Health Care Complaints Commission v Corderoy

Evidence

1. A large amount of material was provided by the Commission which supported all the particulars detailed in Complaints 1, 2 and 3 and set out above.
2. This material included but was not limited to Pyxis Reports and Guides, Hospital patient medical records, investigation reports, witness statements and incident reports; a complaint made to the Australian Health Practitioner Regulatory Authority (AHPRA) by the Hospital about Ms Corderoy's removal of Tramadol; documents from AHPRA NSW and WA; Expert Peer Reports reviewing Ms Corderoy's conduct with reference to applicable Nursing Standards and Codes of Conduct; documents from the Council demonstrating that conditions had been imposed on Ms Corderoy's registration, notification to Ms Corderoy of those conditions and her subsequent breach of those conditions; and employment records.
3. Ms Corderoy has not engaged with the Commission or the Tribunal. She has filed no evidence. We have no difficulty in finding the particulars as alleged by the Commission are made out.

Complaint One: Unsatisfactory Professional Conduct sections 139B(1)(a) and (l)

1. The evidence establishes that between 19 January and 20 October 2015 Ms Corderoy removed a total of 217 Tramadol capsules. These capsules were removed purportedly by her for the purpose restocking of emergency trolleys and to administer to patients.
2. Ms Corderoy's removal on 14 occasions of Tramadol for the purposes of restocking the emergency trolley was unauthorised and was not a task within the scope of practice for a casual EEN in the Emergency Department.
3. The evidence demonstrates that Ms Corderoy on 91 other occasions recorded Tramadol against the names of patients who had not been prescribed it, and on 14 occasions in the names of patients who were actually not patients of the hospital at the time. The removal of medication such as Tramadol from the Pyxis Medication Station presumes that the medication has been prescribed for the patient for whom it is signed out and that the medication will be administered to that same patient. While there is some provision for nurses to initiate medication without prescription, the NSW Health Policy Directive, Medication Handling in NSW Public Health Facilities (2013) clearly states that Schedule 4 drugs are excluded.
4. Enrolled nurses must demonstrate knowledge and understanding of laws pertinent to nursing practice and must not engage in clinical or other practices prohibited by law: see National Competency Standards for the Enrolled Nurse, October 2002, competency standard 1.1 and Code of Professional Conduct for Nurses in Australia, Nursing and Midwifery Board of Australia, 2008, Conduct statement 3.
5. Referencing these standards, expert peer reports dated 1 and 2 May 2017 reviewed and considered Ms Corderoy's conduct to be significantly below the standard reasonably expected.
6. Ms Corderoy's conduct was in clear breach of standards set out in The Code of Ethics for Nurses in Australia, The Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia and the National Competency Standards for the Enrolled Nurse.
7. We find that Ms Corderoy's conduct demonstrates that the judgment possessed, or care exercised, by her in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. We find her inappropriate removal of Tramadol constitutes unsatisfactory professional conduct under section 139B(1)(a) of the National Law.
8. The first complaint also alleges unsatisfactory professional conduct within the meaning of section 139B(1)(l) of the National Law. Section 139B(1)(l) refers to "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". It requires a determination by the Tribunal as to whether a practitioner has been guilty of unsatisfactory professional conduct arising from an assessment as to whether conduct was improper or unethical relating to the practice of their profession. It is therefore directed at a broader range of conduct than that which occurs "in the practice of" a person's profession.
9. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not 1. "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
10. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
11. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]-[48]: … The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.
12. The evidence demonstrates that Ms Corderoy's deception was multifaceted. She manipulated data. She took steps to avoid detection by using former patient names. Her conduct was calculated and systematic.
13. Ms Corderoy's conduct had the potential to bring the profession of nursing into disrepute and undermine the confidence the public holds in relation to the practice of nursing. It was improper and unethical for Ms Corderoy without authorisation to systematically and duplicitously access a restricted substance. It represents a significant departure from the standards that are expected of nurses.
14. We find her conduct constitutes unsatisfactory professional conduct within the meaning of section 139B(1)(l).
15. We are satisfied that Complaint one is established.

Complaint Two: Unsatisfactory Professional Conduct section 139B(1)(c)(i)

1. On 21 March 2016, the Council imposed conditions on Ms Corderoy's registration. These conditions required that when administering medications Ms Corderoy was to be supervised by a registered nurse who did not have conditions on their registration. A further condition required her to notify all future nursing employers of the conditions. At the time of imposing these conditions the full extent of Ms Corderoy's alleged removal of Tramadol had not fully come to light.
2. In around August 2017, Ms Corderoy commenced employment with Sonic Health Plus. She was not under the direct supervision of a registered nurse who did not have conditions on their registration. The supervisor was not present to observe, work with, guide and direct Ms Corderoy in the administration of medications.
3. On 25 October 2017 Sonic Health Plus conducted a check of the AHPRA Register of Practitioners in relation to its registered health professional employees. That check revealed that Ms Corderoy had conditions on her registration as a nurse. Ms Corderoy had not advised Sonic Health Plus of these conditions.
4. Ms Corderoy contravened the conditions imposed by the Council. We find her conduct constitutes unsatisfactory professional conduct within the meaning of section139B(1)(c)(i) of the National Law.
5. We are satisfied that Complaint two is established.

Complaint Three: Unsatisfactory Professional Conduct section 139B(1)(l)

1. Notice of the conditions imposed on Ms Corderoy's registration had previously been sent by the Council to Ms Corderoy by post and email on 23 March 2016. By reply email of the same day Ms Corderoy wrote back to the Council and amongst other matters referred to the conditions.
2. On the evidence before us we have no difficulty in finding that Ms Corderoy was aware of the conditions imposed by Council on her registration.
3. On 4 October 2017, Ms Corderoy provided false and misleading information to the Council by providing a signed Current Employment Declaration Form in which she declared she was not employed. Ms Corderoy also sent an email to the Council to the effect that she was still not employed as a nurse under her registration. At the time, she was employed as an enrolled nurse by Sonic Health Plus.
4. Whilst Ms Corderoy was employed as an enrolled nurse by Sonic Health Plus she also advised her Clinical Manager and Area Manager that she was not aware of any conditions on her registration.
5. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81].
6. It was Ms Corderoy's duty to be candid and honest with the Council. This is an integral part of the proper functioning of the regulatory system. It was improper and unethical of her to provide false and misleading information to the Council. By her actions she demonstrated a disregard for the Council and its role. This conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical.
7. It was also improper and unethical for Ms Corderoy to advise her employer that she was unaware of any conditions imposed on her registration by Council. By making these statements Ms Corderoy continued to mislead her employer about the restrictions which existed on her registration.
8. We find Ms Corderoy's conduct constitutes unsatisfactory professional conduct within the meaning of section 139B(1)(l).
9. We are satisfied that Complaint three is established.

Complaint Four: Professional Misconduct section 139E of the National Law

1. The Commission submits that the conduct of Ms Corderoy, which we have found constitutes unsatisfactory professional conduct, when considered either individually or cumulatively is of a sufficiently serious nature to amount to professional misconduct.
2. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s 139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: see Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [43]-[50] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
3. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation": see [19].
4. In our view when the complaints are considered individually and together there has been a significant departure from the standard of conduct to be expected of a nurse.
5. Deceptively removing large quantities of a Schedule 4 drug over 10 months and the false use of patient names to hide that deception is conduct of a nature which is capable of undermining public confidence in the profession.
6. To make matters worse Ms Corderoy then compounded her conduct with her lack of candour with her colleagues and the Council.
7. We find that the unsatisfactory professional conduct displayed by Ms Corderoy is of a sufficiently serious nature to constitute "professional misconduct" under s139E of the National Law.
8. We are satisfied that the complaint of professional misconduct as detailed in Complaint four is proved.

Principles regarding protective orders

1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of Part 8 of the National Law in relation to proven claims against registered health practitioners: see sections 149A, 149B and 149C of the National Law.
2. Having found the complaint of professional misconduct proven against Ms Corderoy we may exercise powers to suspend or cancel her registration: see s 149C(1) of the National Law.
3. The Commission seeks cancellation of Ms Corderoy's registration as a nurse for a period of 2 years.
4. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s 3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective: see s 3A National Law. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34].
5. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.
6. In Health Care Complaints Commission v Do [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred at [35] to the importance of denunciation of misconduct, in the context of s 3 and s 3A of the National Law as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
7. As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.

Consideration of protective orders

1. In our view Ms Corderoy's conduct strikes at the very heart of the integrity and ethical candour that the public are entitled to expect of the nursing profession. There is a complete absence of any innocent explanation for her systematically taking large quantities of a restricted substance as distinct from a nefarious reason.
2. There was an absence of propriety, honesty and integrity in her practice. The gravity of her conduct in removing tramadol and using patients names, many of whom were elderly with multiple co-morbidities, to do it is an extreme breach of trust.
3. Ms Corderoy made no admissions in relation to the Complaint and has not participated in the proceedings. She has made no submissions as to protective orders. As a result we have limited measures by which we can assess the level of insight and remorse, if any, that Ms Corderoy holds into her conduct.
4. Certainly Ms Corderoy had an opportunity to demonstrate insight and remorse when investigated by her colleagues and the Commission. In our view the false representations she made to deliberately conceal her conduct are evidence of her lack of insight. She has not provided any material that would assure us that she has any insight or understanding into the standards of practice and morality required of her as a nurse.
5. Having regard to the seriousness of these matters together with the findings made above, we are satisfied that it is appropriate that Ms Corderoy's registration should be cancelled, and that such cancellation should be for a longer period than that submitted by the Commission.
6. We conclude that Ms Corderoy should not be able to make any application for review of the cancellation of her registration for a period of five years. In our view given the gravity of the misconduct and the upholding of public confidence in the nursing profession requires that her conduct in its entirety be denounced as unacceptable and that a period of five years appropriately reflects that.

Costs

1. The Commission seeks an order for costs. The principles relevant to the exercise of discretion in awarding costs are the subject of recent discussion in the High Court of Australia in Northern Territory v Sangare [2019] HCA 25. The High Court stressed that the awarding of costs is a discretionary matter, but the discretion must be exercised judicially by reference to relevant considerations. Their Honours further explained the general rule that costs follow the event reflects the position that a successful party should be compensated for the expenses it has incurred. These long established principles are also relevant to professional disciplinary proceedings: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
2. The Commission has been wholly successful. Accordingly an order for costs will be made in its favour.

Orders 1. The complaints of unsatisfactory professional conduct and professional misconduct are proved. 2. Having found the complaints proved Ms Corderoy's registration as a nurse is cancelled. 3. Under s 149C(7) of the Health Practitioner Regulation National Law (NSW) Ms Corderoy is not to make any application for review of the cancellation of her registration for a period of 5 years from the date of the Tribunal's decision. 4. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2 and 3 above as soon as practicable. 5. Ms Corderoy is to pay the costs of the Health Care Complaints Commission, to be agreed or assessed. 6. Under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure to any person or entity of the names, addresses or any other identifying information of any patients referred to in the evidence in the proceedings, is prohibited.

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: 26 June 2020