Health Care Complaints Commission v Goode

Complaint Three

1. Complaint Three is that the Practitioner engaged in improper or unethical conduct relating to the practice or purported practice of nursing amounting to unsatisfactory professional conduct under s 139B(1)(l) of the National Law:
2. The particulars of Complaint Three allege that on multiple occasions between 1 July 2012 and 16 March 2015 the Practitioner made records of patient observations towards the beginning of the night shift which were false in that they purported to be completed near the end of the shift at around 6 am or later and included descriptions of the patients' sleep during a shift, the frequency with which patients went to the toilet and frequency of safety and other checks of patients during the shift.

Complaint Four

1. Complaint Four is that Practitioner is guilty of professional misconduct under section 139E of the National Law in that she has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration, or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Practitioner's registration.
2. The particulars in support of Complaint Four are the same as those relied on in Complaint One, Two and Three.
3. If the Complaints are found proven by the Tribunal the Commission requests the Tribunal to exercise its power to make disciplinary orders against the Practitioner. Specifically, that if the Practitioner were still registered the Tribunal would have cancelled her registration. Further that the Practitioner be disqualified from being registered as a nurse for a period of 12 months. It also seeks an order for costs.

The Hearing

1. The Practitioner did not attend the substantive hearing. Prior to the hearing the Tribunal conducted directions hearings relating to the filing and service of documents. Material was filed by the Commission demonstrating that it had sent correspondence to the Practitioner providing her with the relevant documents, notice of the hearing and details of the orders it sought. The Commission submits that the Practitioner has been given adequate notice of the Complaint and that it is appropriate for the Tribunal to proceed pursuant to s 165J(3) of the National Law.
2. There has been no correspondence to the Tribunal from the Practitioner about this Application or the hearing. The Practitioner has not filed any material in response to the Application and Complaint.
3. The Tribunal is satisfied from the evidence before it that the Practitioner is aware of these proceedings. The Application and attached Complaint was served on the Practitioner. There was no request from the Practitioner for an adjournment of the hearing. In the light of these matters the Tribunal was satisfied that it was appropriate for the hearing to proceed in the Practitioner's absence.
4. Although the Practitioner did not participate in the hearing she has not advised the Tribunal that she concedes the Application and attached Complaint or that she agrees to the orders sought. She has not presented any evidence which contests the particulars of the Complaints or contradicts the evidence relied upon by the Commission.

Evidence

1. Evidence in support of the factual allegations made in the particulars are contained in the following documents: 1. Two statements made by a Registered Nurse and currently the Hospital Discharge Planner dated 22 July 2015 and 14 October 2015 detailing a spot check made by her of the night shift on 14 March 2015 in which she observed the Practitioner sleeping and Schedule 8 medications and cupboard keys left unattended. Attached to the statement dated 14 October 2015 were photographs of the unattended Schedule 8 medications as well as incomplete patient notes and patient progress notes which had been completed in advance by the Practitioner 2. Two statements by a Patient Services Assistant (PSA) made on 16 March 2015 and 19 October 2015 who worked with the Practitioner over the period specified in the particulars. This PSA observed the Practitioner sleeping on the night shift on numerous occasions, and keeping schedule 8 drugs in a basket on a bench or in her bag. The PSA referred to instances where the Practitioner asked her to administer drugs to patients beyond the scope of her role and to inform the Practitioner which drugs had been administered. She also observed the Practitioner to administer Schedule 4 and Schedule 8 medication without having a second enrolled nurse witness such administration and to then have a second nurse countersign the drug book at the end of the shift. In addition the PSA observed the Practitioner to take Schedule 4 and 8 medications from her own bag and give it to a patient who was upset or unsettled to make them go to sleep. Finally reference was made to the Practitioner's failure to provide supervision during the shift and preparing patient notes at the beginning of the shift. 3. A transcript of s.150 proceedings in which the Practitioner indicated that she was aware of the hospital policy concerning sleeping during the night shift. In addition the Practitioner admitted to making records of patient observations towards the beginning of the night shift. 4. A complaint dated 15 March 2015 made to the Hospital Director by an Enrolled Nurse detailing and referring to the Practitioner's conduct in not securing medication, sleeping on duty, completing patient records towards the beginning of the night shift instead of at the end and of requiring her as an enrolled nurse to administer medication on her own contrary to required practice. Reference was also made to the Practitioner's failure to provide supervision. 5. A statement made by a second PSA dated 16 October 2015 details instances of the Practitioner sleeping on duty, her failure to supervise staff, keeping Schedule 8 medication with her and preparing patient notes towards the beginning of the shift. This PSA stated he was also asked to administer medication beyond his scope of duties and to countersign the drug book at the end of the shift. 6. A statement by the Manager of Organisational Development at the Hospital dated 14 October 2015 detailing an admission made by the Practitioner about keeping Schedule 8 medication with her instead of storing them in a locked cupboard. 7. A statement by the Hospital Director dated 14 October 2015 which annexed a record of a meeting with the Practitioner conducted on 16 March 2015 which detailed admissions by the Practitioner as to the preparation of patient notes at the beginning of a shift and keeping Schedule 8 medication with her instead of storing it in a locked cupboard. 8. The Eastern Suburbs Private Hospital Policy and Procedures Manual - Medication Safety, dated March 2013 which sets out the entries required to be made in ward registers in relation to the administration of medication, the use of the medication chart for recording administration of medication and the need for prescription authorisation in the form of a written medication order or telephone order. 9. Other material setting out Nursing standards and guidelines was also before the Tribunal, including A Guide to Poisons and Therapeutic Goods Legislation for Medical, Nurse and Midwife Practitioner and Dentists dated February 2014; NSW Health, Health Care Records - Documentation and Management dated 21 December 2012 and NSW Health and Medication Handling in NSW Public Health Facilities dated 27 November 2013

Expert Peer Review Report

1. The Tribunal had the benefit of an Experts Report dated 16 February 2016 prepared by RN McGhee which examined the Practitioner's conduct. RN McGee has been a registered nurse for seventeen years. She has worked in both the private and public sectors. She has worked as a nurse educator within a major public Hospital, has written policies and procedures for nurses and has co-ordinated and been an in-charge nurse.
2. The expert was strongly critical of the Practitioner's conduct of sleeping whilst on night duty. The expert referenced the code of Professional Conduct for Nurses in Australia, Nursing and Midwifery Board of Australia as requiring nurses to practise in a safe and competent manner. In this regard the expert pointed out that the Practitioner would not have been able to deliver comprehensive and direct nursing care to patients. She would not have been able to monitor and assess patients by walking into their room to reposition patients for pressure area care, and checking bedding and toileting of patients throughout the night. By sleeping on duty the Practitioner allowed less qualified personnel to undertake direct patient care unsupervised. In the expert's opinion this conduct was significantly below professional standards.
3. In relation to the Practitioner's conduct in placing Schedule 8 and other pain relieving medications anticipated to be required during the shift in a basket at the beginning of a shift and keeping them with her, the expert was of the view that this was an extreme breach of standard procedures.
4. Reference was made to the Practitioner's breach of her own hospital's policy on medication safety and NSW Government policies of handling scheduled medications as contained in the NSW Health, Guide to Poisons and Therapeutic Goods Legislation for Medical, Nurse and Midwife Practitioner and Dentists at article 3.2 (a). The expert formed the view that this conduct was significantly below professional standards. The expert was equally critical of the Practitioner's conduct in providing Schedule 8 medications to an enrolled nurse or an unregistered PSA to administer to patients requesting pain relief in circumstances where she did not attend the patient's bedside to complete medication checks. The expert stated this conduct was significantly below the standard, invited strong criticism and was not ethical. The expert was highly critical of the Practitioner administering unauthorised Schedule 4 and 8 drugs to patients who were unsettled because she regarded this conduct as putting patients' lives at risk. The expert referred specifically to Endone being a drug of addiction and as such its possession, supply, prescribing and use are strictly limited. The expert formed the view that the Practitioner did not follow hospital policy or the standards and lawful procedures for supplying, issuing and documenting scheduled medications to her patients as governed by NSW Health. In the view of the expert this conduct was significantly below what is reasonably expected. .
5. In respect of the Practitioner's conduct in completing patient records at the beginning of the night shift as if they were completed towards the end of the shift, the expert expressed the view that this was not standard behaviour. The expert explained that nursing notes can be written in real time during the shift as needed and reports are written at the conclusion of a shift to give an accurate report on patient observations and their level of stability as well as ongoing care requirements. Although the expert was critical of this conduct she did not believe it was significantly below the standard. However she believed peers would be critical of this practice. She stated that peers would consider clinical notes as a lawful document and as a result strict practices in writing should be adhered to. This would include reporting at the time of entry, and recording of accurate and relevant information in accordance with NSW Health Care Records, Documentation and Management dated 21 December 2012
6. The expert concluded her report by expressing the view that the Practitioner's conduct had placed both her colleagues and patients at risk of harm on many occasions. Specifically the Practitioner did not follow strict nursing protocols in the handling of scheduled medications, displayed negligence in her practice and dangerously misguided her unqualified assistants by having them undertake procedures outside their scope of practice over a number of years. FINDINGS
7. Complaints One and Two allege "unsatisfactory professional conduct" within the meaning of s139B, via the two pathways contained in sections 139B(a) and (l) of the National Law. Complaint Three alleges improper and unethical conduct, and Complaint Four alleges "professional misconduct" by the Practitioner under s 139E of the National Law, relying individually and/or in combination on the particulars of Complaints One, Two and Three. For the reasons that follow the Tribunal is satisfied that all of the particulars relied upon by the Commission are established and that Complaints One, Two and Three are proved. The evidence before the Tribunal in support of the particulars relied upon by the Commission is overwhelming. The evidence of the Discharge Planner at the Hospital, supports the allegations made by the nursing staff that, over a period of time the Practitioner habitually slept whilst on night duty, kept Schedule 8 medications outside the locked cabinet and completed patient notes in advance, containing details and times that may not have been true and correct given the time at which they were entered.
8. The direct observations of the Hospital Discharge Planner provide a context to the evidence provided by other staff members that they were required to attend to buzzers and provide medication to patients unsupervised because the Practitioner was asleep. The evidence is also to the effect that they had access to drugs such as Endone.
9. The Practitioner appeared at the s 150 proceedings where she made some limited admissions to the making of entries in advance on the night of 14 March 2015, and having Endone with her in anticipation of supplying it to a particular patient. A record of a meeting with the Practitioner conducted on 16 March 2015 also detailed an admission by her that she did not store Schedule 8 medication in a locked cupboard but rather took it with her.
10. The Practitioner did not file a response in the Tribunal to the specific allegations in the Complaint and has chosen not to appear or otherwise seek to defend the allegations. She has not made any statement to the Tribunal denying the conduct alleged. She has not presented any evidence which contests the particulars of the complaints or contradicts the evidence relied upon by the Commission.
11. The Tribunal accepts the evidence relied upon by the Commission to support the particulars. Based on the nature and extent of that evidence and the admissions that were made by the Practitioner the Tribunal finds that all the particulars detailed in the Complaint are made out.
12. Section 139B(1)(a) of the National Law requires the determination by the Tribunal as to whether the Practitioner has been guilty of unsatisfactory professional conduct. It involves an objective assessment of the Practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner.
13. Section 139B(1)(l) of the National Law also requires a determination by the Tribunal as to whether the Practitioner has been guilty of unsatisfactory professional conduct. It involves an assessment as to whether her conduct was improper or unethical relating to the practice of nursing.
14. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not 1. "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
15. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrne [1995] 193 CLR 501 at 514-515: see HCCC v Phung (No. 1) [2012] 1 NSWDT at 68. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
16. The words improper and unethical were considered by the Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical.
17. This test was adopted in HCCC v Liu [2016] NSWCATOD 133 at [56].
18. With the exception of one area the expert's evidence makes it clear that the Practitioner's conduct fell significantly below the standard reasonably expected of a practitioner of equivalent training and experience and resulting almost universally in strong criticism. To the extent that strong criticism was not made of the practice of writing up patient notes in advance, the Commission submits that it is capable, in its context, of being regarded as unethical and immoral and in contravention of the expected professional behaviour of a nurse charged with the welfare (including accurately reporting in the progress notes) and safety of patients. The Tribunal accepts this submission.
19. As referenced by the expert, the Practitioner's conduct in relation to the care of her patients was in breach of codes and guidelines provided by the Nursing and Midwifery Board of Australia, the Guide to Poisons and Therapeutic Goods Legislation for Medical, Nurse and Midwife Practitioners and Dentists dated February 2014, and NSW Health, Health Care Records, Documentation and Management.
20. In the Tribunal's view the Practitioner's conduct of sleeping on duty and thereby failing to provide nursing care to patients and to supervise staff, and her management, supply and administration of Schedule 8 medication was significantly below the standard of conduct reasonably expected of an equivalent practitioner. When viewed objectively the Practitioner's conduct, extending to and including the writing up of patient notes in advance was not in conformity with standards of professional conduct and practice to be expected of nurses. Her conduct as critiqued by the expert brings the profession into disrepute. It has no place in practice. It was improper and unethical.
21. The Tribunal finds that the Practitioner's conduct amounts to unsatisfactory conduct pursuant to s139B(1)(a) and (l) of the National Law.
22. The Tribunal finds Complaints One, Two and Three are established.

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

1. The Commission submits that the conduct of the Practitioner, which has been shown to constitute unsatisfactory professional conduct, is sufficiently serious that it amounts to professional misconduct. Alternatively when the instances of unsatisfactory professional conduct are considered together they amount to sufficient seriousness for Complaint Four to be made out.
2. In determining whether a finding can be made of professional misconduct the Tribunal must determine whether as outlined in Health Care Complaints Commission v Perroux [2011] NSWDC 99 at 18 "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration".
3. It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards": see Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638.
4. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the Practitioner, and other practitioners from repeating the same misconduct: Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 at 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at 35.
5. To constitute professional misconduct, it has been held that the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: see Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA).
6. In Pillai v Messiter (No 2) [1989] 16 NSWLR 197 the Court of Appeal (referring to the earlier statutory test) described professional misconduct as including: "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson v General Council of Medical Education and Registration [1894] 1 QB 755] (at 760-761)." (per Kirby P at 200).
7. The Tribunal accepts the Commission's submission that the Practitioner's conduct is of a very serious nature and demonstrates a departure from accepted standards.
8. In the Tribunal's view the Practitioner abandoned her duties as a registered nurse and showed a lack of regard for the welfare of her patients.
9. The Tribunal concludes that the unsatisfactory professional conduct displayed by the Practitioner is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. The Tribunal finds that when considered as a whole the Practitioner's conduct constitutes professional misconduct. The Tribunal is satisfied that Complaint Four is established.

Principles regarding protective orders

1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see ss149A, 149B and 149C. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at 34.
2. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield at 637.
3. In Health Care Complaints Commission v Do, Justice Meagher (with whom Justices Basten and Emmett agreed) referred at 35 to the importance of denunciation of misconduct, in the context of s. 3 and s. 3A of the National Law as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
4. The Practitioner's conduct is a serious breach of the standards that the public have a right to expect of a practitioner. Moreover the Tribunal does not have any evidence or submission from the Practitioner that she has any insight into her conduct and the potential dangers it posed. In the circumstances the Tribunal cannot be satisfied that the Practitioner would not repeat the conduct.
5. A key aspect of the protection of the public extends beyond protecting the individual patients of an individual practitioner. It goes to the protection of the public as a whole by means of the denunciation of the type of conduct such as that which occurred in this case. Having regard to the findings made above as to the nature of the conduct and the protection of the public, the Tribunal is satisfied that the disciplinary orders sought by the Commission are appropriate. Specifically that if the Practitioner were still registered the Tribunal would have cancelled her registration and that she be disqualified from being registered as a nurse for a period of 12 months
6. The Commission also seeks an order for costs.
7. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36.
8. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42-46, with Emmett JA (Meagher JA and Beech-Jones J agreeing) stating: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied.
9. The Complaints have been wholly established. There are no factors that might militate against the recovery by the Commission of its costs. Accordingly, the Commission is entitled to an award for costs in its favour of and incidental to the proceedings.

ORDERS

1. The Tribunal, having found the complaints of unsatisfactory professional conduct and professional misconduct proved, orders that: 1. If the Practitioner were still registered, the Tribunal would have cancelled her registration. 2. The Practitioner is disqualified from being registered as a nurse for a period of 2 years. 3. The National Board is to record in the National Register the fact that the Tribunal would have cancelled the Practitioner's registration. 4. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2 and 3 above as soon as practicable. 5. The Practitioner is to pay the Commission's costs of and incidental to the proceedings.

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: 12 June 2018