On 25 October 2022 the Tribunal published reasons for its finding that the respondent Registered Nurse, Mr John Leslie Gallagher, 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 Gallagher [2022] NSWCATOD 128 (Gallagher Stage 1).
The Health Care Complaints Commission (HCCC) submitted that the appropriate protective order is to reprimand RN Gallagher, and to impose conditions on his registration. RN Gallagher accepted that a reprimand is appropriate. He submitted that it is not necessary to impose conditions on his registration; or in the alternative, if the Tribunal is minded to impose practice conditions on his registration, a period of mentoring for approximately 6 months may be appropriate and meaningful.
The HCCC sought an order that RN Gallagher pay 80% of its costs. RN Gallagher submitted that there should be no order as to costs, or if costs are awarded, limited to 50% of the HCCC's costs.
The Tribunal decided to reprimand RN Gallagher and impose conditions on his registration, and to order that he pay 80% of the HCCC's costs. Our reasons follow.
[2]
Background
The proceedings against RN Gallagher were commenced in the Tribunal in April 2020 by the HCCC in relation to a mandatory notification that he, and four other RNs 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 background to the proceedings against RN Gallagher and the other five nurses is set out in Gallagher Stage 1. That decision includes discussion of the agreed and disputed facts, the evidence of RN Gallagher 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. At the time of the incident 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 Drug & Alcohol (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 Gallagher was Nurse Unit Manager 2 (NUM 2) on the morning shift, rostered 8.00am-4.30pm. The clinical handover from the morning shift JH&FMHN staff to the afternoon shift took place between 2.00pm to 2.30pm, when Patient A was in Reception, and he was not included in that handover. RN Gallagher was present just after the handover concluded when the CNS D&A asked for someone to come and give an intramuscular (IM) injection. He 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. Cells 34-39 were identified as "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, who was rostered on the afternoon shift (1.30pm-10.00pm). RN Stratten was in the medication room packing medications, having been allocated PKA Areas 3 and 5 and the Clinic. The handover provided to RN Stratten included the information that Patient A was detoxing and was unwell 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].
The CNS D&A gave RN Gallagher a brief update when she put Patient A's notes in a pigeonhole in the Nurses' Station. RN Gallagher left PKA at the end of his shift, at 4.30pm.
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 the five RNs (RN Gallagher, RN Stratten, RN Nuevo, RN Balagtas, and RN Nguyen) and EN Day 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 the five RN 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 solicitor; three of the respondents, including RN Gallagher, 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.
Following the Stage 1 findings, a further hearing was held in relation to the appropriate protective orders for each of the respondent practitioners. The HCCC did not tender any further evidence in relation to protective orders proposed for RN Gallagher, and provided written and oral submissions on protective orders and costs. RN Gallagher provided an updated CV and details of CPD, references, and a statement (ex JG 5, JG 6), and written submissions. RN Gallagher gave further oral evidence and was cross examined.
[3]
Summary of Stage 1 Decision
There were two complaints against RN Gallagher. Complaint One was a complaint of unsatisfactory professional conduct. The particulars of Complaint One were (in summary) (1) that he had failed to ensure that the afternoon shift NUM, namely RN Balagtas, and nursing staff namely RN Stratten and RN Nguyen, were provided with a clinical handover of Patient A in accordance with JH&FMHN Policy 1.075 Clinical Handover; and (2), that he failed to ensure that clinical information regarding Patient A's clinical management details were recorded in the written handover or in his notes in accordance with NSW Health Policy Directive Health Care Records - Documentation and Management, JH&FMHN Policy 1.075 Clinical Handover, and JH&FMHN Policy 1.340 Accommodation - Clinical Recommendation (Adults).
RN Gallagher admitted that he did not ensure a clinical handover was provided to RN Balagtas and RN Nguyen and denied that RN Stratten was not provided with a clinical handover. He denied that he did not comply with NSW Health Policy Directive Health Care Records - Documentation and Management, stating that details were recorded in Patient A's clinical notes by the CNS D&A and the MO.
As discussed in Gallagher Stage 1, the Tribunal did not accept RN Gallagher's evidence that he had directed or participated in the handover given by the CNS D&A to RN Stratten, or that he was present at that handover. The Tribunal concluded that RN Gallagher had not been involved in the location or timing of the handover, or its content; and that at the highest he was aware that a handover had occurred and may have heard it.
The Tribunal concluded that RN Gallagher failed to ensure that RN Balagtas, as NUM on the afternoon shift, and RN Stratten, as the nurse with primary care of Patient A on that shift, were provided with a clinical handover of Patient A, finding that there was no handover to RN Balagtas, and that the handover to RN Stratten did not meet the requirements of JH&FMHN Policy 1.075. The Tribunal found that there was no requirement that RN Gallagher ensure that a clinical handover was provided to RN Nguyen.
In relation to particular 2 of Complaint One, the Tribunal concluded that RN Gallagher had a responsibility to ensure that the handover document as at the end of his shift included sufficient information to alert the oncoming shift as to Patient A's presentation and the treatment plan including the requirement for 4 hourly observations. RN Gallagher was still on duty as NUM on the morning shift and had not handed over to RN Balagtas as NUM on the oncoming shift. And he had, on his evidence, read the clinical notes for Patient A on which that requirement was recorded.
The Tribunal found that particulars 1 and 2 of Complaint One were established. The Tribunal found that RN Gallagher's failure to ensure that RN Balagtas and RN Stratten were provided with an adequate clinical handover, and his failure to ensure that the clinical handover document included relevant information about Patient A's clinical presentation, needs and management plan, was conduct significantly below the standard reasonably expected of a registered nurse of equivalent level of training or experience; and that accordingly he is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law.
The Tribunal was not persuaded that the unsatisfactory professional conduct as found in relation to each of particulars 1 and 2 of Complaint One either individually or when taken together constituted professional misconduct as alleged in Complaint Two. In reaching that conclusion, the Tribunal commented:
[156] The Tribunal has significant concerns as to the evidence provided by RN Gallagher and his attempt to justify or rationalise what was, objectively, a failure to provide the leadership required of the NUM on the morning shift on 6 December 2017. While the pressures of providing nursing care in the custodial context were real, and the timing of Patient A's arrival at PKA and assessment in the Clinic may have had a bearing, RN Gallagher failed to provide appropriate leadership and management of delivery of clinical care. Notwithstanding those observations, the Tribunal is not persuaded to the requisite standard that the unsatisfactory professional conduct as found in relation to each of particulars 1 and 2 either individually or when taken together, is of a sufficiently serious nature to justify suspension or cancellation of his registration. The Tribunal does not find RN Gallagher guilty of professional misconduct.
[4]
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".
[5]
Protective orders sought
The HCCC submitted that the appropriate protective orders in all the circumstances are to reprimand RN Gallagher and to impose conditions on his registration. Those conditions include conditions that he not be the nurse in charge of any shift, ward or unit; that he not work as the sole practitioner on any shift, ward or unit; and that he not to have supervisory responsibility for any other health practitioner or student whether registered or not. In its reply submissions the HCCC submitted that conditions should be imposed requiring RN Gallagher to undertake a course of education on leadership and management in the Australian healthcare context approved by the Nursing and Midwifery Council of NSW at tertiary level, of not less than 150 hours of study, and requiring theoretical and clinical assessment; and that RN Gallagher practise under indirect supervision.
RN Gallagher accepted that a reprimand would be appropriate in the circumstances. He submitted that the conditions contemplated by the HCCC would have more serious consequences than is reasonably necessary to promote the protective purpose. RN Gallagher submitted that if the Tribunal is minded to impose practice conditions on his registration, a period of mentoring for approximately 6 months may be appropriate and meaningful.
[6]
Protective orders: consideration
In applying the principles relevant to determination of appropriate protective orders, the Tribunal takes into account the following matters:
1. Seriousness of the misconduct:
RN Gallagher's misconduct was serious: in failing to ensure that an adequate clinical handover was provided to RN Balagtas and RN Stratten, and in failing to ensure that the clinical handover document included relevant information about Patient A's clinical presentation, needs and management plan, his conduct fell significantly below the standard reasonably expected of a registered nurse of an equivalent level of training or experience. In reaching those findings the Tribunal did not accept RN Gallagher's evidence that he had directed RN Balagtas to assist in Reception and so had not provided a clinical handover to RN Balagtas (Gallagher Stage 1 at [115]-[120]); or that he had directed the CNS D&A to provide, and had participated in, a clinical handover given by her to RN Stratten (Gallagher Stage 1 at [121]-[134]).
As NUM 2 on the morning shift RN Gallagher had both an operational role and clinical responsibilities, including responsibility for the care of patients: Gallagher Stage 1, at [95]. While he was newly acting in that role at PKA, he had had by December 2017 14 years' experience as an RN. The Tribunal accepted that there are significant pressures in providing nursing care in a custodial setting, not the least being the requirement for nursing staff to obtain the assistance of custodial officers to obtain physical access to patients in their care, however was critical of RN Gallaher's failure to provide appropriate leadership and manage the delivery of clinical care.
As RN Gallagher acknowledged in his statement of December 2022 (ex JG 5, tab 1), and in oral evidence to the Tribunal, his failure to provide RN Balagtas with a handover reduced the number of safety nets for Patient A's care, and was a serious error of judgment. He accepted that his failure as NUM to ensure that the handover by the CNS D&A to RN Stratten occurred in an appropriate setting was also not conducive to ensuring appropriate care was provided to Patient A.
The Tribunal has been informed that no decision has yet been made as to whether a coronial inquiry into the death of Patient A will be held. Whatever the outcome of such an inquiry if it is held, the death of a patient is a serious outcome.
1. What has occurred since December 2017:
As noted in Gallagher Stage 1 at [12], at the time of the events the subject of the complaint RN Gallagher had been registered as a nurse for 14 years, and had been seconded to the role of Level 2 NUM for a six week period.
Based on his updated CV (ex JG6) RN Gallagher continued as an employee of JH&FMHN as full time NUM in a clinical role until March 2018, then in a non-clinical role as Health Service Manager until August 2018. Since then, other than a period as family carer from November 2019 to April 2021, RN Gallagher has worked as NUM in clinical roles with South Western Sydney, and Murrumbidgee, Local Health Districts. Since December 2022 he has been employed by South Western Sydney LHD full time as NUM in the orthopaedic ward at Campbelltown Hospital.
RN Gallagher provided detail of his continuing education, including recently undertaking courses in Effective Leadership in the Healthcare Setting, Healthcare Safety and Quality, and Professional Obligations Supervision Delegation and Allocation. He is enrolled in a Nursing Unit Manager Midwifery Unit Manager Intentional Leadership Program. That course involves 32 hours of face to face learning with follow up work based assignments, to be reviewed and evaluated in 12 months. In oral evidence RN Gallagher explained that that course has ethics approval for clinical researchers to evaluate improvements in patient safety and communication.
1. Character:
RN Gallagher has provided recent character references from Tina Curry, Operations Nurse Manager, Community Care Nursing Services at Western Murrumbidgee LHD (21 November 2022) and Carolyn Frith, A/Community Care Nurse Unit Manager, Tumut Network, Murrumbidgee LHD (15 November 2022) (ex JG5, tabs 6, 8). Both speak to his professional guidance and support as the leader of his team especially regarding correct clinical handover and the importance of documentation when delivering care. Both speak to his concern for correct process in delivery of safe clinical care. Ms Frith comments that on her observation RN Gallagher is very driven about correct process and policy being followed.
1. Insight and remorse:
RN Gallagher's submission is that he is insightful and has independently sought to improve his practice, in particular in relation to documentation, handover and his leadership skills. The HCCC submits that while he has demonstrated insight broadly into his failures, primarily institutional failures, RN Gallagher has not demonstrated good insight into his own responsibility for what occurred.
The Tribunal acknowledges that RN Gallagher has engaged proactively in improving processes, including implementation of good clinical handover. Notably, after the incident he and RN Balagtas negotiated an extra RN for the morning and afternoon shifts to provide care exclusively for patients housed in the PKA Main Clinic, and introduced clinical handover for patients at the cell door or bedside for patients housed in the Main Clinic, with clinical notes and medication charts used as prompts.
However, the Tribunal shares the HCCC's concerns as to the extent of his insight into the wrongfulness of his conduct. While stating in oral evidence his understanding, and acceptance, of the Tribunal's Stage 1 findings, that understanding was, on the Tribunal's observation of his evidence, limited. RN Gallagher was asked in cross examination about the Tribunal's conclusions not to accept his evidence about directing RN Balagtas to go to Reception, or his evidence as to his account of the handover from the CNS D&A to RN Stratten. His response was that he could understand why the Tribunal made those findings, however on the former he maintained that if he had documented the direction the Tribunal may have made a different finding, and on the latter, that his documentation was not there to support his evidence. That focus on documentation and process overlooks the significance of the evidence of his colleagues, and his earlier evidence in the investigation process. It does not in the Tribunal's view detract from the observation made at [156] in Gallagher Stage 1 that RN Gallagher has in the course of these proceedings attempted to justify or rationalise what was objectively his failure to provide the leadership required of the NUM on the morning shift on 6 December 2017. That shows a lack of insight.
RN Gallagher has expressed both in his written statements and in oral evidence his remorse for what happened to Patient A; and the Tribunal accepts that he has proactively engaged in improvement of institutional processes, both at JH&FMHN and subsequently. However the Tribunal is not satisfied that RN Gallagher has truly reflected on the totality of the Stage 1 findings or on his personal responsibility for the failures to provide appropriate care for Patient A.
1. Previous disciplinary processes:
RN Gallagher relies on the fact that no conditions were imposed on his registration in the s 150 process in May 2018. Orders made after a s150 hearing, often made on an urgent basis, serve the immediate purpose of protection of the health and safety of the public. The Tribunal acknowledges that there is no evidence of any risk posed by RN Gallagher to public health and safety either at that time or subsequently; however, any orders made by the Tribunal in these proceedings serve a number of different purposes, as explained above.
In exercising the power to determine appropriate orders, the paramount consideration is the protection of the health and safety of the public. Any orders must be proportionate, taking into account the public interest, and individualised, taking into account the actual person on whom those disciplinary order are imposed: Health Care Complaints Commission v Lord [2019] NSWCATOD 182 at [51]. A reprimand, which is not opposed, is an official rebuke for past wrongful conduct, and under s 225(j) of the National Law appears on a practitioner's record of registration maintained by the Australian Health Practitioner Regulation Agency: Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156. Such an order denounces the conduct, serving as deterrence for both the practitioner and the profession. The Tribunal is satisfied that a reprimand is appropriate.
The HCCC submits that a reprimand would not, of itself, be sufficiently protective of the public, and conditions should be imposed on RN Gallagher's registration, with the Nursing and Midwifery Council of NSW (the Council) as the appropriate review body for the purposes of Part 8 of the National Law. RN Gallagher submits that the conditions proposed by the HCCC would have more serious consequences for him than is reasonably necessary to promote the protective purpose. If practice conditions are to be imposed, a period of mentoring for six months would be appropriate and meaningful.
[7]
Proposed conditions
The submissions concerning the conditions proposed by the HCCC are as follows:
1. The HCCC's proposed conditions 3, 4 and 5 require that RN Gallagher not be the nurse in charge of any shift, ward or unit; that he not work as sole practitioner on any shift, ward or unit; and that he not have supervisory responsibility for any other health practitioner or student. In support of those conditions, the HCCC points to RN Gallagher's failure to provide leadership as NUM, and submits that RN Gallagher would be able to continue to work as a nurse in most settings but not in a supervisory capacity until the Council is satisfied that he is able to do so. In reply, RN Gallagher submits that apart from a period as carer for a family member he has continued to work as a nurse, in a leadership role on a full time basis, since 2017, and relies on his continuing education since then including 32 hours face to face learning on nursing leadership.
2. Proposed conditions 6, 7, 8, and 9 would require RN Gallagher to complete within 12 months education at a tertiary level on leadership and management, of not less than 150 hours of study and including theoretical and clinical assessment, as approved by the Council. The HCCC submits that those conditions are part of marking out the inappropriateness of RN Gallagher's conduct at the time. RN Gallagher submits that he has since December 2017 made concerted efforts to improve his practice, including engaging in meaningful and relevant continuing education above and beyond the mandated requirement for CPD.
3. Proposed conditions 10, 11 and 12 would require that RN Gallagher practice under indirect supervision by a supervisor who is in a more senior management position, approved by the Council, and who is authorised to provide quarterly written reports to the Council. Proposed conditions 13, 14 and 15 require RN Gallagher to forward evidence to the Council that he has provided a copy of this decision to his nursing employer; authorise the Council to exchange information with current and future employers regarding any issues arising in compliance with the conditions; and that any employer agrees to notify the Council of any breach of conditions or unsafe practice. Proposed conditions 1 and 2 would require him to obtain the approval of the Council before changing the nature or place of practice, and advise the Council at least 7 days before changing the nature or place of practice.
The Tribunal agrees with the HCCC that a reprimand alone would not be adequate to denounce RN Gallagher's conduct and signal the unacceptability of that conduct, and provide an assurance that the conduct will not be repeated. The Tribunal has reservations about the extent to which RN Gallagher has insight into his personal responsibility for the failures to provide appropriate care for Patient A. The Tribunal considers that it is appropriate to impose conditions on RN Gallagher's registration.
In considering what conditions should be imposed, the Tribunal notes that RN Gallagher has only recently taken up employment in a clinical role as NUM in the Orthopaedic ward at Campbelltown Hospital. The Tribunal considers that given the recency of that change in role any conditions should include conditions requiring him to advise, and obtain the approval of, the Council on changing the nature or place of his practice (proposed conditions 1, 2); that he ensure that his nursing employer(s) are aware of this decision and agree to notify the Council of any breaches of conditions or unsafe practice (proposed conditions 13, 14, 15); and that the administrative conditions 16 and 17 should be imposed.
The Tribunal does not consider that the proposed conditions 3, 4 or 5 are warranted in the circumstances. Since the events of December 2017 RN Gallagher has continued to practise in a supervisory and leadership role as NUM, including in clinical roles with South Western Sydney LHD (November 2018-November 2019) and Murrumbidgee LHD (April 2021-December 2022). His referees speak to his endeavours to ensure his staff provide safe client centred care, and a comprehensive approach to co-ordinating patient care and supporting individuals in his nursing team.
The Tribunal does not consider that the proposed conditions requiring RN Gallagher to undertake an approved course of study (proposed conditions 6, 7, 8, 9), or that he be subject to indirect supervision (proposed conditions 10, 11, 12) would adequately reflect the protective purpose. RN Gallagher has engaged in wide ranging education since December 2017 and is currently enrolled in a Nursing Unit Manager (NUM)/Midwifery Unit Manager (NUM) 4 day Intentional Leadership program which requires both face to face learning and follow-up work based assignments. The Tribunal sees little value in requiring him to undertake additional formal education. Instead, the Tribunal considers that a period of mentoring, rather than supervision, is likely to promote a greater degree of reflection and insight than has been demonstrated to the Tribunal. RN Gallagher's evidence was that a previous experience in 2018-2019 of mentoring on a weekly face to face basis addressing leadership, operational and clinical matters was valuable mentoring and feedback on his practice and management of the unit, stating that that experience broadened his views and enabled him to reflect on aspects of management of staff and workload. The Tribunal considers that an appropriate condition would require RN Gallagher to obtain approval of the Council for a proposed mentor, to be a person in a more senior clinical management position, and to undertake regular meetings, with a focus on the issues raised in these proceedings, at least quarterly for a period of 12 months with regular confirmation by the mentor to the Council that RN Gallagher has both attended and engaged fully in those meetings.
[8]
Costs
The HCCC seeks an order that RN Gallagher pay 80% of its costs of the proceedings, noting that the five RN complaints were heard together and that its costs would be apportioned between the five matters. The HCCC submits that while the complaint of professional misconduct was not proven, and a complaint of unsatisfactory professional conduct could have been brought before a professional standards committee, it was clearly appropriate for it to bring all five complaints in the Tribunal and seek to have them heard together. The particulars which underpinned both complaints, were proven.
RN Gallagher submitted that he should not be disadvantaged by the proceedings having been brought in the Tribunal, rather than before a Professional Standards Committee which is a no costs jurisdiction: and there should be no order as to costs, or if a costs order is made, it should be for 50% of one fifth of the HCCC's costs.
In considering whether to exercise the power conferred by Sch 5D, cl13 of the National Law to make an order for payment of costs, the starting point is that as a general rule costs of proceedings before the Tribunal are intended to compensate a successful party, and should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44]. Relevant factors to the exercise of the discretion in this matter are that while the Tribunal made a finding of unsatisfactory professional conduct but not professional misconduct as originally alleged, the Tribunal found both particulars, which underpinned both complaints, proven: Philipiah at [42]; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [49]. The underlying factual basis for each complaint was the same: Lucire at [49]. There was no disentitling conduct on the part of the HCCC. The Tribunal agrees with the HCCC that the decision to bring all five RN matters before the Tribunal and hear them together avoided the need for each respondent to give evidence multiple times had any one or more been determined before a professional standards committee, and resulted in a substantial reduction in the total hearing time.
The Tribunal is satisfied that it is appropriate to make an order for costs, noting the proposed apportionment between each of the five RNs to reflect the fact that all five RN matters were heard together. Having regard to the matters above, only a minimal reduction in the costs awarded should be made. The Tribunal considers that an order that RN Gallagher pay 80% of the HCCC's costs as apportioned should be made.
[9]
Orders
The Tribunal proposes to make orders reprimanding RN Gallagher, pursuant to s 149A(1)(a) of the National Law; and requiring him to pay 80% of the costs of the HCCC, pursuant to cl13 Sch 5D of the National Law.
The Tribunal proposes to impose conditions on RN Gallagher's registration, pursuant to s 149A(1)(b) of the National Law. Those conditions will include conditions 1, 2, 13, 14, 15, 16 and 17 (as presently numbered) proposed in the HCCC's Reply submissions dated 20 January 2022:
1. To obtain Nursing and Midwifery Council of NSW approval prior to changing the nature or place of practice.
2. To advise the Nursing and Midwifery Council of NSW in writing at least seven (7) days prior to changing the nature or place of practice.
13. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of 14 March 2023, that the practitioner has provided a copy of this decision to his nursing employer/s.
14. Within seven (7) days of a change in the nature or place of practice, the practitioner is to forward evidence to the Nursing and Midwifery Council of NSW that he has provided a copy of this decision to the nursing employer/s.
15. To authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse/midwife in Australia, regarding any issues arising in relation to compliance with these conditions. He must only be employed as a nurse/midwife in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions.
16. The Nursing and Midwifery Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW).
17. 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 Tribunal considers that a condition requiring a period of professional mentoring should also be imposed. The parties are to confer and provide an agreed form of condition reflecting the matters identified in paragraph [39] above, in consultation with the Council if required and consistent with any current guidelines of the Council. On receipt of that condition, the Tribunal will make final orders.
The Tribunal orders:
1. The parties are to provide to the Tribunal, by 28 March 2023, an agreed form of condition for a 12 month period of professional mentoring for RN Gallagher, following which final orders will be made.
[10]
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