139E
Civil and Administrative Tribunal Act 2013 (NSW) ss 3, 36, 38, 53, 64
Poisons and Therapeutic Goods Act 1966 (NSW)
Poisons and Therapeutic Goods Regulation 2008 (NSW)
Therapeutic Goods Administration Act 1989 (Cth)
Source
Original judgment source is linked above.
Catchwords
139B139E
Civil and Administrative Tribunal Act 2013 (NSW) ss 3, 36, 38, 53, 64
Poisons and Therapeutic Goods Act 1966 (NSW)Poisons and Therapeutic Goods Regulation 2008 (NSW)Therapeutic Goods Administration Act 1989 (Cth)Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336Colquhoun v Psychology Council of NSW [2011] NSWPST 3
Hanna v Medical Council of NSW [2017] NSWCATOD 27HCCC v Fisher [2016] NSWCATOD 62HCCC v Flekser [2016] NSWCATOD 1HCCC v Phung (No 1) [2012] 1 NSWDT 3I v Medical Board of Australia [2011] SAHPT 18Liddell v Medical Board of Australia [2012] WASAT 120Lindsay v NSW Medical Board [2008] NSWSC 40Litchfield v HCCC (1997) 41 NSWLR 630Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688R v Medical Board of Australia [2013] WASAT 28Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53Shahinper v Psychology Board of Australia [2013] QCAT 593HCCC v Perroux [2011] NSWDC 99HCCC v BXD (No 1) [2015] NSWCATOD 134
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
Council of The Law Society of NSW v Hancock [2013] NSWADT 63
New South Wales Bar Association v Howen [2008] NSWADT 148
NSW Ministry of Health, Code of Conduct (2005)
NSW Ministry of Health, Code of Conduct (2012)
NSW Ministry of Health, Medication Handling in Public Hospitals Policy Directive (2007)
NSW Ministry of Health, Medication Handling in Public Hospitals Policy Directive (2013)
Nursing and Midwifery Board of Australia, A Midwife's Guide to Professional Boundaries (2010)
Standard for the Uniform Scheduling of Medications and Poisons ('Poisons Standard') (2017)
Judgment (22 paragraphs)
[1]
ealth, Medication Handling in Public Hospitals Policy Directive (2007);
NSW Ministry of Health, Medication Handling in Public Hospitals Policy Directive (2013);
Nursing and Midwifery Board of Australia, A Midwife's Guide to Professional Boundaries (2010);
Standard for the Uniform Scheduling of Medications and Poisons ('Poisons Standard') (2017);
Westmead Hospital, Clinical Practice Standard at Westmead (2014)
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Michelle Gallard (Respondent)
Representation: Counsel:
Ms Tronsen (Applicant)
Mr Hickey (Respondent)
File Number(s): 2016/00378808
Publication restriction: A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of any patients in the schedule to the complaint, and any other patients or nurses and midwives named in evidence, apart from those giving oral evidence and the respondent.
[2]
Background
Ms Gallard has been a registered nurse since 2001 and a registered midwife since 2005. For several years Ms Gallard worked as a nurse and then a midwife at Gosford Hospital.
In her youth Ms Gallard had two accidents and injured her jaw and neck. She has experienced chronic on-going pain and headaches as a result of these injuries and has, over the years, consulted various medical specialists, undertaken surgery, and taken a variety of prescribed pain medications.
In January 2012 an incident occurred at Gosford Hospital in which two Oxycontin tablets in Ms Gallard's control went missing. A fact-finding investigation was conducted by Central Coast Local Health District, which determined that there was sufficient evidence on the balance of probability to support the allegation that Ms Gallard was responsible. Workplace restrictions were applied which included that Ms Gallard was not permitted to carry the drug keys for six months, although she was still permitted to administer S4 and S8 medications.
In April 2013 a concern arose regarding Ms Gallard's handling and administration of Oxycontin and Endone, and a fact-finding investigation was conducted by Central Coast Local Health District which found that some but not all of the allegations of impropriety were sustained. In July 2013 Ms Gallard resigned from Gosford Hospital.
On 18 October 2013 the Nursing and Midwifery Council (the Council) held s 150 proceedings and imposed conditions, including that the practitioner not possess, administer or handle S4 or S8 medications, and practise under indirect or direct supervision.
On 16 December 2013 the Council held s 150A proceedings and varied the conditions slightly, but maintained those listed above.
On 14 March 2014, following a performance assessment, the Notifications Committee of the Council removed the conditions pursuant to s 150C, and directed Ms Gallard to participate in counselling pursuant to s145B(1)(g) of the National Law.
The practitioner commenced employment as a midwife at Westmead Private Hospital in July 2014. In December 2014 and January 2015 a number of incidents occurred concerning the practitioner's administration and handling of Endone and Targin. In February 2015 Ms Gallard resigned from Westmead Private Hospital.
The Council held s 150 proceedings on 23 February 2015 and imposed conditions including that the practitioner not administer or handle Schedule 8 and Schedule 4D drugs, must work under direct or indirect supervision of a Division 1 registered nurse, not work night duty, and inform employers of the conditions.
On 27 July 2015 the Council held s 150C proceedings and imposed further conditions including that Ms Gallard undertake drug testing and that she 'must establish and maintain a therapeutic relationship with a General Practitioner, Psychologist and Pain Specialist at a frequency to be determined by the practitioners'. Ms Gallard undertook a number of drug tests which did not indicate that she was taking medication other than as prescribed.
Following s 150A proceedings on 16 November 2015 the Council continued the conditions.
Since March 2016 Ms Gallard has been employed as a store person and dispatch officer, with duties including operating heavy machinery such as fork lift trucks.
[3]
The Complaints
The Tribunal has before it five complaints against the practitioner, dated 21 October 2016, amended 28 February 2017, with a further amended Complaint dated 18 July 2017, which was then further amended, by leave, at the commencement of the hearing.
Complaints 1, 2 and 3 are of unsatisfactory professional conduct related to Ms Gallard's handling and administration of opioid medication in a number of particularised incidents which occurred in two different hospitals, over a three year period. Complaint 4 is of professional misconduct based on the matters particularised in Complaints 1 to 3. Complaint 5 is that Ms Gallard suffers from an impairment within the meaning of the National Law by virtue of her long-standing use of Oxycontin under prescription for chronic pain. The particulars of each complaint are attached to this decision as an appendix.
All of the Complaints were contested by the practitioner, with the exception of her concessions on three sub-particulars: that she did not escalate an incident of unusable drugs (Complaint 2 (2)(e)); did not write a patient's first name in the drug register; and did tip medication directly into a patient's mouth (Complaint 3(1)(b) and (e). The practitioner did not concede that her admitted actions were unsatisfactory professional conduct, nor that her prescription drug use constituted an impairment.
The Complaint as it was presented at the hearing stated various particulars as actions contrary to NSW Ministry of Health Directives on Clinical Handover and on Medication Handling in NSW Public Health Facilities. When professional members of the Tribunal indicated that such policies were not directly applicable to private hospitals, the HCCC sought and was granted leave to amend Complaint 3 particulars 3, 4, 5, 6 and 8 to remove reference to these directives. The HCCC case proceeded on the basis that although the relevant standard concerning those particulars was not mandated through a binding NSW Directive, it was nonetheless established through a variety of sources including National standards, localised policies and accepted professional norms. This issue was the subject of extensive submissions, addressed below.
The original complaint included Complaint 6, that the impairment was sufficiently serious to impair the practitioner's mental capacity to practise the profession. This complaint was withdrawn by the time of the hearing.
[4]
Relevant Law
The Tribunal is required to make findings for each particular if they are not conceded in writing: s 165H National Law. The Tribunal must be independently satisfied that the complaints are made out to the civil standard in Briginshaw before then proceeding to determine the appropriate protective orders.
The professional members of the Tribunal are entitled to apply their own specialist expertise to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238].
'Unsatisfactory professional conduct' is defined in s 139B of the National Law as including:
(a) 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.
(b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
…
(l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
In making a finding of unsatisfactory professional conduct per (a), the Tribunal must compare the conduct of the practitioner with a standard 'reasonably expected'. In HCCC v Simonson [2017] NSWCATOD 87 the Tribunal noted at [9]:
Obviously, there will be many cases where there is no one bright line which typifies the relevant knowledge, skill or judgement or care of such a practitioner. In most cases, the expected standard of relevant knowledge, skill or judgement or care of a practitioner will fall within a band, sometimes narrow and sometimes broader.
'Improper' and 'unethical' are not defined in the National Law. The assessment of what constitutes improper or unethical conduct is based upon their ordinary meaning. In the professional disciplinary context there is necessarily some overlap between the two words.
'Improper' conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: HCCC v Phung (No 1) [2012] 1 NSWDT 3 at [68]; HCCC v Fisher [2016] NSWCATOD 62 at [57]; HCCC v Flekser [2016] NSWCATOD 1 at [119]. Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87].
[5]
The Hearing and Evidence
Some 19 witnesses gave evidence, including the practitioner. Fifteen witnesses were nurses, midwives and managers, giving evidence of contested events. Ms Shaw gave evidence as a peer expert for the HCCC, Dr Samuels gave evidence as an expert having made health assessments of the practitioner. Dr Katavin was called as a treating practitioner of the respondent in relation to her pain management.
[6]
Ms Shaw
Ms Shaw's peer expert report undated, but received by the HCCC on 1 March 2016, was in evidence and Ms Shaw also gave oral evidence. As the report was prepared early in the investigation of the matter it traversed a number of allegations and incidents that did not form part of the complaint. The Tribunal gave regard only to those parts of Ms Shaw's opinion that bore on the particularised aspects of the complaints.
Ms Shaw's opinion was that each of the particularised matters, if proved, would fall significantly below the standard of care expected of a registered midwife of similar experience.
Ms Shaw stated that the inapplicability of the NSW Directives to private hospitals did not alter her opinion concerning the particulars that occurred at Westmead Private Hospital. This was because the same standard for S8 drug administration applies regardless of the facility in which it occurs, in particular because such procedures are required by legislation, because there are national standards on clinical handover and documentation, and the Nursing and Midwifery Board of Australia's Codes of Conduct apply to all registered nurses and midwives.
[7]
Dr Fagg and other general practitioner records
Dr Fagg is Ms Gallard's regular General Practitioner. Dr Fagg did not give evidence at the hearing, but there were several letters and brief reports from him in evidence, dated 21 April 2015, 3 August 2015, 10 April 2017, 4 May 2017 and 28 June 2017.
The 21 April 2015 letter simply notes current medications including OxyContin 10mg '1 tab nocte prn' and OxyContin 15 mg '1 tab mane prn'.
The 3 August 2015 letter states that Dr Fagg commenced seeing Ms Gallard as a patient in 2011, and on 20 December 2011 Dr Fagg prescribed OxyContin 10mg twice a day and prn 'no more than 30mg a day'. It notes that Ms Gallard's current medications include OxyContin twice a day and prn.
The 10 April 2017 letter states that Dr Fagg has been seeing Ms Gallard 'for several years' and 'In that time Michelle has decreased her dose of OxyContin to 10mg tds' (emphasis added). Dr Fagg added that she was reviewed by a pain specialist who 'was not concerned at that dose of OxyContin.'
The 4 May 2017 letter lists medications including OxyContin 10mg tds.
The 28 June 2017 letter states that 'for several years, Michelle has been taking OxyContin 10mg tds and prn occasionally' and notes that she was reviewed by Dr Kadavil in 2015 who 'agreed with this dosage'. ('Agree' is somewhat misleading in this context, as the letter does not refer to Dr Kadavil's strongly worded advice to stop using OxyContin and to wean off over a six month period.) The letter states that Ms Gallard 'recently' rang Dr Kadavil 'seeking advice on how to decrease her intake' and that the advice was to replace 'the lunchtime 10mg OxyContin tablet with a 5mg OxyNorm tablet'. Dr Fagg concludes, 'I look forward to Michelle decreasing her overall pain medication intake as a result of this action.'
A selective history report for Ms Gallard dated 15 May 2015, covering the period 2 November 2011 to 11 May 2015, was in evidence from her regular GP practice. Some of Dr Fagg's consultation records indicate concern about Ms Gallard's rate of usage of OxyContin, with notes through 2014 and 2015 regularly recording how long the script 'should last', followed by consultation dates that are sooner than the stated period, as well as an occasion on 7 May 2014 when Dr Fagg advised a doctor interstate to decline to issue a script for OxyContin to Ms Gallard, a number of occasions on which her husband (who was said to keep or allocate the OxyContin tablets) was 'allegedly' away resulting in a request for further scripts, an occasion on 3 March 2014 when Dr Fagg himself declined OxyContin and on occasion on 31 July 2013 in which he rang the patient's husband, discussed OxyContin dependence and suggested a rehabilitation facility.
[8]
Dr Kadavil
Dr Kadavil is an anaesthetist with a private practice in pain management.
Two letters by Dr Kadavil addressed to Dr Fagg, dated 17 August 2015 and 19 July 2017, were in evidence as was an email dated 13 November 2015. Dr Kadavil also gave evidence by telephone.
In the August 2015 letter Dr Kadavil notes that Ms Gallard is on OxyContin 10mg twice per day, and also 'as needed prn', with her consumption being around 28 tablets in a 10 period. The letter states,
I stressed the fact that even though she is on stable small doses of OxyContin, long-term use of opioids for chronic non cancer pain can cause more harm than good;
concluding in a section headed 'treatment suggestions',
She should embark on a plan to completely wean herself of[f] opioids within a time frame acceptable to herself and her primary care provider. I would say 6 months is a realistic target.
The 13 November 2015 email states that in Dr Kadavil's opinion Ms Gallard's use of opioids is stable and that she does not abuse opioids, adding, 'In my earlier letter I had mentioned that she should embark on a plan to wean herself of all opioids within a time frame and convenience suitable to Michelle, however this need not be a priority to retu[r]ning to work.'
In the 19 July 2017 letter Dr Kadavil notes that he first saw Ms Gallard in 2015 she was taking OxyContin 10mg three times a day, and his advice at that time was to wean herself off OxyContin over a six month to one year timeframe. The letter states that Ms Gallard 'had some problems with the authorities regarding her opioid consumption' and had recently contacted him with the 'same problem'. At the unstated time of recent contact Ms Gallard was still on the same dose of OxyContin, which he characterised as 'moderate' and 'was also consuming large doses of amitriptyline.' Dr Kadavil states that he reiterated his original advice about weaning off opioids and gave the opinion that 'with the right motivation and slow weaning, she can get herself off the opioids without having a large flare up of pain or withdrawal.' He then notes that Ms Gallard has since (i.e. since the recent contact) reduced her dose of 10mg OxyContin to twice a day.
In oral evidence Dr Kadavil clarified that the most recent contact he had with Ms Gallard had been by telephone and that he had only held one therapeutic consultation with her in person, in 2015. Somewhat tellingly, Dr Kadavil described this telephone contact as Ms Gallard calling him because she 'is going for a Tribunal [hearing]'.
[9]
Ms Keniry
Ms Gallard submitted a reference dated 16 May 2017 written by her treating psychologist to the Tribunal. The reference notes that Ms Keniry has been seeing Ms Gallard periodically since 2014 over a total of 22 sessions. Ms Keniry states that she has never seen Ms Gallard in an impaired state and gives the opinion that
I do not believe that if Miss Gallard had a drug dependence problem she would have been able to perform her current employment and duties for the past 14 months or maintain her relationship and care for her children.
[10]
Dr Samuels
Dr Samuels authored three reports concerning Ms Gallard, dated 13 November 2013, 28 May 2015 and 7 July 2017.
In the 13 November 2013 report Dr Samuels noted that Ms Gallard was tearful and in a low mood but that this was an understandable response to her employment situation. Dr Samuels concluded that there was not sufficient evidence to indicate that Ms Gallard was impaired within the meaning of the National Law but also noted that he had:
some concern about the fact that she is on regular opioid medication for chronic pain but is not under the care of a pain specialist and I think that this should be addressed and the indication for her to be on regular OxyContin may need some review.
In the 28 May 2015 report Dr Samuels noted that Ms Gallard presented as distressed with pin-point pupils, and was extremely circumstantial and vague. Dr Samuels was of the opinion that in the interview Ms Gallard was significantly 'affected' by the OxyContin she was taking.
When Dr Samuels questioned Ms Gallard about why, with her past history, she had disregarded advice at Westmead about administration of analgesics she replied:
I'm more lenient with pain relief because I have pain and I use OxyContin: I understand pain. I know a lot about pain and pain tablets…I'm not addicted. I have been taking them for years. If I don't take them I know there'll be withdrawal.
Dr Samuels considered it possible that Ms Gallard had a 'blind spot' in administering opioids and found it difficult to separate her own needs from those of patients under her care.
Dr Samuels concluded that:
she does have a dependence on OxyContin and that it is, in fact, impairing her. I am concerned that she has been on opioids from a prolonged period without any clear indication that this is an appropriate treatment approach from a pain specialist.
Dr Samuels' first numbered recommendation was that, 'Ms Gallard should be referred to a pain specialist for a review of her opioid medication and she should possibly be withdrawn from her opioids and commenced on an alternate regime'.
In his 7 July 2017 report Dr Samuels says Ms Gallard presented as 'somewhat heavy-eyed and sedated' with 'pupils quite small' but was calm and coherent.
Dr Samuels noted:
I said to her that I thought the OxyContin was affecting her and that it was clearly posing difficulties for her in regard to her registration. She said that she did not think it affected her; that she had tried Polexia which had even more severe side effects that Tramadol. She said her eyes looked terrible, she felt nauseated and she could not work and was forced to go back on OxyContin. She said she is trying to reduce the OxyContin.
[11]
Submissions
The HCCC submitted that Ms Gallard was an unreliable witness.
The Commission position was the Complaint Two taken alone, if proven, was sufficiently serious to justify suspension or cancellation of Ms Gallard's registration pursuant to s 139E(a) of the National Law because it concerns the dishonest misappropriation of a S8 drug for her own purposes.
As to the remainder of the particulars relied upon, the Commission indicated that none of them are sufficiently serious in themselves to justify a finding of professional misconduct. However, taken together, the HCCC submitted that they demonstrate Ms Gallard's inappropriate attitude and approach towards opioid medication and represent departures from procedure which are cumulatively sufficiently serious to rise to the level of misconduct.
In relation to the issue of impairment, the HCCC argued that the evidentiary onus shifted to Ms Gallard to demonstrate that she had taken steps towards weaning herself off Oxycontin, both because these steps constituted a 'defence' to the claim of impairment: Council of The Law Society of NSW v Hancock [2013] NSWADT 63 at [62]; New South Wales Bar Association v Howen [2008] NSWADT 148 at [54]) and because this was something peculiarly within her knowledge: Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73 at [25]). The HCCC argued that Ms Gallard had not demonstrated a slight but not significant recent reduction in her usage of OxyContin.
The evidence concerning Complaint 2 is circumstantial, but the HCCC argued that, taken as a whole, it proved the allegation to the required standard. Minor differences in witness accounts were not material to the contested issues, and should be taken to demonstrate that the witnesses had not collaborated.
In the Respondent's submission that there was a fundamental deficiency in the presentation of the complaint given that various applicable clinical policies, directives and standards were inadequately addressed whilst others were not before the Tribunal. The Respondent's Counsel submitted that these failures means that the Tribunal was not enabled to properly undertake the determination required in respect of Complaint 3 particulars 2-5 which concerned events as Westmead Private Hospital. By inference, Mr Hickey argued, those matters 'infected' Complaints 4 and 5.
[12]
Credit and Witnesses
Ms Gallard was not an impressive witness. Although it is understandable that a health professional in proceedings such as these would be stressed and even defensive, Ms Gallard was markedly reluctant to make any concessions at all, and on a number of occasions only did so after being taken to contradictory documentary sources.
For example, Ms Gallard was extremely reluctant in cross-examination to concede that she had, in 2015, been taking the dose of OxyContin that the records collectively indicated to be an average of 30mg per day, or that she had said in s 150 proceedings in July 2015 that she had recently reduced this dose.
Ms Gallard also claimed that she had originally consulted Dr Kadavil because she wanted to, not because it was a condition imposed by the Council, and then tried to give an impression of having had a number of therapeutic consultations with him when she had in fact only one (and had later met with him in informal circumstances in a coffee shop and/or on the street for the sole purpose of obtaining from him the documentation required by Council).
There were key areas where Ms Gallard contradicted her own prior account of events, most notably concerning: why she produced two OxyContin from the packet on 7 January 2012; whether she had a 'lenient' attitude to analgesia pain relief based on her own experience of pain; and whether management at Westmead had raised concerns with her over her approach to analgesia.
These matters reflected poorly on Ms Gallard's credit and on her insight regarding her use of OxyContin and her approach to medical advice on this issue.
In general, where Ms Gallard's evidence is in conflict with the evidence of other witnesses, the Tribunal does not accept Ms Gallard's account of events.
Ms Shaw's report traversed a number of issues that were not the subject of the Complaints and also at times veered into speculation. The Tribunal did not regard those aspects of the report, and placed limited reliance upon the opinion of Ms Shaw.
[13]
The Relevant Professional Standards
Schedule 8 drugs are classified as 'Drugs of Addiction' because, broadly speaking, they are substances that are liable to cause addiction and may in addition be dangerous if not taken under medical supervision and in appropriate doses.
Endone, Targin and OxyContin are all Schedule 8 drugs under the Poisons and Therapeutic Goods Act 1966 (NSW), Poisons and Therapeutic Goods Regulation 2008 (NSW), Therapeutic Goods Administration Act 1989 (Cth) and Standard for the Uniform Scheduling of Medications and Poisons ('Poisons Standard') (2017). These laws closely regulate S8 medications addressing matters such as the supply, safekeeping, recording of details and process of administration.
Rules and procedures concerning Schedule 8 drugs aim to ensure safe practice by requiring a second person to countersign the drug register and to witness the administration of the drug: Poisons and Therapeutic Goods Regulation 2008 (NSW) R 117.
The Medication Handling in NSW Public Health Facilities Directive (2013, and preceding versions) operationalises legal requirements through procedures which mandate that all Schedule 8 medications require a witness to be 'present during the entire procedure' explicitly including removal of the drug from storage, preparation, recording in the S8 register, discard of any unused portion, transfer to the patient and administration to the patient: 6.13.2. The second person checks at the point of administration are also detailed and require confirmation of the identity of the patient, the correct medication and dose and countersigning of the administration on the medication chart: 7.7.
While the Directive does not purport to apply directly to private hospitals in NSW the Tribunal finds that it represents accepted professional practice at the time of the incidents. Moreover the NSW Directive was reflected in the Clinical Practice Standard at Westmead (2014)(the Westmead Policy) with which Ms Gallard was, or ought to have been, familiar. In particular 5.2 of the Westmead policy requires another authorised person to witness the 'entire procedure' when administering S8 drugs, and this includes the same elements and almost identical wording to 6.13.2 of the NSW Directive. There is no claim that Ms Gallard was following any other standard relating to the administration of S8 medications.
[14]
Complaint 1
Ms Gallard denied having given an instruction to Ms Lecciones to administer Schedule 8 drugs on her own. Ms Lecciones was unshaken in her evidence that this had occurred twice and that she refused to do so. The Tribunal prefers the evidence of Ms Lecciones to that of Ms Gallard and finds particular 1 proved.
The fact that Ms Gallard then eventually accompanied Ms Lecciones to administer the drugs (such that a breach of Medication Handling Directive did not occur) does not prevent this from being breach of professional conduct: Ms Gallard indicated that she intended to breach the Directive and urged another health practitioner to do so.
Ms Gallard's evidence at the hearing was that she had taken the relevant OxyContin tablets out of the packet and pressed them into her own hand rather than directly into a medication cup as was her usual practice. Ms Gallard said that she removed the tablets at the request of Ms Graney and Ms Coy. When they refused to accept them, Ms Gallard says she attempted to put the tablets back in the packet but they fell out onto the bench. At this point, in addition to being removed from a packet when not required the tablets had been touched and dropped onto a surface and should have been regarded as both surplus and unusable.
Ms Gallard concedes that she did not, as she ought, escalate an incident of unusable drugs. The Medication Handling in NSW Public Facilities Directive 2013 at 6.15.2 (and the rescinded 2007 version applicable at the time of the incident at 6.3) (the relevant NSW Medication Handling Directive) contain very clear procedures for the destruction of unusable S8 medications that were not followed. This particular is proved.
These breaches of procedure concerning the handling of Schedule 8 medication demonstrate judgment or care significantly below the standard reasonably expected of a registered Midwife and Nurse of Ms Gallard's training and experience and we conclude that they amount to unsatisfactory professional conduct.
[15]
Complaint 2
It was uncontested that Ms Gallard placed two pills in a medication cup and placed it in the S8 cupboard, which she locked, and then left the treatment room with the S8 keys still with her. On Ms Gallard's return to the room around five to 10 minutes later, Ms Graney requested the S8 keys from her, and proceeded to open the S8 cupboard to check out OxyContin.
At this time Ms Graney and Ms Coy identified the relevant pills in the medication cup in the S8 cupboard as Maxolon not OxyContin (although they differed as to whether the cup was still inside the cupboard when the discrepancy was identified). The S8 cupboard was immediately locked, the incident was reported, and the pills were identified by a hospital pharmacist as Maxolon.
Evidence was heard from several practitioners who were present in the treatment room through this incident. While there were minor inconsistencies, their evidence was broadly in accord with each other in terms of the sequence of events, Ms Gallard's utterance, her handling of the medication and her unbroken custody of the S8 keys.
The major discrepancy concerned whether Ms Gallard said at the time that she had removed the pills accidentally, or whether she did so in response to a request from Ms Graney and Ms Coy.
The evidence of Ms Wardle was that she heard Ms Gallard say something along the lines of, "I've accidentally popped out two extra pills." After this, two other midwives had said, in what Ms Wardle believed to be a joking manner, that they were in need of that medication.
Ms Coy denied that she requested OxyContin from Ms Gallard at the relevant time. Ms Coy's account was that she had asked Ms Gallard to get OxyContin for her from the S8 cupboard for a different patient around 15 or 20 minutes before the relevant incident, and that this had been administered according to protocol. The S8 register for 8.15 am and patient records are in keeping with this account.
Ms Graney's account was that she was standing to the left hand side of the treatment room going through the list of what she had to get on her medication chart and that she heard Michelle say, "I've popped too many pills out of the pills". Ms Graney's account was that it was a few minutes later that she, Ms Graney, said she needed an S8, and Ms Coy said, "So do I".
[16]
Complaint 3
Complaint 3 comprises a number of particulars concerning the handling and administration of S8 medications at both Gosford and Westmead.
Particular 1 concerns an incident on or around 13 April 2013 at Gosford Hospital in which the practitioner was alleged to have inappropriately administered Endone to Patient A in that she had (a) completed an entry in the drug register without the presence of a second authorised person (b) failed to enter the patient's first name (c) left the medication room and entered the Patient's room without a second authorised person, all contrary to the NSW Medication Handling Directive, and (d) held the medication cup to the Patient's mouth prior to the patient ID check being completed and (e) tipped the medication directly into the patient's mouth contrary to the Nursing and Midwifery Board of Australia's Guide to Professional Boundaries.
Ms Klamer's account of this incident from a transcript of interview on 24 April 2013 was that Ms Gallard asked her to check out some OxyContin for one of Ms Gallard's patients, and that when she arrived at the treatment room Ms Gallard had already written up the S8 drug register. After dispensing the medication into a cup, Ms Klamer was checking the medication chart against the book and noticed that the patient's first name was missing. Ms Gallard was already leaving the room and Ms Klamer called out to her to wait while she corrected the book, but Ms Gallard left the room. Ms Klamer took the chart and hurried after her. When she reached the patient's room Ms Gallard was already holding the cup to the patient's mouth and Ms Klamer again asked Ms Gallard to 'hold on', this time to do the identification checks, shortly after which Ms Gallard said, "Quick I've got two little blue pills here" and tipped the pills directly into the patient's mouth. Ms Klamer recollects the patient appearing surprised.
Ms Klamer was consistent in her account in oral evidence, varying only as to whether she described herself as running or walking very quickly, and as to how far ahead Ms Gallard was in the hallway as she followed after her. In cross examination Ms Klamer conceded that she could have been standing in the doorway to the treatment room when Ms Gallard was filling in the drug register. She also could not recall whether or not the patient was holding a baby.
Ms Gallard's account was that she was in a hurry because OxyContin was due for the patient and she knew the patient wanted it, that Ms Klamer was in the doorway as she filled in the drug register, that she did not leave the room while Ms Klamer corrected the register by adding the patient's first name and that Ms Klamer was close behind her as she walked to the patient's room. Ms Gallard denied that she held the medication cup to the patient's mouth before the identification checks had been performed, which she says both she and Ms Klamer performed together, and says that she tipped the medication directly into the patient's mouth as a result of non-verbal communication with the patient who was holding a crying baby and appeared distressed.
[17]
Complaint 4
The Tribunal has found that Complaint 2, by reason of the dishonesty involved, rises to the severity of misconduct. The matters proved in the Complaint 1 and 3 range in seriousness, but taken together demonstrate a long-standing issue in Ms Gallard's approach to the administration and handling of S8 medication that taken cumulatively is found to be professional misconduct.
[18]
Impairment
Based on the evidence of Dr Samuels and Dr Kadavil, as well as that of Ms Gallard herself, we find that that Ms Gallard does currently suffer an impairment within the meaning of the National Law, that is likely to detrimentally affect her ability to practise.
It was clear that, despite a number of medical professionals strongly recommending the cessation of OxyContin throughout a four year period, and the fact that her professional practise was under a cloud (including various complaints specifically concerning her approach to and handling of opioids, the imposition of restrictive conditions, and a prolonged disciplinary process), Ms Gallard was very reluctant to cease taking Oxycontin.
In 2013 Dr Samuels recommended that Ms Gallard seek review with a pain specialist, but she did not do so until actually ordered to so by the Council in 2015. Having attended one consultation, briefly attempted a different regime of Polexia, and obtained the relevant documentation required by Council, Ms Gallard reverted to her regular regime and did not return to the specialist for review for another two years, very shortly before the hearing.
The Tribunal accepts Ms Gallard's evidence that she has experienced chronic pain for many years and that she has found a number of other medications to either be ineffective or to have unpleasant side effects. However we find that, given from 2013 Ms Gallard was well aware that her reliance on OxyContin posed a risk to her professional registration, and was repeatedly urged by members of Council and medical professionals to seek the assistance of a pain specialist, her extreme reluctance to seek assistance or to reduce or cease her usage is indicative of dependence.
Moreover, Ms Gallard repeatedly gave the impression, to treating health professionals, assessors, and regulators, that she was either in the process of reducing her usage of OxyContin, or was just about to do so, when she was not and did not.
In the s 150 proceedings on 23 February 2015, Ms Gallard stated that she had taken OxyContin 30mg twice a day at the age of around 30 and done so for a 'few years', then various other medications including OxyContin, settling on a 'regime' of OxyContin 15mg in the morning and 10mg in the evening 'for about three years' or 'at least two years'.
In a submission dated 27 July 2015 Ms Gallard wrote that she was currently taking OxyContin 10mg twice a day 'and/or prn [am now on a reducing dose]'. The transcript of s 150C proceedings held on 27 July 2015 indicates that Ms Gallard said, 'I have reduced the amount of OxyContin that I've taken since I've seen you last [February 2015]'.
[19]
Costs
The question of costs is reserved until the second stage of the matter is determined.
[20]
Orders
1. Pursuant to findings under ss 139B and 139E of the National Law, an order that the matter proceed to Stage 2 determination, with directions to the parties to communicate with the registry to set a hearing date.
2. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of any patients in the schedule to the complaint, and any other patients or nurses and midwives named in evidence, apart from those giving oral evidence and the respondent;
[21]
Appendix: Further Amended Complaint
COMPLAINT ONE
is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has:
engaged in conduct that demonstrates the judgment possessed or care exercised by her in the practice of nursing and midwifery is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
PARTICULARS OF COMPLAINT ONE
On or around 7 January 2012 at Gosford Hospital, the practitioner inappropriately obtained and administered Oxycontin in circumstances where:
contrary to the NSW Ministry of Health 'Medication Handling in NSW Facilities,' PD2007_077, 18 October 2007 and the NSW Ministry of Health Policy Directive: Code of Conduct - NSW Health, PD2005_626, 20 October 2005.
On or around 7 January 2012 at Gosford Hospital, the practitioner inappropriately handled Oxycontin in circumstances where:
she removed two additional Oxycontin 10mg tablets from their packaging that were not required;
she failed to escalate an incident of unusable drugs to the nurse in charge;
contrary to the NSW Ministry of Health 'Medication Handling in NSW Facilities,' PD2007_077, 18 October 2007 and the NSW Ministry of Health Policy Directive: Code of Conduct - NSW Health, PD2005_626, 20 October 2005.
COMPLAINT TWO
is guilty of unsatisfactory professional conduct under section 139B(l) of the National Law in that the practitioner has:
engaged in improper or unethical conduct relating to the practice or purported practice of nursing and midwifery.
PARTICULARS OF COMPLAINT TWO
On or around 7 January 2012 at Gosford Hospital, the practitioner misappropriated for her own use, two Oxycontin 10mg tablets (in circumstances set out in Complaint 1) and replaced them with two Maxolon 10mg tablets contrary to the NSW Ministry of Health 'Medication Handling in NSW Facilities,' PD2007_077, 18 October 2007 and the NSW Ministry of Health Policy Directive: Code of Conduct - NSW Health, PD2005_626, 20 October 2005.
COMPLAINT THREE
is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has:
engaged in conduct that demonstrates the judgment possessed or care exercised by her in the practice of nursing and midwifery is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
PARTICULARS OF COMPLAINT THREE
On or around 13 April 2013 at Gosford Hospital, the practitioner inappropriately obtained and administered Oxycontin to Patient A in circumstances where:
she had completed an entry in the drug register for the supply of Oxycontin to Patient A, without the presence of a second authorised person;
she failed to enter Patient A's first name in the drug register and did nothing to correct the omission when it was brought to her attention by Midwife B;
she left the medication room and entered Patient A's room, holding the medication cup, without the presence of a second authorised person;
she held the medication cup to Patient A's mouth to administer the drugs prior to the patient ID check being completed by Midwife B;
she tipped the medication directly into Patient A's mouth instead of handing the medication cup to Patient A;
contrary to the NSW Ministry of Health 'Medication Handling in NSW Facilities,' PD2007_077, 18 October 2007, NSW Ministry of Health 'Code of Conduct': PD2012_018, 29 March 2012 (rescinded) (Particulars 1(a), 1(b) and 1(c), and the Nursing and Midwifery Board of Australia's, 'A midwife's guide to professional boundaries', February 2010 (Particulars 1(d) and 1(e)).
On or around 29 December 2014 at or around 7pm at Westmead Private Hospital, the practitioner inappropriately requested Midwife C administer Endone to Patient B at 7.50pm when Patient B did not require Endone, and in circumstances where the practitioner;
failed to record the effect of the initial dose she had given to Patient B at 3.50pm;
failed to document Patient B's pain score at any time.
On or around 29 December 2014 at or around 7pm at Westmead Private Hospital, the practitioner failed to provide adequate handover of Patient B to Midwife C in circumstances where the practitioner:
verbally advised Midwife C that Patient B was due Endone at 7.50pm;
failed to advise Midwife C of the reasons for Patient B requiring further Endone;
failed to record Patient B's pain score;
failed to complete the patient assessment notes;
approached Midwife C at 7.50pm and asked if Midwife C wanted her to check the Endone for Patient B with her;
contrary to NSW Ministry of Health Policy Directive: PD2009_060: Clinical Handover - Standard Key Principles and NSW Ministry of Health Policy Directive: PD2012_069: Health Care Records - Documentation and Management.
On or around 25 January 2015 at or around 11am at Westmead Private Hospital, the practitioner inappropriately requested the administration of Endone from Midwives D and G for Patient C where Patient C did not require Endone, and in circumstances when the practitioner:
failed to record the effect of the initial dose given to Patient C at 8.25am;
failed to document Patient C's pain score at any time on 25 January 2015;
failed to document any need for additional analgesia where Patient C had previously been requiring Endone at five and eight hour intervals;
contrary to NSW Ministry of Health Policy Directive 'Clinical Handover - Standard Key Principles', PD2009_060 and NSW Ministry of Health Policy Directive 'Health Care Records - Documentation and Management', PD2012_069.
On or around 25 January 2015 at Westmead Private Hospital, the practitioner inappropriately handled and administered Targin to Patient C in circumstances where the practitioner:
grabbed the medication from Midwife D after checking the medication out of the S8 cupboard;
became angry and annoyed when Midwife D told her she could not hold the medication;
left Patient C's bedside after identifying her and proceeded to leave the room prior to witnessing Patient C swallow the medication;
contrary to the NSW Ministry of Health 'Medication Handling in NSW Public Health Facilities,' PD2013_43 guidelines (Particular 5(c)) and the NSW Ministry of Health 'Code of Conduct', PD2012_018, 29 March 2012 (rescinded) (Particulars 5(a) and 5(b)).
On or around 8 January 2015 at Westmead Private Hospital, the practitioner inappropriately handled and administered Endone to Patient D in circumstances where:
Patient D did not request pain relief from the practitioner;
Patient D reported to Midwife E words to the effect that she wasn't in that much pain at the time and that the practitioner had told her she had to have the Endone;
she failed to document Patient D's pain score;
she failed to document a patient assessment;
she had already written up the drug register and signed for the Endone before requesting Midwife E check the Endone with her for Patient D;
contrary to the NSW Ministry of Health 'Medication Handling in NSW Public Health Facilities,' PD2013_43 guidelines
On or around 26 January 2015 at Westmead Private Hospital, the practitioner inappropriately handled and administered Endone with Midwife F where Midwife F was in possession of the drug cabinet keys and on that morning staff had been told that the person in possession of the keys was to dispense and administer the medication in circumstances where the practitioner:
grabbed the medication cup and proceeded to leave the room ahead of Midwife F;
administered the Endone to the patient herself.
On or around 13 December 2014 at Westmead Private Hospital, the practitioner requested Mothercraft Nurse A administer Endone to a patient who was at least second day post-caesarean section. When Mothercraft Nurse A examined the patient chart and indicated to the practitioner that they should wait 10 minutes for the night nurses to come on duty, the practitioner:
said words to the effect of "you're not doing your job properly;"
slammed the patient chart on the desk and then walked away with the patient chart;
returned approximately 10 minutes later and told Mothercraft Nurse A that she had found someone else to do the job;
contrary to the NSW Ministry of Health 'Code of Conduct,' PD2012_018, 29 March 2012 (rescinded).
COMPLAINT FOUR
is guilty of professional misconduct under section 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 (Complaint Two), 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 (any two or more of the particulars of each of Complaints One, Two and Three).
PARTICULARS OF COMPLAINT FOUR
Complaints One, Two and Three and the particulars thereof are repeated and relied upon both individually and cumulatively.
COMPLAINT FIVE
Suffers from an impairment.
PARTICULARS OF COMPLAINT FIVE
The practitioner has physical and/or mental impairments or disorders within the meaning of section 5 of the National Law; namely
Drug Dependence;
that detrimentally affect or are likely to detrimentally affect the practitioner's capacity to practise within accepted clinical and ethical standards within the nursing and midwifery professions with respect to handling and administering schedule 8 medication and patient analgesia.
Additionally, the particulars for Complaints One, Two and Three above are relied upon and repeated, both individually and cumulatively.
[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 November 2017
Parties
Applicant/Plaintiff:
Health Care Complaints Commission
Respondent/Defendant:
Gallard
Legislation Cited (6)
Therapeutic Goods Administration Act 1989(Cth)
(NSW), Poisons and Therapeutic Goods Regulation 2008(NSW)
On the third day of the hearing, the HCCC also sought to further amend particular 6 of Complaint 3. Having previously altered the date of the alleged event and withdrawn some sub-particulars, the HCCC sought leave to replace a named patient in the relevant event with 'a patient'. Counsel for the Respondent objected on the basis of fairness, as this amendment would not allow cross-referencing of oral testimony and witness statements against the documentary evidence of patient records and drug registers. In effect, Counsel argued that the Respondent would suffer real injustice, as she would not be able to use documentary sources to disprove the account of other witnesses in the absence of a named patient.
The proceedings of the Tribunal are flexible. Leave to amend the Complaint may be sought at any stage in proceedings, as the Tribunal has the power to make amendments to any document filed in connection with proceedings if the Tribunal considers this to be necessary in the interests of justice, under s 53(1) and 53(2) of the CAT Act. However any grant of leave must be subject to considerations of fairness and natural justice: ss 3(d) and (e), 36 (1) and 38(2) of the CAT Act. In this instance the removal of the named patient, especially on the third morning of the hearing, would have caused substantial unfairness to the respondent. As Counsel for both parties were in agreement that the evidence could not support the incident having occurred with the named patient in question, the Tribunal struck out that particular.
The gravity of the conduct must be measured against the extent to which it departs from proper standards, not by reference to the worst cases: Litchfield v HCCC (1997) 41 NSWLR 630 (at 638).
'Professional misconduct' is defined in section 139E of the National Law as:
(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.
In making a finding of professional misconduct the Tribunal must determine whether 'when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration': HCCC v Perroux [2011] NSWDC 99 at [18]. This level of seriousness requires more than 'mere incompetence', and can include a deliberate departure from accepted standards, indifference to them, or serious negligence: HCCC v BXD (No 1) [2015] NSWCATOD 134 at [37], quoting Kirby J in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200.
Section 5 of the National Law defines impairment as 'a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect…the person's capacity to practise the profession'.
The Tribunal indicated that it would be helpful to have access to more up to date GP records and to hear from Dr Fagg. Counsel for the respondent undertook inquiries, but neither were available.
The GP records also include occasional consultation notes from doctors other than Dr Fagg which indicate concern regarding Ms Gallard's long term use of OxyContin. The record of a 10 March 2015 consultation with another doctor notes, 'has used OxyContin 20mg bd (not 10mg bd as prescribed)' and 'encouraged to have ct cerv spine-nil in last 4+ [years]'. The record of a 1 March 2013 consultation authored by a different doctor notes, 'requesting more oxy, script done, but urged to cut, warned re dependence/addiction.'
In Dr Kadavil's opinion the opioids that Ms Gallard was taking were not effective for her pain management.
At various times Dr Kadavil characterised Ms Gallard's regular (25 to 35mg per day) regime of OxyContin as 'low', 'moderate' and 'mild to moderate'. In oral testimony Dr Kadavil clarified that his characterisation of doses depended upon their efficacy: he regarded this dose as 'mild' if effective in treating the pain, but as it appeared to be ineffective for Ms Gallard he characterised it as 'moderate'.
Dr Kadavil stated that small doses of opioids can be very difficult to stop taking, and may lead to withdrawals, which was why he recommended a slow weaning off. He thought it was very promising that Ms Gallard stated she had reduced one of her three daily intakes since their phone conversation.
Dr Samuels concluded that Ms Gallard has an impairment within the meaning of the National law 'in that she has, at the least, an Iatrogenic Dependence on Opioids which have been prescribed in the context of chronic neck pain' and expressed the opinion that 'her impairment has the potential to detrimentally affect her professional functioning.'
Dr Samuel's noted the opinion of Ms Gallard's treating psychologist, Ms Keniry dated 16 May 2017 that Ms Gallard could not have performed her current roles if she had a drug dependence and disagreed with this assessment on the basis that Ms Gallard's long term use and tolerance meant that only an excessive dose would likely impact upon her functioning in an observable way. More importantly he noted that:
whilst Miss Gallard may be functional in her current work and family situation, the requirements for alertness, decision making, vigilance, and responsivity to change in a patient's clinical status, really require a health professional to be operating at an optimal level of functioning. It is my view that even at the level of medication Miss Gallard seems to be taking her capacity to function optimally as a nurse and midwife may be slightly compromised and I would strongly advocate Miss Gallard seeking alternatives to OxyContin in conjunction with her pain specialist.
In oral evidence Dr Samuels gave the opinion that in the most recent assessment Ms Gallard had improved mood but that she still had 'limitations of insight' and 'an element of denial and minimisation' concerning her opioid use. In his view, Ms Gallard was reluctant to seek the assistance of a pain specialist and to explore alternative pain treatments.
The Respondent took objection to much of the peer expert report and also contended that the lack of specific reference to relevant policies and directives in the sections of the report relating to the Westmead incidents undermined the opinions expressed therein.
The Respondent submitted that Complaint 2 could not be proved to the required standard because Ms Coy and Ms Graney's accounts differed with respect to exactly when the relevant tablets were identified as Maxolon.
The Respondent submitted that the presentation of the practitioner as it was before the Tribunal, when coupled with the evidence of her treating doctors, supported a finding of no impairment or at most of a very minor impairment which is the subject of continuing improvement.
The Respondent contended that any of the material that did not relate directly to the particularised complaints could not be taken into account on the issue of impairment.
We find that the accepted professional standard for S8 medication administration requires second person checks throughout the process, from S8 cupboard to patient use.
While the evidence presented by the HCCC about the relevant standard for clinical handover and clinical records concerning medication administration was somewhat vague and Counsel for the Respondent objected to the fact that some witnesses expressed views on National or local policies without being taken to the text of these policies, these failings do not prevent the Tribunal from being able to form a view as to what the relevant professional standard is, and whether it has been breached. In addition to the peer expert, the Tribunal is constituted with two professional members who bring their own specialist knowledge and understanding to the determination.
The Tribunal's considered view is that the appropriate professional standard for clinical handover and clinical records is whatever is required in the circumstances to communicate and record necessary information to allow a patient's condition to be understood, and treated by, other health professionals. The standard applicable to a registered nurse or midwife for clinical handover and record keeping is not lower in private hospitals than that mandated in public hospitals.
It was apparent from the oral evidence of a number of witnesses, in conjunction with the drug registers, that the role of administering person and witness were regarded as somewhat interchangeable at Westmead Private. It was the view of Ms Shaw, and the professional members of the Tribunal, that this did not reflect best practice. It did not, however, have any bearing on the standard of conduct of the matters found proved below, as these concerned Ms Gallard's failures to have, or be, a second person present rather than who of the two authorised persons was performing each role.
Complaints 1 and 2 relate to a chain of events that occurred on 7 January 2013 at Gosford Hospital. It was alleged that Ms Gallard had checked out Oxycontin with Ms Lecciones but then told Ms Lecciones twice to go and administer it alone (Complaint 1 particular 1). Ms Gallard subsequently returned to the treatment room (containing the Schedule 8 drug register and Schedule 8 cupboard). At this time Ms Gallard removed two OxyContin from packaging which were not charted for her own patients, failed to escalate an incident of unusable drugs (Complaint 1 particular 2), attempted to place two pills back in the package and after failing to do so placed two pills in a medication cup back in the S8 cupboard which she locked before leaving the room. Complaint 2 is that the practitioner misappropriated the two tablets and replaced them with Maxolon tablets.
Ms Gallard's account of her intentions in the removal of the relevant OxyContin has changed. Immediately after the incident was reported, Ms Davids, as after-hours nurse manager, was called upon to investigate. Ms Davids' transcript of interview from 13 January 2012 indicates her recollection that Ms Gallard said to her, in explanation of the event, that the two tablets had been 'accidentally been punched out of the OxyContin foil' and had fallen on the floor.
In a fact finding interview on 19 January 2012 Ms Gallard said that she had removed 'two more' OxyContin tablets because Janelle [Graney] and Luisa [Coy] 'said that they needed OxyContin'.
In an interview on 1 May 2012 Ms Gallard said that, 'Although Janelle and Luisa didn't specifically request for me to get them out a tablet each, sometimes this is what happens when it's busy' … 'Janelle said, "Oh, we need some, too." So I got another two out. So that's four…so you're just kind of in automatic mode and so you've got four tablets out.'
In her statement of 19 May 2017 Ms Gallard says,
At approximately 0820 hours I acted as witness for RN Wardle administering OxyContin 10mg to Patient MB. At that time MW Graney and RN Coy said they required OxyContin 10mg, one for each of their patients. I removed two extra OxyContin [in the presence of both and RN Wardle].
At the hearing Ms Gallard reiterated that she had removed two extra tablets because Ms Graney and Ms Coy had requested them.
In cross examination, Ms Gallard stated that the correct procedure for medication handling, and her own practice, is to dispense directly from packaging into a medication cup. She could not explain why she removed the two relevant pills into her own hand, rather than into a medication cup.
The Tribunal finds Ms Gallard did not remove the two relevant OxyContin from their packet as a response to a request from other practitioners, and that she did say at the time that she had done so accidentally.
Ms Gallard's account of her possession of the keys has also changed. In interviews on 19 January 2012 and 12 May 2012 Ms Gallard claimed that she left the S8 keys with Ms Coy and Ms Graney after placing the medication cup in the S8 cupboard. At the hearing, Ms Gallard stated that she retained possession of the keys until she returned to the treatment room and Ms Graney requested them.
The Tribunal finds that at all relevant times, the practitioner was in possession of the keys to the S8 cupboard.
The only reasonable conclusion is that Ms Gallard removed the OxyContin with the intention of misappropriating it and substituting it with Maxolon, and we find on the balance of probabilities that this is what occurred. No other person had the opportunity to access the S8 cupboard after Ms Gallard placed the medicine cup in it and before the substitution was discovered.
This breach represents unethical and dishonest conduct of sufficient seriousness to rise to the level of professional misconduct.
Overall, the Tribunal accepts Ms Klamer's version of events over Ms Gallard's. Whether or not the patient was holding a crying baby is immaterial as she could reasonably be expected to hold a medication cup either way; indeed the experience of midwives would surely encompass many new mothers requiring medication in such a situation.
On the basis that Ms Klamer may have been standing in the doorway to the treatment room, we find that sub-particular (a) is not made out to the required standard.
The failure to include a patients first name in the drug register, sub (b), while not best practice, does not represent a failing of such gravity as to represent unsatisfactory professional conduct.
Concerning the rest of the incident, each element taken alone may appear minor, but taken together represents a significant lapse in professional judgment and practice in that Ms Gallard rushed through the dispensing and administering of S8 drugs without consideration for proper checks, and cross checks, including the right dose as against the medication chart and as against the identification as well as allowing appropriate time for explicit patient consent. The Tribunal finds that the balance of particular 1 is made out.
Particular 8 concerns an incident at around 7 pm on 13 December 2014 at Westmead in which the practitioner asked a Mothercraft Nurse Ms Devine to come with her to witness the administration of Endone to a patient. When the Nurse was reluctant to do so, it is alleged, in essence, that Ms Gallard responded aggressively.
Ms Devine's account is that Ms Gallard approached her just as handover was taking place for the next shift and asked her to witness an Endone administration. Ms Devine looked at the patient's chart and expressed the view that the patient had received "a lot of Endone already". Ms Devine suggested that they wait 10 minutes for the night nurses to come on to deal with it.
Ms Devine says that Ms Gallard slammed the patient chart down on the desk and said words to the effect of "you're not doing your job properly". Ms Gallard walked away and returned 10 minutes later to say she had found somebody else to do the job. In oral evidence Ms Devine said she felt upset and embarrassed at the implication that she was not capable of doing her job.
Ms Gallard's version of events differs from Ms Devine's account in that she denies slamming the chart down. Ms Gallard does not recall whether or not she said words concerning Ms Devine not doing her job properly. Ms Gallard says that she did later report the administration and effect of the dose to Ms Devine in a professional manner.
The Tribunal prefers Ms Devine's account.
Ms Shaw the peer expert characterised this incident as unsatisfactory professional conduct both because Ms Gallard was not prepared to reflect upon and consider Ms Devine's professional view, and because she conducted herself in a disrespectful manner contrary to the Midwives Code of Conduct.
The Tribunal agrees with expert peer assessment. The safe provision of health care requires that health practitioners constantly question each other's clinical judgment and decision-making. This equally requires health professionals to accept and reflexively respond to such critique and questioning from others.
This particular is established and represents conduct significantly below the accepted standard such that it is unsatisfactory professional conduct.
Particulars 2 and 3 concern an incident on 29 December 2014 at Westmead Private Hospital in which the practitioner is alleged to have inappropriately requested during the course of handover at around 7pm that another midwife administer Endone to Patient B in circumstances in which: the practitioner had not recorded the effects of an earlier dose of Endone, or a pain score, or pain assessment in the patient's notes at the time of the earlier dose, and did not explain the reasons for administering the mediation (charted as prn).
The evidence of Ms Nancarrow was that Ms Gallard told her that the patient was 'due' Endone (an expression also used several times by Ms Gallard in the course of her statements, and conceded by her in cross examination as words she could have used) and that she needed to give the patient Endone at 19.50.
Ms Gallard did record a pain score for the patient at 11.30, but not at 15.50 when she administered Endone. Ms Gallard accepted in cross examination that opioid medication should not be administered without recording a pain score or assessment of some kind, as well as the effect of the medication.
The evidence of Ms Newton, a manager at Westmead was that the hospital followed the relevant National Standard on clinical handover.
The evidence of Ms Turner was that the administration of analgesia was an exception to the usual pain relief regime at Westmead, which would require progress notes to be made. The patient documents reviewed by the Tribunal indicate that this did not always occur on the ward.
Given that the medication in question was charted as prn, it would be expected that the patient records, and handover, would indicate both why the medication was required and what its effects were. Particulars 2 and 3 are established and do represent a failure of professional standards, but are not among the most serious of this matter and would not, taken alone, merit a finding of unsatisfactory professional conduct.
Particular 5 is that at 8 am on 25 January 2015 at Westmead Private the practitioner inappropriately handled and administered Targin in circumstances where she is said to have grabbed the medication off another midwife, become angry and annoyed on being told she could not hold the medication and proceeded to leave the patient's room without witnessing the patient swallow the medication after it had been administered by the other midwife.
The circumstances of this particular are that this was the beginning of Ms Gallard's shift on the first occasion since management had determined that Ms Gallard was not to handle S8 medications pending an internal review process. The decision was not directly communicated to Ms Gallard by a manager. Rather, it was implemented as a new policy in which all staff were told that Ms Sheehan was to act as a 'floating nurse' and as part of that role was to carry the S8 keys and assist with the administration of drugs.
Ms Gallard has consistently denied being angry or annoyed, and denied that she left the room before the patient took the medication, but did characterise herself as 'confused' by the 'new rule'.
We find that Ms Gallard was frustrated and quite likely angry, and as such may well have reached for, or grabbed at, the medication; however we also find that such behaviour not completely unreasonable in the circumstances. A changed regime was put in place in order to preclude Ms Gallard from handling S8 medications, yet this was not communicated directly to Ms Gallard - leaving her to intuit it from the behaviour of others. It is understandable that Ms Gallard reacted with some emotion to this approach. It does not rise to the level of unsatisfactory professional conduct.
Nonetheless we prefer the evidence of Ms Sheehan over Ms Gallard and find that Ms Gallard as the second authorised person did leave the room prior to the patient taking the medication. This represents a serious breach of medication handling procedures which does rise to the level of unsatisfactory professional conduct.
Particular 4 concerns an incident later that day, around 11 am on 25 January 2015, in which the practitioner is said to have inappropriately requested the administration of Endone for a patient, in circumstances where she had failed to record the effect of an earlier dose or a pain score or assessment.
Particular 4 is not established. Ms Gallard's account, consistently with that of the other midwives concerned and the patient records, was that she did not administer the earlier dose of Endone at 8.25 am. Indeed Ms Gallard was prevented from handling and administering S8 medications on that day and was not present either when the patient was assessed or as second authorised person when the medication was administered. It was therefore not Ms Gallard's responsibility to record the effects of the dose, or a pain assessment.
The patient records include a detailed variance note by Ms Gallard at 9.15 am concerning the patient's experience when she had collapsed in pain after standing. Ms Gallard also reported the patient's own words concerning her pain levels when requesting that Endone be administered at 11am. The Tribunal accepts Ms Gallard's account of this incident and finds that her conduct was appropriate and professional.
Particular 7 concerns the next day, 26 January 2015 alleging that the practitioner inappropriately handled and administered Endone at 1.15 pm when she was not in possession of the S8 key, contrary to the instructions given at the beginning of the shift.
Ms Gallard says that she signed the S8 drug register as administrator but Ms Jenkins, who held the keys, removed the Endone from the S8 cupboard. Ms Gallard says that carried the Endone from the treatment room, and then she and Ms Jenkins administered the Endone together. In her oral testimony Ms Gallard was emphatic that she had not been told that she could not handle S8 medication.
Ms Jenkins account is that as she was locking the S8 cupboard Ms Gallard 'grabbed' the Endone and proceeded to leave the treatment room. At the patient's room Ms Gallard administered the medication before Ms Jenkins could check it. Ms Jenkins characterised Ms Gallard as 'confrontational' through that incident.
The evidence of a number of witnesses in that Ms Gallard questioned them about why the 'new rule' was in place as the shift progressed on 25 January 2015. Ms Turner gave evidence that Ms Gallard approached her twice during the 25 January shift to ask 'what was the problem' and 'why she (Ms Gallard) could not carry the S8 keys or touch the medication'. Ms Turner's account is that she said she had the keys in order to monitor the medication. Ms Turner also noted that on 26 January 2016 Ms Gallard directly asked her for the S8 keys and she refused. Ms Turner characterised herself as intimidated by Ms Gallard's attitude.
We find that Ms Gallard was well aware by 26 January 2015 that there was a new internal policy in place concerning the handling and administration of S8 medication and that she knowingly contravened it.
The Tribunal prefers the evidence of Ms Jenkins and finds that Ms Gallard administered the medication in a rushed manner before the appropriate checks could be made. This represents a breach of the S8 medication administration standards, irrespective of the lack of direct applicability of the NSW Medication Directive to private hospitals. The balance of Complaint 3 is proved.
The Tribunal concludes that Ms Gallard has both a physical and psychological dependence on Oxycontin, which she has taken reluctant, belated, and minimal, steps to overcome.
We accept the opinion of Dr Samuels that Ms Gallard's dependence poses a risk to patients in two respects: through the physical effect of supressed responsivity and alertness in terms of clinical decision-making and functions; and through the psychological impact on her attitude to analgesia and in particular opioids, in patient care.