Health Care Complaints Commission v Burton - [2017] NSWCATOD 57 - NSWCATOD 2016 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Burton

[2017] NSWCATOD 57

NCAT Occupational|2016-11-25

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2016-11-25

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

Respondent (self-represented) File Number(s): 1620098

[2]

REASONS FOR DECISION

On 1 June 2014, Mark Burton worked the night shift (21:30 to 07:30) in the Adult Mental Health Unit (AMHU) in Lismore Base Hospital. Patient A, one of eight patients in his care, fell about 24 times during that shift, on most occasions hitting her head. All but two of these falls occurred while she was being held in a locked seclusion room. Patient A was declared dead on 3 June 2014.
Following an inquest, the presiding Coroner found that Patient A died of "traumatic and hypoxic brain injury caused by numerous falls and the self-beatings of her head …not done with the intention to taking her own life".
On the evening of 1 June 2014 Mr Burton had been rostered to work in the Hospital's High Dependency Unit (HDU) with Christine Borthistle. Ms Borthistle was the Shift Coordinator with over four decades of experience working in the field of mental health. Mr Burton had been registered as a nurse since 2011 and had limited experience in the field of mental health.
The Health Care Complaints Commission (the Commission) has referred to the New South Wales Civil and Administrative Tribunal (NCAT) a complaint about the treatment and care provided by Mr Burton to Patient A during the night shift which commenced on 1 June 2014 (the Complaint). For the reasons that follow, we find proven most of the conduct particularised in the Complaint. In addition, we find that the proven conduct amounts to "unsatisfactory professional conduct" and some of that conduct to be "professional misconduct" within the meaning of the National Law Health Practitioner Regulation National Law (NSW) (the National Law). We have decided that had Mr Burton been registered as a nurse (he failed to renew his registration in May 2016) we would have cancelled his registration.

[5]

Explanation given for placing Patient A in seclusion

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.
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.
The following is a summary of Ms Borthistle's explanation given to the investigators about her decision to place Patient A in seclusion.
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.
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).
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".
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.

[6]

The seclusion period

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.

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.
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.
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.
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.
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.
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.
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.
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.

[11]

The Hospital's CCTV system

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.
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).
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.
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.
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.

[12]

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

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.
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.
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

[14]

Findings and conclusions

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.
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.
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".
Particular 5 is established.

[15]

Is particular 6 established?

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.
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.
The Commission contends that, given the frequency of the falls, it is inherently implausible that Mr Burton witnessed none.
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.
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.
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.
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.
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.
Particular 6 is not established.

[17]

Is particular 10 established?

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.
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.
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.
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.
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.
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.
The relevant policies required that Patient A be clothed before being placed in seclusion. She was not. Particular 10 is established.

[19]

Does the conduct found proven constitute unsatisfactory professional conduct?

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.
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. …
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.
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.
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.
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.
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.

[21]

Policy framework

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".
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. ..).
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

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

[22]

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

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.
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".
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".
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.
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.
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.
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.
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.
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.
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.

[28]

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

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.
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.
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.
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.
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.
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.
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.

[30]

Consideration

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.
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.
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]).
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.
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.
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.
We order that, if Mr Burton were still registered, we would have cancelled his registration.

[32]

Apportionment of the costs of the hearing

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.
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.
Mr Burton was not represented in the final hearing and did not raise the issue of the apportionment of costs.
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.
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.
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.
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.

Health Care Complaints Commission v Burton

At a glance

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Decision date

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Judgment (33 paragraphs)

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Legislation Cited (1)

Cases Cited (17)

Cited By (6)