dr Paul, together with Ms Borthistle, observed Patient A from the door to the seclusion corridor at 01:00. Neither entered the room. In an "observation of seclusion form", Dr Paul certified that he conducted a "MO Ratification" at 01:00. That was the last time Patient A was reviewed by a medical practitioner in any way before her final fall shortly before 07:00.

Period 2: after seclusion ends

1. During this period, Ms Borthistle was responsible for the care of Patient A; Mr Burton had the care of the other HDU patients.
2. The CCTV footage of this period reveals that Patient A fell in the seclusion room about two minutes after seclusion ended, in the corridor at about 06.40 and again at about 06.50. In addition, according to Ms Borthistle, Patient A fell in the bathroom at about 06:10. As the bathroom was not monitored by CCTV there is no footage of that fall.
3. The clinical progress notes for this period contain a single entry made by Ms Borthistle: 2/6/14: 05:45 only a few minutes sleep. Defecated on floor and spread it through the entire room. Seclusion closed. [Patient A] uncooperative with getting into shower ATOR.
4. The entries in the Police time line for the 30 minutes after seclusion ended, record Patient A wandering around the seclusion corridor and the seclusion room, naked, covered in faeces "brushing against the wall and unsteady on her feet". Between about 05:20 and 06:05 there is a gap in the footage. According to a security officer, Stuart Rollans, who gave evidence in these proceedings, a gap in the CCTV footage indicates that the cameras had not detected any significant motion during that period. This suggests that neither Patient A nor Ms Borthistle were in the seclusion corridor or seclusion room between 05:20 and 06:05.
5. In a statement dated 7 January 2015, Mr Burton wrote that, after the seclusion ended, given the enormity of the task of getting Patient A and the room clean, he raised with Ms Borthistle whether they should seek assistance, and she said that was unnecessary. On his account, they left Patient A for about 30 minutes while they attended to paperwork and other patients. Ms Borthistle does not dispute that claim.
6. The CCTV footage shows Ms Borthistle leading Patient A to the bathroom at 06:13. Ms Borthistle told Hospital investigators that after she turned on the shower, Patient A "just went 'bang' on the tiles … she went down … 'smack' didn't put her hands out, nothing". Ms Borthistle stated that Patient A rolled over and her hair fell away and for the first time she saw "Massive swellings on each temple and she had a black eye … bright purple on her eye I thought she'd fractured [her face]". Ms Borthistle said she was "just horrified"; it was "the most horrible thing to see". She said that when Patient A sat up she seemed ok and she told her to "stay on the floor I will be back in minute".
7. Ms Borthistle said she went straight to the nurses' station and reported to the AMHU nurse-in-charge, Nora Wolters: "[Patient A] has got massive bruising on each temple and she has got a black eye". Ms Borthistle told Hospital investigators: I don't know why I didn't spell out and say she needs to be seen immediately. I didn't say that but massive bruising on each temple and black eye I mean and I think I said something about she looks like she might have got a fracture and I don't know whether I told them she had fallen in the bathroom or not I really can't remember because I was in such a hurry to get back to her because I was frightened she would fall again.
8. We will return to consider the conflicting evidence about that conversation.
9. According to Ms Borthistle, having reported the fall, she went back to the bathroom to shower Patient A. She claimed it "took ages" to get Patient A clean as was covered in "faeces and filth". On her account, while showering Patient A, she waited in vain for a medical officer to arrive.
10. Ms Borthistle testified that throughout the shower, Patient A was sitting on the floor under the shower and struggling to get herself up: "she was very strong". Ms Borthistle said that when she finally managed to get Patient A clean she put towels on the floor and told her to stay on the floor while she resumed mopping the corridor and the seclusion room. She said she decided to leave Patient A because she did not want the medical officer to have to come and deal with "[Patient A] walking back in the poo again".
11. According to Ms Borthistle, while mopping the seclusion corridor, Patient A appeared beside her and fell again, "exactly the same way" as she had in the bathroom. Ms Borthistle told Hospital investigators "she went down so fast … I didn't even see it coming". She said Patient A was gasping, she rolled her on to her side and then pressed her duress alarm. Ms Borthistle went to the nurses' station to ensure that someone rang the Rapid Response team (RRT). The RRT arrived at about 06:52.
12. RN Thevenet, one of the first to arrive in response to the duress call, gave this description of Patient A's condition: [N] aked, icy white in colour, very cold to touch, and had major swelling in the left temporal region, forehead and left eye, with a semi closed left eye and with reddish black and blue bruising and swelling.
13. A wound assessment conducted shortly after Patient A's admission to ICU noted "severe bruising and oedema of eyes, left more than right, bruising on her back and buttocks, multiple bruises on the left elbow and a skin tear on the left knee". Medical notes made shortly after her cardiac arrest recorded "severe brain trauma secondary to head injury" and later "severe traumatic brain injury post fall + headbanging". Patient A was declared brain dead on 3 June 2014.

Issues for consideration

1. The key issues we must decide are: 1. Whether the conduct particularised in the Complaints is established; 2. If so, whether that conduct constitutes "unsatisfactory professional conduct"; 3. If so, whether some or all of that conduct constitutes "professional misconduct"; 4. If (b) and/or (c) above are established, whether protective orders should be made and, if so, what orders should be made.
2. The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at p 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at p 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities.
3. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrased adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1].

Meaning of "unsatisfactory professional conduct" and misconduct?

1. The Commission contends that the conduct alleged in each of the particulars of Complaint 1 amounts to both "unsatisfactory professional conduct" within the meaning of ss 139B(1)(a) and 139B(1)(l) and "misconduct" within the meaning of s 139E of the National Law.
2. Sections 139B(1)(a) and 139B(1)(l) of the National Law state: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
3. In evaluating whether any conduct found proven constitutes unprofessional conduct within the meaning of s 139E(1)(a) of the National Law we must: (i) identify the standard "reasonably expected" of a nurse of an equivalent level of training or experience to Ms Borthistle (the relevant standard), and (ii) evaluate whether the conduct found proven demonstrates that the knowledge, skill or judgment possessed, or care exercised, by Ms Borthistle in the practice of her profession, fell "significantly below" the relevant standard.
4. Ms Borthistle was an experienced registered nurse when the conduct the subject of the Complaint occurred. She became an enrolled nurse in 1974 and a registered nurse in 1978. She worked at Broughton Hall (which later became Callan Park, Sydney) between 1974 and 1994 and gained a certificate in Psychiatric Nursing. She resigned to move to Northern NSW and commenced at the Inpatient Unit at Lismore Hospital in 1997 where she worked continuously until suspended on 4 June 2014.
5. In 2014, Ms Borthistle not only had significant mental health nursing experience but also had cared for Patient A on many of her 58 admissions since 1990.
6. In support of its contention that the judgement possessed, or care exercised, by Ms Borthistle fell short of the relevant standard, the Commission relies upon the opinion expressed by registered nurse, Stephen Harris.
7. Mr Harris holds post-graduate qualifications in nursing. While he has significant experience working as a registered nurse, as Ms Borthistle points out, she has a greater level experience in the area of adult mental health. While that may be so, it is irrelevant in these circumstances. Ms Borthistle's lengthier experience does not diminish Mr Harris's qualifications to give expert evidence or reduce the weight to be given to it. Mr Harris was well qualified to offer the evidence he gave in these proceedings.
8. The Commission requested Mr Harris to provide an opinion about Ms Borthistle's conduct, the subject of the Complaint. Mr Harris prepared a series of reports and also gave oral evidence. Mr Harris was of the opinion that the conduct described in each particular fell "significantly short" of the relevant standard.

Are the particulars of the Complaint established?

1. The particulars of the Complaint fall broadly into three categories: 1. Ms Borthistle's decision to seclude Patient A; 2. The care provided to Patient A by Ms Borthistle throughout the seclusion period; 3. The care provided to Patient A by Ms Borthistle after the seclusion period.

(1) Particulars in relation to Ms Borthistle's decision to seclude Patient A

1. Particular 1 of Complaint 1 reads: The practitioner's decision to seclude Patient A was inappropriate in that it did not comply with the 'Aggression, Seclusion and Restraint Procedures' (July 2012) of the Health Northern NSW Local Health District (the Northern NSW Local Health Policy) and the 'Aggression, Seclusion & Restraint in Mental Health Facilities in NSW' (PD 2012_035, June 2012) policy (the NSW Health Policy) and: (a) No falls risk assessment was completed prior to the decision being made given that Patient A was a known high falls risk patient and this risk was increased with the administration of both antipsychotic and sedative medication prior to being placed in seclusion; and (b) There was no discussion with RN Wolters, the In Charge of Shift, regarding the proposed plan of care prior to the plan's implementation. .
2. NSW Health and the Northern NSW Local Health District have issued detailed policies covering the procedures to be followed in relation to patients placed in seclusion in mental health facilities: the 'Aggression, Seclusion and Restraint Procedures' (July 2012) of the Health Northern NSW Local Health District (the Northern NSW Local Health Policy) and the 'Aggression, Seclusion & Restraint in Mental Health Facilities in NSW' (PD 2012_035, June 2012) policy (the NSW Health Policy). For convenience, we will refer to these policies collectively as "the relevant polices".
3. The NSW Health Policy states at [4.3]: Seclusion can be used to manage the risk of serious imminent harm only when appropriate, safe alternative options have been considered and trialled. It can only be used for the briefest period required to allow the consumer to safely regain control of their behaviour
4. The NSW Health Policy states that seclusion is not to be used "As a low stimulus environment - other options will be trialled first": [4.3].
5. The Northern NSW Local Health Policy is drafted in similar terms and emphasises that seclusion is considered to be a "coercive intervention" and should only be used when "all other safe alternatives have been exhausted and only when necessary to manage the risk of serious imminent harm": [3.1]. Reflecting the NSW Health policy, it states: "One of contraindications for seclusion listed by the Policy is: "As a low stimulus environment - other options will be trialled first": at p 14.

Explanation given by Ms Borthistle for placing Patient A in seclusion

1. Ms Borthistle disputes that the decision to seclude Patient A was inappropriate or that it failed to comply with the relevant policies. In these proceedings, she argued that, in the circumstances of 1 June 2014, seclusion was the safest place for Patient A. In addition, she argues that it was in the best interests of the other patients in the LHMU as Patient A was in an elevated mood and disturbing others. She submitted that, while the seclusion room was not ideal, in circumstances where the only other available space, the Art activity room, was in use, it was the only alternative.
2. Ms Borthistle had cared for Patient A on numerous occasions since her first admission to the AMHU in 1990. She described Patient A as "one of the most difficult patients I've ever worked with". She claimed that on the evening of 1 June 2014 Patient A was "the worst I've ever seen her".
3. In a clinical note recording the reasons for deciding to place Patient A in seclusion, Ms Borthistle wrote: 23:50 Stripping, laying on floor wailing at top of her voice. Acoustics render this deafening. PRN as charted, food, fluid, attempts to place comfortably in bed all failed. Secluded to destimulate as well as for her own safety. Noise abated as soon as secluded. Usual behaviour of wandering the room.
4. A month after Patient A's death, Ms Borthistle was interviewed by investigators commissioned by NSW Health to review the events of 1 June 2014. A copy of the transcript of that interview was tendered in these proceedings. The following is a summary of the explanation Ms Borthistle gave investigators for her decision to place Patient A in seclusion.
5. According to Ms Borthistle, on arriving on the ward sometime after 21:30, she found Patient A to be "extremely unsettled, manic, busy, fairly noisy". At times she was lying in the lounge room "absolutely wailing". She described the noise as "deafening" and the acoustics as "appalling". Other nursing staff were pressuring her to settle Patient A as the noise was disturbing the patients in their care.
6. Ms Borthistle told Hospital investigators she had never known a night like it, it was the "perfect storm". The Unit was full with a number of "extremely unwell patients": a 30-year-old woman on "suicide watch" who had been placed in the Art activity room and was being monitored by CCTV; a woman with a history of self-harm (Room 4); a woman "chronically wanting to die" with "an appalling childhood" (Room 5); a new admission, a young woman, a "vagabond" who was "manic" (Room 7) and a woman who, at the start of the shift, had been "really active and busy" (Room 8). In addition, there was a young man with "developmental delay" who was a "bit hard to direct" (Room 1).
7. Ms Borthistle explained that Rooms 5 and 7 could not be locked from the inside and Patient A was able to enter those rooms. The previous evening Patient A had taken a quilt from Room 5 and was "rampaging around the lounge room with it". On the evening of 1 June, during the shift handover, the young patient in Room 7 was "pretty horrified" when Patient A urinated on the floor of her room.
8. At about 23.30, Ms Borthistle gave Patient A Chloral Hydrate (a sedative) 2g and Haloperidol (an anti-psychotic) 10 mg to see if this "would quieten her down". On her account, this did not have the hoped for effect and Patient A was "back and forth and up and down and slamming doors and generally carrying on". She stated she then led Patient A by the hand to her room and tucked her into bed but she was "up again really quickly … charging around".
9. Ms Borthistle said were it not for the fact that the patients in Rooms 5 and 7 could not lock their doors, she probably would not have made the decision to seclude Patient A: "I think we would probably have managed her even though she was fairly noisy". She told Hospital investigators: "I hate secluding people". She said she would have preferred to have placed Patient A in the Art activities room but this was not an option because it was being used for a "Care Level 1": a patient assessed as an extreme or high risk to self and or others requiring direct one-on-one care. According to Ms Borthistle, the Art activities room was the only suitable place, apart from the seclusion rooms, available to accommodate a patient who was disturbing other patients during the night.
10. When taken by Hospital investigators to examples of strategies used in the past to settle Patient A when she was elevated, such as taking a warm bath, doing her hair, giving her meals or a warm drink, Ms Borthistle replied that those strategies work did not always work: Patient A was "incredibly unpredictable".
11. Shortly before midnight on 1 June 2014, Ms Borthistle contacted registrar, Keith Abel, who authorised her decision to seclude Patient A.
12. According to Ms Borthistle, when she informed Patient A that unless she settled she would have to go into seclusion, she replied "great, let's go!" and bolted to the room.

Findings and conclusions

1. As things turned out Patient A was anything but safe while she was in seclusion. She fell over 20 times and, on most occasions, the falls were unbroken. However, the assessment of whether, as alleged by the Commission, the decision to place Patient A in seclusion was inappropriate and in breach of the relevant policies must be made having regard to the circumstances at the time the decision was made and not in retrospect.
2. We accept that the circumstances confronting Ms Borthistle on the evening of 1 June 2014 were challenging: having the care of an elevated Patient A together with seven other patients, one of whom required constant monitoring. Nonetheless, for the reasons that follow, in our opinion, the decision to seclude Patient A was inappropriate, because, among other things, it did not comply with the relevant policies.
3. First, the decision plainly offended the directive that seclusion is be used "to manage the risk of serious imminent harm only when appropriate, safe alternative options have been considered and trialled": see NSW Health Policy at [4.3]. When placed in seclusion, Patient A was neither at risk of serious imminent harm nor posed a risk of serious imminent harm to others. There is no evidence that Patient A had been verbally or physically aggressive to either other patients or staff on the evening of 1 June 2014. Although Ms Borthistle suggested there was a risk that Patient A would disturb other patients, and they in turn might retaliate, there is no evidence that that risk was imminent. When Patient A was placed in seclusion the other HDU patients were largely settled.
4. However, even if it is assumed that Patient A or others were at risk of serious imminent harm, this did not obviate the requirement to first make reasonable attempts to trial safe alternative options. Apart from attempting to provide a low stimulation environment on the ward in the hope she might settle, and administering a sedative and an anti-psychotic, there is no evidence of any strategies being employed to settle Patient A. As acknowledged by Ms Borthistle, strategies had been used in the past with mixed success. While, as she pointed out, they did not always work, nonetheless, when the decision to place her in seclusion was made, they had not been attempted.
5. Second, it is implicit from the relevant policies that an assessment of risk is required to be undertaken before a patient is placed in seclusion. The relevant policies are replete with references to the risk seclusion poses to the patient. For example, the NSW Health Policy states at [4.9]: The use of … seclusion is a risk to the physical health of consumers. … It is not always possible to predict which consumers are at greatest risk. Young, fit, apparently healthy people have been known to die in seclusion… in rare circumstances.
6. While, in these proceedings Ms Borthistle insisted that the seclusion room was the safest place for Patient A, she nonetheless acknowledged that Patient A was a known falls risk. In addition, she acknowledged that Patient A was well known to often be incontinent of urine and "to go and void anywhere". That, coupled with the administration of a sedative and anti-psychotic, plainly increased Patient A's risk of falling. The weight of evidence indicates that, in arriving at her decision, Ms Borthistle failed to give proper regard to the risks posed to Patient A of being in seclusion.
7. Third, Ms Borthistle made no attempt to develop a care plan for the period Patient A was in seclusion. The care plan such as it was - that there would be no interaction or contact with Patient A and that she only be observed by way of CCTV footage - breached the relevant polices.
8. We find that Ms Borthistle's decision to seclude Paint A was inappropriate in that it did not comply with the relevant policies. Particular 1 is established.

Does the conduct described in Particular 1 fall significantly below the relevant standard?

1. We are satisfied that the decision to seclude Patient A demonstrated that the judgement possessed and care exercised by Ms Borthistle fell grossly below the relevant standard because of the absence of any serious effort to obviate the need for seclusion before employing that strategy, the failure adequately to assess the risks to Patient A if she was placed in seclusion, the multiple risks posed to Patient A in placing her in seclusion, which were known to Ms Borthistle but effectively ignored and the extensive non-compliance with protocols intended to ensure patient safety.

(2) Particulars relating to the care provided to Patient A throughout the seclusion period

Observations conducted during first hour of seclusion period: Particulars 2 & 3

1. Particulars 2 and 3 read: 2. The practitioner failed to ensure the maintenance of adequate observations on Patient A during the first 60 minutes of the seclusion period in accordance with Northern NSW Local Health Policy and the NSW Health Policy in that she failed to ensure that Patient A was given 1:1 observations as a care level one patient. 3. The practitioner did not comply with the NSW Health Policy and the Care levels within NNSW LHD Mental Health Inpatient Units (NC-NNSW-POL-7430-14) policy (the Inpatient units policy) in that she ordered that RN Burton to not conduct 1:1 observations of Patient A in the first hour of the seclusion period and instead conduct observations via CCTV.

Policy framework

1. The relevant policies emphasise the risk posed to patients of being placed in seclusion and stipulate that regular physical observations must be conducted. The NSW Health Policy states: 4.10 Observations The aim of observation is to engage with the consumer to the extent that the nurse is able to ensure the consumer's physical safety and continually assess behaviour with a view to ceasing the intervention as soon as possible. Observations will be undertaken by appropriately trained and experienced nursing staff with due regard for staff safety. Any deviation from these processes that is required for Occupational Health and Safety reasons must be documented in the consumer's health care record and included in a review of the incident. 1:1 observations will be undertaken for the first 60 minutes i.e. a nurse will remain in visual contact with a consumer at all times during seclusion. ..).
2. The Northern NSW Local Health Policy contains similar requirements: see [3.5], [3.6] and Appendix B.

Are Particulars 2 & 3 established?

1. The only observations made of Patient A in the first 60 minutes after being placed in seclusion were those undertaken via CCTV. As noted above, when Mr Burton raised with Ms Borthistle whether he should sit in the corridor outside the seclusion room to observe Patient A, she instructed him to restrict his observations to the CCTV monitor.
2. In these proceedings, Ms Borthistle conceded that she erred in failing to ensure that direct visual observations of Patient A were conducted in the first hour of seclusion. She said she was unaware of the policy as it had only recently been issued in a 60-page document. For the following reasons, we find that claim implausible. First, the relevant policies had been in existence for some time: the NSW Health Policy was issued in June 2012, the Northern NSW Local Health Policy, in November 2012. Second, the comment made Ms Borthistle to Mr Burton: "sometimes it is just not possible to comply with policy", suggests knowledge of the requirement. Third, the one-page record of seclusion, signed by Ms Borthistle contained the following instruction: Nursing staff member to remain in visual contact with patient for the first hour … any changes in condition must be managed in accordance with PD 2010-026 management of the clinically deteriorating patient. (emphasis added)
3. Particulars 2 and 3 are established.

Does the conduct described in Particulars 2 and 3 fall significantly below the relevant standard?

1. Ms Borthistle gave as the reason for failing to undertake the required observations of Patient A throughout the first hour of seclusion lack of staff resources and concerns that any direct contact might cause Patient A to become "overstimulated".
2. Significant demands were placed on Ms Borthistle and Mr Burton on the evening of 1 June 2014. As its name suggests, the HDU accommodated those patients within the AMHU assessed as "highly dependent" and extremely unwell. On that evening, Patient A was but one of eight patients in Ms Borthistle's care. Also in her care was a young woman who was required to be constantly monitored on account of reports of self-harm. Nonetheless, as the evidence reveals, by the time Ms Borthistle came on duty all but a couple of the patients were asleep or at least settled and remained so throughout the course of the evening. This is not to suggest that it was an easy task to care for that number of patients and remain alert for the challenges the evening might bring. However, we reject the suggestion that the demands placed on Ms Borthistle were so overwhelming that the only feasible option was to restrict observations of Patient A to the CCTV monitor during the first hour of seclusion.
3. Notably, the evidence reveals that at no time during the shift did Ms Borthistle attempt to obtain additional assistance. In the record of interview with Hospital investigators, she stated that "escalation of resources" is something which rarely occurred at night in the HDU but that the After Hours Nursing Manager is very supportive and available although she had not visited the ward for some years.
4. Ms Borthistle's conduct in not undertaking adequate observations of Patient A throughout the first hour of seclusion demonstrated poor judgement. It demonstrated judgement possessed and care exercised that, in our view, fell grossly below the relevant standard because Ms Borthistle's primary responsibility once Patient A was in seclusion was to ensure her safety. The relevant policy sets out the means by which this responsibility is to be met: maintenance of 1:1 observations for the first hour and thereafter at set intervals. By refusing to comply with that policy, she placed the patient at predictable risk of harm which, because she ignored it, came to pass. In our view, she had sufficient resources available to her, either in the HDU itself or on call to meet her responsibility to ensure Patient A's safety and she did not employ them as required. This failure resulted in none of Patient A's falls in the first hour being observed.

Observations conducted after first hour of seclusion period: Particulars 5 & 9

1. Particulars 5 and 9 read: 5. The practitioner failed to maintain or cause to be maintained adequate visual observations on Patient A in the second and subsequent hours of the seclusion period in that the practitioner only viewed Patient A by way of CCTV or by way of observation through a door and directed RN Burton to only view the patient by way of CCTV which is contrary to the Northern NSW Local Health Policy and the NSW Health Policy. 9. The practitioner failed to conduct adequate observations of Patient A throughout the seclusion period in that she undertook observations of Patient A by CCTV on occasion which is contrary to the Northern NSW Local Health Policy and the NSW Health Policy.

Policy framework

1. The NSW Health Policy states that visual observations will be recorded for all patients in seclusion: at [4.10]. The policy allows at [4.10] for observations to be recorded "from outside a seclusion room provided the consumer can be seen clearly enough to allow for monitoring of:

• Level of consciousness (consider use of the Glasgow Coma Scale)
• Respiration (including assurance of unobstructed breathing, cyanosis)
• Position (to ensure safety and comfort)
• Skin Integrity (e.g. colour, bruising, swelling)
• Behaviour"

1. The relevant policies require observations to be conducted at least every 15 minutes: see, for example, the NSW Health Policy at [4.10].

Are Particulars 5 & 9 established?

1. According to Ms Borthistle, after the first hour of seclusion the only form of observations undertaken, apart from those made from the CCTV monitor, were those made by her during ward rounds, through the hatch in the linen room door. She admits instructing Mr Burton to restrict his observations of Patient A to the CCTV monitor.
2. Ms Borthistle explained that she adopted that approach to observations because, in her opinion, if Patient A sensed the presence of someone outside the seclusion room it would "stir her up". She told Hospital investigators that Patient A had excellent hearing and "could hear me coming" despite, after 40 years of working nights, being able to "move around quietly … like a mouse".
3. Ms Borthistle does not dispute that observing a patient in seclusion by CCTV constituted a deviation from the relevant policies, but challenges the appropriateness of those policies in the circumstances which she confronted on 1 June 2014.
4. Even if, as claimed, Ms Borthistle observed Patient A from the window in the linen room door during ward rounds, for the following reasons this constituted a material deviation from the relevant policies. First, the observations were not conducted, as required, at least every 15 minutes. Second, as Ms Borthistle concedes, from the hatch in the linen room she was unable to see Patient A with sufficient clarity to monitor the sign/s and symptoms listed in the NSW Health Policy at [4.10]. Ms Borthistle described the perspex in that hatch as scratched and the visibility into the seclusion room as "poor". She told Hospital investigators that she went to the linen room door to hear if Patient A was asking for something, not to see her.
5. Particulars 5 and 9 are established.

Does the conduct described in Particulars 5 and 9 fall significantly below the relevant standard?

1. In deciding not to conduct regular observations after the first hour of seclusion, Ms Borthistle apparently reasoned that, as nothing untoward had happened (as far as she was aware), regular visual observation was unnecessary.
2. She did not discuss or seek approval for her "low stimulus" approach. The evidence of Patient A falling, undetected, over 20 times while in seclusion demonstrates the inherent risk of relying on CCTV footage as the primary means of observing a patient in seclusion.
3. Failing to conduct regular visual observation after the first hour of seclusion demonstrated that the judgement possessed and care exercised by Ms Borthistle fell grossly below the relevant standard. As we have noted above, the whole rationale of the relevant policies is to maintain the health and safety of patients. Ms Borthistle's conduct, in practical terms, ignored that primary responsibility in favour of "destimulating" the patient, a secondary concern. Her attitude towards the relevant policies appears to us to be that they are just rules and regulations that can be ignored in favour of more practical approaches developed in her own experience. If that is so, she fails to understand the underlying rationale of those policies. Moreover, she did not even take basic steps to assess the progress of that secondary strategy: she just left Patient A secluded without any significant observations.

Conducting and recording "base line observations": Particular 4

1. Particular 4 reads: 4. The practitioner failed to undertake or cause to be undertaken adequate observations on Patient A in accordance with the Northern NSW Local Health Policy and the NSW Health Policy in that she failed to attend to and record or cause the attendance and recording of Patient A's oxygen, saturation, blood pressure and pulse recordings a minimum of every ten minutes for the first half hour and half-hourly thereafter for the remainder of the seclusion period.
2. In addition to the requirement to conduct regular visual observations throughout the seclusion period, the NSW Policy required that where a patient has been sedated, oxygen saturation, blood pressure and pulse must be recorded a minimum of every 10 minutes for the first half hour and half-hourly thereafter: at [4.10].
3. Notwithstanding that Patient A had been sedated immediately before the commencement of the seclusion period, no base-line observations were undertaken. Ms Borthistle said she took this approach because such observations would probably have "stirred up" Patient A. She admitted that she could not see Patient's A's face from the CCTV monitor and therefore could not conduct any baseline observations.
4. Although not the subject of the Complaint, we note, as conceded by Ms Borthistle, that the two grams of the sedative Chloral Hydrate given to Patient A at 23:00 exceeded the maximum permissible dosage for that day.
5. In cross-examination, Ms Borthistle stated that she was unaware that one of the stated aims of the policy requirement of conducting visual and baseline observations of patients in seclusion was to "engage with the consumer to the extent that the nurse is able to ensure the consumer's physical safety and continually assess behaviour with a view to ceasing the intervention as soon as possible": NSW Health Policy at [4.10]. This was an astounding admission for a psychiatric nurse of her experience. She stated that, in her opinion, that requirement did not apply to someone like Patient A, who had been in seclusion over a hundred times. That opinion, needless to say, was based on her own experience, not any relevant policy.
6. Particular 4 is established.

Does the conduct described in Particular 4 fall significantly below the relevant standard?

1. It goes without saying that failing to conduct regular baseline observations placed Patient's A health and safety at risk. It was one of a number of checks designed to safeguard the health and safety of a patient in seclusion. Had those observations been conducted, Ms Borthistle and Mr Burton may have been alerted to the fact that Patient A had fallen repeatedly throughout the seclusion period.
2. Ms Borthistle's decision not to conduct regular baseline observations, especially given that Patient A had been sedated, in our opinion demonstrated reckless indifference to Patient A's safety and well-being. It was only when Patient A fell in the bathroom that Ms Borthistle noticed any injury to her. She assumed that the fall in the bathroom had caused the massive head injuries but it is probable that the repeated falls in the seclusion room also resulted, cumulatively, in significant head injuries. Had regular observations been taken, it might well have been seen that Patient A's condition was deteriorating and action taken to treat her in a timely fashion. The decision Ms Borthistle took was an appalling error of judgement and demonstrated the exercise of a standard of care that fell grossly below the relevant standard.

Failure to arrange for a four-hour review by a medical officer: Particular 14

1. Particular 14 reads: The practitioner failed to arrange contact with the Medical Officer to conduct a four hourly physical and psychiatric review of Patient A contrary to the Northern NSW local Health Policy and the NSW Health Policy.
2. The NSW Health Policy directs that, where seclusion continues after ratification, the medical officer will conduct further physical and psychiatric reviews at four hours from when the intervention commences, then every four hours until the seclusion is ended: at [4.8.3]. The Northern NSW Local Health Policy contains a similar requirement.
3. The four-hourly physical and psychiatric review by a medical officer was due to be conducted at 03:50. It did not occur. Ms Borthistle took no steps to arrange for that review to be conducted.
4. Particular 14 is established.

Does the conduct described in Particular 14 fall significantly below the relevant standard?

1. The four-hourly review was one of the checks and safeguards designed to minimise the risk posed to a patient placed in seclusion. It provided a second layer of oversight review by a person outside the nursing team. It is unnecessary to repeat our comment above in relation to the question of policy and patient safety. Once again, Ms Borthistle effectively ignored a protocol designed to ensure that Patient A's progress was actively assessed and her safety ensured. Ms Borthistle's unexplained failure for taking steps to have the review conducted demonstrated that the judgement she possessed and care exercised fell grossly below the relevant standard.

Turning up lights as means of reviewing Patient A: Particular 19

1. Particular 19 reads: 19. The practitioner turned up the lights as a means of physically reviewing Patient A instead of attending to her personally in circumstances where it was observed that she was on the ground, contrary to Northern NSW Local Health Policy, the NSW Health Policy and the Northern NSW Local Health District Care Levels with NNSW LHD Mental Health Inpatient Units (NC-NNSW-POl-7430-14).
2. In a statement dated 7 January 2015, Mr Burton wrote that he observed Patient A lying on the floor between 03:30 and 03:50. He wrote that when he raised his concerns with Ms Borthistle and asked whether he should carry out a visual observation, she replied "not yet" and proceeded to turn up the lighting in the seclusion room. Patient A then raised her head and torso. On his account, Ms Borthistle commented this was "satisfactory confirmation" of Patient A's consciousness. In these proceedings Ms Borthistle claimed she merely turned up the dimmer, but did not otherwise dispute Mr Burton's account.
3. As mentioned above, the relevant policies direct that regular visual and baseline observations of patients in seclusion be conducted. In addition, the NSW Health Policy states at [4.10]: A physical examination will be undertaken without delay if staff cannot be certain that the consumer is breathing.
4. Particular 19 is established.

Does the conduct described in Particular 19 fall significantly below the relevant standard?

1. Viewed from the CCTV monitor in the nurses' station, Ms Borthistle was unable to form a reliable judgement about whether Patient A was conscious or breathing. The NSW Health Policy directed that she undertake a physical examination "without delay". Turning up the lights was an impermissible method of observing Patient A. Not only was it an inadequate method of determining if there was a sinister reason for Patient A not moving for 20 minutes, it was cruel. A nurse of Ms Borthistle's experience ought to have known that it was likely to have startled and confused Patient A who at that stage had had no human contact for four hours.
2. The conduct particularised demonstrated judgement and care that fell significantly below the relevant standard.

Verbal communication with Patient A: Particular 6

1. Particular 6 reads: The practitioner did not verbally communicate or ensure another staff member verbally communicated with Patient A when she was awake to assess her ongoing mental state and prevent the feeling of isolation during the seclusion period in accordance with the Northern NSW Local Health Policy and the NSW Health Policy.
2. The relevant policies contain numerous references to the need to maintain verbal communication with a patient in seclusion during any period they are awake. The NSW Health Policy states at [4.10]: Whenever the consumer is awake, observations must involve verbal communication to allow ongoing mental state assessment and prevent a feeling of isolation. Clinicians engaging with the consumer will use these opportunities to continue de-escalation and offer the consumer alternatives to mechanical restraint or seclusion.
3. Except after the fall witnessed at about 3 am, Ms Borthistle admits to not verbally communicating with Patient A throughout the seclusion period. In addition, she admits instructing Mr Burton not to have any verbal communication with Patient A.
4. Particular 6 is established.

Does the conduct described in Particular 6 fall significantly below the relevant standard?

1. In these proceedings, Ms Borthistle stated that in June 2014 she was not aware that a stated purpose of the requirement to maintain verbal communication with a patient in seclusion was to prevent the patient experiencing feelings of isolation and to facilitate continued assessment of their mental state.
2. A nurse of Ms Borthistle's experience ought to have been aware of the need to maintain verbal communication with a patient in seclusion. Not to do so, especially given that Patient A had not settled and appeared agitated throughout most of the evening, demonstrated judgement and care that fell significantly below the relevant standard.

The 3 am fall: Particulars 7 & 13

1. Particulars 7 and 13 read: 7. The practitioner's communication with Patient A following witnessing a fall at approximately 3am on 2 June 2014 was inadequate in that she tried to speak to Patient A through the window of the adjoining linen room door which did not allow for ongoing mental state assessments and was contrary to the Northern NSW Local Health Policy, the NSW Health Policy, and the Mental Health Services Minimum Standards for Physical Observations in Inpatient Facilities (NC-NNSW­PR0-6734-13) (the Mental Health Minimum Observations Standards). 13. The practitioner failed to provide the appropriate standard of care to Patient A after witnessing her fall in the seclusion room in that she failed to: (a) Undertake baseline observations including temperature, pulse, respirations, blood pressure and oxygen saturation levels; (b) Undertake neurological observations including level of consciousness, pupils equal and reacting, checking for signs of head injury, bruising, swelling and bleeding; (c) Conduct a limb/body assessment; (d) Check if Patient A was experiencing any pain anywhere; (e) Check for the cause of the fall including checking if there was fluid on the floor, Patient A's footwear and if the cause was the effect of medication; (f) Report the incident to the RN in-Charge of the Shift, the Nurse Unit Manager and the Medical Officer; (g) Request a review of Patient A by the Medical Officer; (h) Document the incident and findings of any assessments conducted; and (i) instruct RN Burton to be diligent in his observations of Patient A and report any further falls he may witness.
2. Ms Borthistle told Hospital investigators that at about 3 am on the CCTV monitor, she saw Patient A fall "flat on her face". She described the fall as "concerning, a really hard fall". She said that after witnessing that fall she went to the linen room and asked Patient A through the door, if she was OK. She said she could hear her "doing her usual muttering away to herself". She did not enter the room, summon a medical officer or inform Mr Burton of the fall.
3. When questioned by Hospital investigators about her failure to act after the fall, Ms Borthistle said: It is not that I didn't care about her but she had had so many long seclusions, she had had so many falls I guess … I wasn't thinking properly, … I mean we all just didn't take a whole lot of notice of [Patient A] banging her head.
4. Ms Borthistle told Hospital investigators that she was aware of the requirement to arrange for a medical officer to review a patient after a fall: However [Patient A] had so many head banging … so many falls that it was just standard procedure in that Unit that people didn't tend to call the doctor.
5. Ms Borthistle does not dispute that after the fall she made no efforts to do any of the things listed in Particular 13. She could not offer an explanation for failing to make a record of the fall.
6. Particulars 7 and 13 are established.

Does the conduct described in Particulars 7 & 13 fall significantly below the relevant standard?

1. Ms Borthistle concedes, and we find, that her failure to take any action apart from listening for Patient A from the linen room, demonstrated that her judgement and care exercised fell grossly below the appropriate standard of care.

Failure to offer Patient A water and the opportunity to use the bathroom: Particulars 15, 16, 17 & 18

1. Particulars 15, 16, 17 and 18 read: 15 The practitioner purposefully restricted Patient A's fluid intake during the seclusion period in an attempt to manage Patient A's incontinence and in doing so acted contrary to s 68(b) of the Mental Health Act 2007 in that she did not provide high quality treatment and care in accordance with professionally accepted standards. 16. The practitioner did not provide Patient A with a supply of fresh, clean drinking water in the seclusion room, or offer her water regularly, and she provided no written documentation to account for the deviation from policy in this respect, contrary to the Northern NSW Local Health Policy and NSW Health Policy. 17 The practitioner failed to ensure Patient A went on bathroom breaks to wash and use the toilet during her seclusion, and provided no written documentation to account for the deviation from policy in this respect, contrary to the Northern NSW Local Health Policy, NSW Health Policy and the NSW Health Code of Conduct (March 2012, PD2012_018) (Code of Con Conduct). 18. The practitioner failed to treat Patient A with dignity, compassion and respect contrary to the Northern NSW local Health Policy, NSW Health Policy and the Code of Conduct in that she did not ensure Patient A was clothed when entering the seclusion room and for the seclusion period.
2. NSW Health Policy states: 4.9 Physical health care during restraint or seclusion … For all consumers in restraint or seclusion, it is essential to:

• Ensure satisfactory hydration and nutrition status (i.e. assess status at regular intervals, provide food at usual mealtimes).
• Record all food and fluid provided during the intervention (including a fluid balance chart if the intervention lasts more than two hours or if there is evidence of dehydration or metabolic disturbance).
• Provide a supply of fresh, clean drinking water in the seclusion room or else offer water regularly (suggested minimum each hour).
• Provide regular opportunities to wash and use the bathroom. On these occasions, the bathroom door should remain unlocked or be able to be unlocked from the outside.

Offering Patient A the opportunity to use the bathroom

1. Patient A was not offered the opportunity to wash or use the bathroom at any time during the seclusion period. Not surprisingly, given her history of incontinence and "voiding anywhere", after five hours of seclusion the room and Patient A herself, were covered in faeces. Ms Borthistle claims that during that period Patient A had not been incontinent of urine. That claim is unsupported but uncontradicted.
2. Ms Borthistle rejects the claim that she had refused Patient A water and the opportunity to use the bathroom. She argued that Patient A was "more than capable" of making a request by banging on the door of the seclusion room. The relevant policy, however, required that a secluded patient be provided with regular opportunities to use the bathroom; not that they only be offered such opportunity on request.
3. In addition to constituting a material deviation from the relevant polices, we find Ms Borthistle's failure to ensure Patient A was offered regular opportunities to use the bathroom was contrary to the one of the stated principles of the Mental Health Act 2007 (NSW): that people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards: s 68(b).
4. Particular 17 is established.

Failure to offer water

1. Ms Borthistle concedes she did not offer Patient A water before, or at any time throughout the seclusion period. In these proceedings she stated the requirement to offer water only applied throughout the day: "I don't know how many 46 year olds need a drink every hour on the hour".
2. Ms Borthistle agreed that Patient A had a reputation for being thirsty and demanding water. She acknowledged that being thirsty was a common side effect of Lithium, one of the drugs Patient A was taking at the time.
3. The most plausible explanation for her decision not to offer Patient A water was to reduce the possibility of her becoming incontinent. That is consistent with the entry made in Patient A's progress notes on 1 June 2014 at 06:00: "fluid restriction successfully mitigating gross incontinence of urine". We find Ms Borthisle's decision to restrict Patient A's fluid intake to reduce the risk of incontinence fell short of the obligation to provide "high quality treatment and care in accordance with professionally accepted standards".
4. Particulars 15 and 16 are established.

Failure to ensure Patient A was clothed when entering and during the seclusion period

1. The NSW Health Policy states at [4.11]: No person will be placed naked into seclusion unless this compromises their safety or the safety of others. If the consumer removes their clothing while in seclusion, staff will make efforts to maintain their dignity by offering alternative clothing, sheets etc, minimising the number of staff attending to the consumer and ensuring staff caring for the consumer are of the same gender as the consumer.
2. Patient A was naked on entering seclusion and remained so throughout the seclusion period.
3. It appears from the CCTV footage that after Patient A entered the seclusion room a nightdress was thrown in after her. Ms Borthistle does not dispute that she made no efforts to clothe Patient A. She claimed it was not uncommon for Patient A to be naked while on the ward and she regularly took off her clothes as soon as they were put on. She said this was extremely degrading for Ms Borthistle and embarrassing for other patients and staff but little could be done to change her behaviour. She disputed the suggestion made by Mr Harris that as it was winter, it was likely that Patient A was cold. Ms Borthistle claimed that the seclusion room and the HDU itself were comfortably heated.
4. The claim that Patient A was often naked and resisted staff attempts to ensure she was clothed is uncontradicted. It seems likely that had attempts been made to ensure Patient A was clothed, they may not have been successful. However, as no attempt was made it is not possible to say how Patient A would have responded on this occasion.
5. Particular 18 is established.

Does the conduct described in Particulars 15, 16, 17 and 18 fall significantly below the relevant standard?

1. Ms Borthistle's claim that had Patient A wanted water she could have asked sits uncomfortably with her claim that throughout the evening she could not understand what Patient A was saying as she was mumbling incoherently. But, in any event, as the relevant policies make abundantly clear, she was required to offer, not merely respond to, requests for water.
2. Not offering water throughout the evening showed gross indifference to Patient A's comfort and well-being. Taking that action, to minimise the risk of incontinence in circumstances where the opportunity to toilet was not offered, demonstrated a poor standard of care. Particulars 15 and 16 each demonstrate judgement and care that fell grossly below the relevant standard.
3. Failing to offer Patient A the opportunity to use the bathroom deprived her of the opportunity to leave the seclusion room and maintain some semblance of human dignity. It resulted in the unedifying spectacle of Patient A defecating in a room from which she could not escape and being smeared in faeces. It demonstrated judgement and care that fell grossly below the relevant standard.
4. While a significant departure from the relevant standard, the failure to ensure Patient A was clothed before and throughout the seclusion period, in our view falls at the lower end of the scale. In reaching that conclusion we have taken into account the uncontradicted claim made by Ms Borthistle, supported by Mr Burton, that Patient A frequently stripped off and refused attempts by staff to ensure she was clothed. Nonetheless, this did not relieve Ms Borthistle from the obligation to encourage Patient A to remain clothed. Throwing a nightdress on the floor fell short of that obligation. Her actions demonstrated judgement and the exercise of care significantly below the relevant standard.

Failure to record observations and deviation from policy: Particulars 10, 11 & 12

1. Particulars 10, 11 & 12 read: 10. The practitioner failed to document on the Observation of Restraint/Seclusion form or in the Progress Notes that she had deviated from the Northern NSW Local Health Policy and the NSW Health Policy by undertaking observations by way of CCTV. 11. The practitioner failed to comply with the Northern NSW Local Health District Mental Health Clinical Documentation Procedure (Northern NSW Local Mental Health Clinical Documentation Procedure) in that she failed to provide a contemporaneous and accurate record of the observations taken. 12. The practitioner did not accurately document observations taken at 2:00am on 2 June 2014 in that the practitioner recorded that Patient A was 'banging on walls and screaming' but the CCTV footage showed that Patient A fell backwards on the floor.

Policy framework

1. The Northern NSW Mental Health Clinical Documentation Procedure states that documentation in the medical record must provide an "accurate description of the patient's episode of care or contact with the service": at [5.0].
2. In addition, the relevant policies instruct that any deviations from the prescribed procedures for patient care must be accurately documented: see for example, the NSW Health Policy at [4.9], [4.10] and [5.2].

Recording deviations from prescribed requirements for care: Particulars 10 and 11

1. During the seclusion period, Ms Borthistle repeatedly deviated from the prescribed procedures governing the care of patients in seclusion. Among other things, she failed to conduct regular visual and baseline observations, verbally engage with Patient A, offer water and toilet breaks and arrange for a medical officer to conduct a four-hour medical review. She made no record of these deviations from the prescribed procedures.
2. Ms Borthistle admits failing to make a contemporaneous and accurate record of her observations of the 3 am fall.
3. Particulars 10 and 11 are established.

Does the conduct described in Particulars 10 and 11 fall significantly below the relevant standard?

1. The rationale for the requirement to keep accurate records for patients held in seclusion and to document any deviation from mandated standards is self-evident. It promotes accountability and transparency in the care provided to some of the most vulnerable people within the community. It allows remedial action to be taken, if there is a deviation from the prescribed standards. It facilitates care planning and continuity of care. Critically, regular observations also enable the patient's progress to be assessed. If a patient is placed in isolation, it must be for a particular purpose and for the minimum time required to achieve that purpose. Without regular assessment, clinicians have no accurate means of assessing when that purpose has been achieved in the minimum time. If progress is not assessed, isolation becomes not a form of care and treatment for the benefit of the patient but merely a means by which the patient is separated from others. If that is the case, the interests of others (including the practitioners) are being given priority over the needs of the patient. That is very much at odds with the principles and policies of our mental health system and laws. It is non-therapeutic. Rather it is punitive in effect.
2. Ms Borthistle's failure to record the numerous and material deviations from the prescribed procedures throughout the evening of 1 June 2014 demonstrated the exercise of care that fell grossly below the relevant standard. Similarly, her actions in not making a contemporaneous and accurate record of her observations of the 3 am fall, demonstrated the exercise of care that fell grossly below the relevant standard.

Particular 12

1. Particular 12 reads: The practitioner did not accurately document observations taken at 2:00am on 2 June 2014 in that the practitioner recorded that Patient A was 'banging on walls and screaming' but the CCTV footage showed that Patient A fell backwards on the floor.
2. The table below sets out the entries in the Police time line and those made by Ms Borthistle in the Seclusion Observation record, for the period 01:50:00 to 02:10:00. Police time line Recorded observations made by Ms Borthistle 01:50:00 Staggering around the room. 01:58:42 Falls backwards on back. Hits head? Sits up. (8) 01:59:20 Gets up 02:00 Banging on walls & screaming 02:00:10 Falls backwards. Hits head? (9) Standing at door screaming 02:00:13 Rolls onto right side 02:01:15 Gets up 02:01:19 Falls backwards. Hits head? (10) 02:02:41 Gets up 02:06:27 Falls backwards. Hits head? (11) 02:06:57 Gets up 02:10 Standing at door screaming

1. As the above table reveals there is a discrepancy between the entries made by Ms Borthistle and those in the Police time line.
2. It is possible that Ms Borthistle saw but did not make an accurate record of what she saw on the CCTV monitor at 02:00. It is also possible, as she suggested in these proceedings, that the clock in the nurses' station she referred to record time, was inaccurate. Another possibility, is that she did not look at the monitor at or around 02:00.
3. However, the police time line records Patient A falling backwards at 02::10 and again about 90 seconds later. Particular 12 rests on the assumption that Patient A fell backwards on the floor at 02:00. While it is possible that Ms Borthistle did not accurately record her observations said to have been made at 02:00, as formulated Particular 12 is not established.

(3). Particulars relating to Ms Borthistle's failures regards care after Patient A fall in the shower and in the corridor

1. Particulars 20 and 21 read: 20. The practitioner failed to provide the appropriate standard of care to Patient A (as outlined at Particular 13) after witnessing Patient A fall whilst in the shower.
2. According to Ms Borthistle, she first saw Patient's A "horrific injuries" when she fell in the bathroom at about 06:10.
3. There is conflicting evidence about the report given by Ms Borthistle to Ms Wolters, about those injuries. In these proceedings, Ms Borthistle testified that she made clear to Ms Wolters that Patient A needed urgent medical attention. Ms Wolters, on the other hand, in a statement dated 16 January 2015, claimed that Ms Borthistle said Patient A had a "shiner" but was OK and needed to be seen by a medical officer "sometime during the day". In cross-examination, Ms Wolters disagreed with the proposition that Ms Borthistle had conveyed a sense of urgency or had requested for a doctor to be called. Mr Burton's account of that conversation was broadly consistent with that given by Ms Wolters.
4. In these proceedings, Ms Borthistle stated that after she reported the fall to Ms Wolters, she expected a doctor would arrive. She disagreed with the proposition that, when this did not occur, the appropriate course would have been to summon help by using the duress alarm or following up with Ms Wolters.

Is particular 20 established?

1. Based on the timeline given by Ms Borthistle, about 40 minutes elapsed after the report to Ms Wolters and Patient A's final fall. In the 10 minutes immediately prior to that fall, the CCTV footage reveals Patient A bumping into walls, being unsteady on her feet and staggering throughout the corridor and the seclusion room. The floors of that area had either just been mopped or were still smeared with faeces. During that period, Ms Borthistle was mopping the floors in the corridor, the bathroom and or the seclusion room.
2. Even if Ms Borthistle's account of the report given to Ms Wolters is accepted, her actions in taking no further action when medical assistance did not arrive, and leaving Patient A unattended to resume mopping, demonstrated what can only be described as an appalling error of judgement. The inescapable conclusion is that large parts of the floors were slippery. That conclusion is consistent with the CCTV footage which shows Ms Borthistle walking cautiously on returning from the nurses' station at 06:52. In addition, it is consistent with her description of the floors as "slippery", "like ice", "treacherous".
3. Ms Borthistle's explanation for leaving Patient A unattended after the shower to resume mopping is internally inconsistent. On the one hand, she acknowledged the serious nature of the fall in the shower - an unbroken fall on hard tiles sufficient to warrant making an urgent report to Ms Wolters. On the other hand, she defended her actions because, in her opinion, Patient A was "unlikely to fall again".
4. Ms Borthistle failed to provide the appropriate standard of care to Patient A after witnessing her fall in the shower. Among other things she failed to undertake baseline or neurological observations, conduct a limb/body assessment, document the incident and any findings made.
5. Particular 20 is established.

Does the conduct described in Particular 20 fall significantly below the relevant standard?

1. While Ms Borthistle made a series of errors on the evening of 1 June 2014, those made after the fall in the shower, were the most egregious. It was self-evident that Patient A needed urgent neurological assessment due to her head injury. The risk of intra-cranial bleeding was high and the consequences of such an insult can be, as they were in Patient A's case, fatal. Even a junior nurse would be expected to understand that. Her actions in respect to the care provided to Patient A after that fall demonstrate that the judgment possessed, and care exercised, fell grossly below the relevant standard.

Is particular 21 established?

1. Particular 21 reads: 21. The practitioner failed to provide the appropriate standard of care to Patient A (as outlined at Particular 13) after witnessing Patient A fall whilst in the corridor.
2. For convenience, although referred to above we set out Particular 13 below: 13. The practitioner failed to provide the appropriate standard of care to Patient A after witnessing her fall in the seclusion room in that she failed to: (a) Undertake baseline observations including temperature, pulse, respirations, blood pressure and oxygen saturation levels; (b) Undertake neurological observations including level of consciousness, pupils equal and reacting, checking for signs of head injury, bruising, swelling and bleeding; (c) Conduct a limb/body assessment; (d) Check if Patient A was experiencing any pain anywhere: (e) Check for the cause of the fall including checking if there was fluid on the floor, Patient A's footwear and if the cause was the effect of medication; (f) Report the incident to the RN in-Charge of the Shift, the Nurse Unit Manager and the Medical Officer; (g) Request a review of Patient A by the Medical Officer; (h) Document the incident and findings of any assessments conducted; and (i) instruct RN Burton to be diligent in his observations of Patient A and report any further falls he may witness.
3. Patient A was at the top of the corridor (away from the nurses' station) when she fell for the last time at approximately 06:49. The actual fall cannot be seen on the CCTV footage as an open bathroom door partially obscures the area at ground level where the fall occurred.
4. Ms Borthistle told investigators that she was standing beside Patient A during the final fall and she "went down so fast … I didn't even see it coming". She said Patient A was gasping, she rolled her on to her side, pressed the duress alarm and rushed to the nurses' station to ensure that someone rang the rapid response team (RRT).
5. In contrast, the CCTV footage suggests that Ms Borthistle was a couple of metres from Patient A when she fell, and there was a two-minute delay before she attended to her. The CCTV footage shows Ms Borthistle walking to the nurses' station at about 06:52:06, on her account to ensure that the Rapid Response team (RRT) had been summoned after pressing her duress alarm. Thirty seconds later she can be seen walking back to where Patient A had fallen, accompanied by two other members of staff and about 30 seconds later the arrival of the RRT, when Cardiopulmonary resuscitation is commenced. Seconds later three more staff arrive. During this period, Ms Borthistle place a blanket over Patient A. At about 06:55, she returned to mop the corridor.
6. In these proceedings, Ms Borthistle stated that the reason she left the immediate care of Patient A to other members of staff was because of a combination of factors: being in shock, a hip condition which made it difficult to get down onto the floor and there being more than enough people to attend to Patient A.
7. After the close of the hearing, we wrote to the parties and requested the Commission to identify those matters listed in Particular 13 it asserts should have been undertaken by Ms Borthistle after witnessing Patient A's final fall. The Commission advised that it relied on all of Particular 13 except sub-particular 13(i): instruct[ing] RN Burton to be diligent in his observations of Patient A and report any further falls he may witness
8. In his report of 5 June 2015, Mr Harris opined that Ms Borthistle was "professionally negligent in the adequacy of care provided to Patient A". The basis for that opinion appears to be Ms Borthistle's failure to comply with the NNSW Fall Injury Prevention Policy (which the Commission concedes did not apply) and the delay in taking steps to assist Patient A and summon help.
9. It is not clear whether the scope of Particular 21 is limited to Ms Borthistle's delay in responding to the fall, or her inaction after summoning help. If the latter, the evidence does not support a finding that the care provided to Patient A, after the duress alarm was raised was sub-optimal, or that any of the necessary tasks listed in Particular 13 were not undertaken. Nor does the evidence support a finding that Patient A's care was compromised because there were insufficient "hands on deck" or because Ms Borthistle played no direct role in her care. As the CCTV footage reveals, after the duress alarm was raised, within a matter of seconds three members of staff were at Ms Borthistle's side and shortly after that half a dozen were in attendance.
10. If, Particular 21 is intended to refer to Ms Borthistle's delayed response in assisting Patient A after witnessing the fall, it should have said so expressly. A health practitioner in professional disciplinary matters must be put squarely on notice of the conduct said to constitute unsatisfactory professional conduct or professional misconduct. See, for example, the comments of Basten JA in Fraser v Health Care Complaints Commission [2015] NSWCA 421 at [8].
11. As formulated, we are not satisfied that Particular 21 is established.

Summary

1. All but Particulars 12 and 21 of Complaint 1 are established.
2. We are satisfied that the conduct described in each particular found proven, constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(a). Given this finding, it is not necessary to consider whether that conduct is unsatisfactory professional conduct within the meaning of s 139B(1)(l).

Does some or all of the conduct found to constitute unsatisfactory professional conduct amount to "professional misconduct"?

1. "Professional misconduct", is defined by s 139E of the National Law to mean: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 suspension or cancellation of the practitioner's registration.
2. The Commission contends that the conduct in each particular amounts to professional misconduct within the meaning of s 139E(a) of the National Law and, further, that in aggregate they amount to professional misconduct within the meaning of s 139E(b).
3. Ms Borthistle concedes that her conduct on the evening of 1 June 2014 fell well short of the ideal. However, it was not clear from her submissions whether she concedes that the particularised conduct, individually or in aggregate, constitutes professional misconduct.

Is the conduct of a sufficiently serious nature to justify suspension or cancellation of Ms Borthistle's registration?

1. In evaluating whether the conduct we found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.
2. Assessed overall, the conduct found proven was objectively serious and fell at the high end of the scale. The standard of care she provided to Patient A was manifestly inadequate. We are satisfied that the conduct in those particulars found proven except that described in Particular 18 (failure to ensure Patient A was clothed before being placed in seclusion), is sufficiently serious to justify suspension or cancellation of Ms Borthistle's registration. While serious, of itself, the conduct described in Particular 12, in our opinion, was not sufficiently serious to warrant suspension or cancellation.
3. In addition, we are satisfied that the conduct described in each particular found proven, including Particular 18, when considered together, is sufficiently serious to justify the suspension or cancellation of Ms Borthistle's registration.

What, if any, protective orders should be made?

1. Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and to impose conditions on the practitioner's registration. Where, as in this case, the practitioner is found guilty of professional misconduct, the Tribunal may decide that it would have cancelled the practitioner's registration had they been registered: s 149C(1)(b).
2. In exercising its functions under the National Law, the Tribunal's paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.

Orders sought by the Commission

1. The Commission urges the Tribunal to make an order under s 149C(4) of the National Law, that if Ms Borthistle were still registered, it would have cancelled her registration. In addition, the Commission seeks (i) an order that Ms Borthistle be disqualified from being registered for a period of five years, and (ii) a prohibition order.
2. Ms Borthistle opposes the length of the disqualification period sought by the Commission, pointing out that she has been unregistered and unable to work for the past two-and-a-half years. In addition, she opposes the making of a prohibition order.
3. Ms Borthistle concedes that on the evening of 1 June 2014 she was not operating at her best and made a number of significant mistakes. She rejects what she contends to be the Commission's depiction of her as the "uncaring, lazy nurse". She claims on that evening she faced extremely difficult circumstances: being responsible for eight extremely unwell patients, assisted by a young and inexperienced nurse in a physical environment that did not cater for high needs patients such as Patient A.
4. Ms Borthistle claims to have been very fond of Patient A and to being devastated by her death. She stated Patient A lived the best life she could, notwithstanding the severity of her mental illness. She stated that had she not felt sorry for Patient A she would have left her in seclusion until the morning shift took over, a decision she now regrets as she believes Patient A would probably still be alive.
5. While not excusing her conduct, she submitted that a combination of circumstances: the death of her father, her children leaving home, an accident which left her in chronic pain and a dislocated hip, coupled with numerous assaults suffered over the years while on duty contributed to the poor decisions made on 1 June 2014 in relation to Patient A's care.

Consideration

1. It does not follow that, because we have found that the conduct proven is sufficiently serious to justify the suspension or cancellation of Ms Borthistle's registration an order under s 149C must be made: HCCC v Jamieson [2014] NSWCATOD 56 at [100]. That order is but one of a suite of orders available where a health practitioner has been found guilty of professional misconduct. While the safety of the public is the paramount consideration, any protective order must, nonetheless, be commensurate with the seriousness of the impugned conduct.
2. In exercising our power to make protective orders under the National Law, the paramount consideration is the protection of the health and safety of the public: s 3A. This requires consideration to be given to, among other things, the probability of the recurrence of the conduct found proven and the nature and extent of any justifiably apprehended harm.
3. The public interest is also a relevant factor in determining what, if any, protective order should be made. An order for cancellation, if appropriate, "maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise": see Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA (with whom Basten and Emmett JJA agreed). (See also the comments of Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]).
4. We accept Ms Borthistle is deeply affected by Patient A's death. We also accept that she acknowledges that she made a number of poor decisions on the evening of 1 June 2014. However, it is unclear from her submissions which actions she claims would not be repeated if similar circumstances were to arise. In these proceedings, she continued to defend some of her decisions. For example, she was either unwilling or unable to acknowledge the inherent risk a "low stimulation" strategy of the type used on the evening of 1 June 2014 posed to Patient A. In addition, she defended her decision not to offer water or to summon help when none arrived after reporting the fall in the shower to Ms Wolters. Further, her statement of regret about not having left Patient A in seclusion until the morning shift arrive reveals a lack of insight about the dangers posed to Patient A of being in seclusion and the need to minimise the time spent in seclusion.
5. It may be that trying personal circumstances contributed to Ms Borthistle's actions on the evening of 1 June 2014. Whatever the cause, on the available material, we could not be satisfied that there is no real and material risk of conduct of the type found proven being repeated.
6. Given the objective seriousness of the conduct found proven, and the public interest of signalling to the profession the unacceptability of conduct of that type, we have concluded that the orders sought by the Commission to be appropriate, measured and proportionate. Having regard to her lack of insight, the absence of any evidence of rehabilitation, or of Ms Borthistle having addressed those factors she claims contributed to the poor decisions made on 1 June 2014, we consider it appropriate that she not be permitted to apply for re-registration for a reasonably lengthy period.
7. We order that (i) if Ms Borthistle were still registered we would have cancelled her registration, and (ii) she be disqualified from being registered for a period of five years from the date of this decision.

Should a prohibition order be made?

1. The Commission seeks an order under s 149C(5) of the National Law prohibiting Ms Borthistle from providing services as an assistant in nursing and mental health services until such time that she becomes a registered nurse. Ms Borthistle opposes that order and argues that it would effectively deprive her of the opportunity to work, given that she has worked exclusively as a nurse throughout her working life.
2. The power to make an order under s 149C(5) can only be exercised if we are satisfied that Ms Borthistle poses a "substantial risk to the health of members of the public". It falls to the Commission to establish that she poses a relevant risk.
3. As stated, we find that there is a real and material risk that, if Ms Borthistle were to return to work as a registered nurse, conduct of the type found proven might be repeated. While not identical, the class of work that is the subject of the proposed prohibition order shares common features with that type of work. It involves working with vulnerable people, often under limited supervision.
4. We are satisfied that, if Ms Borthistle were to work as an assistant in nursing or provide mental health services, she would pose a substantial risk to the health of some members of the public, namely patients in her care. While it is regrettable, as Ms Borthistle fears, that this may effectively deprive her of the opportunity to work, we have decided that it is appropriate to exercise the discretion to make a prohibition order in the circumstances of this case. We consider it appropriate that the order remain in place until time that she is re-registered as a nurse.

Order for costs

1. The Commission seeks an order that Ms Borthistle pay its costs in these proceedings. She opposes that application. She contends that, as she has been unemployed for an extended period, she has no ability to pay.
2. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].
3. The presumption that the successful party is entitled to receive their costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. There is no suggestion of any disentitling conduct by the Commission in these proceedings.
4. The only argument advanced by Ms Borthistle in opposition to the making of a costs order is financial incapacity. While it is regrettable that she may not be able to meet a costs order, there is a long line of authority that capacity to pay is not a relevant consideration in the exercise of the discretion to award costs: Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [41]: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].

Apportionment of the costs of the hearing

1. On the Commission's application the complaints relating to Ms Borthistle and Mr Burton were heard concurrently. Ms Borthistle opposed, and Mr Burton consented to, that application.
2. None of the parties addressed whether an order apportioning the costs of the hearing between Mr Burton and Ms Borthistle should be made. Cl 13(3A), Sch 5D to the National Law, states: (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
3. For the reasons discussed in HCCC v Burton, in fairness to Mr Burton, Ms Borthistle and the Commission we have decided the issue of the apportionment must be addressed. We will give the parties the opportunity to endeavour to reach agreement on the apportionment of the Commission's costs of the hearing between Mr Burton and Ms Borthistle. If agreement is not reached, we will proceed to determine what, if any, orders should be made under cl 13(3A), Sch 5D to the National Law.
4. Our preliminary view is that, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW), this issue can adequately be dealt with on the basis of written submissions without holding a hearing. The parties will be invited to comment on whether they share this view.
5. If consent orders about the apportionment issue are not filed within four weeks of the date of this decision, the following directions will come into effect: 1. Within six weeks of the date of this decision, the Commission must file and serve proposed orders under cl 13(3A), Sch 5D to the National Law and submissions in support. 2. Within eight weeks of the date of this decision, Ms Borthistle must file and serve orders proposed orders under cl 13(3A), Sch 5D to the National Law and submissions in support. 3. Both parties are invited to address in their respective submissions whether the issue of the apportionment of costs can be adequately determined on the basis of written submissions and without holding a further hearing.

Orders 1. If Ms Borthistle were still registered, the Tribunal would have cancelled her registration pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW). 2. Pursuant to s 149C(4) of the Health Practitioner Regulation National Law (NSW), the National Board is required to record the fact that the Tribunal would have cancelled Ms Borthistle's registration in the National Register kept by the Board. 3. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW), Ms Borthistle is prohibited from providing services as an assistant in nursing and mental health services, until time that she is re-registered as a nurse. 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: 12 April 2017