Health Care Complaints Commission v Burton

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 as "Patient A".

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, Ms Borthistle decided to place Patient A in one of the HDU's two seclusion rooms. This was the second time that day Patient A had been placed in seclusion and the fifth time since her admission to Lismore Hospital on 26 May 2014. 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 four by three metres in dimension. Once locked, it could not be unlocked from the inside. The room had no toilet, no running water and no furniture apart from a mattress placed on the floor.
4. The room could be observed through perspex windows (or hatches) in doors to the linen room and the seclusion room corridor. The hatch in the seclusion corridor could be opened, but not the hatch in the linen room.
5. On the evening of 1 June 2014, the seclusion room and its adjacent corridor were 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 was displayed 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.

Explanation given for placing Patient A in seclusion

1. The decision to place Patient A in seclusion was made by Ms Borthistle and, shortly before midnight, authorised by registrar, Dr Keith Abel. Mr Burton was not consulted about that decision. In a clinical note, 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.
2. A month after Patient A's death, investigators appointed by NSW Health interviewed Ms Borthistle and Mr Burton. The Commission tendered copies of the transcript of that interview in these proceedings.
3. The following is a summary of Ms Borthistle's explanation given to the investigators about her decision to place Patient A in seclusion.
4. On arriving on the ward sometime after 21:30, Ms Borthistle 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.
5. According to Ms Borthistle, she had never known a night like 1 June 2014; 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).
6. 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 told investigators that 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".
7. Ms Borthistle told Hospital investigators she would have preferred to have placed Patient A in the Art activity 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, during the night the Art activity room was the only suitable place, apart from the seclusion rooms, available to accommodate a patient who was disturbing other patients.

The seclusion period

1. The parties agree that during the seclusion period:

• 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 took "baseline observations" of Patient A: temperature, pulse, respirations, blood pressure and oxygen saturation levels.
• 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 staggering and dishevelled.

1. Tendered in these proceedings was a copy of a record completed by Ms Borthistle and Mr Burton, covering the seclusion period (seclusion observation record). It contains initialled entries said to have been made every 10 minutes by Ms Borthistle or Mr Burton. Each testified that the entries were based on their respective observations of the CCTV footage.
2. None of the entries mention Patient A falling or hitting her head. In contrast, a time line prepared by police based on the CCTV footage of that evening, prepared for the purpose of the coronial inquest (the Police time line), records while in seclusion Patient A fell to the floor about 20 times, on most occasions hitting her head.
3. Also tendered in these proceedings was a copy of the CCTV footage covering the seclusion and the post-seclusion periods. After review, we concluded that there were no material discrepancies between the tendered footage and the entries in the Police time line. In addition, we observed that on most occasions Patient A appeared not to break her fall.
4. 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 one in the seclusion corridor. Ms Borthistle gave as the reason for that instruction, the need to maintain a low stimulus environment and her concern that any stimulus, might "stir up" Patient A.
5. In a written statement dated 7 January 2015, Mr Burton claimed Ms Borthistle directed him not to approach Patient A to conduct the 10 minutes observations "usually performed when a patient is placed in seclusion". He claimed that when he questioned that direction and proposed that for the first hour he sit in the corridor outside the seclusion room, Ms Borthistle replied they had insufficient staff. On his account, she directed him to restrict his observations to the CCTV monitor: it was "simply not always possible to follow policy to the letter". Ms Borthistle does not dispute that account.
6. According to Mr Burton, twice while Ms Borthistle was on a break, in defiance of her instruction, he entered the seclusion corridor to attempt to observe Patient A through the hatch from the seclusion corridor. He claimed on each occasion as he approached the door, Patient A "arked up" as Ms Borthistle had predicted. He stated that from then on he followed Ms Borthistle's directive. After reviewing the CCTV footage, which revealed no movement in the corridor between 01:10 and 05:10, Mr Burton agreed that he probably did not get any further than the double doors in the seclusion corridor, which were some distance from the door containing the hatch to the seclusion room.
7. Mr Burton testified that he did not see Patient A fall during the seclusion period. Ms Borthistle told Hospital investigators that she saw on the video monitor that Patient A fell at around 03:00 but did not mention the incident to Mr Burton. Mr Burton claimed to have no knowledge of that fall.
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 before her final fall shortly before 07:00.

End of seclusion

1. Mr Burton left the HDU at about 03:50 to take a meal break. From that time until Patient A was taken to ICU at 07:20, Ms Borthistle had responsibility for the care of Patient A.
2. After seclusion ended at 05:10, Patient A had a further three falls. After the final fall at 06:50, she became unresponsive and cardiopulmonary resuscitation was commenced. Patient A was transferred to the ICU where she was diagnosed as having suffered an intracerebral bleed and subdural haemorrhage.

Issues to be determined

1. The key issues to be determined are: 1. Whether the conduct particularised in the Complaints is proven. 2. If so, whether any conduct found proven constitutes "unsatisfactory professional conduct". 3. If so, whether some or all of that conduct either individually or in aggregate, 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].

Is the conduct particularised in Complaint 1 established?

1. The Complaint is set out in Attachment A to these reasons. Mr Burton admits Complaint 1, except particulars 5, 6, 7 and 10.
2. There is ample evidence to support each of the admitted particulars. We find each proven.

Is particular 5 established?

1. Particular 5 reads: The practitioner breached the NSW Health Code of Conduct (March 2012, PD2012_018) (Code of Conduct) in that he inappropriately, inaccurately and unethically recorded observations at 00:00, 00:10, 00:20, 02:20, 02:30, 02:50, 03:00, 03:10, 03:20, 03:30, 03:40 and 03:50 hours on 2 June 2014 in circumstances where there was no CCTV footage available in the seclusion room or corridor for those times.
2. The seclusion observation record contains entries initialled by either Mr Burton or Ms Borthistle, said to have been at 10 minute intervals. All except for midnight and 00:50 and the periods 01:40 to 02:10 and 04:00 to 05:10 (inclusive), bore Mr Burton's initials. The remainder bore Ms Borthistle's initials.
3. Mr Burton claims that the entries he made were based on his observations of Patient A's behaviour and movements as displayed on the CCTV monitor. He rejects the allegation that he "inappropriately, inaccurately and unethically" recorded observations at the times alleged in Particular 5 "in circumstances where there was no CCTV footage available of the seclusion room". He concedes, however, that the recorded times did not necessarily correspond with when he observed Patient A. Rather, he claimed that they were based on observations he made within a "10 minute time band" of the times recorded.
4. To put the submissions made by the parties in context it is necessary to consider the evidence about how the CCTV monitor operated.

The Hospital's CCTV system

1. The Commission tendered in these proceedings statements dated 25 November 2014 and 3 January 2015, prepared by security officer, Stuart Rollans. In addition, Mr Rollans gave oral evidence. In June 2014 Mr Rollans was the acting senior security officer at the Hospital. His duties included managing the Hospital's CCTV system.
2. According to Mr Rollans, in June 2014 the seclusion room where Patient A was held and its adjacent corridor were covered by CCTV cameras which operated continuously, 24 hours a day. Footage recorded by those cameras was displayed on a screen in the nurses' station and, in addition, was recorded onto a hard disk. According to Mr Rollans, at the request of the Hospital he downloaded from the hard disk the footage of the seclusion room and seclusion corridor for the evening 1 June 2014 (the CCTV footage).
3. Mr Rollans explained that the cameras in the HDU are sensor activated and only record footage if there is movement in the area covered by the relevant camera. According to Mr Rollans, "sufficient movement" is needed to activate the sensor and, for example, gentle swaying would probably be insufficient to activate the sensor. In addition, he explained that there is a blind spot directly under the camera and any movement in that position will not activate the sensor.
4. He explained that if the movement is insufficient to activate the sensor, the contemporaneous footage displayed on the monitor in the nurses' station will appear as "frozen", that is, the last detected movement will appear as a still photograph; in contrast, the recorded footage will show the footage "jump" in time, for the corresponding period. He attributed the gaps in time in the recorded footage of 1 June 2014, to insufficient movement occurring during those time periods.
5. Mr Rollans stated that on 1 June 2014 the CCTV system covering the seclusion room and the seclusion corridor was not faulty and, to his knowledge, no reports of malfunction had been made. When questioned by Ms Borthistle, he conceded that he would not necessarily be aware if a report had been made directly to the external service provider who was responsible for maintaining the system.

Comparison of entries listed in police time with those made by Mr Burton

1. The Police time line was prepared by Detective Senior Constable (DSC) Rohan Light for the purpose of the inquest into Patient A's death. In a statement dated 19 February 2015, DSC Light explained that he completed the time line after viewing the CCTV footage and listed "relevant incidents", including all falls.
2. A review of the CCTV footage and the Police time line reveals that the latter does not contain a comprehensive list of Patient A's movements throughout the seclusion period. For example, the entry for 00:07:57 states "[Patient A] gets up walking around the room" and the next entry, at 00:23:13 states "falls back ward on mattress". However, the CCTV footage between for the period between those times, shows Patient A beating the walls and circling the room.
3. The table below contains the entries initialled by Mr Burton in the seclusion observation record and those contained in the Police time line for the corresponding period. As is apparent, there is a significant discrepancy between the two. Entries in police time line v seclusion record by Mr Burton Time Entry in police time line Entry made by Burton Period 1: 20:58 to 00:30 23:57:57 Gets up staggers against wall 00:00 Standing at door yelling 00:06:46 Lying on bed wrapped in sheet 00:07:57 Gets up, walking around room 00:10 Standing at door yelling 00:20 Standing at door yelling 00:23:13 Falls backwards on mattress . 00:24:11 Gets up 00:25:29 Picks up and moves mattress to against the rear wall 00:30 Moving around room yelling Period 2: 02:17 to 02:37 02:17:08 Falls backwards. Hits head? (12 [fall]) 02:17:38 Gets up 02:20 Sitting on floor mattress 02:21:14 Fails backwards. Hits head? (13) 02:21:31 Attempts to get up and fails backwards again. Hits head? Again attempts to get up and rolls backwards. (14) 02:23:36 Sitting on mattress 02:30 Moving around room yelling 02:37:40 Gets up 02:23:36 Sitting on mattress Period 3: 03:08 to 03:50 03:08:38 Half crouched over. Falls backwards. Hits head? (16) 03:10 Sitting on floor yelling 03:20 Standing in corner 03:30 Lying on floor 03:40 Lying on floor 03:50 . Sitting up yelling

Review of CCTV footage by Mr Harris

1. At the request of the Commission, Registered Nurse, Stephen Harris was asked to provide an opinion about Mr Burton's conduct. He prepared a series of reports, the final one dated 5 June 2015, and also gave oral evidence. At the request of the Commission, Mr Harris compared the CCTV footage with the entries in the seclusion observation record made by Mr Burton for three periods covered in the above table.
2. According to Mr Harris, the entries made by Mr Burton during these periods did not "accurately, comprehensively and appropriately" document Patient A's movement during these periods. He noted, for example, that at various times throughout these periods, Patient A can be seen moving in an unsteady manner, tripping, overbalancing and falling into walls and yet no mention is made of these movements in the seclusion observation record.
3. In a report dated 5 June 2015, he wrote that there was "no CCTV footage" for nine of the times for which Mr Burton made observation entries: 00:00, 00:10, 00:20, 02:20, 02:30, 02:50, 03:00, 03:10, 03:20, 03:30, 03:40 and 03:50.

Findings and conclusions

1. The weight of evidence establishes that on 1 June 2014 the footage displayed on the monitor in the nurses' station corresponds to the recording downloaded from the hard drive which was tendered in these proceedings. Having carefully reviewed the latter, we think it likely that at least some of the entries made by Mr Burton corresponded to his observations of Patient A made within 10 minutes of the stated time of the entries. For example, the entries for 00:00 and 01:10 - each read "standing at door yelling". In the period between those times, Patient A can be seen standing at or near the doors to the seclusion corridor and the linen room. Coupled with the sound emanating from the seclusion room (the CCTV system did not record sound but it seems likely that sound from the seclusion room could be heard from the nurses' station), it may be that the entry "standing at door yelling" was an accurate record of Mr Burton's observation, at some point within 10 minutes either side of 00:00 and 01:10. Nonetheless, the entries for 00:00 and 01:10 of "standing at door yelling" were inaccurate in so far as there was no CCTV footage for those times.
2. Particular 5 alleges that 12 of the entries made by Mr Burton purported to record observations for times when there was no CCTV footage of the seclusion room. On the basis of Mr Rollan's evidence, we are satisfied that there was no CCTV footage displayed on the monitors in the nurses' station for those periods where there is a gap in the recorded footage. In addition, on the basis of our review of the CCTV footage together with the evidence given by Mr Harris, we are satisfied that the times for the 12 listed entries in Particular 5 fell within periods where there was a gap in the CCTV footage. It follows that at those times, the CCTV monitor would not have displayed footage of the seclusion room and the recorded observations were inaccurate.
3. To deliberately make records that created the false impression that a patient who had not, in fact, been observed in any meaningful way was kept under regular observation was to mislead anyone with clinical responsibility for her as to her state of health and therefore to endanger her safety. Observations are slices in time that enable clinicians to assess a patient's progress and, in particular, to take action if they are deteriorating as Patient A was or was likely to have been. Fudging observations in this way was to place the patient at risk. We are satisfied that, therefore, that in making inaccurate entries, Mr Burton acted "inappropriately and unethically".
4. Particular 5 is established.

Is particular 6 established?

1. Particular 6 reads: The practitioner failed to observe and document Patient A's behaviour and movements during the seclusion period including failing to document that Patient A fell a number of times and hit her head with force on those occasions.
2. Ten of the 22 falls that occurred during the seclusion period occurred while Mr Burton was responsible for observing Patient A on the CCTV monitor. Mr Burton has consistently denied witnessing Patient A fall. He submitted that, as the falls took place "in the blink of an eyelid", continuous observation would be required to ensure all falls were observed. He points out that, in addition to his other duties, he was required to continuously monitor the CCTV footage of the patient in the Art activity room and, therefore, it was simply impossible to keep an eye on Patient A at all times.
3. The Commission contends that, given the frequency of the falls, it is inherently implausible that Mr Burton witnessed none.
4. As formulated, Particular 6 requires us to find that Mr Burton failed: (i) to observe and document Patient A's behaviour and movements during the seclusion period, and (ii) to document that Patient A fell a number of times and hit her head with force on those occasions.
5. The second element of Particular 6 - that Mr Burton failed to document Patient A fall a number of times [during the seclusion period] and hit her head with force on those occasions - rests on the assumption that Mr Burton observed some of those falls.
6. Mr Burton has admitted most of the allegations made by the Commission and made appropriate concessions throughout the course of the investigation into the Complaint and in these proceedings. However, from Day 1 he has steadfastly denied observing Patient A fall. That denial must be assessed in light of the fact that Mr Burton is not an independent witness and has an interest in denying what is undoubtedly the most serious allegation levelled against him, namely failing to act after witnessing Patient A's fall.
7. In our view, the question of whether it has been established to the requisite standard that Mr Burton saw Patient A fall, ultimately turns on the plausibility of his claim that he did not witness any of the 10 falls during the 130 minutes that he was responsible for monitoring Patient A. While the CCTV image of Patient A falling is dramatic and could not easily be missed, nonetheless, as Mr Burton points out, each fall lasted for a matter of seconds and, in aggregate, the time of the falls represents a small fraction of the seclusion period.
8. In our view, given that Mr Burton only had to look at two monitors, and was not required to keep the second patient under surveillance at every moment to the exclusion of observations of Patient A, it would be surprising if he had not seen Patient A fall at least once. But the very fact that he did nothing to assist her as she fell continually may suggest that, in fact, he did not see the falls (or any of them) occur. If he did not, which seems at least possible, the unanswered question is why not? Nevertheless, on the available evidence we cannot be positively satisfied that Mr Burton saw Patient A fall while she was in seclusion.
9. Particular 6 is not established.

Is particular 7 established?

1. Particular 7 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 NSW Health Policy.
2. Mr Burton does not dispute that a Medical Officer was required to conduct a physical and psychiatric review of Patient A at 03:50. However, he disputes that he was responsible for arranging that review. He contends responsibility lay with Ms Borthistle.
3. Mr Harris stated that by failing to arrange for the 3:50 am review, Mr Burton contravened the relevant policies. He did not address the basis for his (apparent) opinion that Mr Burton was responsible for arranging that review.
4. Ms Borthistle arranged the first medical review at 01:10. Mr Burton left the ward at 03:50 to take a meal break. There is no evidence that Ms Borthistle directed Mr Burton to arrange the 03:50 review, or that it was one of Mr Burton's responsibilities. The Commission has failed to establish the premise underlying Particular 7, that Mr Burton was responsible for arranging the 03:50 review.

Is particular 10 established?

1. Particular 10 reads: 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 he did not ensure Patient A was clothed when entering the seclusion room.
2. 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.
3. Mr Burton escorted Patient A to the seclusion room. She entered the room naked and remained so throughout the seclusion period. It appears from the CCTV footage that after Patient A entered the room a nightdress was thrown in after her.
4. Mr Burton claimed that at some point before Patient A entered seclusion, he managed to get a blanket around her which she discarded "pretty quickly". The Reply filed on his behalf stated that his repeated attempts to keep Patient A clothed before entering seclusion were unsuccessful. Mr Burton gave no evidence about when those attempts were made. Nor is there any evidence about whether he discussed with Ms Borthistle if there was any utility in attempting to ensure Patient A was clothed before she was placed in seclusion.
5. Ms Borthistle claimed that it was not uncommon for Patient A to be naked while on the ward and that she often tore off her clothes and resisted staff attempts to encourage her to remain dressed. That claim is uncontradicted.
6. We accept that at some point before she entered seclusion, Mr Burton attempted to ensure that Patient A was at least covered by a blanket. However, the available evidence does not support a finding that any other attempts were made. Had attempts been made, it is possible, as Mr Burton hypothesised, that ultimately they would have been unsuccessful. However, it is not possible to say how Patient A would have responded.
7. The relevant policies required that Patient A be clothed before being placed in seclusion. She was not. Particular 10 is established.

Summary

1. Particulars 6 and 7 of Complaint 1 are not established. The balance of the particulars of Complaint 1 is established.

Does the conduct found proven constitute unsatisfactory professional conduct?

1. The Commission contends that the conduct described in each particular of Complaint 1 amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law.
2. Section 139B(1)(a) of the National Law states: (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. …
3. In evaluating whether any proven conduct constitutes unsatisfactory professional 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 Mr Burton (the relevant standard), and (ii) evaluate whether the conduct found proven demonstrates that the knowledge, skill or judgment possessed, or care exercised, by Mr Burton in the practice of his profession, fell "significantly below" the relevant standard.
4. Mr Burton was registered as a nurse in October 2011 after completing a Bachelor of Nursing Studies at Southern Cross University. In February 2014, he completed a 12-month transition to a mental health certificate, which included four months' work in the AMHU (but not the HDU). In May 2014 he commenced work on a casual basis in the AMHU. By 1 June 2014 he had worked a handful of shifts.
5. In support of its contention that the judgment possessed, and/or care exercised, by Mr Burton fell short of the relevant standard, the Commission relies upon the opinion expressed by Mr Harris.
6. Mr Harris first registered as a nurse in 1979 and holds post-graduate qualifications in nursing. He has significant experience working as a registered nurse in adult mental health in both hospital and community settings. He was asked by the Commission to comment on Mr Burton's conduct on the evening of 1 June 2014. In his opinion, the conduct described in Complaint 1 fell "significantly below" the relevant standard.
7. While not represented at the hearing, Mr Burton relied on written submissions prepared by his former legal representatives, dated 14 November 2016. It is unclear from those submissions and his oral submissions, whether Mr Burton concedes that the particulars which he admitted constitute unsatisfactory professional conduct. In these circumstances, we proceed on the basis that no concession was made.

Particulars 1 and 2

1. Particulars 1 and 2 deal with Mr Burton's failure to carry out observations as required by various policies. Particular 1 deals with the failure to carry out one-on-one observations throughout the first hour of seclusion. Particular 2 deals with the remainder of the seclusion period, specifically Mr Burton's "failure to: 1. attend to and record 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 given that Patient A was considered a patient of additional risk; 2. verbally communicate with Patient A when she was awake to assess her ongoing mental state and prevent the feeling of isolation; 3. maintain adequate visual observations on Patient A as he only observed her by way of CCTV."

Policy framework

1. NSW Health and the Northern NSW Local Health District have issued detailed policies about 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 policies".
2. With respect to the requirement to observe a patient in seclusion, 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. ..).
3. 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].
2. In addition, the NSW Health Policy stipulates that where a patient is 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. The NSW Health Policy goes on to state 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.

Does the conduct described in Particulars 1 and/or 2 constitute unsatisfactory professional conduct?

1. As discussed above, Ms Borthistle directed Mr Burton not to enter the seclusion room, to maintain a "low stimulus environment" and to restrict his observations of Patient A to the CCTV monitor. He challenged but ultimately complied with her instruction.
2. When interviewed by Hospital investigators on 3 July 2014, Mr Burton stated that, at the start of the shift, Ms Borthistle made the chain of command that was to operate that evening abundantly clear: "[s]enior staff don't take kindly to junior staff thinking they know a thing or two".
3. Statements given to the Hospital's investigators indicate that some members of staff perceived Ms Borthistle as a forceful personality, and "very set in her ways". One colleague described her as a "bully".
4. Mr Burton was placed in a difficult position on the evening of 1 June 2014. He was new to the HDU and had relatively little experience in nursing and the field of mental health. There is no evidence to suggest that he had been informed that, if he disagreed with a direction given by Ms Borthistle, that he could seek guidance from the nurse in charge, Nora Wolters, or any other member of staff.
5. In these circumstances, the question arises whether, in complying with Ms Borthistle's directions, the conduct described in Particulars 1 and 2 demonstrates skill or judgment possessed, or care exercised, that fell significantly below the relevant standard. As noted above determining whether the impugned conduct constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law requires an objective evaluation of that impugned conduct and the extent, if at all, it fell below the relevant standard. Generally, subjective factors that bear upon the reasons for the impugned conduct will not be relevant to an assessment of whether it fell "significantly below" the relevant standard which is an objective one.
6. Given the risk posed to patients of being placed in seclusion, and the particular risk posed during the first hour where the patient's reaction to their new environment is unknown, the policy rationale for the observation requirement is self-evident. Mr Burton does not challenge the proposition that it would be reasonably expected of a nurse of his training and relative inexperience that they would know of, and comply with, the observations requirement.
7. With respect to Particular 2(a), where a patient has been sedated, the NSW Health Policy required that oxygen saturation, blood pressure and pulse must be recorded a minimum of every ten minutes for the first half hour and half-hourly thereafter: at [4.10]. In oral evidence, Mr Harris retreated from the opinion expressed in his written report that a nurse of Mr Burton's experience ought to have been aware that as a result of being given the anti-psychotic Haloperidol together with the sedative Chloral hydrate shortly before being placed in seclusion, Patient A was "a patient of additional risk" for the purpose of the NSW Health Policy.
8. As stated by Mr Harris, pharmacology is a component of the Australian undergraduate degree in nursing. In our view, only an elementary understanding of pharmacology, less than which is imparted in nursing training, is required to appreciate that Chloral hydrate taken together with Haloperidol, would generally have a sedative effect and therefore increase the user's risk of falling. It follows that the standard reasonably expected of a nurse of Mr Burton's training and experience would be that the nurse should be aware that Patient A was "a patient of additional risk" and needed to undertake the baseline observations listed in Particular 2(a). Mr Burton's failure to undertake those observations, in our opinion, demonstrates the exercise of care that fell significantly below the relevant standard.
9. Mr Burton does not challenge the proposition that a nurse with his equivalent experience ought to have been aware of the requirement to verbally communicate and to maintain adequate visual observations of a patient in seclusion and that not to do so demonstrated the exercise of care that fell significantly short of the relevant standard.
10. We find that the conduct described in Particulars 1 and 2 constitutes unsatisfactory unprofessional conduct within the meaning of s 139B(1)(a) of the National Law.

Particulars 3, 4 and 5

1. Each of these Particulars deals with Mr Burton's failure to accurately record observations of Patient A throughout the period of seclusion. Particular 3 deals with his failure to record that the observations were made by viewing CCTV footage; Particular 4 deals with his failure to provide a contemporaneous and accurate record of the observations recorded; and Particular 5 with the inaccuracies of 12 entries made in the seclusion observation record.
2. The entries recorded by Ms Borthistle in the seclusion observations record suffer from the same defects as those alleged against Mr Burton. However, there is no suggestion that Ms Borthistle directed Mr Burton not to keep accurate and contemporaneous records.
3. Maintaining accurate records of observations made of a patient in seclusion is critical to ensuring their health and safety and identifying and responding to risk. The standard reasonably expected of a nurse of Mr Burton's training and experience is to make an accurate record of observations made. Particulars 3, 4 and 5 demonstrated the exercise of care that fell significantly short of the relevant standard.

Particulars 8 and 9

1. Particulars 8 and 9 deal with Mr Burton's failure to offer Patient A water and the opportunity to use the bathroom throughout the seclusion period. In addition, Particulars 8 and 9 deal with Mr Burton's failure to document the deviation from the relevant policies. Those policies are directed towards protection of a patient's health, comfort, safety and dignity.
2. While the failure to ensure Patient A was offered water and the opportunity to use the bathroom throughout the seclusion period was done in compliance with Ms Borthistle's "low stimulus" directive, nonetheless those failures, together with the failure to document those transgressions, constitute conduct that fell significantly below the relevant standard. It failed to protect Patient A's health, comfort, safety or dignity. Particulars 8 and 9 are established.

Particular 10

1. Particular 10 deals with the failure to ensure Patient A was clothed when she entered seclusion.
2. The failure to ensure Patient A was clothed before entering seclusion, while a transgression from policy, in our opinion was at the low end of the scale, primarily because of Patient A's history of resisting staff attempts to ensure that she was clothed. While this did not relieve Mr Burton from the obligation to at least encourage Patient A to be clothed before she entered seclusion, his failure to ensure she was clothed, in circumstances where he was given no guidance as to how this might be achieved while in an elevated mood, while falling below the relevant standard, in our opinion, did not fall significantly below it.
3. Particular 10 is not established.

Summary

1. The conduct described in each Particular found proven, except Particular 10, constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. Given this finding, it is not necessary to consider the Commission's submission that the conduct also constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(l).

Does the conduct found to amount to unsatisfactory professional conduct, individually, or in combination, constitute "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 described in Particulars 2, 4, 5, 7, 9 and 10 amounts to professional misconduct within the meaning of s 139E(a) of the National Law. In addition, the Commission contends that any combination of any Particular found to constitute unsatisfactory professional conduct, amounts to professional misconduct within the meaning of s 139E(b).

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

1. In evaluating whether the conduct 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 evaluation 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 judgment: 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. In assessing the objective seriousness of the conduct, it is relevant to have regard to the fact that, in respect of some of the conduct found by us to constitute unsatisfactory professional conduct, namely the conduct described in particulars 1, 2, 8 and 9, Mr Burton was acting in accordance with the express direction given by Ms Borthistle, namely to maintain a low stimulus environment, not to enter or to approach the seclusion room and to restrict his observations to the CCTV monitor.
3. We consider the following factors relevant to the assessment of the seriousness of this conduct. First, Mr Burton challenged Ms Borthistle's direction. With respect to the direction that he not enter the seclusion room during the first hour, his alternative proposal, that he sit outside the room, was rejected by Ms Borthistle. Second, Mr Burton had not been briefed about the role of the nurse-in-charge. Notably, there is no evidence of Mr Burton being given guidance about the options available if he had concerns about directions given by Ms Borthistle, or indeed whether the AMHU had a protocol to deal with such situations. Third, as noted by Registered Nurse Christine Muller, who gave expert evidence in the coronial inquest into Patient A's death, given his lack of clinical experience and the "cultural issues in the workplace", it was not unreasonable for Mr Burton, who she described as "a novice", not to challenge Ms Borthistle's directives or to "go over her head". In any event, as noted above, he did challenge some of her directions.
4. Given these circumstances, we are not satisfied that the conduct described in Particulars 1, 2, 8 and 9 individually, or in combination, is sufficiently serious to justify the sanction of suspension or cancellation.
5. With respect to Particulars 3, 4 and 5 which deal with Mr Burton's failure to make accurate records, as we noted above, there is no evidence to suggest that Ms Borthistle directed Mr Burton not to make accurate records of the observations he made. Nor is it suggested that he was not aware of the requirement or its critical role to good patient care. Indeed, this is first principles nursing practice.
6. The rationale for the requirement to keep accurate records for patients held in seclusion is self-evident. It promotes accountability and transparency in the provision of care to especially vulnerable patients. It ensures that deviations from the prescribed standards are able to be monitored and, if necessary, allows remedial action to be taken. In addition, it facilitates understanding and assessment of patient progress, particularly if they are deteriorating, as well as planning and continuity of care.
7. Mr Burton did not give a satisfactory explanation for his failure to comply with the requirements to make accurate records. At best, it was carelessness as a result of the pressures of the evening; at worst, it was a deliberate attempt to give the appearance of compliance with the observation requirements. Assessed together, the conduct described in Particulars 3, 4 and 5 in our opinion is sufficiently serious to justify the suspension or cancellation of Mr Burton'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(4).
2. In exercising our functions under the National Law, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
3. The Commission urges the Tribunal to make an order under the National Law that if Mr Burton were still registered it would have cancelled his registration. In addition, the Commission seeks an order that Mr Burton be disqualified from being registered for a period of 12 months.
4. Mr Burton, on the other hand, submits that a reprimand is the more appropriate order. In addition, he proposes that, if the Tribunal considered necessary, a condition be imposed on his registration requiring that (i) he undertake further education in nursing documentation, and (ii) establish a mentoring relationship with a senior nurse practitioner.
5. Mr Burton has not worked as a nurse since 1 June 2014. He contends that the practical effect of the conditions imposed on his registration on 24 November 2014 by the Nursing and Midwifery Council, which includes a supervision requirement, is to make him unemployable. He submits that he has effectively served a three-year suspension of his registration.

Consideration

1. It does not follow that because a finding is made that the proven conduct is sufficiently serious to justify the suspension or cancellation of Mr Burton's registration, an order under s 149C(4) must be made: Health Care Complaints Commission v Dr Jamieson [2014] NSWCATOD 56 at [100]. An order of this type 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, among other things, consideration to be given to the probability of the recurrence of the conduct found proven and of 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": 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. The Commission submits that, in the circumstances, a reprimand is inappropriate and fails to signal to the profession the degree to which Mr Burton's conduct departed from prescribed standards. The Commission submits that there is a public interest in disciplinary bodies, such as NCAT, making clear to the profession that departing from those standards is unacceptable. Further, the Commission contends that it is important that the Tribunal signal to the profession the unacceptability of departing from standards designed to protect especially vulnerable patients such as Patient A, who are unable to advocate on their own behalf.
5. We agree with the Commission that, in the circumstances, a reprimand, even with the imposition of conditions on Mr Burton's registration, is not an appropriate order because, among other things, it fails to signal to the profession the serious nature of the conduct found to constitute professional misconduct. We have decided the more appropriate order in the circumstances is to order that Mr Burton's registration would have been cancelled had he still been registered.
6. However, we have decided not to order that Mr Burton be disqualified from applying to be registered for a period of 12 months, as urged by the Commission. Central to that decision is our finding that Mr Burton is genuinely remorseful for his conduct, has demonstrated insight and accepted responsibility for his role in the mistreatment of Patient A on the evening of 1 June 2014.
7. We order that, if Mr Burton were still registered, we would have cancelled his registration.

Costs

1. The Commission seeks an order that Mr Burton pay its costs in these proceedings. He submits that he is not in a financial position to meet a costs order.
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 (Philipiah) 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. While it is regrettable that he 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]: Philipiah at [42]. It is appropriate that a costs order be made in this case.

Apportionment of the costs of the hearing

1. On the Commission's application, the Tribunal decided to hear concurrently the separate complaints relating to Mr Burton and Ms Borthistle. Mr Burton consented to and Ms Borthistle opposed that application.
2. At a directions hearing on 2 November 2016, the solicitor then acting for Mr Burton requested that if the complaints were heard concurrently, she wished to be heard on the issue of the apportionment of costs. The solicitor asserted that it was likely that the length of the hearing would be extended if the complaints were heard together.
3. Mr Burton was not represented in the final hearing and did not raise the issue of the apportionment of costs.
4. 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.
5. We propose that the parties confer and endeavour to reach agreement on the issue of 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.
6. 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.
7. If consent orders about the apportionment of the Commission's costs of the hearing 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, Mr Burton 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.

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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