The following summary is based on the Agreed Statement of Facts (ex A3) and on evidence that the Tribunal understands not to be in dispute.
Parklea Correctional Centre (PKA) is located in the north-western suburbs of Sydney and houses approximately 800-900 remand, minimum, and maximum security inmates. In December 2017 PKA was privately managed by The GEO Group Australia Pty Ltd (GEO) on behalf of Corrective Services NSW (CSNSW). Health services at PKA were operated by the Justice Health & Forensic Mental Health Network (JH&FMHN).
The Main Clinic is located in Area 1 of PKA. There are 14 cells, described by the CNS D&A as observation cells: eight Clinic cells (A to H) and six numbered cells (34 to 39), with a maximum capacity of 34 patients. At the time of the incident the Clinic housed 14 patients. Clinic cells A-H were located on both sides of a corridor where the Nurses' Station, the Officers' Station, the Drug & Alcohol room, and the Examination & Dispensary (Medication Room) were located. Cells 34-39, referred to by staff as "Detox" cells, were located on both sides of the corridor near the Nurse Unit Manager (NUM)1, NUM2 and Clinical Nurse Educator (CNE) offices.
Patient progress notes and other medical records were kept in the Nurses' Station, in a pigeonhole for each cell. A whiteboard located on the wall of the Officers' Station in the Clinic (ex A1, tab 60) recorded the name and Master Index Number (MIN) for each of the inmates located in the Clinic cells, with comments including "mental health hold", and "GEO placement".
The roster for Wednesday 6 December 2017 (ex A1, tab 61) had 14 staff on duty between 6.00am-4.30pm on the morning shift, including RN Gallagher as NUM, and the CNS D&A (8.00am-4.30pm). The afternoon shift (1.30pm-10.00pm) had five staff rostered, with RN Balagtas as NUM. RN Stratten (1.30pm-10.00pm) and RN Nguyen (1.00pm-9.30pm) were rostered on the afternoon shift. EN Steele was rostered on Receptions (2.30pm-11.00pm). There were two staff rostered on Night Shift (9.30pm-7.30am), RN Nuevo and EN Day, for all areas.
The 14 staff rostered on the morning shift for Thursday 7 December 2017 (ex A1, tab 62) included EN Steele (6.30am-3.00pm) as Clinic Nurse and Transfers Out, with RN Crammond (Clinical Nurse Educator (CNE)) as Nurse in Charge (NIC).
On 6 December 2017 Patient A, a 37 year old man with a documented medical history of epilepsy, asthma, Crohn's disease, hypertension and opioid dependence, was transferred to PKA from Sydney Police Cells, arriving at about 11.38am. Patient A was placed in a holding cell, and at about 2.07pm was taken to the Processing Area at Reception. Patient A had been in custody previously, most recently in November 2017.
The Reception Screening Assessment (RSA) is a medical interview conducted by JH&FMHN staff to identify any potential medical or physical needs of a newly received inmate. EN Steele, the reception nurse on the afternoon shift, saw Patient A shortly after 2.00pm. She telephoned the CNS D&A and advised her that Patient A was very unwell and vomiting and that she was unable to attend to the RSA. The CNS D&A arranged for her to send Patient A to the Clinic straight away.
EN Steele completed a Health Problem Notification Form (HPNF) at 2.36pm (ex A1, tab 125) noting "RSA not completed, Pt in withdrawal, Hx epilepsy HTN", and informing CSNSW/GEO officers: "House in clinic till cleared by D&A". In oral evidence EN Steele confirmed that the HPNF form was completed to notify nursing and correctional staff why she had housed Patient A in the clinic. Patient A was taken to the Clinic by wheelchair.
The clinical handover from the morning shift JH&FMHN staff to the afternoon shift staff occurred in the Clinic Meal Room (also referred to as the "lunch room" and the "tea room") between 2.00-2.30pm. As that handover took place during Patient A's reception, he was not included in the verbal or written handover.
The evidence of the CNS D&A was that her role at PKA included seeing anyone entering the Clinic in acute withdrawal or detox daily until they were cleared for transfer into the main area. She received a telephone call from the reception nurse, EN Steele, who said she had an unwell patient and asked if there was a doctor available who could give an order for an injection because the patient had been vomiting. The CNS D&A and the Drug & Alcohol doctor were finishing a clinic and the doctor agreed to stay back and assess the patient. The doctor looked the patient up on the computer to get some background information on him, and the CNS D&A went to find someone to give an injection.
The CNS D&A located some staff in the lunchroom, where the handover from morning to afternoon shift had just finished. The CNS D&A said words to the effect: "I've got a really unwell patient coming from detox. I need someone out now to give an IM injection." At approximately 2.45pm RN Gallagher administered IM Stemetil to Patient A, and recorded this on the medication chart.
Patient A was reviewed by the CNS D&A and D&A Medical Officer, Dr Lee, in the drug and alcohol review room. Dr Lee and the CNS D&A separately recorded their observations and the treatment plan in Patient A's progress notes (ex A1, tab 129).
Dr Lee's note of the treatment plan states:
"1.Detox cell
2.Panedeine, Stemetil +Symptomatic
3.Nil Diazepam yet
4.On Valporate 1gm BD
5.Repeat Obs 4/24
-Call ROAMS
-If need, benzodiazepam regime
6.Thiamine
7.MO/ROAMS contact tomorrow.
8.Await ROI"
The CNS D&A took baseline observations, which she recorded in Patient A's progress/clinical notes. She noted that Patient A was "extremely unwell - in opiate withdrawal. Pt pale, sweating, clammy, rhinorrhea, piloerection", that he gave a history of taking Xanax or diazepam daily and IV heroin, and that he was too unwell for a full history. The CNS D&A recorded the treatment plan:
1.IMI Stemetil & Panadeine for opiate withdrawal
2.to remain in detox & monitored closely 4/24 obs
3.D&A ROAMS to be contacts if concerns regarding pt & if pt displays any signs of benzo withdrawal
4.for GP due to multiple morbidities
5.PHN Clinic nurse given oral handover
6.review by D&A nurse (author) in am
7.further D&A MO review on Friday 8/12/17
Patient A's vital signs (observations) were recorded on the Standard Adult General Observation (SAGO) chart (ex A1, tab 131) and on the D&A Substance Withdrawal Monitoring Chart (ex A1, tab 132). The medications ordered by Dr Lee were entered on the medication charts (ex A1, tab 133). The CNS D&A completed a new HPNF form, signed at 3.29pm (ex A1, tab 124), stating:
Previous custody.
RSA not completed due to pt unwell with substance withdrawal - observe sweating, vomiting, diarrhoea
Epilepsy - smacking of lips, disorientated, loss of consciousness, twitching
Placed in detox
The recommendation was "To remain in clinic until RSA completed and until cleared by drug and alcohol".
At approximately 2.46pm, Patient A was taken by wheelchair to Clinic cell 34.
At about 4.20pm, as she was leaving for the day, the CNS D&A provided a verbal handover to RN Stratten, who was in the medication room. The CNS D&A stated that she had made the note "PHN clinic nurse given oral handover" in Patient A's progress notes because morning to afternoon shift handover had already been completed and she was concerned about the patient and wanted to make sure she was not leaving the Clinic until she had given a handover to the Clinic nurse. She put the notes in the pigeonhole at the Nurses' Station and took the medication chart directly to the Clinic nurse in the medication room. RN Gallagher was in the Nurses' Station as she put the notes back and she gave him a brief update of what had happened.
The evidence of the CNS D&A was that her handover to RN Stratten included that Patient A was in detox and unwell; observations were required every four hours; and she had just performed a set of observations. She went through what the patient presented with, what had been ordered and what had been given, and what the plan was, and that she had done a baseline set of observations. She said Patient A had been given Stemetil, and mentioned that within the 8 hours they would be able to do two more sets of observations, and she discussed medication. She gave the handover directly to RN Stratten; RN Nguyen was on the opposite side of the room packing medication.
The extent to which RN Gallagher was present at or participated in the handover to RN Stratten, and what RN Stratten was told at that handover, is considered in the decisions in 2020/113588 HCCC v Gallagher [2022] NSWCATOD 128 and 2020/11637 HCCC v Stratten [2022] NSWCATOD 126.
RN Nguyen was allocated packing and administering the medications for Areas 1 and 2 and 4 of PKA for the afternoon shift, and RN Stratten was allocated packing and administering the medications for Areas 3 and 5 and the Clinic. In the circumstances considered in the decisions in 2020/113637 HCCC v Stratten [2022] NSWCATOD 126 and 2020/113651 HCCC v Nguyen [2022] NSWCATOD 127, RN Nguyen packed the Clinic medications, and administered the Clinic medications.
At about 7.00pm RN Nguyen, the student nurse, CO Sarin and CO Foisa attended cell 34 to administer medications to Patient A during the Clinic medication round. RN Nguyen gave Patient A Panadeine and Thiamine, and Patient A refused Epilim (valproate), prescribed for his epilepsy. RN Nguyen recorded the administration of Thiamine and Panadeine, and the refusal of Epilim, on Patient A's medication chart, and told RN Stratten that Patient A had refused the prescribed Epilim medication. RN Stratten's evidence was that she told RN Nguyen to document the refusal in Patient A's progress notes; RN Nguyen did not recall RN Stratten asking her to do so.
Between about 9.30pm and about 10.00pm, RN Stratten provided a handover to the night shift staff, RN Jeremy Nuevo and EN Sara Day, in the Nurses' Station. The evidence of RN Nuevo and RN Balagtas was that RN Balagtas, NUM on the afternoon shift, was present; and RN Stratten and EN Day agreed that was possible.
In evidence is a copy of a handover sheet in evidence (ex A1, tab 91) headed "Clinic Handover Wednesday 6 December 2017 21:22". That document lists cells A-H and 34-39, with columns recording for each patient the name and MIN, Date & Time of Arrival, Reason in Clinic, Date Cleared, and Diagnosis/Comment. Recorded for Cell 34 is the name and MIN of Patient A; 6/12/17 as the Date and Time of arrival; "Detox" as the Reason in Clinic; and for Diagnosis/Comment:
RSA yet to be completed. Hx of Crohn's disease, Epilepsy. Currently in Opiate W/D. IM Stemetil 12.5mg given. PRN meds charted.
In addition to the 14 Clinic cells, the Handover sheet records under the heading "Hospital" one inmate presently in Westmead Hospital, and two "Patients of Concern", one located in wing 4A and the other in wing 5C.
The copy of the Handover sheet in evidence was provided by RN Gallagher to the Council delegates at his hearing under s150 of the National Law on 21 May 2018. RN Gallagher's evidence was that he retrieved this from the records kept in his office.
EN Steele's evidence was that the handover document was updated by the nurse in charge of the Clinic each shift electronically; the forms would be printed in a handover book kept in the Nurses' Station, as a reference; and each staff member on the next shift would have a copy of it. EN Day's evidence on 14 September 2022 was that the person doing the handover would read out the information recorded on that document. The handover sheet is a Word document, and any nurse has access to update it; once the document is opened the time it is opened is recorded on it. Her practice is to put her copy of the document in the shredder, and it is not common practice to leave the document lying around.
The evidence as to who recorded the information relating to Patient A, and when, is unclear. RN Stratten's evidence was that she would have used the handover sheet in giving her handover to EN Day and RN Nuevo. RN Stratten could not recall whether she had put the information for Patient A on the handover sheet. RN Gallagher, RN Nguyen and the CNS D&A gave evidence that they did not. RN Nuevo's evidence was that a different version of the handover sheet, which did not include the information that Patient A was in opiate withdrawal, that he had been given Stemetil, and that PRN medications had been charted, was used in the handover to the night shift.
Whether Patient A made a request during the night shift for nursing assistance of which RN Nuevo was aware is disputed. That issue is considered in detail in the decision in 2020/113574 HCCC v Nuevo [2022] NSWCATOD 124. The evidence of CO Sarin was that at about 10.18pm he received a Stenofon (intercom) call from Patient A requesting to see a nurse; that he informed RN Nuevo who asked why Patient A wanted to see a nurse; that he went to cell 34 and spoke to Patient A who verbally abused him, and repeated his request and refused to give a reason; and that he passed that information on to RN Nuevo. RN Nuevo does not agree with CO Sarin's report of this call. It is not disputed that there was a Stenofon call between Patient A and CO Foisa from the Clinic Officers Station, where RN Nuevo was present, in which CO Foisa asked Patient A if everything was OK and he replied "No everything is ok miss", she asked "Are you sure" and he replied "yes".
It is not in dispute that neither RN Nuevo nor EN Day had any other interaction with Patient A during the night shift. At about 5.55am, RN Nuevo wrote in Patient A's progress notes: "Nursing: Pt settled overnight. Nil issues raised."
At about 6.00am, EN Steele arrived at the Clinic for the morning shift. RN Nuevo provided a handover to EN Steele. In oral evidence EN Steele recalled being told at the handover that Patient A had had a good night, that he was sleeping well; she could not recall who made that remark.
Both RN Nuevo and EN Day were scheduled to end their shifts at 7.30am. Both accepted in evidence to the Tribunal that they left around 6.38am.
At about 7.11am, EN Steele and CO Stankovski attended cell 34 for the morning medication rounds, where they found Patient A had died.
The Tribunal was informed that no decision has been made yet as to whether a Coroner's inquiry will be held.
[2]
NSW Health and JH&FMHN policy documents
The particulars of the complaints against each of the respondent nurses are framed by reference to provisions of a number of NSW Health and JH&FMH policy documents. The amendments to the particulars to Complaint One against EN Day included amendments to the references to NSW Health and JH&FMHN policies. The relevant policies are:
1. NSW Health Policy Directives: the NSW Health Policy Directive Health Care Records - Documentation and Management (ex A1, tab 123) includes:
…
2.4 Documentation by nurses and midwives
Documentation by nurses and midwives must include the following:
(a)care/treatment plan, including risk assessments with associated interventions
(b)comprehensive completion of all patient /client care forms
(c)any significant change in the patient/client's status with the onset of new signs and symptoms recorded
(d)if a change in the patient/client's status has been reported to the responsible medical practitioner documentation of the name of the medical practitioner and the date and time that the change was reported to him/her
(e)documentation of medication orders received verbally, by telephone/electronic communication including the prescriber's name, designation and date/time.
2.5. Frequency of documentation
The frequency of documentation entries should conform to the following as minimum requirements.
…
2.5.3 Non-Admitted Patients/Clients
An entry must be made in the health care record for each patient/client attendance (including video conference sessions) and for failures to attend.
Entries should reflect the level of assessment and intervention. The results of significant diagnostic investigations and significant changes to the patient/client's condition and/or treatment should be documented.
…
1. JH&FMHN policies:
1. JH&FMHN Clinical Handover (Policy number 1.075) (ex A1, tab 117) provides a standard set of principles for all types of clinical handover. Relevant provisions are:
Section 2.1 Mandatory Requirements
The importance of implementing "safe clinical handover" has been recognised and mandated under NSW Ministry of Health (MoH) policy directive PD2009 060 Clinical Handover - Standard Key Principles. JH&FMHN has developed and implemented the following standard key principles for clinical handover:
1.Leadership - nominate a leader at each clinical handover
2.Valuing Handover -set an expectation that this is an essential part of daily work
3.Handover Participants - identify participants, and involve participants in the handover process
4.Handover Time - set an agreed time, duration and frequency of handover, expect punctuality
5.Handover Place - set a specified location, preferably face to face
6.Handover Process - standardised process, JH&FMHN will utilise the Introduction, Situation, Background, and Assessment and Recommendation (ISBAR) framework.
The standard key principles for clinical handover apply to all clinical staff employed by JH&FMHN and offer direction for the shift-to-shift clinical handover of patients, and the handover of patients to other clinicians or facilities. All clinical handover events must meet these requirements.
Section 2.2 Implementation - Roles and Responsibilities
…
Nursing Unit Manager (NUM), Line Manager or delegate is responsible for:
● Implementing the standard key principles of clinical handover, establishing agreed times, durations, processes and frequencies for clinical handovers to occur
● Monitoring and evaluating local clinical handover on a regular basis through an audit process (at least every six months), with feedback of results, risks and any action required to all stakeholders
● Escalating results of auditing including any identified risks and planned actions to the Nurse Manager
● Capturing audits and results of audits in TRIM (TRIM containers to be identified locally)
● Ensuring any handover tools used within the workplace adhere to the ISBAR framework
● Ensuring the standard key principles for clinical handover are included in the local orientation and in service programs for all new and current clinical staff
● Ensuring the After Hours Nurse Manager and Cluster Nurse Managers are provided with a clinical handover of any patients of concern
…
Nurses are responsible for:
● Ensuring work practices are consistent with standard key principles for clinical handover
● Ensuring any tools used follow the ISBAR framework
● Attending and participating in the handover of all patients that are relevant to them
● Ensuring that they understand the information they are receiving during handover and if not seek clarification from the person who is handing over
● Ensuring any information handed over is documented in the patient's health record
● Escalating any concerns regarding a patient to the NUM and relevant medical officer
● Participating in the monitoring and evaluation of clinical handover.
…
Section 3.1 Clinical Handover - Standardised Format
Clinical handover communication and documentation is improved by a standardised format for communication such as the ISBAR framework. ISBAR provides a framework to outline how a conversation is conveyed between people in a consistent and reliable way.
ISBAR is the format that JH&FMHN utilises for clinical handover and is an acronym which stands for:
I:Introduction
● Introduce yourself and your role in the patient's care
● State the unit you are calling from when speaking over the phone
S:Situation
● Specify the patient's name, diagnosis and current condition or situation
● Explain what has happened to trigger the conversation
B:Background
● State the admission date of the patient, his or her diagnosis, and pertinent medical history
● Give a brief synopsis of what has been done so far (e.g lab tests)
● Advise of any safety alerts that staff need to be aware of, e.g work health and safety risks, aggression, manual handling risk
A:Assessment
● Give a summary of the patient's condition or situation
● Note clearly the trend in patient observations
● Explain what you think the problem is or say "I'm not sure what the problem is, but the patient's condition is deteriorating"
● Expand on your statement with specific signs and symptoms
R:Recommendation
● Explain what you would like to see done (eg lab tests, treatments, or "I need you to see the patient now")
● State any new treatments or changes ordered (eg monitoring and frequency or when to re-notify the medical officer if there is no improvement in the patient)
…
3.2 Situations where Clinical Handover is Required
There are numerous occasions where clinical handover is required as part of everyday work; this may be face to face (preferred), written or via telephone. It is the responsibility of all staff to handover clinical information in a timely and accurate manner that will ensure the best outcome for the patient and staff. It is the responsibility of all staff to ensure they understand what is being handed over to them; this may require staff to repeat back and /or ask questions. Occasions where handover is required include:
● Shift to shift (changeover of staff)
● Patient transfers for a test or appointment
● Patient transfer/discharge to another hospital/facility/unit
● Patient transfer from one unit to another within a hospital
● Multidisciplinary team handover
● Patient transfer to and from and within the community (where appropriate)
● Deteriorating patient
All clinical handovers must use the standard key principles and the ISBAR framework as outlined in this policy.
3.2.1 Shift-to-shift Clinical Handover
Clinical handover must take place at the end/commencement of each shift in all JH&FMHN clinical sites; this will ensure continuity of information and is vital to the safety of patients and staff. In sites where staff are not rostered on duty 24 hours a day other clinical handover methods must be in place. This could include a written handover, which is easily accessible to the next shift of staff.
…
1. JH&FMHN Accommodation - Clinical Recommendation (Adults) (Policy number 1.340) (ex A1, tab 116) provides:
It is Justice Health & Forensic Mental Health Network (JH&FMHN) policy to provide clinically based recommendations regarding a patient's cell placement within the NSW correctional system. This must be based on an assessment of the patient's risk of causing harm to self or others, in light of the information available to JH&FMHN at the time of making the health recommendation and the patient's physical and mental health requirements. It is ultimately the responsibility of Corrective Services NSW (CSNSW) staff and the Commissioner to consider the clinical recommendation regarding cell placement made by the JH&FMHN staff and make a determination for cell placement based on this and the security and safety requirements of the inmate as per s 232 of the Crimes (Administration of Sentences) Act 1999.
…
3.1 Placement Options
…
3.1.7 Detoxification Placement
Patients experiencing acute substance withdrawal, or who are expected to develop substance use withdrawal symptoms or who are intoxicated should be considered for placement either in an Assessment Cell or a Clinical Observation bed, depending on the resources at the Centre. Placement facilitates increased access by health staff where there is a need to monitor the overall health status of the patient. Clinical need and judgment will determine how often a patient will require reviewing. However, twice daily must be the minimum. These reviews must be documented in the patient's Health Record….
Clinical staff must specify on the JH&FMHN Health Problem Notification form (Adults)…whether the patient needs an Assessment cell or a Clinical Observation Bed and what observations are needed.
1. JH&FMHN Clinical Observation Beds in Health Centres (Adults) (policy number 1.025) (ex A1, tab 115) applies to Health Centres (Adult Correctional Centres or Police Cells). It states that Clinical Observation beds are non admitted beds located in Adult Health Centres that are used to accommodate patients who require a higher level of observation for Primary Health, Drug & Alcohol, Population Health and Mental Health issues. The policy identifies JH&FMHN Clinical Observation Bed Locations, including 16 Observation beds at PKA, with 24 hour nursing cover. The policy provides:
2.2 Implementation - Roles & Responsibilities
Placement on the Advice of a Medical Officer
Once a decision has been made by the MO of the respective clinical stream to place a patient in a Clinical Observation bed, the MO must advise nursing staff of:
● the required level of observation
● regularity of clinical measurements
● any further investigations or follow up, and
● any symptoms that may indicate that the patient's condition is deteriorating and any action that may need to be taken in this event.
For all other Clinical Observation bed placements, the purpose for placement and level of monitoring required must be documented in the patient's Health Record by the NUM or delegate.
NUM or Delegate
The NUM or delegate is responsible for the shift by shift overall co-ordination and management of patients placed in Clinical Observation beds and is the initial point of contact for staff with clinical concerns. They must review the treatment plan and co-ordinate any treatment ordered by the treating MO. They are responsible for ensuring the treating MO is informed of any changes in the patient's health condition.
3. Procedure Content
3.1 Placement
If placement occurs out of hours, the Remote Offsite Afterhours Medical Services Protocol (ROAMS) must be followed to contact the appropriate on call MO. The MO must provide the appropriate Clinical Director with a handover of the case as per the clinical stream handover protocol to enable continuity of care to be transferred to the appropriate Chief Medical Officer (CMO), Visiting Medical Officers VMO or Staff Specialist covering that Health Centre.
All patients placed in Clinical Observation Beds must be reviewed by nursing staff each shift and an entry regarding their clinical condition made in the Health Record. Clinical measurements must also be recorded in the frequency requested by the MO on the appropriate NSW Health Standard Adult General Observation chart (SAGO observation chart).
Any discussion of a patient's initial or ongoing care with the on call MO whilst the patient is placed in the Clinical Observation bed must be recorded in the patient's Health Record.
If a patient's clinical condition deteriorates while placed in the Clinical Observation bed, the appropriate MO must be contacted by the NUM or delegate and the patient transferred to the local Emergency Department if indicated.
[3]
The Complaint
There are two complaints. Complaint One of the Amended Complaint is that EN Day is guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law in that she has:
1. engaged in conduct that demonstrates the judgment possessed or care exercised by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and
2. engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
The particulars of Complaint One, as amended, are:
1. The practitioner failed to carry out her duties in that she failed to read the Clinical Notes and Health Records of Patient A, in accordance with:
1. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles and Responsibilities - Nurses);
1. The practitioner failed to implement the treatment plan ordered by the treating MO, in that she failed to complete clinical observations, at a minimum of fourth hourly intervals, of Patient A as instructed, in accordance with:
1. JH&FMHN Policy 1.340 section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement;
2. JH&FMNH Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles & Responsibilities - Nurses);
1. The practitioner failed to accurately document and update the clinical notes of Patient A in accordance with:
1. NSW Health Care Records - Documentation and Management, point 2.4 (Documentation by Nurses and Midwives);
2. NSW Health Code of Conduct, point 4.2 (Demonstrate honesty and integrity);
3. NSW Health Code of Conduct, point 4.3 (Act professionally and ethically);
4. JH&FMHN Policy 1.340 section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement;
1. The practitioner failed to ensure that the 'Morning shift' nursing staff, namely EN Steele and RN Crammond, were provided with a clinical handover of Patient A, being a patient of concern, in accordance with:
1. JH&FMHN Policy 1.075 Clinical Handover, point 3.2 (Situation where Clinical Handover is Required);
2. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles & Responsibilities - Nurses);
1. The practitioner failed to seek appropriate approval to leave early and complete the nursing care and management shift he was rostered on to complete, in accordance with:
1. NSW Health Code of Conduct, point 4.2 (Demonstrate honesty and integrity);
2. NSW Health Code of Conduct, point 4.3 (act professionally and ethically).
Complaint Two is that EN Day is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 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 the practitioner's registration.
The HCCC alleges that each particular of Complaint One justifies a finding of professional misconduct; or in the alternative, when two or more of the particulars of Complaint 1 are taken together, a finding of professional misconduct is justified.
[4]
Reply 28 August 2020
In her Reply dated 28 August 2020, responding to the original Complaint, EN Day accepted particulars 1, 2 and 5, and did not accept particulars 3 or 4, of Complaint One.
In response to particular 1 EN Day stated that she was allocated Clinic cells A-H and was not allocated care of Patient A on 6 December 2017; and in relation to particular 1(b), she was not the NUM or delegate on 6 December 2017. In response to particular 2, she stated that she was allocated Clinic cells A-H and was not allocated care of Patient A on 6 December 2017; and that she was not instructed to complete clinical observation in the verbal or written handover provided or by the RN on shift.
In response to particular 3 EN Day stated that the RN on shift who had allocation of the detox cells documented in Patient A's clinical notes on 7 December 2017. She was not allocated care of Patient A. She was allocated Clinic cells A-H and completed documentation for those patients, and the RN completed documentation in patient notes for Clinic cells 34 to 37. In relation to particular 3(b) the NSW Health Code of Conduct 4.2 does not relate to accurate documentation and updating clinical notes.
In response to particular 4, EN Day stated that RN Crammond would not have been present for morning handover as she had not yet arrived to start her shift. EN Steele was provided a handover from the RN who had allocation of the detox cells including Patient A on the night shift. She was attending to morning medication round for the court attendees. She is an EN and was not the NUM on 7 December 2017 or at any time.
In response to particular 5, EN Day stated that she failed to seek appropriate approval to leave early. There was an ongoing issue with the biometric data machine's calibration which was out by 20-25 minutes, and she left at about 7.05am. All nursing care and management was attended to the best of her knowledge as at 7 December 2017. In relation to particular 5(a), the NSW Health Code of Conduct 4.2 does not relate to seeking early approval or completing nursing care. She was not a manager on this or any other shift.
In reply to Complaint Two, EN Day stated that that is a matter for the Tribunal to determine.
[5]
The Amended Complaint
The amendments to the particulars of Complaint One made in the Amended Complaint included the deletion of references to certain JH&FMHN policy documents in particulars 1, 2 and 4, and addition of a reference to an additional JH&FMHN policy document in particular 3; and an additional complaint of unsatisfactory professional conduct under s 139B(1)(l) of the National Law.
In written opening submissions EN Day responded to each of the particulars of the Amended Complaint. EN Day accepted particulars 1 and 2, stating that she did not read the clinical notes and health records of Patient A and did not undertake any task in accordance with the treatment plan for Patient A. She accepted particular 5, in that she left the shift before the scheduled completion time, however at the time of leaving had provided the nursing care required. EN Day maintained her denial of particulars 3 and 4. Her response to the amended particulars was as follows:
1. Particulars 1, 2 and 3: she was not allocated care of Patient A on the shift, and was allocated to care for patients in cells A-H;
2. Particular 1: at the time of Patient A's admission it was not part of her practice to routinely read progress notes at the commencement of the shift, rather there was a strong reliance on information received at handover; she accepts it is best practice to read the progress notes at the commencement of the shift and she has since implemented that practice;
3. Particular 2: she did not receive any information on handover regarding the existence of, or requirements of the treatment plan; she was not delegated any aspects of nursing care for Patient A by the RN she was working under the supervision of, RN Nuevo, nor were any aspects of care delegated to her by RN Stratten at handover;
4. Particular 3: she did not document in Patient A's notes at all, and so there can be no suggestion of inadequate documentation or that not documenting in Patient A's notes is somehow dishonest or unethical; she did not have any basis for or reason to document in the clinical notes for Patient A as she was not allocated to care for him, was not made aware of any concerns or calls, and did not provide any delegated aspects of care to Patient A that would warrant the making of an entry in the clinical notes;
5. Particular 4: the RN in charge of the shift, RN Nuevo, was the person to provide handover to staff on the morning shift; she did not have any information regarding Patient A to handover; and while she was present during the handover and was aware it was occurring she was attending to the morning medication round for the court attendees at the time;
6. Particular 5: EN Day completed her shift and left the facility with RN Nuevo who was the NIC and her supervisor on the night shift after being told by the staff on the morning shift that they should go; she accepts that the morning shift staff did not have authority to permit her to leave early however at the time genuinely believed that the NIC did; and in any event the early completion of a shift is an industrial issue between an employee and an employer and not a matter of professional discipline. JH&FMHN undertook a comprehensive investigation in relation to EN Day and ultimately did not substantiate the allegation in relation to her leaving early without approval.
[6]
Tribunal hearing
The HCCC relied on a bundle of documents in three volumes (ex A1), which includes:
1. The Complaint, and certificates of registration status of EN Day (tab 1);
2. Expert report provided by Ms Christine Muller (tab 9);
3. Correspondence between the HCCC and EN Day, including notifications under s 28 and s 40 of the Health Care Complaints Act 1993 (tabs 22, 26);
4. Annotated Clinic floor plan, photograph of whiteboard, and staff rosters for 6 and 7 December 2017 (tabs 59-62);
5. Statement of Duties (Night Duty EN) and Position Description (EN) (tabs 24, 25);
6. JH&FMHN investigation interviews with EN Day on 2 March 2018 and 10 May 2018 (tabs 67, 78);
7. Other JH&FMHN investigation interviews, including interviews with the CNS D&A on 2 March 2018, and EN Steele on 6 March 2018 (tabs 68, 71);
8. JH&FMHN Investigation Report into EN Day, 1 June 2018 (tab 64);
9. All Activity Summary Statement (check-in; check-out) EN Day 6, 7 December 2017 (tab 79);
10. Reasons for decision of s 150 proceeding (tab 85);
11. Transcript of s 150A hearing 2 December 2019 (tab 88);
12. Reasons for decision s 150A proceeding 1 February 2021 (tab 88A);
13. Clinical Handover sheet 6 December 2017 (tab 91);
14. Corrective Services NSW Death in Custody Investigation Report (tab 109), including:
1. Statements by correctional officers;
2. CCTV images and summary;
3. Transcript of interviews with inmates in cells adjoining and close to cell 34;
1. Autopsy report;
2. JH&FMHN and NSW Health Codes of Conduct, Guidelines and Policies; and
3. Patient A clinical records.
The transcript of the hearing 16-20 May 2022 is exhibit A2; and the Agreed Statement of Facts filed 30 June 2021 is exhibit A3.
EN Day relied on a bundle of documents including a Reply dated 28 August 2020, and Statement dated 28 August 2020 (ex R1).
EN Day gave oral evidence on 20 May 2022 and 14 September 2022. The HCCC's expert witness, Ms Christine Muller, who had given oral evidence in person on 18 May 2022, gave oral evidence by telephone on 14 September 2022.
The HCCC provided written opening and closing submissions. EN Day provided written opening and closing submissions. The HCCC did not provide any closing submissions in reply.
[7]
EN Day's evidence
EN Day provided a statement dated 28 August 2020 with her Reply. In that statement she said that she had participated in two JH&FMHN investigation interviews in March and May 2018, in which she felt intimidated and nervous and did not have access to any notes.
[8]
Statement 28 August 2020
EN Day stated that as at 6 December 2017 she had been working at JH&FMHN for about a year and 8 months. As an EN she worked under the supervision of a RN. She was rostered to work night shift the week of 4-8 December 2017, Monday to Thursday nights. On 4 December 2017 she and RN Nuevo discussed the allocation of cells in the Clinic. She was allocated patients in cells A-H for the week, and RN Nuevo was allocated the detox cells at the bottom or back section. They were the only two nurses on night shift for all inmates/patients. The capacity of the facility is about 830 and any call or emergency outside the Clinic was attended by both of them. On night shift the only medications they give out are to those inmates/patients who are asking for nurse initiated or "PRN" medication; regular medications are given out over the course of day and afternoon shift. If a patient is required early for court or transfer their medication would be given early in the morning between 5.00-6.00am depending on the time they are required.
EN Day stated that at about 9.45pm on 6 December 2017 she and RN Nuevo received handover from RN Stratten at the Nurses' Station. She was told that Patient A was a new reception, his RSA was not yet attended, he had a history of epilepsy and Crohn's disease, and that he had refused his Epilim. She was not informed that there were four hourly observations or that he had been given Panadeine.
EN Day recalled that after handover, between about 10.00pm and 11.00pm she saw RN Nuevo at the Officers' desk but did not hear the conversation. During the shift she sat with RN Nuevo in the main Clinic in the Nurses' Station. They sat side by side on the computers, and each went between the Nurses' station and medication room as they completed their respective duties. RN Nuevo was conducting the pharmacy order for the month which was due the following day; she was doing the courts and transfers, with about 20 transfers out of the correctional centre to organise, and she was packing and organising notes for transfer.
EN Day said that she left the Nurses' Station from time to time to go to the medication room. From time to time she would check on the patients allocated to her in cells A-H using the CCTV camera at the Officers' desk. RN Nuevo would also leave the Nurses' Station from time to time to attend the medication room. Between about 5.00am to 5.20am they received a medical emergency call in Area 5, a man complaining of chest pain. They attended to this "cert" call, which took about 30-45 minutes.
EN Day stated that she was not aware of any knock up by Patient A on the overnight shift. In the morning, as was her usual practice, she asked the officer on shift whether there were any issues from their end, and CO Stankovski said there were no issues overnight. She did not participate in the morning handover as she was at the Clinic medication window administering medication to the Court attendees for that day; that would have been at about 6.15 to 6.30am.
EN Day's evidence in her statement that the handover by RN Stratten included that Patient A was a new reception for whom RSA had not been completed, and that he was an epileptic who had refused his medication and had a history of Crohn's disease is consistent with what she told the JH&FMHN interviewers on 2 March 2018. On that occasion she also said that there was no mention of a substance withdrawal plan, or for four hourly observations.
[9]
Oral evidence 20 May 2022
In oral evidence on 20 May 2022 EN Day was asked what she recalled of the handover from the afternoon shift on 6 December 2017. She recalled it was that there was a new reception, the RSA was not yet completed, and the patient had a history of Crohn's and epilepsy. EN Day stated that she was pretty confident she was not also told at handover that Patient A was in opiate withdrawal. She did not know he was in opiate withdrawal.
EN Day was asked whether there was an allocation of the Clinic patients between her and RN Nuevo, and responded "No". RN Nuevo did not ask her to read any patient notes on 6 December 2017, and she was not informed of a patient knocking up that evening. Her recollection was of CO Sarin saying goodbye, and CO Stankovski saying hello. Other than that, she did not see an officer come and say anything else, nor raise an issue with anybody detained in the Clinic. She was present for the handover to EN Steele. Asked what she remembered may have been said about Patient A, EN Day said that he had no issues overnight.
In response to questions from the Tribunal panel, EN Day said that she could not recall any conversation with anybody about managing the nursing care of patients while RN Nuevo was doing the pharmacy order. Asked what the usual process was of instructing her what she needed to do on the shift, EN Day said that on night shift they start with the tasks that need to be done, the transfers in and out plus get medications ready for those attending court, and updating the medication chart.
[10]
Oral evidence 14 September 2022
In oral evidence on 14 September 2022 EN Day could not recall when or how she had been allocated patient care for cells A-H on 6 December 2017. Her memory was that there was an allocation. She had done the night shift earlier that week, and it could have been an allocation that started earlier, as the EN works on Monday through Thursday nights. She understood her responsibility was for cells A-H and her role included doing observations and medications and notes. If she had been asked to attend other patients, or if there had been a knock up, she would have attended. EN Day stated that on night shift to access a patient the nurses have to get permission from the shift manager who has to approve having four officers open the cell; that is the case for everything other than a scheduled medication round. EN Day stated that CNE Crammond was not there at handover to the morning shift on 7 December 2017 as her shift had not started; other nurses were in the Clinic. EN Day explained that sometimes she has to stay back after the end of her shift: if the NUM asks her to stay back, she will be paid, however if it is to finish her work, she will not.
In cross examination EN Day stated she could not recall hearing RN Nuevo's oral evidence on 20 May 2022 that there had been no allocation between them for the Clinic cells. Her memory is vague. While she had her IPad there and was listening to the hearing, she was in and out looking after her child. She has been relying on what she had submitted to the Tribunal, that is, her statement from August 2020. It could have been a carry over from a night before or possibly that night. She agreed that there is no documentation of any allocation.
EN Day was taken to the Statement of Duties for Night Shift at PKA (ex A1, tab 24), which lists the duties for the RN and EN on the shift. She could not recall having seen that document before 6 December 2017, however agreed that some of the required tasks listed on that document are joint and others are divided between the two staff on duty. She did not recall if she checked the HPNFs as stated on that document. If she had seen either of Patient A's HPNFs, with the reference to "substance withdrawal" and "in withdrawal", she would have read the notes thoroughly and consulted with RN Nuevo to make sure the observations were carried out. She was not aware Patient A was in withdrawal, that was not handed over. Asked what she would understand by the handover sheet record that the reason Patient A was in the Clinic was "Detox", EN Day stated that she would understand he was under Drug & Alcohol but would not know what level of care was required. If all she knew was that Patient A was in "detox" she would have looked at the "diagnosis/comment" section on the handover sheet and also his notes. EN Day could not remember what was on the handover sheet she received. Usually the person handing over would read what is on the sheet. EN Day denied being aware that Patient A was in opiate withdrawal.
EN Day agreed that the requirement in the Statement of Duties to "attend patients in clinic - observations & medications as required" was a joint duty, and necessarily included a review of patient notes. To "attend patients" would require approval from the shift manager between 4.00pm to 8.00am, and four corrections officers.
In response to questions from the Tribunal, EN Day stated that she did not know why she did not read the notes of new patients in the Clinic. She was asked whether if RN Nuevo was doing the pharmacy inventory she would take over his duties and look after patients; she agreed, and said that she was also attending to all the other night shift duties. She was asked about the handover sheet, and stated that it is not a PDF, rather a Word document that is continually updated and any nurse has access to it. Once the document is opened up the time is updated; if it was printed shortly after, the time would remain. She would put her copy of the handover sheet in the shredder after handover was finished. EN Day stated that it was not common practice to use the ISBAR framework see 53(a)]) in handover unless calling the ROAMS GP or D&A of psychiatry. She has changed her practice and now uses ISBAR.
[11]
Expert evidence
The HCCC relied on expert evidence provided by Ms Christine Muller. Ms Muller has been a registered nurse since 1982 specialising in adult mental health. She has a Masters degree in Nursing and was endorsed as a Nurse Practitioner (Adult Mental Health) in 2003. Ms Muller has worked as a mental health nurse, since 2008 with JH&FMHN as Nurse Practitioner Adult Mental Health in NSW adult correctional centres.
Ms Muller prepared a report relating to each of the respondents, including EN Day (ex A1, tab 9). Ms Muller gave oral evidence on 18 May 2022 addressing thematic issues relating to expected practice in the provision of nursing care in a prison clinic as opposed to a hospital or some other setting, including relating to clinical handover, and packing and distribution of medications. She was cross examined by or on behalf of each of the respondent registered nurses. Ms Muller gave further oral evidence relating to EN Day on 14 September 2022, and was cross examined.
[12]
Ms Muller's report 29 September 2019
In her report relating to EN Day dated 29 September 2019 (ex A1, tab 9) Ms Muller expressed the opinion that EN Day should have been aware that Patient A was a patient of concern both at handover from the afternoon shift and in the course of her duties on night shift; and it made little difference whether EN Day had a copy of a handover sheet that identified him as being in opiate withdrawal. On being informed that Patient A had been transferred to the Clinic from Reception it was reasonable to expect that EN Day would review his clinical records, and in doing so would have identified his co-morbid conditions, that he was experiencing opiate withdrawal, that he had required intramuscular medication, and also noted the clinical management plan. She would also have identified that the clinical observations due at approximately 7.00pm had not been attended and there was a need for this to occur as a priority. That information should have been discussed with RN Nuevo and clinical review requirements included in the clinical workload for the night. While an EN must work under the direction and supervision of a RN they are responsible for their own actions.
In Ms Muller's opinion EN Day's failure to identify that Patient A was a patient of concern was significantly below the expected standard. Her failure to read Patient A's clinical notes at any time during her shift was poor practice and significantly below the expected standard. Her failure to complete any physical observations on Patient A other than visual observations via CCTV two or three times during the night was poor practice and significantly below the expected standard. Her practice of reading clinical notes at the end of her shift, as stated in the JH&FMHN investigation interview on 10 May 2018, was extremely poor as it did not inform her of the needs/nursing care of each patient in the Clinic during her shift particularly for those newly transferred into the Clinic. That practice was significantly below the expected standard.
Ms Muller was of the opinion that since EN Day was allocated care for the patients in beds A-H she was responsible for updating the clinical handover sheet for those patients even if she was of the opinion that nothing had changed from the previous night. Her failure to do so was significantly below the expected standard. The clinical handover provided to the oncoming morning shift was inadequate and there was no evidence that the ISBAR framework was used in keeping with JH&FMHN policy 1.075 Clinical Handover. That was significantly below the expected standard.
Ms Muller considered that EN Day's actions in leaving the centre early without appropriate approval from the After Hours Nurse Manager (AHNM), was a breach of the Code of Conduct and significantly below the expected standard.
In summary, Ms Muller considered that EN Day did not adhere to the JH&FMHN Clinical Handover, Accommodation, or Clinical Observation Beds policies in that she did not provide adequate clinical handover, or ensure that a patient housed in a detoxification cell or Clinic cell had clinical review and clinical observations attended. That was significantly below the expected standard.
[13]
Ms Muller's oral evidence 18 May 2022
In her oral evidence on 18 May 2022 Ms Muller was asked about her experience working in custodial settings, and stated she started work with JH&FMHN in 1998, employed as a reception nurse for three years before accepting a role as a nurse consultant. She worked as a patient safety and clinical risk manager for two years, and since 2008 has worked as a nurse practitioner in mental health, all in a custodial setting. She has worked in PKA on and off over the years, and has experience working in reception prisons. Ms Muller acknowledged that her qualifications are focussed on mental health, and commented that she had worked exclusively in reception because of her skills in drug and alcohol and mental health. She acknowledged that since 2000 her role had focussed on mental health, and stated that in custodial mental health there is a need to look at the whole patient; and she would always do observations and check co-morbidities, and consider physical health as well as mental health and drug and alcohol status, and how medications interact with each other. In custodial mental health managing drug and alcohol problems is core business.
Ms Muller commented on expected practice for handover, which she said should be at the beginning and end of a shift, away from distraction, and using the ISBAR process (see [53(2)(a)] above). The nurse in charge or nurse unit manager, as well as all staff on duty in the oncoming and the leaving shifts, should participate. The role of the NUM would be to ensure that the area is free of distractions and that the ISBAR process is followed. The written handover sheet is a tool to prompt the person giving the handover and the person receiving handover that has been used in many organisations. Clinical notes of what needs to happen during the oncoming shift can be made. It should be updated at the end of each shift or as the situation changes. That sheet is not currently used in JH&FMHN, rather a printed handover book is used.
Ms Muller was asked about reviewing patient notes, and commented that during clinical handover, particularly for patients who are housed in the Clinic itself, it is a reasonable expectation to open up the file and get more information about what has happened than the few lines written on a handover sheet. That may be recommended treatment plans, what medication had been administered, and a patient's physical observations; or if in fact there is a patient housed in the Clinic by the security service provider for management reasons.
Ms Muller stated that a minimum expectation for patients who are in the medical cells is that they are seen at least twice on the shift; for a patient who has just started detox and actively started to withdraw, the minimum would be fourth hourly observations. Depending on their detox score that might increase to second hourly or hourly. The detox score is a set of observations including blood pressure, pulse, respiration, whether there is any piloerection or abdominal pain, whether they have watery eyes or runny nose, nausea, vomiting, diarrhoea, their level of anxiety, or if they are hallucinating. There are withdrawal scale tools routinely used, such as the D&A Substance Withdrawal Monitoring Chart (ex A1, tab 132). While those observations would be recorded there, they would also be recorded on the SAGO chart. Ms Muller stated that the reason a patient is in a medical observations cell is to allow for better access, and the policy says that a patient in a medical observation cell needs to be assessed twice daily at a minimum, for physical observations and a verbal interaction as well as observing.
In the course of her evidence about the role of the nurse unit manager in a custodial clinic setting, Ms Muller was asked about the role of the nurse in charge (NIC). Ms Muller stated that the NIC is generally on night duty or weekends or public holidays, and they assume overview of everything happening in the clinic on that day. They are the nurse in charge and have the responsibility to escalate and direct care.
Ms Muller was asked about the significance of a patient asking to see a nurse. She stated that her understanding was that patients need to be seen whether or not they are abusing an officer, as it is a health issue. A lot of patients do not like disclosing to the security service provider what is going on with their health, and the security providers are not health professionals. Ms Muller agreed that such a request would be a prompt to review the patient's notes.
Ms Muller commented that it was consistent throughout each of the shifts on 6 December 2017 that there was an overall failure to open up a hardcopy file to see what had happened in relation to patient care. Some of the patients would have been in the Clinic the night before, in which case the staff would be well aware of them, but she would expect, at a minimum, a review of the notes of the new patients who had come into the Clinic.
Ms Muller was asked about what the term "patient of concern" means in Justice Health, and said that a patient of concern may mean somebody who has a complex health issue, for example as recorded on the handover sheet, a patient who was terminally ill but was being managed in the mainstream population, or patients with an acute mental health issue or at risk of harm to self or others, or who are detoxing. Ms Muller agreed that by that definition all patients within the Clinic are patients of concern, and that patients in the Clinic would not need to be included in the patients of concern section of the handover sheet. Ms Muller clarified that sometimes the security service provider would house people in the health centre for management or non-health issues, which would be specified.
Ms Muller commented on the context of custodial health, stating that it is a hybrid between a hospital and a community health setting. Access is limited, as in some instances people are only out of their cell for one hour a day; and by and large security takes priority over health, which is why patients who are unwell are housed in the health centre (clinic) where there is better access. It is a challenging environment, with a need to negotiate with the security service provider to be able to access the patients. Access is less difficult because they are in the health centre, but the doors are locked and the health staff do not have keys and need the security provider to allow access. Ms Muller agreed that that would make reading the files more important. By and large the population is reasonably healthy, although there may be acute health issues such as chest pain. In reception gaols detox is a core business: people are coming in off the street or from police cells, and it is usually 24 hours since they had any unprescribed substances, so the onset of substance withdrawal was expected. In custodial health syringes and needles are counted and have to be booked out, so it is quite unusual for someone to receive an injection. For someone to require an injection would indicate that they are really quite unwell. Asked whether it is usual for a patient that unwell to stay in the custodial setting, Ms Muller said that Patient A had been assessed by a medical officer and a CNS and they were happy that the patient could be managed, but specified that if not, to call the on call nurse practitioner or medical officer again.
[14]
Ms Muller's oral evidence 14 September 2022
In oral evidence on 14 September 2022 Ms Muller acknowledged that she has never worked as an EN. She stated that she did three years hospital training to become a registered nurse, with a postgraduate conversion. She considered that her student nurse experience familiarised her with working at different capacities. An EN now receives 1000 hours of education which would be equivalent to her training as an RN. Ms Muller acknowledged that she had been employed in primary health care for the period 1998 to 2001, stating that working in mental health nursing in JH&FMHN is different to the usual, and includes experience in drug and alcohol and chronic care, because access to the patients is limited. Her background is in drug and alcohol and mental health nursing, less so in chronic care.
Ms Muller was asked in cross examination whether she agreed that an EN practices under the direction and supervision of an RN and assists in the provision of patient care. Ms Muller agreed, stating that an EN is responsible for her own practice and remains accountable in providing delegated nursing care. She was not aware of any specific orientation or training for an EN in JH&FMHN, whereas she is aware there is a new graduate program for a RN. Ms Muller agreed that the Statement of Duties for the Night Duty EN at PKA (ex A1, tab 24) did not include a requirement to read patient notes, stating that that would be common sense as patients in the Clinic are unwell, and that it makes sense to read what is happening for the patients in the health centre. Asked if it made a difference if EN Day was allocated care of patients in cells A-H and RN Nuevo was allocated to cells 34-39, Ms Muller stated that there were only three patients who were new in the Clinic and the rest were on RIT stepdown or GEO placement, and regardless of any allocation it would be good practice to read the notes for the three patients who were unwell. Ms Muller noted that the handover to the night shift did not include that observations had not been done, and that unless the treatment plan was read that would not be known.
Ms Muller was asked whether in forming her opinion that EN Day's conduct was significantly below the expected standard she had taken into account that she was working under supervision of an RN and had had 19 months experience. Ms Muller stated that she had taken that into account, and factored those matters into her criticisms, and stated that she considered that with 19 months experience EN Day should be competent, especially in patient care in JH&FMHN; managing drug and alcohol withdrawal is basic in a reception centre.
Asked by the Tribunal about how a nurse could check on patients if the monitors were not working in the dark, Ms Muller stated that patients were in the Clinic because there was better physical access, and nurses could access the custodial staff so they could do observations. It is not acceptable just to observe via a camera or through the cell door, and physical observations are required.
[15]
Ms Muller's expertise and evidence
In closing submissions EN Day submitted that Ms Muller was not an appropriate peer expert to provide an opinion in this matter, and her criticisms of EN Day should be given little, if any, weight. Her experience in primary health nursing was limited to a role she held between 1998 to 2001, and she has never held registration as an enrolled nurse. EN Day submits that in her report and in her oral evidence Ms Muller failed to appropriately take into account EN Day's level of training and experience, that she was working under the supervision of a registered nurse, that she understood she was allocated patients in beds A-H and not Patient A, and that she did not receive significantly relevant clinical information on handover from RN Stratten including the fact that Patient A was detoxing and that four hourly observations were required by the treatment plan. EN Day submits that Ms Muller's concession in oral evidence that she was as critical of EN Day as she would be of an experienced registered nurse demonstrates her failure to factor those considerations when forming her opinion.
The Tribunal does not agree. Ms Muller is a very senior and experienced nurse and in the Tribunal's view would have a very good understanding of the standard expected of an enrolled nurse. While Ms Muller has not held registration as an enrolled nurse, the Tribunal is satisfied that as an experienced and senior RN she has worked with, and has supervised and delegated work to, enrolled nurses. Ms Muller's written and oral evidence to the Tribunal was clearly based on extensive experience in a custodial context, informed by her qualifications and expertise in mental health nursing in such a setting. Ms Muller's CV records that her role as Nurse Practitioner Adult Mental Health with JH&FMHN includes assessment and identification of concurrent drug and alcohol and or physical health issues, and referral to appropriate services. The Tribunal accepts that because access to patients is limited in the unique custodial environment, nursing care has to be provided "opportunistically", as Ms Muller described it in oral evidence; and requires awareness of drug and alcohol and primary care issues.
The Tribunal considers that Ms Muller's report, and her oral evidence, demonstrated that in providing her opinion she has taken into account the context of the custodial setting, EN Day's qualifications and relative inexperience, and the supervisory role of the RN with whom EN Day was working on the night shift at PKA on 6 December 2017. In assessing the reliability of and weight to be given to that evidence the Tribunal notes that the issues raised in this proceeding relate to basic competencies expected of any nurse in any nursing setting: reading notes, implementing the treatment plan, providing and receiving clinical handover, and fulfilling nursing duties on a rostered shift. None relate to clinically specific matters.
In making its findings as to whether a practitioner is guilty of unsatisfactory professional conduct or professional misconduct the Tribunal is entitled to take into account any admissions made by that practitioner, and to act on the specialist expertise of its professional members in considering whether there has been a departure from the relevant standard of conduct. That task is assisted by appropriately qualified and reasoned expert evidence. The Tribunal is satisfied that the evidence of Ms Muller meets those requirements. The Tribunal accepts, and gives weight to the evidence of Ms Muller.
[16]
HCCC submissions
The HCCC submits that there is one factual matter in dispute between the parties, namely whether there was an allocation of patients between RN Nuevo and EN Day on 6 December 2017. The HCCC submits that the Tribunal should find that there was no such allocation, based on the oral evidence of RN Nuevo on 20 May 2022, to the effect that both he and EN Day had responsibility for all patients in the Clinic, but that they had divided the task of writing in the patients' notes at the end of the shift; EN Day's oral evidence on 20 May 2022 that there was no allocation of clinic patients between herself and RN Nuevo; and her oral evidence on 14 September 2022 that she could not specifically remember whether there was an allocation of patients between them. The HCCC submits that the weight of the evidence is to the contrary of the statements in the Reply dated 28 August 2020 and the statement dated 28 August 2020 that EN Day was allocated the patients in cells A to H.
The HCCC submits that the fact that EN Day was an enrolled nurse working under the supervision of a RN is a relevant background matter, however is not of itself an sufficient answer to any of the particulars to the complaint, relying on the JH&FMHN Position Description for Enrolled Nurses which states that "Enrolled nurses retain responsibility for their personal actions whilst remaining accountable to the RN for all delegated functions…".
The HCCC presses all five particulars, submitting that while there is no evidence that RN Stratten told EN Day about the treatment plan during her handover, that is not exculpatory in circumstances where EN Day would have been aware of the treatment plan if she had read Patient A's progress notes; and she and RN Nuevo were both responsible for Patient A. The HCCC accepts that EN Day did not perform any observations of Patient A, however particular 3 is pressed because what she should have done was read the notes, carry out the treatment plan recorded in the notes, and documented that she had done so, unless she was satisfied that RN Nuevo had attended to the treatment plan.
The HCCC submits that both RN Nuevo and EN Day were responsible for failing to give an adequate handover to the morning shift staff in circumstances where they would have been in a position to provide a complete clinical handover had they read Patient A's notes, carried out the treatment plan, and made appropriate clinical notes. Particulars 3 and 4 are properly part of the HCCC's articulation of how EN Day's conduct fell short of the conduct reasonably expected of a practitioner of equivalent training or experience. Particular 4 appropriately refers to RN Crammond, because her entry in Patient A's clinical notes indicates she was present in the Clinic by 7.10am on 7 December 2017 before RN Nuevo and EN Day's shift was due to conclude at 7.30am.
The HCCC submits that the Tribunal should not accept the response to particular 5 that at the time of leaving EN Day had provided the nursing care required: both she and RN Nuevo were responsible for Patient A, and EN Day left the Clinic 45 minutes before the end of her shift having not even read the notes for Patient A let alone done anything to carry out the nursing care required by his treatment plan.
The HCCC submits, relying on Health Care Complaints Commission v Little [2016] NSWCATOD 146, that conduct can simultaneously be unsatisfactory professional conduct pursuant to s 139B(1)(a) and (l) of the National Law, and that those sub-paragraphs may be overlapping. In the case of EN Day, the decision to leave her shift approximately 45 minutes early in circumstances where she had not even read Patient A's progress notes, or taken steps to carry out the management plan for him, was not merely a failure of clinical judgment but is also reasonably described as "improper" and thus s 139B(1)(l) applies.
The HCCC presses the complaint of professional misconduct pursuant to s 139E of the National Law, having regard to EN Day's conduct as a whole.
[17]
EN Day's submissions
EN Day submits that the Tribunal has sufficient evidence to either find that there was an allocation of patients between RN Nuevo and EN Day on the night shift of 6-7 December 2017, or at the least that EN Day understood that there was an allocation, and that such understanding may have impacted her decision-making on that shift. The understanding of how that allocation was intended to operate may have differed, however it is relevant that EN Day understood there was an allocation and reviewed particular patient records and recorded in those records based on that understanding.
EN Day relies on:
1. the JH&FMHN fact-finding interview on 2 March 2018, comparatively early on compared with the oral evidence, when she made reference to the fact that she wrote in the notes for "the ones that are up the top" and "I didn't do anybody that was housed in the back", and then went on to say that RN Nuevo would have done the patients at the bottom end including Patient A. EN Day submits that if there is an allocation between nurses to "write notes" that this stems from an understanding that that nurse would be the nurse who is designated to meet the majority of the care needs of the patient unless they are otherwise occupied;
2. the JH&FMHN allegation interview on 10 May 2018 when EN Day stated that the Clinic was "run in two sections. So the top is A-H", and "I did the patients at the top". In that interview EN Day was asked to clarify what she meant by her previous statement that she did not do anybody housed in the back and replied "down the back of the clinic in the detox zone";
3. the Reply dated 28 August 2020 in which she repeatedly referred to her being allocated patients in clinic cells A-H;
4. the Reasons for Decision for the Council's s 150A proceedings on 1 February 2021 in which it was stated that "Ms Day and the RN were each assigned half the cells and were responsible for attending to the patients and document in the patient notes"; and
5. her oral evidence to the Tribunal in which she was asked why on 20 May 2022 she had answered "no" to a question regarding whether there was an allocation of patients, and she was not able to explain this however outlined some of the difficulties in giving evidence by AVL as a possible reason. EN Day has clarified in her oral evidence that her understanding was that she was allocated patients in cells A-H to complete a range of tasks including writing in their progress notes but that given the passage of time it is difficult for her to recall and she relies on earlier accounts.
EN Day submits that it is not appropriate for the HCCC, in simultaneously prosecuting multiple complaints, to take different approaches to the veracity of oral evidence of a single witness, in seeking to rely on the evidence of RN Nuevo rejecting the existence of a broader allocation when it had earlier submitted in the related proceedings that the Tribunal should find that RN Nuevo had deliberately given false evidence.
EN Day submits that her registration status is relevant to the proceedings. Having regard to s 41 of the National Law, which provides that approved registration standards, codes and guidelines are admissible in proceedings under the National Law as evidence of what constitutes appropriate professional conduct or practice for the profession, the standards for practice for an enrolled nurse such as EN Day are different to those applicable to a registered nurse. Under the Enrolled Nurse Standards for Practice, Nursing and Midwifery Board of Australia (2017), as an enrolled nurse EN Day is required to work under the direct or indirect supervision of a registered nurse and remains accountable in providing delegated nursing care. That is relevant to the requirements that an assessment of whether the test in s 139B(1)(a) regarding a "practitioner of an equivalent level of training or experience" is properly applied. EN Day was registered as an EN on the basis of a Diploma of Nursing, approximately 18 months full time, to be contrasted with the minimum level of education for registration as a registered nurse of approximately three years full time. EN Day's registration, training and experience should also be taken into account in making any determination in relation to the complaint under s 139B(1)(l) of the National Law. By virtue of her registration status EN Day is not authorised to practise autonomously and is required to work under supervision.
In closing submissions EN Day responded to each of the particulars of the Amended Complaint. In relation to particular 1, she submits that while she accepts that she did not read Patient A's clinical notes and health records, the Tribunal must consider the evidence that she understood that she was not allocated care of Patient A on that shift; she had not been handed over clinically significant information that may have prompted her to review the progress notes; at the time it was not her practice to routinely read progress notes at the beginning of the shift rather staff relied on handover; and she had limited training and experience as a nurse as at December 2017 and her practice was informed by RNs she had worked with on night shifts. RN Nuevo as the NIC supervising EN Day did not delegate the task of reviewing progress notes to EN Day; and she has reflected that she now knows it is best practice to read the progress notes at the beginning of the shift.
In relation to particular 2, in response to which EN Day accepts that she did not undertake any task in accordance with the treatment plan for Patient A, EN Day submits that the Tribunal must consider the evidence that she understood that she was not allocated care of Patient A on that shift; she had not been handed over clinically significant information regarding the existence of or requirements of the treatment plan; she was not aware of the treatment plan as she had not read the notes; and she was not delegated any aspects of nursing care for Patient A by either RN Nuevo, or RN Stratten.
Particular 3 is not admitted: EN Day did not document in Patient A's medical record nor was there any specific requirement for her to do so; and even if she had read the notes or been aware of the treatment plan it is possible that care may have been appropriately provided and documented by RN Nuevo. At the least the writing of progress notes for Patient A was allocated to RN Nuevo, and EN Day, not being aware of the treatment plan, was not in a position to be satisfied whether it had been attended to by RN Nuevo. Had EN Day provided any delegated care to Patient A then the requirement to document in his clinical notes would have existed. EN Day had no basis or reason to document in the clinical notes for Patient A. There is no evidence to support any allegation that in failing "accurately" to document in Patient A's progress notes EN Day has somehow failed to act honestly, professionally or ethically.
Particular 4 is not admitted: the RN in charge of shift was the person to provide handover to the staff on the morning shift; and EN Day was not allocated care of Patient A and did not have any information regarding him to handover. EN Day was present during the handover and aware it was occurring however was attending to the morning medication round for the court attendees at the time. If RN Crammond had arrived earlier than her scheduled shift time on 7 December 2017, EN Day could not reasonably have been required to handover the patients in the Clinic to her as she was scheduled to commence after the scheduled completion time of EN Day's shift.
EN Day accepts particular 5 in that she left the shift before the scheduled completion time, at the same time as RN Nuevo did, however at the time of leaving had provided the nursing care required. She accepts that the morning shift staff did not have authority to permit her to leave early however at the time genuinely believed that the NIC RN Nuevo did. JH&FMHN undertook an investigation into EN Day and ultimately did not substantiate the allegation in relation to her leaving early without approval, having found that it was probable that she believed she had permission to leave early by EN Steele and RN Nuevo.
EN Day takes issue with the framing of the allegation in Complaint One that she is guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law, submitting that it is not acceptable to simultaneously allege s 139B(1)(l) in addition to s 139B(1)(a) as a contingency in the event that s 139B(1)(a) is not established and the Tribunal might find the conduct fits into a less constrained definition provided in s 139B(1)(l). EN Day relies on the criticism of the Court of Appeal in Fraser v Health Care Complaints Commission [2015] NSWCA 421. She submits that the Tribunal is not bound by the decision in Health Care Complaints Commission v Little [2016] NSWCATOD 146 on which the HCCC relies, as the finding in Little did not properly consider the purpose of s 139B(1)(l) including the use of the words "any other" in attempting to provide a definition for conduct which otherwise would not be captured by one of the more proscriptive definitions in s 139B(1)(a)-(k). She submits that the question is pronounced when the HCCC seeks to plead (a) and (l) concurrently where the conduct particularised revolves around the performance of clinical duties. If the definition in s 139B(1)(a) is not established then it could not, in the alternative, be held to be "any other improper or unethical conduct" due to the performance-based nature of the complaint. The HCCC has not relied on any evidence that EN Day has engaged in conduct that is separately or distinctly improper or unethical, nor has it specifically pleaded which (if any) particulars are improper or unethical. The only reference as to the basis of the complaint under s 139B(1)(l) is in the closing submissions where reference is made to s 139B(1)(l) applying to particular 5; and it is not procedurally fair to EN Day that the closing submissions are the first mention of that.
EN Day submits that at its heart the complaint is a complaint regarding the fact that EN Day did not review the progress notes of Patient A at the beginning of her shift and the subsequent particulars largely flow from that initial error. In substance it is a performance issue that has been improperly characterised as a conduct issue because of the breadth of issues that have arisen in connection with the provision of care to Patient A. Her involvement with his care occurred at the tail end of a series of unfortunate gaps in care and EN Day should not be prejudiced by those gaps in practice and policy.
EN Day submits that the HCCC has failed to provide sufficient evidence to establish that she is guilty of unsatisfactory professional conduct under s 139B(1)(a) or (l) of the National Law. The Council delegates had regard in the s 150A proceedings to the fact that EN Day commenced her role at JH&FMHN as a newly graduated and inexperienced EN and may have been provided with insufficient support and guidance as a new practitioner. She submits that that assessment should have been factored clearly and distinctly into any criticism provided by a peer expert to the Tribunal in relation to s 139B(1)(a).
EN Day submits that in the event the Tribunal does make a finding of unsatisfactory professional conduct, the HCCC has not adduced any evidence or made any submission to warrant a finding of professional misconduct, and the submission that "when the conduct as a whole is considered, that finding is appropriate", is not the test. The substance of the complaint stems from a single error and events that followed over a single shift, and it cannot be found that there was "more than one instance of unsatisfactory professional conduct" that when considered together amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
[18]
Discussion and findings
The Statement of Duties for Night Duty Nurse at PKA (ex A1, tab 24) for the RN and EN on shift between 9.30pm to 7.30am states that both would receive handover from the afternoon nurse and afternoon NUM, and check S4D and S8 drugs with the afternoon nurse. One nurse may be required to go to Reception until midnight to assist. Shared duties during the shift include "check handover sheet against white board - update as required - check all medical files are in clinic office for patients in clinic - check that current HPNF matches entries on clinic handover sheet - update as required"; and "attend patients in clinic - observations & medications as required - call hospitals for patients in ICU or HDU & report to AHNM"; and "write in progress notes of clinic patients". The shared night shift duties as stated also include medications for patients attending courts in the morning; and between 4.30am-6.00am, updating and collating treatment sheets and progress notes and making up medications and advising reception officers lists of patients needing to be seen for medications before transport out for courts. A further shared responsibility is to "attend emergency knock ups/walk ins & treat as required"; and after handover to the morning shift, "check S4D & S8 drugs with morning nurse". The only responsibility allocated in the Statement of Duties to the RN, and not to both the RN and EN, is to "handover to morning staff" at 7.00am.
The note on that document states that the night shift EN was rostered on Monday to Thursday nights. In her statement of 28 August 2020 EN Day confirmed that she was rostered to work night shift on the week of 4-8 December 2017, which was Monday to Friday. That statement includes the recollection that on Monday 4 December 2017 she and RN Nuevo discussed the allocation of cells in the Clinic, and she was allocated patients in cells A-H for the week; and that she was not delegated allocation of the detox cells (34-39) on the night shift on 6 December 2017.
In issue is whether there was an allocation of patient care between RN Nuevo and EN Day on the night of 6 December 2017.
RN Nuevo has denied that there was, stating in cross examination on 20 May 2022 that there was no allocation of the cells between them on the shift, "as clearly states on the allocation sheet on that day", commenting "We're all taking care of all clinics - all clinic's patient and the whole gaol". The Tribunal understands RN Nuevo's reference to "allocation sheet" in that evidence to be a reference to the Staff Roster for 6 December 2017, which states that the two nurses on night shift were responsible for "all areas". RN Nuevo stated that he did not direct EN Day that she was to be responsible for cells A to H and he would be responsible for cells 34 to 39, and there was no conversation between them to that effect. EN Day was left to do the nursing duties by herself because he was doing the pharmacy order. However, further in cross examination RN Nuevo stated that after handover to the night shift RN Balagtas had delegated to him the task of the pharmacy inventory and order, and EN Day was delegated to do the night shift duties while he did so.
EN Day was asked on 20 May 2022 in cross examination whether there was an allocation of the clinic patients between herself and RN Nuevo, and answered "No". However, in oral evidence on 14 September 2022, while she could not recall when or how the allocation had occurred, EN Day stated that there was an allocation, and she understood she was responsible for cells A to H. EN Day could not recall having heard RN Nuevo's evidence to the contrary on 20 May 2022.
EN Day was interviewed in the JH&FMHN investigation on 2 March 2018 and 10 May 2018. In the first fact-finding interview on 2 March 2018 EN Day described the tasks for the night shift. The transfers out required collection of the medication charts, methadone charts, medication and doing a check list, and putting all the files together and taking them to Reception. Other tasks were packing the morning medication for anybody attending court; doing bed stats; updating the methadone list; and putting away any medication charts that were left or had been transferred in from the next day. It was inundated but it was a steady night. She stated that she and RN Nuevo worked as a team together, sitting side by side in the Nurses' Station; if not in that room they were in the back room doing medications and the medication charts. That was at the top end of the Clinic near the Officers' desk. She did not have any observations of any patients to do.
EN Day stated that from 5.00am a male patient had complained of chest pains, so they were dealing with him as well as trying to give medications for court. The day shift staff arrived anywhere from about 5.45am onwards. RN Nuevo did the drug count in the morning and they both gave handover to the Clinic nurse, EN Steele. Normally in the morning they would write up the notes. She wrote in the notes for the patients in the top cells, they were RITs as well as a medical patient. She did not do the notes for anyone housed at the back, including Patient A. RN Nuevo would have done those.
EN Day stated that prior to the incident she would not have looked at the patients' notes to check if anything was missed at handover. Now she does so, and checks medication charts. EN Day stated that neither she nor RN Nuevo wrote any comments for the handover to the day shift of Patient A, they left it as the afternoon shift had given them.
In the allegation interview on 10 May 2018 EN Day stated that she did not read Patient A's notes or any other patient progress notes until she started writing her notes for cells A to H in the top section at 5.00am. As she was writing she would read the notes from the day before. She confirmed that the patient notes she looked at then were for cells "A to H at the top section". Asked whether she actually physically observed those patients, EN Day said that she did not look through the door but observed through the cameras. They would check the whiteboard at the Officers' station, which is mainly for the officers so they know why the person is in the Clinic, so they could update their handover because the patients move in the Clinic quite rapidly. She would observe the patients by standing at the cameras and watching the cameras every time she walked past, which was not often that night, only twice or three times that night. They were told in the morning by the correctional officers that everyone had been settled. EN Day said that she and RN Nuevo were working in the Nurses' Station on the computers, except when she had to pull out the medication charts for the transfers out and the courts and she was in the back medication room.
There is no suggestion in the transcript of either of the two JH&FMHN investigation interviews in 2018 that the care of patients in the Clinic was divided between RN Nuevo and EN Day on 6 December 2017; rather, that it was the task of writing up patients' progress notes at the end of the shift that was divided between them, and that in the course of writing progress notes for the patients in cells A to H, EN Day would read the previous notes for the first time.
The first suggestion that there had been an allocation of patient care between RN Nuevo and EN Day during the shift on 6 December 2017, as opposed to the writing up of progress notes at the end of the shift, is in EN Day's Reply and statement dated 28 August 2020. The reasons for decision for the s 150A hearing on 1 February 2021 include the statement that "Ms Day and the RN were each assigned half of the cells and were responsible for attending to the patients and documenting in the patient notes". However, in the absence of transcript of that hearing, which might have clarified whether EN Day was drawing a distinction in her evidence between patient care and writing notes, the Tribunal does not read that statement to go further than confirming that she and RN Nuevo divided the task of writing up of notes at the end of the shift.
It appears not to be in dispute that RN Nuevo and EN Day were located during the shift on the night of 6 December 2017 either in the Nurses' Station, or in the medication room on the opposite side of that corridor. That location is, based on the Clinic Evacuation Plan (ex A1, tab 59), in the section of the Clinic referred to by the staff as the "top end" where cells A to H are located. The Tribunal accepts that given the nature of the tasks each was performing during the shift that each would have spent time in the Nurses' Station on the computers located there, at times together, and each would also have needed to go to the medication room: RN Nuevo to check stock in the medication room, the dispensary room and the refrigerators, and EN Day to pack medications. In that context, EN Day's response on 10 May 2018 that if someone in a bottom cell needed assistance she, being at the top, would go, does not of itself confirm that she had particular responsibility for the patients in either end of the Clinic. Rather, it is consistent with her oral evidence, and with appropriate practice, that either nurse on duty would respond to a request for assistance if the other were occupied.
The night of 6 December 2017 was nearly five years ago, and as she accepted, EN Day's memory of that night is vague. The Statement of Duties, and the staff roster, made no distinction between the RN and EN on duty as to how responsibility for primary care for any of the patients housed in the Clinic was to be determined. In the Tribunal's view that would properly depend on patient need and appropriate management of resources for any particular shift; and was ultimately the responsibility of the RN as NIC on the shift. Whether or not there was an understanding from the previous nights when RN Nuevo and EN Day had worked on the night shift together that each would take primary responsibility for only some of the patients, as appears in EN Day's statement of 28 August 2020, the night of 6 December 2017 was not a routine night shift. RN Nuevo was required to do the pharmacy inventory and ordering for the Christmas to New Year period, a task that would take some 4 to 5 hours.
It was not in dispute that at the end of the shift RN Nuevo and EN Day did divide up responsibility for writing patient notes, so that RN Nuevo wrote the notes for Patient A at 5.55am. That has been the consistent evidence of both RN Nuevo and EN day throughout the proceedings, and in EN Day's evidence at the JH&FMHN interviews. In the context of the evidence that the correctional officers were asked about any issues overnight, the Tribunal does not accept the submission that the fact that RN Nuevo wrote the notes for patients in cells 34-39 at the end of the shift can be construed as indicating that he had primary responsibility for patient care during the shift for those patients. It is apparent that both RN Nuevo and EN Day relied for their understanding as to what nursing care was required during the shift on what they were told in handover at the beginning of the shift, and for their understanding of what had occurred during the shift on what they were told by the correctional officers at the end of the shift. In that context, the division of the task of writing up notes appears to have been an efficient way to manage that task.
EN Day's evidence as to whether, and if so, when or how, an allocation of patient care on that shift between herself and RN Nuevo may have come about, has varied. As she acknowledged, her memory is vague. EN Day simply could not recall with any certainty when or how any asserted allocation of patient care was made. Asked in cross examination on 14 September 2022 whether RN Nuevo's evidence that there was no allocation was correct, EN Day stated that she was just not too sure.
The Tribunal accepts that had there been a formal allocation of a specific patient load by the NUM, which should have been identified on the handover sheet, it would have been EN Day's responsibility to read the notes and deliver patient care to those allocated patients. However, the Tribunal is not satisfied that the evidence supports a finding that there was such a formal allocation of patients on the night of 6 December 2017 so that EN Day was allocated responsibility for patients housed in Clinic cells A to H and not those, including Patient A, housed in cells 34 to 39. There is no documentation of any such allocation, and the Statement of Duties and the roster had both responsible for patient care for "all areas". There is no mention of such an allocation in the JH&FMHN interviews conducted closer to the time of the incident. While acknowledging that the HCCC did challenge the reliability of some of RN Nuevo's evidence, it was not put to him in cross examination on 20 May 2022 that his evidence that there was no allocation of patient care between them and that EN Day was doing all the nursing duties by herself while he was doing the pharmacy order was false.
Having regard to EN Day's lack of recall as to how or when any such allocation may have been made, the Tribunal is not satisfied that it can properly find that there was a basis for any understanding that she was only responsible for the patients in cells A to H and was not responsible for the patients in cells 34 to 39.
The Tribunal concludes that it is more probable than not that the duties on the night shift on 6 December 2017 were managed for the first part of the shift by EN Day working on the tasks stated in the Statement of Duties, including collating documents and preparing medications for transfers out and court attendees, while RN Nuevo was occupied with the pharmacy inventory and order. In doing so, both spent a significant part of the shift working in the same office area or in the medication room. There is no suggestion in the evidence that the tasks they were attending required absolute and uninterrupted attention, and so both could have temporarily stopped what they were doing in order to provide, and prioritise, patient care. Both were responsible for, and could have undertaken, the task of "attend patients in clinic - observations & medications as required…", as required in the Statement of Duties. And neither ensured that they were aware of what care was required for Patient A, including observations, by reading his clinical notes.
While RN Nuevo, as RN and NIC, was ultimately responsible to ensure all nursing duties were carried out, both he and EN Day had a responsibility to deliver care to all the patients housed in the Clinic.
EN Day was aware from the shift handover that Patient A was a new admission for whom reception screening had not been completed, that he had a history of epilepsy and Crohn's disease, and that he had refused his prescribed Epilim. He was housed in a detox cell. The Tribunal agrees with Ms Muller that whether or not the information that he was in opiate withdrawal was provided verbally at handover or on a handover sheet, as one of three new admissions to the Clinic, EN Day had an obligation to read his progress notes and clinical records. As EN Day acknowledged, that would have alerted her to the fact that he was in opiate withdrawal. That should have occurred at the beginning of the shift and not left until writing up notes at the end of the shift. Reading notes at the beginning of a shift is a professional responsibility of all nurses, both RN and EN, and it is not a task that is required to be delegated by an RN to an EN. The requirement to read patient notes is also, as EN Day agreed in oral evidence, included in the requirement in the Statement of Duties for the Night Shift nurses that they "attend patients in clinic - observations and medications as required".
The professional responsibility imposed on both RN Nuevo and EN Day extended to the provision of patient care: in this instance, at least ensuring that the required observations, which had been missed in the afternoon shift, were completed. While the responsibility that the care was not provided ultimately rested with RN Nuevo as the RN in charge, the Tribunal agrees with Ms Muller that EN Day also had a responsibility at the least to discuss with RN Nuevo the need for the overdue observations to occur.
In considering the particulars of Complaint One, the Tribunal notes that under s 149 of the National Law, the important aspect of the complaint is its "subject-matter", which "provides the jurisdictional gateway for the Tribunal to exercise its disciplinary powers": Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315, at [34]. Wilson J held:
36. It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint.
37. The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.
It is not clear to the Tribunal why the HCCC deleted the reference in particular 1 to JH&FMHN policy 1.340 section 3.1.7, leaving the sole reference to JH&FMHN policy 1.075 point 2.2 (Implementation - Roles and Responsibilities - Nurses). That policy relates to handover, and includes a requirement of "Ensuring any information handed over is documented in the patient's health record". That requirement could be read as a requirement to read the health record of all patients handed over. Whether or not that is so, the Tribunal agrees with Ms Muller that the obligation on EN Day to read the clinical notes of Patient A (and any other new patient in the Clinic) did not depend on whether she was told at handover, or it was recorded on the handover sheet, that he was in opiate withdrawal; and it was sufficient that he was a new patient transferred from Reception housed in a detox cell. The Tribunal agrees with Ms Muller that the failure to read Patient A's clinical notes and health records was conduct significantly below the standard expected of an enrolled nurse of an equivalent level of training and experience. Particular 1 is established.
In particular 2 of Complaint One the HCCC relies on JH&FMHN policy 1.340 section 3.1.7. That policy requires a minimum of twice daily review of a patient experiencing acute substance withdrawal or who is intoxicated and placed in a clinical observation bed. EN Day's evidence was that she would from time to time check on patients by using the CCTV camera at the Officers' desk. It is not clear on the evidence before the Tribunal the extent to which this might have been possible unless someone turned on the cell light. The CSNSW Investigation Report noted that CCTV vision was lost overnight as the cell camera, at least in cell 34 where Patient A was housed, was not night vision capable. EN Day commented at the JH&FMHN interview on 2 March 2018 that the detox cells at the bottom end of the Clinic did not need to have their lights on so they were "just black on the screen", and so it may be that cells A to H did have night vision. In oral evidence on 14 September 2022 EN Day stated that cells A, B, C and D, where patients at risk of suicide or self harm were housed, had their lights on all the time. However, regardless of whether EN Day could have obtained adequate CCTV vision overnight of any of the patients housed in the Clinic, the Tribunal agrees with Ms Muller that care of a patient housed in the Clinic for medical observation requires that a nurse have actual physical access to the patient to conduct the review required by the JH&FMHN policy, and not rely on a camera or looking through the cell door. The Tribunal agrees with Ms Muller that EN Day's failure to implement the treatment plan in failing to complete clinical observations of Patient A, or raise the issue with RN Nuevo, was conduct significantly below the standard expected of an enrolled nurse of an equivalent level of training and experience. Particular 2 is established.
In considering whether particular 3 is established, the Tribunal notes that in addition to requiring that a detoxing patient housed in a clinical observation bed be regularly reviewed, JH&FMHN policy 1.340 section 3.1.7 requires that reviews are to be documented in the patient's health record. NSW Health Policy Directive Health Care Records - Documentation and Management point 2.4 addresses the documentation required of nurses, including "any significant change in the patient/client's status…". It is not in dispute that EN Day provided no care to Patient A during the shift, and made no entry in his clinical notes or health record. While RN Nuevo was NIC and it was his responsibility to ensure all duties on the shift were carried out, both he and EN Day had a responsibility to ensure that each patient received proper care, and to update the notes during the shift. The Tribunal is, as discussed above, critical of EN Day's failure to read patient notes to inform herself as to what care was required. That failure meant that she failed to provide any care for Patient A, which meant that she did not have anything to record in his notes during the shift. In that context, while critical of the underlying failure to read patient notes, the Tribunal does not find particular 3 established.
Particular 4 of Complaint One relates to the clinical handover provided to the morning shift staff on 7 December 2017, referring to EN Steele who was rostered on as Clinic Nurse (6.30am-3.00pm), and RN Crammond who was rostered on as NIC, and responsible for Education (8.00am-4.30pm). The evidence of both RN Nuevo and EN Day was consistent that handover was provided to EN Steele as Clinic nurse on the morning shift. EN Day could not recall in oral evidence whether RN Crammond was also present at handover. It is likely that RN Crammond was at work earlier than the 8.00am start for her shift, based on EN Steele's evidence that it was RN Crammond who responded when just after 7.00am she discovered Patient A deceased and called out for an RN; and that RN Crammond signed the Life Extinct document at 7.15am. However, the evidence does not establish that she was present at the time handover was provided, before RN Nuevo and EN Day left at around 6.38am.
As to who provided the handover, RN Nuevo's oral evidence was that he did. EN Day recalled in her oral evidence on 20 May 2022 being present, and that as far as she could recall a handover sheet was used. EN Day had earlier said at the JH&FMHN interview on 2 March 2018 that she and RN Nuevo "both gave handover to the clinic nurse", at around 6.10am. However, that evidence differs from her statement of 28 August 2020, in which EN Day said that she did not participate as she was at the Clinic medication window administering medication to the court attendees at about 6.15 to 6.30am.
The Tribunal is unable to be satisfied that EN Day participated in the handover to EN Steele. The issue is whether, as alleged in particular 4 of Complaint One, she was required to do so. A handover was required at the shift to shift changeover, as stated in JH&FMHN policy 1.075 Clinical Handover, point 3.2. The Statement of Duties clearly provides that it was the role of the RN on the night shift to "handover to morning staff" at 7.00am. JH&FMHN policy 1.075 at point 2.2 states that nurses are responsible for "attending and participating in the handover of all patients that are relevant to them". Accordingly, it was RN Nuevo's responsibility to provide the clinical handover, and EN Day's responsibility to add anything relevant to that handover based on any care provided by her during the shift. The Tribunal is not persuaded that an appropriate clinical handover was provided, based on EN Steele's evidence that she was told that Patient A had "had a settled night", and the night shift staff had not heard from him. However, as EN Day had provided no care for Patient A during the shift, and so did not have anything relevant to handover to the oncoming shift, the Tribunal does not find particular 4 of Complaint One established.
In considering particular 5 of Complaint One, the Tribunal notes that it is not in dispute that EN Day left PKA before the end of her rostered shift. Clause 4.3.6 of NSW Health Code of Conduct provides that staff must "not absent themselves from the workplace without proper notification, when they are meant to be on duty…". In the JH&FMHN interview on 10 May 2018 EN Day stated that EN Steele had said to go home; and that she left at around 7.00am. In her interview on 6 March 2018 EN Steele recalled that after handover she said to RN Nuevo and EN Day that they had not had a break and she said "Go home". The report on the JH&FMHN investigation into the allegations against EN Day, dated 1 June 2018, concluded that it was probable that EN Day believed she had permission to leave early, noting that she left the premises with RN Nuevo and that as he was the senior nurse and NIC for the shift it was probable that EN Day believed she had permission to leave early from him.
The allegation in particular 5 is in terms that EN Day "failed to seek appropriate approval to leave early and complete the nursing care and management shift he was rostered on to complete". The Tribunal agrees with EN Day that the use of the term "he", and the reference to "management" indicates that this particular may have been drafted with RN Nuevo in mind. EN Day did not have any management role on the shift. However, she did have nursing care obligations.
The Tribunal accepts that there would be occasions where staff on any shift would be required to work through a shift without a break, or to stay back, as well as occasions when required work had been completed early and the oncoming shift were in a position to take on patient care. The evidence suggests that there was a practice at JH&FMHN that it would be the person in charge on the oncoming shift who would make that call, whether or not that person had formal authority to do so. The Tribunal accepts that it is likely that EN Day believed she had permission to leave early, as she had been told to go home by EN Steele and she was accompanied through the gates by the RN in charge of the night shift. However, the Tribunal is not persuaded that to do so was justified on the basis as submitted, namely that at the time of leaving she had provided the nursing care required. On the evidence before the Tribunal neither she nor RN Nuevo had made any final observation or check on the patients in their care, and both wrote notes in the clinical records based solely on what they were told by the correctional officers.
The Tribunal is critical of that reliance. However, having regard to what appears to be an accepted situation where staff would act on the approval of the oncoming staff, rather than an appropriately authorised manager such as the After Hours Nurse Manager, where it appears that EN Day was following RN Nuevo's lead, and where the NSW Health policy refers to "proper notification" rather than approval, the Tribunal is not satisfied that particular 5 of Complaint One is established.
[19]
Whether unsatisfactory professional conduct
The HCCC alleges that the conduct as particularised in Complaint One constitutes unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law:
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 significantly below reasonable standard
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.
…
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 (Amalakumar) the Tribunal described the evaluative task required by s 139B(1)(a) in the following terms:
25. Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such.
The Tribunal continued, on s 139B(1)(l):
26. In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether "any other improper or unethical conduct relating to the practice … of the practitioner's profession" has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct.
The National Law does not define the words "improper" and "unethical", and those words as used in s 139B(1)(l) have been construed in that context to have their ordinary and natural meaning. The HCCC relies on Health Care Complaints Commission v Little [2016] NSWCATOD 146 (Little) at [68]-[69], that "improper" means "not in accordance with propriety of behaviour, manners etc. or abnormal or irregular", and "unethical" means "contrary to moral precept; immoral …or …in contravention of some code of professional conduct". That is the approach adopted in other Tribunal decisions, most recently in Health Care Complaints Commission v Phuoc Loc Le [2022] NSWCATOD 85 at [54]. In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 (Achurch) the Tribunal stated:
41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]).
The Amended Complaint does not identify which of the conduct as identified in particulars 1 to 5 of Complaint One is alleged to found the additional allegation of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. The Tribunal agrees with EN Day that the addition of an allegation of unsatisfactory professional conduct under s 139B(1)(l) in the Amended Complaint required explanation, bearing in mind in particular the comments made about the need for certainty in Fraser v Health Care Complaints Commission [2015] NSWCA 421 by Basten JA (with whom Ward and Leeming JJA agreed):
7.Thus, complaint one commenced by stating that the practitioner was guilty of unsatisfactory professional conduct because the practitioner had:
"(i) demonstrated that the knowledge or judgment possessed, or care exercised by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or
(ii) engaged in improper or unethical conduct relating to the practice or purported practice of nursing."
8.The Court has noted on prior occasions that the habit of the HCCC in drafting complaints in this manner is to be deplored. Statement of a number of different grounds of complaint identified within the statutory definition, without saying which is relied upon with respect to particular conduct, gives rise to a high degree of uncertainty, which is inappropriate in professional disciplinary matters. It is unfortunate that a statutory authority of long standing, with functions of high public importance in maintaining proper standards of health practitioners in this State, consistently disregards criticism of the manner of drafting complaints. In this case, the Tribunal itself added its voice to that criticism.
The Tribunal raised with the parties at the hearing on 14 September 2022 whether there was an issue with reliance on both s 139B(1)(a) and s 139B(1)(l), given the opening words of sub-paragraph (l), "[a]ny other improper or unethical conduct…". In closing submissions the HCCC maintained its reliance on the Tribunal decision in Little, submitting that that decision is consistent with the language of s 139B(1) which states that unsatisfactory professional conduct "includes each of the following" and then lists sub-paragraphs (a) to (l). In the HCCC's submission that language does not suggest that subparagraphs (a) to (l) are mutually exclusive, rather they may be overlapping.
In closing submissions the HCCC submits that EN Day's decision to leave her shift approximately 45 minutes early in circumstances where she had not even read Patient A's clinical notes or taken any steps to implement the treatment plan, was not merely a failure of clinical judgment but is also reasonably described as "improper" and so s 139B(1)(l) applies.
EN Day submits in reply that the Tribunal is not bound by and should not rely on Little. EN Day submits that the question is pronounced when the complaint pleads sub-paragraphs (a) and (l) concurrently in circumstances where the conduct particularised revolves around the performance of clinical duties and does not paint a picture of conduct that can or needs to be distinctly characterised as "improper or unethical". EN Day submits that the conduct either meets the definition in sub-paragraph (a) or it does not.
The Tribunal notes that there is a divergence of views as to the interrelationship between sub-paragraphs (a) and (l). In Attia v Health Care Complaints Commission [2017] NSWSC 1066 Walton J expressed the view that use of the word "other" in the opening words of sub-paragraph (l) limits its operation to conduct not falling within the definitions of unsatisfactory professional conduct in s 139B(1)(a)-(k). In contrast, in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 DP Boland ADCJ concluded that as a matter of statutory construction, the same facts could establish unsatisfactory professional conduct within the meaning of both sub-paragraphs and that it is the evaluative assessment of the conduct that distinguishes conduct under s 139B(1)(l) from conduct under s 139B(1)(a).
It is ultimately not necessary to reach a concluded view as to whether it would be open to the Tribunal to make a finding that any of the conduct as alleged in Complaint One falls within both s 139B(1)(a) and (l). As clarified by the HCCC in closing submissions, the only conduct as particularised on which it is relying that might be so characterised is that in particular 5. The Tribunal has not found particular 5 proven.
The Tribunal has found particulars 1 and 2 established. Those particulars concern performance of basic clinical duties of any nurse providing primary care, namely reading patient notes and implementing the treatment plan. In considering whether the conduct as found falls within s 139B(1)(a) of the National law, the Tribunal has had regard to the fact that in December 2017 EN Day was newly qualified and relatively inexperienced, and that her expectations as to what was required of her may have been influenced by leadership provided by more senior colleagues. The Tribunal acknowledges that nursing in a custodial setting is challenging, for the reasons outlined in Ms Muller's oral evidence on 18 May 2022, in particular the difficulty in obtaining access to patients. It is apparent from her oral evidence that EN Day had minimal formal orientation to her work as an EN at PKA. The Tribunal also acknowledges that there were shortcomings in how patient care was managed during the preceding shifts on 6 December 2017, where, as Ms Muller commented, there was an overall failure to open up a hardcopy file to see what was required and what had happened in relation to care for Patient A.
However, even in those circumstances, EN Day failed in the basic nursing competencies required to provide care for her patients on her rostered shift. The Tribunal agrees with Ms Muller that the conduct as found in relation to particulars 1 and 2 of Complaint One demonstrates that the judgment possessed and care exercised by EN Day was significantly below the standard reasonably expected of an enrolled nurse of an equivalent level of training or experience. Her conduct was unsatisfactory professional conduct under s 139B(1)(a) of the National Law. Complaint One is established.
[20]
Whether professional misconduct
Complaint Two is that EN Day is guilty of professional misconduct as defined under s 139E of the National Law:
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconduct of a registered health practitioner means -
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [19], Basten JA. The characterisation exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20].
At [20] Basten JA explained:
There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances". The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264. And as noted in Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35], the seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred.
In closing submissions the HCCC pressed the complaint of professional misconduct, submitting that when EN Day's conduct as a whole is considered, that finding is appropriate. EN Day submits that the substance of the complaint consists of a single error and events that followed over a single shift and that it cannot be found that there was "more than one instance of unsatisfactory professional conduct" that when considered together amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration.
The Tribunal has found two instances of unsatisfactory professional conduct. The failure to read Patient A's notes, and reliance on what was said at handover, meant that EN Day was unaware of the treatment plan, including the need for clinical observations; and as a consequence the care required by Patient A was not provided. EN Day was a relatively inexperienced EN, with an absence of leadership from the NIC on the shift. In context, the Tribunal is not satisfied to the requisite standard that her conduct was such as to justify suspension or cancellation of her registration. Complaint Two is not established.
[21]
Conclusion
The finding of unsatisfactory professional conduct as alleged in Complaint One means that the Tribunal is required to consider whether any, and if so, which, of the protective orders specified in a 149A or s 149B of the National Law should be made.
The orders of the Tribunal are:
1. The Respondent is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW);
2. The matter is to be listed for hearing as to what, if any, protective orders should be made as a consequence of the Tribunal's findings, on a date to be fixed having regard to the availability of the parties and their representatives;
3. The following directions are made:
1. The HCCC is to provide to the Tribunal and the Respondent notice of any protective orders sought as a consequence of the Tribunal's findings, and any further evidence and submissions, on or before 14 November 2022;
2. The Respondent is to provide to the Tribunal and the HCCC any further evidence and submissions in response, on or before 28 November 2022;
3. The HCCC is to provide to the Tribunal and the respondent any further material in reply, on or before 5 December 2022;
4. The parties are to provide to the Tribunal their available dates for a Stage 2 hearing, and estimate of hearing duration, by 14 November 2022;
5. The proceeding will be listed for a Stage 2 hearing on a date after 5 December 2022.
[22]
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: 27 October 2022
The Health Care Complaints Commission (HCCC) has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Sara Ellen Day, an Enrolled Nurse (the practitioner).
The proceedings arise from a mandatory notification to AHPRA by the Regional Nurse Manager Metropolitan West reporting that five Registered Nurses and one Enrolled Nurse employed by Justice Health and Forensic Mental Health Network (JH&FMHN) at Parklea Correctional Centre (PKA) were involved in the care of an inmate, Patient A, who was found deceased on 7 December 2017.
The HCCC has brought a complaint against each of the nurses. At the first listing of Tribunal proceedings 2020/112544 HCCC v Sara Day, 2020/113574 HCCC v Jeremy Nuevo, 2020/113588 HCCC v John Gallagher, 2020/113622 HCCC v Francis Balagtas, 2020/113637 HCCC v Rhondda Stratten and 2020/113651 HCCC v Tania Nguyen, orders were made by consent of all parties that the six matters be joined and heard together, and evidence in each matter be evidence in all of the matters. An order was made prohibiting disclosure of the name of Patient A. The directions included a direction that an Agreed Statement of Facts be provided to the Tribunal.
At a subsequent directions hearing the Tribunal noted that pursuant to s 165B(3) of the National Law the panel members to hear the matters involving the five RNs (the registered nurse matters) were to be two RNs; and that transcript of the evidence of the nurses in the registered nurse matters and that of EN Day may be used in the HCCC v Day proceedings.
The hearing of Stage 1 in the registered nurse matters and the evidence of EN Day as it related to those matters was approved for listing as an in-person hearing in 2021. That listing was vacated when COVID-19 restrictions meant that the hearing could not proceed as an in-person hearing, and the hearing was re-listed. The hearing of the registered nurse matters proceeded on 16-20 May 2022, the panel including two Registered Nurses. The Tribunal panel for the Stage 1 hearing of the complaint against EN Day on 14 September 2022 included two Enrolled Nurses.
The HCCC was represented by counsel and instructing solicitor. Two of the RNs and EN Day were represented by NSW Nurses and Midwives Association (NSWNMA) legal officers, and three of the RNs were self represented. An Agreed Statement of Facts and Issues to be determined by the Tribunal was filed on 30 June 2021. Transcript of the hearing of the registered nurse matters was provided on 5 July 2022, and admitted in evidence in these proceedings (ex A2).
At the hearing on 16-20 May 2022 the HCCC's expert witness and Correctional Officer (CO) Ravinder Sarin and CO Florence Foisa appeared in person; the other HCCC witnesses, EN Lynda Steele and the CNS D&A, appeared by telephone.
EN Day gave evidence as it related to the registered nurse matters in the hearing on 20 May 2022 by AVL, and on 14 September 2022 in relation to the complaint against her in person. The HCCC's expert witness gave her further evidence relating to EN Day on 14 September 2022 by telephone. The two professional members of the panel constituted for the hearing of 2020/112544 on 14 September 2022 participated by AVL.
The Complaint against EN Day was amended in February 2021 to add reference to s 139B(1)(l) of the National Law in Complaint One, and to amend references to various NSW Health and JH&FMHN policies in the particulars to Complaint One.
The Tribunal may exercise the disciplinary powers conferred by Subd 6, Div 6 of Part 8 of the National Law if (a) it finds the subject-matter of a complaint to have been proved, or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149.
The Stage 1 hearing and these reasons relate only to the issue of whether the allegations in the application have been proven to the requisite standard, and whether any conduct found to have occurred constitutes unsatisfactory professional conduct or professional misconduct. A further hearing will be required for consideration and determination of what if any protective orders are appropriate, if the allegations are proven.
The HCCC bears the onus of proving the complaints against the practitioner, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 in the following terms:
52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]).
53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.
An order has been made pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A. A further order was made during the hearing on 16 May 2022, by consent, prohibiting the disclosure of the name of the Drug & Alcohol Clinical Nurse Specialist on duty at PKA on 6 December 2017, identified in these reasons as "the CNS D&A", on the basis that it was desirable to do so by reason of information before the Tribunal of a confidential nature regarding her personal relationships.