Health Care Complaints Commission v Corderoy - [2020] NSWCATOD 68 - NSWCATOD 2020 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Corderoy

[2020] NSWCATOD 68

NCAT Occupational|2020-03-16

View original source

At a glance

Source facts

Court

NCAT Occupational

Decision date

2020-03-16

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Introduction

Ms Corderoy was registered as an endorsed enrolled nurse (EEN) in 2008. In September 2015 Ms Corderoy was employed as a casual EEN at a large Sydney Hospital. This case is about Ms Corderoy's inappropriate removal of substantial quantities of the drug Tramadol from the Hospital; and her breach of conditions which as a result had been imposed on her registration by the Nursing and Midwifery Council of NSW (the Council).
Tramadol is a synthetic opioid-like analgesic. It is a Schedule 4 drug. Under the Poisons and Therapeutic Goods Act 1966 (NSW) a Schedule 4 drug can only be supplied with a prescription. Accordingly Tramadol is available as "prescription only medication" and as such is also known as a "restricted substance".
The Health Care Complaints Commission (the Commission), applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Ms Corderoy.
Ms Corderoy has not engaged with the Commission or the Tribunal about these proceedings.
On 6 December 2019 the Tribunal made orders for substituted service on Ms Corderoy. The Commission complied with these orders by sending a copy of the Application and Complaint detailing the allegations and evidence in support to a residential address held for Ms Corderoy as well as an email address. Evidence was provided by the Commission of its compliance with the orders for substituted service. Evidence was also provided by the Commission indicating that it had put Ms Corderoy on notice that it intended to seek cancellation of her registration.
The application attached a Complaint dated 22 October 2019. It comprises four complaints.

[2]

The Complaints

The first complaint is of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law. The Commission alleges 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. It is also alleged that her conduct was improper or unethical.
The basis for the first complaint of unsatisfactory professional conduct is that Ms Corderoy removed Tramadol from the Emergency Department of the Hospital, and removed Tramadol from other wards within the Hospital using the names of patients to whom it had not been prescribed and by using patient names who were not patients of the hospital at the relevant time.
The particulars of the first complaint are as follows: 1. Between 4 February 2015 and 15 September 2015, Ms Corderoy inappropriately removed Tramadol from the Pyxis Medication Stations within the Emergency Department of the Hospital on 14 occasions, totalling 30 capsules, in circumstances where it was an unauthorised removal and the capsules were removed using the code "AA RESUS ED" which is the code that is used to obtain medication for the purposes of restocking the emergency trolleys which was not a task within the scope of practice for a casual EEN in the Emergency Department. 2. On each of these occasions Ms Corderoy's conduct in removing the Tramadol from the Pyxis Medication Stations was in breach of : 1. The Code of Ethics for Nurses in Australia; 2. The Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia - Conduct Statement 1.2. 1. Between 21 January 2015 and 19 October 2015, Ms Corderoy removed Tramadol from the Pyxis Medication Stations on 91 occasions, totalling 160 capsules using patients names in circumstances where each of the patients had not been prescribed this medication at any time. 2. On each of these occasions Ms Corderoy's conduct in removing Tramadol from the Pyxis Medication Stations was in breach of: 1. The National Competency Standards for the Enrolled Nurse: 1. Standard 1.1; 2. Standard 1.2; 1. The Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia: 1. Conduct Statement 2.1; 2. Conduct Statement 3. 1. Between 19 January 2015 and 19 October 2015, Ms Corderoy removed Tramadol from the Pyxis Medication Stations, on 14 occasions, totalling 27 capsules and using patients' names in circumstances where each of the patients were not patients of the Hospital. 2. On each of these occasions Ms Corderoy's conduct in removing Tramadol from the Pyxis Medication Stations was in breach of: 1. The National Competency Standards for the Enrolled Nurse: 1. Standard 1.1; 2. Standard 1.2; 1. The Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia: 1. Conduct Statement 2.1; 2. Conduct Statement 3.
The second complaint is of unsatisfactory professional conduct under section 139B(1)(c)(i) of the National Law. It is alleged that Ms Corderoy engaged in conduct that contravened (whether by act or omission) a condition to which her registration was subject.
On 21 March 2016 the Nursing and Midwifery Council of NSW imposed conditions on Ms Corderoy's registration. For present purposes the following conditions are relevant: Condition 1 The [practitioner] may only administer medications under the direct supervision of a registered nurse (Division 1) who does not have conditions on his/her practice. At all times the supervisor must be present to observe, work with, guide and direct the registrant in the administration of medications. Condition 2b The [practitioner] must inform all future nursing employers (including nurse managers at agency placements) of the conditions, and provide the Nursing and Midwifery Council of NSW with the name and contact details of each employer, before commencing work/employment as an enrolled nurse (Division 2).
Between 4 September 2017 and 25 October 2017, Ms Corderoy was employed as an Enrolled Nurse by Sonic Health Plus in the Occupational Health Clinic at Perth Airport, Western Australia.
The particulars of the second complaint are as follows: 1. Between 7 September 2017 and 26 October 2017, Ms Corderoy contravened Condition 1 to which her registration was subject in that she administered medication at Sonic Health Plus in circumstances where: 1. she was not under direct supervision of a registered nurse (Division 1) who did not have conditions on his/her practice; 2. the supervisor was not present to observe, work with, guide and direct her in the administration of the medications. 1. Between 3 September 2017 and 26 October 2017, Ms Corderoy contravened Condition 2b to which her registration was subject in that she was employed by Sonic Health Plus and failed to inform them of the conditions on her registration.
The third complaint is of unsatisfactory professional conduct under section 139B(1)(l) of the National Law. It alleges that Ms Corderoy engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
Ms Corderoy had signed a document acknowledging the conditions on her registration on 1 May 2016 and provided this to the Nursing and Midwifery Council of NSW (the Council) via email on 17 May 2016. In this context it was said that she had subsequently provided false and misleading information to the Council and her employer, Sonic Health Plus.
The particulars of the third complaint are as follows: 1. On 4 October 2017, Ms Corderoy provided false and/or misleading information to the Council when she: 1. provided a signed Current Employment Declaration Form in which she declared that she was not employed in circumstances where she was employed as an enrolled nurse for Sonic Health Plus; 2. advised the Council in the cover email that she was "still not employed as a nurse under my registration" in circumstances where she was working as an enrolled nurse for Sonic Health Plus. 1. On 25 October 2017, Ms Corderoy provided false and/or misleading information to the Clinical Manager, Sonic Health Plus when she informed her that she was not aware of any conditions imposed on her registration as a nurse. 2. On 26 October 2017, Ms Corderoy provided false and/or misleading information to her Clinical Manager when she stated in a text message that "[she] had express posted the forms they gave me at AHPRA this morning along with a statutory declaration stating I was unaware of the conditions". 3. On 27 October 2017, Ms Corderoy provided false and/or misleading information to the Area Manager of Sonic Health Plus when she stated via text message that "I am flying back to Sydney tomorrow to meet with the NSW Nurses Association next week to which I am still a member of as I had not yet transferred my membership to WA. They will provide me with advice on what steps I need to take as I was not aware of the conditions so this has been all very confusing to me". (sic)
The fourth complaint is of professional misconduct under section 139E of the National Law in that Ms Corderoy has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, or 2. engaged in 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 the suspension or cancellation of her registration.

[4]

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

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
We find her conduct constitutes unsatisfactory professional conduct within the meaning of section 139B(1)(l).
We are satisfied that Complaint one is established.

[6]

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

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.
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.
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.
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.
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].
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.
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.
We find Ms Corderoy's conduct constitutes unsatisfactory professional conduct within the meaning of section 139B(1)(l).
We are satisfied that Complaint three is established.

[7]

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

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.
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].
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].
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.
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.
To make matters worse Ms Corderoy then compounded her conduct with her lack of candour with her colleagues and the Council.
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.
We are satisfied that the complaint of professional misconduct as detailed in Complaint four is proved.

[8]

Principles regarding protective orders

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.
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.
The Commission seeks cancellation of Ms Corderoy's registration as a nurse for a period of 2 years.
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].
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.
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.
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.

[9]

Consideration of protective orders

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.
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.
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.
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.
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.
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.

Health Care Complaints Commission v Corderoy

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (12)