Health Care Complaints Commission v Coles [2025] NSWNMPSC 1

Unsatisfactory professional conduct is defined in section 139B of the Health Practitioner Regulation National Law (NSW) (the National Law), the full text of which and other relevant provisions are set out at Attachment 1.

The Committee accepted the Commission's following submissions:

In determining an application under the National Law, the paramount consideration must be the protection of the health and safety of the public.[1]

The Commission bears the onus of proving the factual content of its allegations on the balance of probabilities. In determining whether that burden has been met, the Committee should have regard to all of the relevant evidence before it.[2] Whilst the Briginshaw[3] standard does not strictly apply, it remains instructive in that the Committee should have proper regard to the nature and seriousness of an allegation when determining whether it is "comfortably satisfied" that each particular has been proved.[4]

The term "unsatisfactory professional conduct" is defined in section 139B of the National Law. The seriousness of any instance of unsatisfactory professional conduct is to be measured not by comparing the gravity of the relevant malfeasance against the worst cases, but rather by reference to the extent to which the conduct departs from the proper standards.[5]

The following issues are to be determined by the Committee:

• Which, if any, of the particulars of the complaint are proven?
• Does the proven conduct amount to unsatisfactory professional conduct?
• If so, are orders or directions pursuant to the National Law appropriate?

In reaching its decision, the Committee had regard to the oral evidence given by Mrs Coles, the Respondent, at the hearing and to the material submitted by the parties listed at Attachment 2.

On 8 May 2023, the Nursing and Midwife Council (NMC) held proceedings under section 150 of the National Law. As a result, the condition that Mrs Coles not work as a registered nurse until reviewed by the NMC was imposed on her registration.

The complaint and particulars, or details, of the complaint are set out in full at Attachment 3. In short, particulars 1 - 5 and 7 - 8 of the complaint allege that Mrs Coles on each occasion transcribed and carried forward an incorrect (and reduced) balance of morphine in on the new page of the drug register on 7 occasions, in circumstances where the ampules were unaccounted for. Mrs Coles admitted the facts alleged in these particulars of the complaint: Reply to Complaint.

At the hearing, Mrs Coles attributed the transcribing errors to 'her own personal issues'. She explained to the Committee the circumstances of her mother's death in February 2023, in relation to which she stated she was denied leave by her employer. Mrs Coles described these events as 'very traumatic' for reasons which she explained to the Committee.

The Committee noted that the circumstances underpinning particular 1 occurred before her mother's death. Mrs Coles could not explain the error, particularly given the passage of time.

On 10 April 2023, the practitioner at WCG recorded a balance of 24 tablets in the Targin 5/2.5 mg Register in circumstances where there was in fact a balance of 23 tablets.

In her reply to the complaint, Mrs Coles denied particular 6 as follows:

RN Coles has recorded 24 tablets which was the balance at that time. A tablet has then been signed out by another RN ... without a witness. There is an asterix recording this entry as an error, but it is unclear what the error was, and the first handwritten word related to this error in the footnotes is illegible...

The Committee reviewed the relevant material, including the drug register, with Mrs Coles, who admitted that initially she had incorrectly transcribed the balance from the top of the previous page, rather than the bottom page but the error was subsequently checked and corrected, as noted in the drug register: p 125 of the Commission's bundle of material. As far as she is concerned, the drug register was correct when she checked the administration of Targin. Mrs Coles said she was not on shift when the error was made at 18.29 and then 'checked and correct[ed]' at 1900, as she was working the day shift. She had not previously seen the incident form until the day of the present hearing. She was stood down on the day in question and the issue was not drawn to her attention. Mrs Coles denied responsibility for the error, if any, made.

By her conduct in particulars 1 to 8, the practitioner breached:

1. Cranbrook Care's Medication Management Policy; and
2. Nursing and Midwifery Board's Code of Conduct.

The Commission submitted at [26] of its written submissions dated 20 August 2025 that "[a]mong the obligations set out in that code is a requirement that a nurse must: Comply with relevant poisons legislation, authorisation, local policy and own scope of practice, including to safely use, administer, obtain, possess, prescribe, sell, supply and store medications and other therapeutic products...Further, as an employee at WCG she was required to comply with their internal policies, including the medication management policy, which included clear directions to maintain the drug register in a manner consistent with the PTGR and provided a procedure for reporting any identified discrepancies in the register.

At the hearing, the Commission submitted that the Cranbrook Care Medication Management Policy presently before the Committee was published on 2 March 2023 and thus came into effect after the circumstances underpinning particulars 1 and 2. The Commission noted that they had not been able to obtain a copy of the preceding policy. Nevertheless, the Commission submitted that the NMB's Code of Conduct dated 1 March 2018 was in force throughout the relevant period of time relating to the complaint and that Mrs Coles was in breach of that Code of Conduct.

The Committee had regard to the Commission's written submissions:

10. Medications listed on Schedule 8 of the Poisons Standard (Cth) are known as 'controlled drugs' or 'Schedule 8 drugs' and are subject to strict regulation to manage the risks of abuse, misuse and physical or psychological dependence.[6]

11. Morphine 10mg/1mL is an opioid based analgesic solution. It is packaged in 1ml ampoules, for delivery by injection.

12. Targin 5/2.5mg is a brand name for an opioid based analgesic combining 5mg of oxycodone hydrochloride and 2.5mg of naloxone hydrochloride in a modified release tablet.

13. Both Morphine and Oxycodone are controlled drugs.[7]

14. In NSW the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR) establishes the requirements for the management of controlled drugs, referred to in that instrument as 'drugs of addiction'.

15. Under the PTGR, residential care facilities such as nursing homes are required to keep a register of any drugs of addiction that are kept in that facility.[8] Relevantly, any time a person administers a drug of addiction, an entry must be made the register. Each entry must include, inter alia, the quantity of the administered, and the quantity of the drug remaining after administration, i.e. the balance.[9] Entries in the register must be signed by the practitioner who administered the medication, and countersigned by a person who either supervised, directed or witnessed the administration.[10]

16. In addition to maintaining digital records on the electronic management system BESTMED, WCG kept analogue ward register books, consistent with the requirements of the PTGR.[11] Once a page of the book was filled, practitioners were required to record the balance of the relevant drug, and then carry that balance over to a new page. When a book was filled, the balance would be carried over to a new book.

17. The Cranbrook Care Medication Management Policy (the medication management policy)[12] outlined the manner in which medication was to be stored, accessed and administered at WCG, and included specific provisions relating to the management of controlled drugs.[13]

18. The Policy included detailed directions as to the management of controlled drugs, including outlining all the steps required to comply with relevant legislative requirements, including obligations under the PTGR...

In her evidence at the hearing, Mrs Coles admitted that she had 'cut corners' in the past, as a result of a high-pressure and stressful environment, which included a lack of staffing. Mrs Coles described the process for administering S8 drugs at WCG, which, in brief, was as follow:

• Each resident prescribed S8 drugs had their own page on the register;
• Of 20 residents, some 5 - 6 were prescribed S8 drugs;
• The facility used written (a book) and electronic (iPad) records;
• The facility's iPad indicated the patient, route, medication, the dose and the time for the S8 administration ('the 5 rights'), which are then checked for administration;
• She and the "checker" (in other words, the person witnessing, supervising or directing the person administering or supplying person) went to the S8 cupboard, which was not kept in an orderly fashion, in order to identify the named box;
• The use-by-date of the drug was checked and the dose drawn and checked;
• As most of the patients receiving S8 drugs were non-verbal, they had to verify that it was the correct patient, which was easy given that they knew the patients well;
• Any excess medication was disposed of in the sharps bin before the administration of the drug was documented; This was done Mrs Coles said, by her tapping the ampule on the side of the sharps bin to empty the ampule; The S8 register required, amongst other things, the noting of the dose administered, discarded dose, the name and signature of the person administering or supplying, and once administered, the name and signature of the other person checking its administration. Once the pin was entered into the iPad, the person's name came up for signature in a little box.

Mrs Coles acknowledged that she was 'not 100% accurate', admitting that she and the checker needed to supervise each other's actions more closely. Generally-speaking, while vials in unopened boxes were not counted in accordance with policy, she would be more mindful to have a closer look to see if the box had already been opened.

In light of the material before the Committee, including Mrs Coles's admissions, the Committee is comfortably satisfied that particulars 1 - 5 and 7 - 8 of the complaint are proven. With respect to particular 6, the Committee is not satisfied that an error, if any, was made, which is attributable to Mrs Coles. The Committee is also comfortably satisfied that particular 9 is proven, as it finds that Mrs Coles failed "to take due care and make correct entries in drug registers", thereby breaching the NMB's Code of Conduct and Cranbrook Care's Medication Management Policy, as it relates to particulars 3 - 5 and 7 - 8.

Having made our findings as to the allegations, we will consider the following issues:

Does the proven conduct amount to unsatisfactory professional conduct?

The Commission alleges that Mrs Coles is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Improper and unethical are not defined in the National Law. The Macquarie Dictionary (Pan MacMillan Australia 2025) defines improper as follows:

1. not proper; not strictly belonging, applicable, or right: an improper use for a thing.

2. not in accordance with propriety of behaviour, manners, etc.: improper conduct.

3. unsuitable or inappropriate, as for the purpose or occasion: improper tools.

2. in contravention of some code of professional conduct.

As noted in HCCC v Aref [2018] NSWCATOD 133 at [20]:

'Improper' conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: HCCC v Phung (No 1) [2012] 1 NSWDT 3 at [68]; HCCC v Fisher [2016] NSWCATOD 62 at [57]; HCCC v Flekser [2016] NSWCATOD 1 at [119]. Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87].

The Commission made written submissions that "these breaches constitute improper or unethical conduct, in that the practitioner's conduct was not in conformity with the expected professional standard, regardless of the practitioner's intention or state of mind.[14] Furthermore, the lack of care exercised in undertaking a task which is significant not only to the health and safety of patients, but also the broader community, falls below the ethical standards expected of a registered practitioner". Ms Haider submitted improper referred to falling short of expected standards, in relation to which Mrs Coles had been "upfront". However, she submitted that Mrs Coles' conduct was not unethical as it was unintentional and arose out of poor practice and lack of self-care. The Committee is comfortably satisfied that Mrs Coles' conduct is guilty of unsatisfactory professional conduct in that she engaged in improper conduct relating to the practice of nursing.

Are orders or directions pursuant to the National Law appropriate?

The Commission made the following submissions, which the Committee accepted:

30. In determining an application for protective orders in disciplinary proceedings,

the Committee must "exercise its functions having regard to the objectives and guiding principles"[15] of the National Law, paramount among them being the protection of the health and safety of the public.[16]

31. There are, broadly speaking, five matters which will be of general relevance:[17]

a. The need to protect the public, and in particular future patients of the

practitioner, against further misconduct by the practitioner;

b. The need to protect the public through general deterrence (of other

c. The need to protect the public by reinforcing high professional

d. The maintenance of public confidence in the profession which is

achieved by setting and maintaining the standards; and

e. The desirability of making available to the public any special skills

32. Ultimately, any protective orders imposed should not result in "more serious

consequences for the practitioner than is reasonably necessary in execution

of the protective purpose of the legislation".[18]

Section 146B of the National Law (NSW) provides as follows:

146B General powers to caution, reprimand, counsel etc [NSW]

_(1) A Committee may do one or more of the following in relation to a relevant health practitioner the subject of a complaint referred to it - _

(b) impose the conditions it considers appropriate on the practitioner's registration;

(c) order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);

(d) order that the practitioner complete an educational course specified by the Committee;

(e) order that the practitioner report on the practitioner's practice at the times, in the way and to the persons specified by the Committee;

(f) order that the practitioner seek and take advice, in relation to the management of the practitioner's practice, from the persons specified by the Committee.

In her evidence, Mrs Coles explained that she has 'worked her way up from the kitchen' to become a registered nurse in the aged care facility. As a result of the condition on her registration, she is currently working as a factory worker at the Woolworths' Distribution Centre. In relation to her plans on re-entering the profession, she intends to return to work initially part-time in order to regain her confidence. She would like to return to aged care or alternatively, she may work in wound care in a doctor's surgery.

Mrs Coles has completed further professional development, evidence of which was before the Committee, to better understand the processes governing the administration of medications and the importance of these processes. She recognises that S4D and S8 drugs are highly addictive, needing strict regulation for staff and resident safety. She now understands that she must only do 'one thing at a time', to carefully check and to articulate the administration of medications, for example, by calling out the dose. She now also knows that it is important to do 'everything by the book' and that 'falling into bad habits' is unhelpful. When asked about what habits she sought to remediate, she stated that she would focus on giving the administration of drugs her full attention, including leaving the telephone on the desk or giving it to someone else to answer. She would also ensure that the care staff, who were checking the administration of drugs, were fully focused on the task at hand. She assured the Committee that she would not allow outside influences to distract her professionally. Mrs Coles understands that she needs to lead by example when administering drugs, which includes following relevant policies and procedures. When asked about a culture of safety, Mrs Coles noted that she was friendly, actively introducing herself and assisting other members of staff. She believes she is amenable to being challenged by other staff members.

Mrs Coles is looking forward to re-entering the profession and doing a 'good job', including managing boundaries. She noted that the residents were periodically in lockdown on account of infectious diseases. Because she lived 'two minutes away by foot', she would be called in regularly to administer S8 medications without pay. Mrs Coles attributed her errors to exhaustion and vowed to never live so close to work again. If there was an issue with managing workload, she would henceforth escalate the issue.

Mrs Coles noted that she 'needed to do better'. She has worked hard to become a registered nurse and realises that many factors impacted on her practice, including emotional burdens and lack of staffing in her employment. Now she would stand up to management and seek advice and guidance from the nursing union of which she is a member.

Mrs Coles acknowledged that she had not been in a 'good state' to work because of her personal circumstances. She is working closely with her long-standing GP, to manage her mental health and her husband and sister provide 'excellent support'. She has undertaken a variety of steps to improve her mental health including continuing to lose weight, improving her work/life balance, undertaking more hobbies such as cross stitching and spending more time with her husband and her family, including trips away. Her youngest of four sons has recently turned 18 years of age. She acknowledges that she should have taken leave when she was not in the right frame of mind but she is confident that she will manage stressors more appropriately in the future.

The Committee discussed with Mrs Coles whether she had undiagnosed dyslexia, something which she had raised in her interview with the Commission. Mrs Coles informed the Committee that she has not had issues reading at work but was happy to discuss further with her GP. The Committee noted that it was important to explore this issue, if she was concerned. The Committee also discussed with Mrs Coles her previous medical history, which included well-managed sciatica.

The Committee found Mrs Coles to be a forthcoming and open witness and accepted her evidence.

The Committee discussed at length the Commission's proposed protective orders. Ms Haider submitted that the proposed first condition, namely not to work as the sole practitioner on any shift, ward or unit, would severely hamper Mrs Coles' ability to practise and was unclear and difficult to apply. As an alternative, the parties agreed that a condition be imposed, which prevented Mrs Coles from being in charge. The second proposed condition relating to practice under indirect supervision was also considered acceptable to the parties. Finally, the Committee discussed the possibility of imposing a condition which prevented Mrs Coles from supervising colleagues and students alike but after hearing from the parties in relation to the broad scope of the condition, the Committee decided against it.

1. Not to practise as the practitioner in charge
2. To practise under indirect supervision in accordance with the Nursing and Midwifery Council of NSW regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body
   1. to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council
   2. to authorise the approved supervisor to provide written reports to the Council at quarterly intervals, or as specified by the Council.
3. To forward evidence to the Nursing and Midwifery Council of NSW within 14 days of commencing employment/practice, that the practitioner has provided a copy of the full conditions to the Director of Nursing
4. Within 14 days of a change in the nature or place of their practice, the practitioner is to forward evidence to the Nursing and Midwifery Council of NSW that they have provided a copy of the full conditions to the Director of Nursing
5. To authorise the Nursing and Midwifery Council of NSW to notify current and future persons or organisations at any places where they work as a health practitioner in Australia of any issues arising in relation to compliance with these conditions
6. They must only be employed as a health practitioner in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the condition

1. The Nursing and Midwifery Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW)
2. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia.

Mrs Debra Suzanne Coles has the right to appeal this decision to the NSW Civil and Administrative Tribunal.

An appeal must be lodged with the Tribunal within 28 days of receipt of these written reasons.

Mrs Debra Suzanne Coles also has the right to seek a review by the Nursing and Midwifery Council of NSW of the Committee's order to impose conditions. Should Mrs Debra Suzanne Coles's principal place of practice be anywhere other than NSW at the time of seeking a review of conditions, Mrs Debra Suzanne Coles may make an application for review to the National Board.

We will provide a copy of this written statement of our decision to:

1. Mrs Debra Suzanne Coles,
2. the Health Care Complaints Commission,
3. the National Board, and
4. the complainant

139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]

(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.

(b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.

(c) A contravention by the practitioner (whether by act or omission) of-

(i) a condition to which the practitioner's registration is subject; or

(d) A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner.

(e) A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993 .

(f) Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for-

(i) referring another person to the health service provider; or

(ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter.

(g) Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct.

(h) Offering or giving a person a benefit as inducement, consideration or reward for the person-

(i) referring another person to the registered health practitioner; or

(ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter.

(i) Referring a person to, or recommending that a person use or consult-

if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation.

(k) Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill.

(l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

(2) For the purposes of subsection (1)(i), a registered health practitioner has a "pecuniary interest" in giving a referral or recommendation-

(a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company; or

(b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company; or

(c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner; or

(d) in any circumstances prescribed by the NSW regulations.

(3) For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class.

"benefit" means money, property or anything else of value.

"recommend" a health product includes supply or prescribe the health product.

146B General powers to caution, reprimand, counsel etc [NSW]

(1) A Committee may do one or more of the following in relation to a relevant health practitioner the subject of a complaint referred to it-

(b) direct that the conditions, relating to the practitioner's practising of the practitioner's profession, it considers appropriate be imposed on the practitioner's registration;

(c) order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);

(d) order that the practitioner complete an educational course specified by the Committee;

(e) order that the practitioner report on the practitioner's practice at the times, in the way and to the persons specified by the Committee;

(f) order that the practitioner seek and take advice, in relation to the management of the practitioner's practice, from the persons specified by the Committee.

(2) If the relevant health practitioner is not registered, a direction may still be given under this section but has effect only so as to require the conditions concerned to be imposed when the health practitioner is registered.

(3) If a Committee acting under this section makes an order or directs that any condition be imposed on a health practitioner's registration, the Committee may order that a contravention of the order or condition will result in the health practitioner's registration in the health profession being cancelled.

[1] National Law ss 3A-3B.

[2] Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10, [52].

[3] Briginshaw v Briginshaw (1938) CLR 336.

[4] Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, [127]; HCCC v

Meneghetti [2020] NSWCATOD 39, [14].

[5] Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630, 638.

[6] See Reader's Guide to Poisons Standard. NB the footnotes in this decision have been renumbered but the content from the written submissions remains the same.

[12] HCCC Material, Tab 20: Cranbrook Care - Medication Management Policy.

[14] HCCC v Aref [2018] NSWCATOD 133.

[15] National Law, s 4.

[16] National Law, s 3A-3B.

[17] See Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36 citing Health

Care Complaints Commission v Do [2014] NSWCA 307 (as to the first four factors) and inter

alia Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 (for all five).

[18] Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82, [88] citing NSW Bar Association v Meakes [2006] NSWCA 340, [114].