Health Care Complaints Commission v Day [2023] NSWCATOD 23 | Case summary

NCAT Occupational|2023-01-31

Administrative Tribunal Act 2013, publication of the name of the individual referred to as "the CNS D&A" is prohibited. Note: A reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to identify the person.

REASONS FOR DECISION

On 27 October 2022 the Tribunal published reasons for its finding that the respondent Enrolled Nurse, Ms Sara Day, is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law): Health Care Complaints Commission v Day [2022] NSWCATOD 134 (Day Stage 1).
The HCCC submitted that the appropriate protective order to make in all the circumstances is to reprimand EN Day and impose conditions on her registration. EN Day submitted that the appropriate order is a caution. The HCCC sought an order that EN Day pay 60% of its costs; EN Day submitted that there should be no order as to costs.
The Tribunal decided to caution EN Day and impose conditions on her registration, and to order that she pay 40% of the HCCC's costs as agreed or assessed. Our reasons follow.

Background

The proceedings against EN Day were commenced in the Tribunal in April 2020 by the Health Care Complaints Commission (the HCCC) in relation to a mandatory notification made on 4 March 2018 that she and five Registered Nurses 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 background to the proceedings against EN Day and the five RNs is set out in Day Stage 1. That decision includes discussion of the agreed and disputed facts, the evidence of EN Day and each of the other nurses, and expert evidence provided on behalf of the HCCC, and identifies the various NSW Health and JH&FMHN policies relevant to the complaints. The detail is not repeated in these reasons, and these reasons assume familiarity with those earlier reasons.
In summary, 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 on 6 December 2017, arriving at about 11.38am. In December 2017 PKA was privately managed by The GEO Group Australia Pty Ltd (GEO) on behalf of Corrective Services NSW (CSNSW). PKA houses approximately 800-900 remand, minimum and maximum security inmates. Health services at PKA were operated by JH&FMHN.
At about 2.07pm Patient A was taken from a holding cell to the Processing Area at Reception. Patient A was too unwell for reception screening assessment to be undertaken, and he was taken to the Main Clinic where he was assessed by the Drug & Alcohol Medical Officer (MO) and the Clinical Nurse Specialist D&A (CNS D&A).
The CNS D&A recorded baseline clinical observations, noting in Patient A's clinical/progress notes that he was "extremely unwell - in opiate withdrawal". The treatment plan recorded by the MO and the CNS D&A in the progress notes was that Patient A was to remain in detox, with four hourly observations, with Panadeine and Stemetil for opiate withdrawal, and to be reviewed in the morning.
RN Balagtas was Nurse Unit Manager (NUM) on the afternoon shift, rostered 1.30pm-10.00pm. RN Nguyen and RN Stratten were also rostered on the afternoon shift, RN Nguyen allocated to the Main Clinic and Area 4 supervised, and RN Stratten to Areas 3, 5 and Clinic pills. The clinical handover from the morning shift staff to the afternoon shift took place in the Clinic tearoom between 2.00pm to 2.30pm, when Patient A was in Reception, and he was not included in that handover. Just after the shift handover concluded the CNS D&A asked for someone to come and give an intramuscular (IM) injection. RN Gallagher, NUM on the morning shift, administered IM Stemetil to Patient A at approximately 2.45pm, recording that in Patient A's medication notes.
At approximately 2.46pm Patient A was placed in Cell 34, one of 14 observation cells in the Main Clinic (identified as cells A-H, and 34-39). Cells 34-39 are "Detox" cells.
At approximately 4.20pm as she was leaving for the day, the CNS D&A provided a verbal handover of Patient A to RN Stratten. The handover provided included the information that Patient A was detoxing and that four hourly observations were required and that the next set was due at approximately 7.00pm: see discussion in Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [135].
In the circumstances discussed in Health Care Complaints Commission v Nguyen [2022] NSWCATOD 127, RN Nguyen packed the Clinic medications on behalf of RN Stratten. She also administered those medications, attending Cell 34 to administer medications to Patient A at approximately 7.00pm. The Tribunal was satisfied that RN Nguyen was not aware of the need for observations, nor asked to complete them as part of the medication round that she undertook on behalf of RN Stratten: Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [138].
EN Day and RN Nuevo were rostered on the night shift, 9.30pm-7.30am, with RN Nuevo as Nurse in Charge. The clinical handover from the afternoon shift to RN Nuevo and EN Day took place between 9.30pm and about 10.00pm. RN Stratten provided the handover, which did not include the treatment plan ordered by the MO. It was not in dispute that neither RN Nuevo nor EN Day had any interaction with Patient A during the night shift. After his assessment by the MO and CNS D&A on being brought to the Clinic, the last recorded interaction by nursing staff with Patient A was the administration of medication by RN Nguyen at approximately 7.00pm on 6 December 2017.
Patient A was found deceased in his cell at approximately 7.11am on 7 December 2017. It was not in dispute that none of the nursing staff on duty on the afternoon or night shifts on 6 December 2017 had read Patient A's progress notes in which the treatment plan, which included the requirement for four hourly clinical observations, was recorded. It was not in dispute that no clinical observations were taken after the baseline observations by the CNS D&A at approximately 2.30pm on 6 December 2017.
The HCCC commenced proceedings against EN Day and the five RNs (RN Nguyen, RN Nuevo, RN Balagtas, RN Gallagher and RN Stratten) on 7 April 2020. An order was made by consent on 8 May 2020 that the six matters would be heard together with evidence in each evidence in the others. At a subsequent directions hearing the Tribunal noted that transcript of the evidence of the RNs and EN Day in those matters may be used in the proceedings concerning EN Day, which, pursuant to s 165B(3) of the National Law required a differently constituted Tribunal panel. The HCCC was represented by counsel and a solicitor; three of the respondents including EN Day were represented by NSW Nurses and Midwives Association (NSWNMA) legal officers; and three were self represented. The six proceedings were the subject of case management, and by consent an Agreed Statement of Facts and Issues to be determined by the Tribunal was provided.
The Stage 1 hearing of the five RN matters, including the evidence of EN Day relevant to those matters, was initially listed for two weeks in September 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 for May 2022. Transcript was provided in July 2022.
A hearing was held before the Tribunal as presently constituted on 14 September 2022 at which EN Day, and the HCCC's expert Ms Muller, gave oral evidence.
Following the Stage 1 findings, a further hearing was held in relation to the appropriate protective orders for each of the six respondent practitioners. The HCCC did not tender any further evidence in relation to protective orders proposed for EN Day, and provided written and oral submissions on protective orders and costs. EN Day provided written submissions, an updated CV, and a copy of the reasons for the decision on 25 February 2021 under s 150A of the National Law to remove conditions on EN Day's registration (ex R2). EN Day gave further oral evidence and responded to questions from the Tribunal, and made oral submissions.

Summary of Stage 1 Decision

There were two complaints against EN Day. Complaint One alleged that she was guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law in that her conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a)), and that she had engaged in improper or unethical conduct (s139B(1)(l)). Complaint Two was that EN Day was guilty of professional misconduct under s 139E of the National Law, when the instances of unsatisfactory professional conduct were considered together.
There were five particulars to Complaint One, that EN Day: 1. failed to read the clinical notes and health records of Patient A, in accordance with specified JH&FMHN policy; 2. failed to implement the treatment plan ordered by the treating MO, in that she failed to complete clinical observations at a minimum of four hourly intervals, of Patient A, in accordance with specified JH&FMHN policies; 3. failed to accurately document and update the clinical notes of Patient A in accordance with specified NSW Health and JH&FMHN policies; 4. failed to ensure that the oncoming morning shift staff were provided with a clinical handover of Patient A, in accordance with specified JH&FMHN policies; and 5. failed to seek appropriate approval to leave early and complete the nursing care and management, in accordance with the NSW Health Code of Conduct.
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 his treatment plan. She denied particular 3, stating that she did not document in Patient A's notes at all as she did not provide any delegated aspects of care to him and so she rejected the suggestion of inadequate documentation or that not documenting in Patient A's notes was somehow dishonest or unethical. Her position in relation to particulars 1, 2 and 3 was that she was not allocated care of Patient A on the shift, having been allocated care of the patients housed in cells A-H in the Clinic and not those in cells 34-39.
EN Day denied particular 4, stating that as the RN in charge of the shift RN Nuevo was the person to provide handover to staff on the morning shift and she did not have any information regarding Patient A to handover. EN Day accepted that she left the shift before the scheduled completion time of 7.30am, stating she left with RN Nuevo who was the nurse in charge and her supervisor after being told by the morning shift that they should go.
In issue was whether there was an allocation of patient care between RN Nuevo and EN Day on the night of 6 December 2017. It was not in dispute that RN Nuevo and EN day divided up responsibility for writing patient notes at the end of the shift, so that RN Nuevo wrote the notes for Patient A. The Tribunal was not satisfied that the evidence supported a finding that there was a formal allocation of patients during the shift so that EN Day was allocated responsibility for patients in Clinic cells A-H and not those, including Patient A, housed in cells 34-39; nor was the Tribunal satisfied that it could properly find that there was a basis for any understanding that she was only responsible for the patients in cells A-H: Day Stage 1, at [133]-[146].
RN Nuevo had been directed to do the pharmacy inventory and order for the Christmas period during the night shift, a task which occupied four to five hours. The Tribunal concluded that it was more probable than not that the night shift duties were managed for the first part of that shift by EN Day working on the tasks stated in the Statement of Duties, including collating documents and preparing medications for inmate transfers out and court attendees while RN Nuevo was occupied with the pharmacy inventory. The Tribunal was satisfied that both were responsible for, and could have undertaken, the task of attending patients in the Clinic including observations and medications as required as provided in the Statement of Duties; and that neither ensured they were aware of what care was required for Patient A by reading his clinical notes: Day Stage 1 at [147]. The Tribunal acknowledged that the responsibility that patient care including ensuring that the required observations which had been missed on the afternoon shift was provided ultimately rested with RN Nuevo as the RN in charge, however concluded that EN Day also had a responsibility at least to discuss with RN Nuevo the need for the overdue observations to occur: Day Stage 1 at [150].
The Tribunal found particulars 1 and 2 established. The Tribunal did not find particular 3 established, noting that while critical of the underlying failure to read Patient A's notes, EN Day did not have anything to record in his notes during the shift.
The Tribunal did not find particular 4 established. The Statement of Duties for the night shift staff clearly provided that it was the role of the RN on the night shift to "handover to morning staff". While nurses are, under JH&FMHN policy 1.075 Clinical Handover, required to attend and participate in the handover of all patients relevant to them, EN Day had provided no care for Patient A during the shift and did not have anything relevant to handover to the morning shift: Day Stage 1 at [157].
The Tribunal did not find particular 5 established, on the basis that it appeared to be an accepted situation where staff would leave early on the approval of oncoming staff rather than an appropriately authorised manager, and it appeared that EN Day was following the lead of her supervisor on the shift, RN Nuevo: Day Stage 1 at [161].
In considering whether the complaint of unsatisfactory professional conduct was proven, the Tribunal noted that the complaint as amended did not identify which of the conduct as identified in particulars 1 to 5 was alleged to found the additional allegation under s 139B(1)(l) of the National Law. The HCCC's closing submissions provided some clarification, so that it was EN Day's decision to leave her shift early in circumstances where she had not read Patient A's clinical notes or taken any steps to implement the treatment plan that was not merely a failure of clinical judgment but was also reasonably described as "improper", so that s 139B(1)(l) applied. Noting that particular 5 had not been proven, the Tribunal concluded that the conduct found as particularised in particulars 1 and 2 was unsatisfactory professional conduct under s 139B(1)(a) of the National Law: [172] 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. [173] 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.
The Tribunal did not find the complaint of professional misconduct proven: [179] 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.

Protective Orders - legislation and principles

The Tribunal's powers on finding "the subject matter of a complaint against a practitioner" to have been proven are set out in Part 8, Division 3, Subdivision 6 of the National Law. The Tribunal may, under s 149A(1) of the National Law: 149A General powers to caution, reprimand, counsel etc [NSW] (1) … (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. …
The power to make any of these orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a): to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A.
In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".

Protective orders sought

The HCCC submitted that the Tribunal should reprimand EN Day and impose conditions on her registration. The HCCC submitted that those orders are appropriate given the need to emphasise that the conduct was unacceptable and the need to provide deterrence to other practitioners; that EN Day was found to have failed in basic nursing competencies; and that she has not worked in a nursing role since early 2019. The HCCC initially proposed conditions requiring supervision. In reply submissions the HCCC acknowledged EN Day's submission that supervisory conditions are unnecessary because enrolled nurses must be supervised in practice. In those submissions the HCCC proposed conditions requiring EN Day to complete within 12 months a vocational course of not less than two hours, on professional obligations, clinical communication, handover and assessments communication.
The HCCC submitted that a reprimand would mark out EN Day's failure in basic nursing competencies as unacceptable and as general deterrence to other practitioners. And given that failure in basic nursing competencies, the requirement to undertake education would be appropriate. When her total time in practice is taken into account, and not taking into account her period of parental leave, EN Day is a relatively inexperienced enrolled nurse. The HCCC accepted that EN Day's continuing education in the period 2019-2020 included some coverage of the proposed subject matter. However the HCCC submitted that that was not recent.
EN Day submitted that a caution is a more appropriate order than a reprimand in the circumstances. She has endured significantly lengthy Tribunal proceedings which would, on the Tribunal's findings, have been more suitably considered by a Professional Standards Committee. The issuing of a caution would appropriately balance the need to denounce the conduct while having regard for the unique features of the case, including that EN Day is an enrolled nurse working under the supervision of a RN; the inherent challenges of providing nursing care in a custodial environment; her relatively limited experience and lack of structured education on commencing her practice; and her not being provided with an adequate handover, and her involvement in the care of Patient A occurring at the end of a series of unfortunate gaps in care.
EN Day submitted that the imposition of conditions should only occur when there is a need to protect the public by mitigating against a specific and present risk posed by the practitioner at the time the order is made, and the HCCC has submitted no evidence to suggest that EN Day is not presently a safe and competent practitioner. A failure in 2017 cannot be justification for the imposition of conditions in 2023 in circumstances where she worked for JH&FMHN for over a year following the incident and later as an EN at a medical centre. While there has been a gap in practice EN Day is compliant with the Nursing and Midwifery Board of Australia's Registration Standard: Recency of Practice as she has practised in excess of 450 hours within the last 5 years. In oral submissions EN Day submitted that there was no opposition to an education condition in general terms, however the particular education required needed to be clarified.

Consideration

In considering the appropriate protective order, the Tribunal has had regard to the following matters: 1. Seriousness of the conduct: The Tribunal found that EN Day's failure to read Patient A's clinical notes to inform herself as to what care was required, and her failure to implement the treatment plan in completing the required clinical observations or to raise the issue with RN Nuevo, were failures in the basic nursing competencies required to provide care for the patients on her rostered shift. In reaching that conclusion, the Tribunal had regard to the fact that she was relatively inexperienced, was working in a challenging environment where obtaining access to patients was difficult, and had minimal formal orientation to her role. While EN Day was working under the supervision of the RN in charge of the shift, and while there were shortcomings in how patient care was managed during the preceding shifts on 6 December 2017, EN Day had an independent responsibility to ensure that the required care was provided by her on her rostered shift. 1. What has happened since 2017: Conditions were imposed on EN Day's registration in proceedings under s 150 of the National Law in March 2018. Those conditions were that she not work night duty or on weekends, that she inform all current and future nursing employers of the conditions and that she be employed as an enrolled nurse only in circumstances where her employer agreed to notify the NSW Nursing and Midwifery Council (the Council) of any breach of condition or unsafe practice. Those conditions were varied in December 2019 in an application under s 150A of the National Law. EN Day made a further application under s 150A of the National Law in December 2020, and in February 2021 conditions requiring her to practice under indirect supervision and inform all current and future nursing employers of the conditions and be employed as an enrolled nurse only in circumstances where her employer agreed to notify the Council of any breach of condition or unsafe practice, were removed. In the reasons for decision dated 25 February 2021 (ex R2 tab 3) the Council delegates noted that EN Day commenced her role at JH&FMHN as a newly graduated and inexperienced EN, and that it appeared that she may have been provided with insufficient support and guidance as a new practitioner. EN Day had stated that she attended to the duties in her role in accordance with how she had been trained and advised by her colleagues and supervisors at the time. The delegates noted that EN Day had undertaken appropriate education, was committed to the profession of nursing and to improving her skills, and had good insight. Based on her CV (ex R2 tab 2), EN Day continued to work at JH&FMHN full time after the events the subject of the complaint until January 2019. Since then she has worked as a casual aged care employee (April 2019-April 2020), and as a casual nurse rostered for full time hours at a medical centre (March 2021-July 2021). In oral evidence EN Day explained that the latter position was work as a COVID vaccinator. Since July 2021 EN Day has been on parental leave, and she has sole parental responsibility for her child. In oral evidence EN Day told the Tribunal her child is now 18 months old and she is looking for casual work either in aged care, as she is familiar with the work, or in a doctor's office, because of the hours. She has been unable to obtain child care. EN Day told the Tribunal she realised her practice was not up to standard and her continuing education has been on ways to communicate, to ensure that she does not make a similar mistake. She reads notes, and asks questions. 1. Insight and remorse: In oral evidence EN Day told the Tribunal that she has found the disciplinary process, which has been pushed out by COVID to five years, daunting. She understands why it needs to happen, and she has learnt a lot. She has not been as engaged in that process as she should, as in the past 12 months she has had personal stuff happening, including family violence, having to move from her partner, and court proceedings involving her former partner. EN Day stated that she accepts the decision of the Tribunal. Asked if she had reflected on the Stage 1 decision, EN Day stated that she had tried to read it on the morning of the Stage 2 hearing, and had lost track. She is very emotional at the moment.
In determining appropriate protective orders the Tribunal must balance the tension between the objective seriousness of the conduct as found, including the earlier findings that EN Day's failures were failures of basic nursing competencies; her insight into those failures; and what has happened in the intervening five years. While the conclusions reached in the prior Council proceedings under s 150 and s 150A of the National Law are relevant, orders made after a s150 hearing including the imposition of practice conditions serve the immediate purpose of protection of the health and safety of the public. Any disciplinary orders made by the Tribunal in these proceedings must protect the health and safety of the public by denouncing the misconduct, providing a deterrent against similar future conduct by the practitioner as well as to the profession in general, and promoting public confidence in the maintenance of professional standards. The form of orders must be proportionate, taking into account the public interest; and individualised, taking into account the actual person upon whom those orders are imposed: Health Care Complaints Commission v Lord [2019] NSWCATOD 182 at [51].
The HCCC presses for a reprimand; and EN Day submits that a caution would meet those purposes. The difference between those possible outcomes under s 149A(1)(a) of the National was explained in Lord in the following terms: Difference between a caution and a reprimand 41. In Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 (Dowla (No 2)), the Tribunal considered at [42] the difference between a caution and a reprimand under s 149A(1)(a) of the National Law and cited with approval the decision of the Victorian Civil and Administrative Tribunal in Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (Coleman), in which the Tribunal explained at [14]: [T]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences. In Peeke v Medical Board of Victoria (unreported, Marks J. 19 January 1994). His Honour commented on a view that had been expressed to the effect that to impose a reprimand was to trivialise a serious lapse in professional standards. His retort was succinct - I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications. 42. As noted by the Tribunal in Dowla (No 2) at [44], a reprimand, if imposed, will appear on the record of a practitioner's registration maintained by the Australian Health Practitioner Regulation Agency (AHPRA): s 225(j). In contrast, the National Law does not require AHPRA to record a caution on practitioner's record.
The parties have confirmed that while the National Law does not require a caution to be recorded on a practitioner's record of registration, in 2018 the National Boards decided to publish links to adverse Tribunal disciplinary decisions and court outcomes on a practitioner's record on the national register. Subsequent communication from AHPRA indicates that it publishes links to Tribunal decisions where advised to do so in notices of information from the relevant NSW health professional Councils. Whether or not that might occur if a caution were imposed in the present matter, the conduct of these proceedings has been on the public record and both decisions are publicly available on Caselaw.
The Tribunal acknowledges the significant impact of the proceedings personally on EN Day, and to that extent the proceedings have had a denunciatory effect in part. The Tribunal accepts that there have been personal circumstances that have contributed to any difficulty EN Day has had in engaging in the disciplinary process. While acknowledging those factors, and that in her previous written statement dated 28 August 2020 (ex R1 tab 2) EN Day stated that she is deeply sorry about the events that occurred and particularly sad that a loss of life has occurred, the Tribunal notes only a limited current expression of remorse.
EN Day has provided details of her continuing education from 2017 to 2020, which has included training on communication at clinical handover and clinical communication and documentation in August, September and November 2019. References provided in 2020 by professional colleagues (ex R1 tabs 8-12) speak highly of her commitment. Those references include a reference provided by RN Sutcliffe, who worked with EN Day at PKA, in which she states that EN Day has reflected about what she should have done, and has talked about reading notes and asking questions.
The Tribunal is satisfied that EN Day appears to have reflected on her conduct. That conduct needs to be denounced, and there is a need for more general deterrence. While the matter is finely balanced, the Tribunal considers that having regard to EN Day's inexperience and lack of support and appropriate guidance at the time, the appropriate order to make is a caution. That order, while it may be seen as a "lighter" disciplinary measure than a reprimand, denounces EN Day's conduct; and is also an order formally made as a disciplinary sanction, the reasons for which are on the public record. The Tribunal is satisfied that in providing a reminder to take care to avoid repetition in future, both for EN Day personally and for the wider profession, a caution in the present circumstances would also promote public confidence in the maintenance of professional standards.
The submission that EN Day presently meets recency of practice standards was not contested. The Tribunal shares the concerns of the HCCC about the length of time since EN Day last undertook professional training in key nursing competencies. Having last undertaken training in the areas in which she fell short now some three years ago, to require EN Day to undertake further training in those areas would provide a greater assurance that the conduct the subject of the complaint is unlikely to be repeated. The condition as proposed by the HCCC in its reply submissions should be imposed. That proposed condition leaves it open to EN Day to identify an appropriate vocational course for approval by the Council, and provides her with a 12 month period within which to undertake that course.

Costs

The HCCC seeks an order that EN Day pay 60% of its costs. The HCCC submitted that while the Tribunal found unsatisfactory professional conduct, and not professional misconduct, it was clearly appropriate to bring the complaint against EN Day to the Tribunal because the factual evidence overlapped with the evidence heard in the complaints against the five RNs, some of whom have been found guilty of professional misconduct.
The HCCC submitted that the approach adopted in order to deal with the requirement for differently constituted Tribunal panels in these proceedings, namely having the witnesses at the five day hearing in May 2022 including EN Day, and having the transcript of the five days of oral evidence tendered before this Tribunal for the purposes of EN Day's hearing on 14 September 2022, was the most appropriate course. The HCCC acknowledged that as a practical matter the Tribunal as presently constituted included two members who had the advantage of actually hearing the oral evidence at the five day hearing of the RN matters; and all present panel members had the advantage of hearing her oral evidence on 14 September 2022. The approach adopted significantly reduced the hearing time required, the HCCC's costs, and the time required of each witness including EN Day. The HCCC submitted that as such, it has not committed any disentitling conduct that would justify a departure from the usual order for costs. The HCCC submitted that in light of its partial success in the complaint against EN Day the Tribunal should order that EN Day pay 60% of its costs as agreed or assessed.
EN Day submitted that in light of the finding of unsatisfactory professional conduct but not professional conduct, and the fact that her matter was heard separately to that of the five RNs, the complaint against EN Day could have been brought before a professional standards committee. A PSC could have had the benefit of the transcript of the hearing of the five RN matters, and EN Day should not be disadvantaged by that decision. Relevant to any apportionment is that there were two complaints, only one of which was proven, and five particulars, only two of which were established; and so it cannot be concluded that the HCCC had success in the matter.
The Tribunal's power to make an order for payment of costs is conferred by Sch 5D, cl13 of the National Law. As a general rule costs of proceedings before the Tribunal are intended to compensate a successful party, and should follow the event, such that if the HCCC is substantially successful in proving its complaint against a practitioner, there should be an order for costs: Qasim v Health Care Complaints Commission [2015] NSWCA 282. An apportionment of costs may be appropriate where the HCCC proves only part of its complaint, including where as here there is a finding of unsatisfactory professional conduct but not professional misconduct, or a finding that only some of the particulars alleged are proven: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].
The Tribunal proceedings against the six JH&FMHN nurses the subject of the mandatory notification made in 2018 have been procedurally complex. The complaint against EN Day related to her actions as one of two nurses rostered on the night shift on 6-7 December 2017. There were shortcomings in how the care of Patient A was managed during the preceding shifts on 6 December 2017, and given the sequence of events across those shifts it was appropriate for the matters to be joined and heard together. That occurred after a significant delay due to COVID-19 restrictions on in-person hearings in the Tribunal, at the five day hearing on 16-20 May 2022. That hearing included EN Day's oral evidence on 20 May 2022 as relevant to the proceedings against the five RNs. The Tribunal had the benefit of an Agreed Statement of Facts and Issues. As an enrolled nurse, the proceedings against EN Day required a differently constituted Tribunal panel to that for the proceedings against the five RNs, hence the need for her to give evidence at the separate hearing on 14 September 2022 of the complaint against her, with transcript of the earlier oral evidence provided in May 2022 in evidence.
The procedure adopted, by consent, avoided the need for multiple hearings for each of the six respondents. EN Day was the only respondent required to give evidence in the Stage 1 part of the proceedings more than once, and reliance on the transcript of the evidence given in May 2022 meant that the hearing on 14 September 2022 was conducted expeditiously. While acknowledging that a complaint of unsatisfactory professional conduct could have been brought in a professional standards committee, which is a no costs jurisdiction, the Tribunal does not consider that the process adopted demonstrates any disentitling conduct on the part of the HCCC.
Relevant factors in the exercise of the costs discretion in this matter include that the Tribunal made a finding of unsatisfactory professional conduct but not professional misconduct as alleged. As discussed in Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [49], where, as here, the factual basis for each complaint was the same and the discrete issue was the proper characterisation of the legal consequences of the findings of fact, any reduction of costs on that basis would be relatively minor.
More relevant is that of the five particulars pleaded in Complaint One, only particulars 1 and 2 were found proven. EN Day admitted the conduct as particularised in particulars 1 and 2 in the complaint, and that she left before the conclusion of her shift as particularised in particular 5. While the failure to establish some particulars would not necessarily result in any diminution in the costs payable, where discrete elements of the conduct complained of are not established it may be appropriate to reduce the costs to be recovered: Lucire at [50]. The proportion of the time at the hearing and submissions on which the HCCC was partly successful and partly unsuccessful is relevant: Lucire at [49].
Taking into account the degree to which the HCCC was unsuccessful in establishing all the particulars pleaded, and its success in establishing two particulars and the complaint of unsatisfactory professional conduct, the Tribunal concludes that an appropriate order is that EN Day pay 40% of the HCCC's costs of the proceedings against her, as agreed or assessed.

Orders The Tribunal orders:

The respondent is issued a caution under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). 2.The following conditions are imposed on the respondent's registration, pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW): 1. To satisfactorily complete within 12 months of 14 March 2023 education approved by the Nursing and Midwifery Council of New South Wales and that has the following characteristics: 1. type of institution: vocational 2. content or learning objectives: professional obligations, clinical communication, handover and assessments communication; 3. course duration: the course is to be not less than 2 hours. 1. To bear responsibility for any costs incurred in meeting this condition/order. 2. The Nursing and Midwifery Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 3. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia.
The respondent is to pay 40% of the costs of the Health Care Complaints Commission, as agreed or assessed.

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: 14 March 2023

Health Care Complaints Commission v Day

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Judgment (10 paragraphs)

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