Health Care Complaints Commission v Hogg - [2019] NSWCATOD 183 - NSWCATOD 2019 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Hogg

[2019] NSWCATOD 183

NCAT Occupational|2019-07-30

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NCAT Occupational

Decision date

2019-07-30

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Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

Background to the Complaint

To put the conduct the subject of the Complaint in context, it is necessary to set out some background facts.
As noted, on the day of Patient A's death, Ms Hogg was the designated nurse-in-charge of the Hospital's Orthopaedic Ward. Nine other nurses were rostered to work that shift: Ms Lord and another first-year graduate nurse, who were rostered to work as "supernumeraries"; one third-year nurse, a second-year nurse; four first-year nurses and an enrolled nurse. Ms Lord and second-year nurse, Ms Dru Heath, were designated to care for Patient A.
A document headed, "In-Charge Without a Patient Load Responsibilities After Hours Orthopaedic Inpatient Unit", describes the responsibilities of the in-charge nurse as follows: As the in-charge you are responsible for every patient on the ward on your shift. The in-charge is the delegate of the NUM when in the in-charge role and the resource person for other staff.
According to the Nurse Unit Manager of the Hospital's Orthopaedic Ward, the in-charge nurse does not have a patient load and their responsibilities include "to manage patient flow, to assist with deteriorating patients … and to provide general clinical support".
Five days before his death, 75-year-old Patient A underwent knee replacement surgery. At that time, he was suffering multiple conditions, including osteoarthritis, chronic renal failure, hypertension and Type 2 diabetes. His initial post-operative recovery was unremarkable but on 13 February 2017 (Day 4) he developed hypertension. On 14 February 2017, Patient A's vital signs (respiratory rate, pulse, blood pressure, temperature and level of consciousness) were recorded as being within "normal limits". However, the Orthopaedic team noted "worsening renal function". In addition, Patient A was found to have a Deep Vein Thrombosis (DVT) in his right calf, although the team considered there was "no major risk" of progression providing Patient A remained mobile.
On the day of his death, Patient A participated in three physiotherapy sessions. The physiotherapist recorded that Patient A walked up to 50 metres independently using elbow crutches and transferred from a commode chair to the end of his bed, with assistance. In the physiotherapist's opinion, Patient A was sufficiently mobile to be able to be transferred on the following day to a rehabilitation facility.

The following is a summary of Ms Lord's interaction with Patient A on the day of his death. It is largely taken from a chronology prepared by the Commission (Exhibit A1, Tab 19). 15:30 With Ms Lord's assistance, Patient A walks to and from the ensuite bathroom in the room he shares with Patient B using elbow crutches. Ms Lord reports to Ms Heath that Patient A opened his bowels. 17:30 Patient A informs Ms Lord that he needed to open his bowels again and did "not feel up to walking". Ms Hogg insists that he mobilise to the toilet. 17:45 Patient A vomits immediately after taking (orally) 4 mg of Ondansetron (anti-nausea medication). Ondansetron 4 mg IV prescribed by medical officer and given by Ms Heath and Ms Lord. 18:30 approx. Patient A tells Ms Lord he needs to use the toilet again. Ms Lord observes Patient A requires a greater level of assistance and encouragement to be transferred onto the commode chair, than on last occasion she assisted him to the toilet. Patient A has another bowel movement. He walks back to bed unassisted using elbow crutches. Ms Lord claims Patient A told her he did not require assistance. Ms Lord reports above to Ms Heath. 19:20 Ms Lord checks Patient A's vital signs and finds all within "acceptable parameters". When questioned by Ms Lord, Patient A reports he is in pain. She claims he was "somewhat agitated and restless". Ms Lord reports to Ms Hogg (Ms Heath was not on the ward at the time) that she is concerned about Patient A "not feeling well". Ms Hogg says he is fine and reacting to having been given a lot of medication to assist him to open his bowels. Ms Lord claims that she felt "unable to express my concerns any further as [Ms Hogg] told me [Patient A] was fine". 19:30 Ms Lord checks Patient A, who reports "significant abdominal cramping". Ms Lord reports to Ms Hogg and enquires whether Patient A can be given medication for pain relief earlier than the scheduled time (20:00). Ms Hogg gives a similar response to that recorded above however agrees with Ms Lord's recommendation to give Patient A pain relief medication before the scheduled time, commenting "some Endone would help keep him quiet for a while". Ms Lord claims she was "a bit upset" and felt Ms Hogg had not listened to the concerns she had raised about Patient A. Ms Hogg pages after hours medical officer who does not attend. Patient A is given MS Contin (slow release morphine a narcotic analgesic given for pain relief) 20mg and Endone (an immediate release narcotic analgesic, also given for pain relief) 10mg. 20:15 Ms Lord checks on Patient A who reports pain has subsided and requests that she put up the bed rails. He sleeps for a short period. 20:30 Ms Lord gives Patient A further scheduled medication. He complains of stomach cramps and says he needs to use the toilet again. Ms Lord claims Patient A appeared tired and had greater difficulty using crutches than on the last occasion she assisted him to use the toilet. Ms Lord reports her observations to Ms Hogg. Ms Hogg requests a medical officer to prescribe medication for stomach cramps. Patient A complains of stomach cramps and asks for a bedpan, reporting he is "very tired". 21:00 Ms Lord claims being told by Ms Heath and Ms Hogg that Patient A was now classified as a "rehab patient" and should be told to walk to the bathroom and "stop being lazy". Ms Lord claims she was distressed being told to be "tougher" with Patient A. 21:15 approx. Ms Lord finds Patient A sitting at end of bed incontinent of faeces. Ms Hogg comes to assist Ms Lord and tells Patient A to stand and transfer to commode chair. 21:30 approx. Ms Lord and Ms Hogg shower Patient A. 22:00 Patient A is returned to bed with the assistance of an orderly, Ms Hogg and Ms Lord. Shortly after 22:00 Night shift nurse, RN Parslow finds Patient A sitting at end of the bed with his legs on the floor. RN Parslow assists Patient A back to bed. On returning to his room five minutes later, Ms Parslow finds Patient A to be "unresponsive". 22:00 Ms Parslow alerts RN Shavina Sehdev. Duress alarm activated. Cardiopulmonary resuscitation (CPR) commenced. 22:27 CPR stopped. Patient A pronounced dead.

[4]

Were Ms Hogg's actions in insisting that Patient A mobilise to the toilet, inappropriate?

Ms Hogg admits each of the five sub-particulars of Particular 1. However, she disputes the central contention of that Particular, namely that her actions in insisting that Patient A mobilise to the toilet were inappropriate. Ms Hogg concedes that she erred by failing to ask Patient A why he requested a bed pan at 17:30. However, she contends that her actions in encouraging Patient A to mobilise were not inappropriate given that he had been making steady progress post-surgery and given the positive assessment provided by the psychotherapist. In addition, Ms Hogg claims that her actions were consistent with the practice followed by staff of the Orthopaedic Ward of encouraging orthopaedic patients to mobilise post-surgery.
In Ms McGhee's opinion, Ms Hogg's actions in insisting that Patient A mobilise to the toilet demonstrated a "lack of insight, understanding and support". She is especially critical of Ms Hogg's failure to ask Patient A why he requested a bed pan on that occasion. In her opinion, Patient A's request to use a bed pan was "reasonable" given that he was probably feeling sore following the physiotherapy sessions and it was close to dinner time.
The assessment of whether, as alleged by the Commission, Ms Hogg's action in insisting Patient A walk to the toilet at 17:30 was inappropriate, must not be made in retrospect but rather at the time that action was taken, having regard to the information then available to Ms Hogg. Of itself, refusing Patient A's request to use a bed pan and insisting that he mobilise did not render Ms Hogg's actions inappropriate, especially given Patient A's apparent steady post-surgery recovery and the opinion of the physiotherapist that he was able to walk short distances using elbow crutches and fit to be transferred to a rehabilitation facility.
However, in circumstances where Ms Hogg had failed to ask Patient A the reason he had requested a bed pan and, significantly, having observed him to be unsteady on his elbow crutches and requiring assistance to transfer to a commode chair, we find Ms Hogg's insistence that he mobilise to be inappropriate.

[8]

Did Ms Hogg fail to conduct or delegate an assessment of Patient A's vital observations, a pain score and Glasgow Coma Scale assessment?

When advised at about 19:30 that Patient A was complaining of pain, Ms Hogg paged the after-hours Medical Officer and requested a review of Patient A. The Medical Officer failed to attend, apparently because they were responding to an emergency call involving another patient on the Orthopaedic Ward.
The basis for the Commission's claim that Ms Hogg failed to conduct, or arrange to be conducted, a full set of vital observations is unclear. The Hospital notes record that at 19:20 Ms Lord assessed Patient A's respiratory rate, pulse, blood pressure and temperature and found them to be within the normal range. In the progress notes made after Patient A's death, Ms Lord recorded "obs attended. Pt hemodynamically stable at 1920 hrs". Sub-particular 3(a)(i) is not established.
The basis for the claim that a pain score test was not undertaken appears to be the absence of any mention of that test being undertaken in either Patient A's progress notes or the pain assessment section of the Hospital electronic medical records. According to Ms Hogg, at about 19:30 she asked Patient A to rate his pain and he replied seven out of ten. Ms Lord was not questioned about Ms Hogg's claim. Nor is there any evidence to support or contradict that claim. The absence of any documentation recording a pain score having been undertaken is not determinative because, as the parties agree, the progress notes made in respect of Patient A are woefully inadequate. For example, they do not include a number of undisputed significant events which occurred on the evening of 15 February 2017, such as Ms Hogg's request that a Medical Officer review Patient A. On the available material we are not satisfied that a pain score was not taken at about 19:30. Sub-particular 3(a)(ii) is not established.
With respect to sub-particular 3(a)(iii), Ms Hogg agrees that a Glasgow Coma Scale (GCS) (a scoring system used to describe a person's level of consciousness) assessment was not conducted or delegated. She contends, however, that her failure to conduct a GCS assessment or to delegate that task, was not inappropriate in circumstances where at about 19:20, Ms Lord had assessed Patient A's level of consciousness using the Alert, Voice, Pain, Unresponsive (AVPU) scale. According to Ms Hogg, the practice on the Orthopaedic Ward was to assess patients using the AVPU scale not the GCS.
Ms McGhee is critical of Ms Hogg's failure to conduct a GCS assessment. Apparently, she was unaware that an AVPU assessment had been undertaken and it is therefore not surprising that she did not address whether, in the circumstances, such assessment was appropriate. The professional members of the Tribunal note that the GCS scale is commonly used to assess a patient's level of consciousness following head trauma and, as claimed by Ms Hogg, the AVPU is commonly used to assess the level of consciousness of post-operative orthopaedic patients. Without evidence that in the circumstances an AVPU assessment was an inadequate test, we are not satisfied that Ms Hogg's failure to conduct a GCS assessment or to delegate that task, amounts to an inappropriate and unprofessional response to Patient A's complaint of abdominal pain.

[11]

Particular 5

Particular 5 states: "On 15 February 2017 at around 21.00 the practitioner inappropriately insisted Patient A mobilise to the toilet in circumstances where: a. Patient A had requested a bed pan and had been presenting with and complaining of symptoms including, cramping, pain, nausea and fatigue; b. she had not questioned Patient A in relation to his request for a bedpan; c. she had not conducted an objective assessment of Patient A's condition or delegated the task to an experienced registered nurse."
According to Patient B, at Patient A's request, at about 21:00 Ms Lord brought him a bedpan. Patient B claims that as Ms Lord was attempting to position the pan in the bed, Ms Hogg entered the room and directed Ms Lord to insist that Patient A walk to the bathroom. Ms Lord gives a slightly different account and claims that after reporting Patient A's request for a bedpan, Ms Hogg said that Patient A was now classified as a "rehab patient" and should be told to walk to the bathroom and "stop being lazy". It is not necessary to resolve this conflict in the evidence because it is agreed, as pleaded in Particular 6, that Patient A requested a bedpan at around 21:00 and Ms Hogg insisted that he walk to the toilet.
By 21:00 it ought to have been evident to a nurse of Ms Hogg's training and experience that there had been a significant deterioration in Patient A's condition. By this time, Ms Hogg was aware that Patient A had been complaining of abdominal pain since about 19:20 despite having been given medication for pain relief. In addition, she was aware that he had been incontinent of faeces and had vomited. Further, she had observed firsthand his inability to mobilise at 17:30.
In those circumstances, and in the absence of any attempt to glean from Patient A the reason for his request for a bedpan or to assess his condition, Ms Hogg's insistence that he walk to the toilet represented an appalling error of judgement. We find that it demonstrated that the judgment possessed, and care exercised by Ms Hogg fell grossly below the relevant standard.

[12]

Particular 6

Particular 6 states: "On 15 November February 2017 between around 21.00 and 20.00 the practitioner communicated in an inappropriate and unprofessional manner with Patient A: a. including by making the following statements; i. "stop being dramatic" ii. "it's his fault he shit himself" iii. "You shit on the floor, you need to sit up" iv. "You're not even close to dying so don't even try" v. "You know how I know you're not fainting? Because you are fainting forwards. If you faint you faint backwards" vi. "This would have been done 15 minutes ago if you'd stopped carrying on" vii. "You're not going to collapse. Stop it." viii. "So you tell us to hurry then you obstruct us getting you back to bed? Do you really think this behaviour is what we need to deal with right now?" ix. "You've just told us for 15 minutes that we need to hurry up. Now that we are by the bedside you can't be bothered to stand up." x. "Stop it. Your behaviour is absolutely ridiculous." xi. "Well stand up, hold yourself and don't even think about that bed" xii. "You are going to stand up". b. by blaming Patient A for being incontinent."
As noted, Patient B was so concerned about the manner in which Ms Hogg and Ms Lord were treating his roommate, that he made a recording on his mobile phone. The recording and a transcript of that recording were tendered in these proceedings. The recording runs for just over 20 minutes and appears to commence after Ms Lord and Ms Hogg had showered Patient A and were preparing him to return to bed.
In a statement provided to Police on 1 March 2017, Patient B claimed that before making the recording, Patient A said "I'm dying" on three or four occasions. In addition, he claimed that he heard Ms Hogg raise her voice and scold Patient A. He stated he could hear Patient A moaning, groaning and being short of breath. He believed Patient A was in "agony". In addition, he claimed that Ms Hogg's tone was aggressive, both towards Patient A and Ms Lord.
The recording makes for disturbing listening. Consistent with the claims made by Patient B, Patient A can be heard groaning, moaning and repeatedly saying he was falling and fainting. Ms Hogg and, to a lesser extent, Ms Lord, can be heard to rebuke Patient A for allegedly being uncooperative. The following extract of the transcript recording gives a flavour of the conduct the subject of Particular 6. JH - As I said, we didn't make you have this procedure, you chose to have it. Patient A - Mmmm. JH - You want your knee done. You chose, it is an elective procedure. We didn't make you do it. You didn't need it. It's not life or death. Patient A - Inaudible. JH - Well you're not even close to dying so don't even try. Patient A - Arghhh. Ah geez. Ahhhhhh. JH (voice raised) - Stop it. You need to start participating. BL - Hold onto that and hold yourself up. Patient A (moaning and panting) - Ah. I can't do it. I can't do it. BL - Well you need to. JH - You need to put your weight back instead of shifting it forward so then you will go backward. You know how I know you're not fainting? Because you are fainting forwards. If you faint you faint backwards. Patient A - Alright then. Aw shit. (Moaning) JH - As I said, this would have been done 15 minutes ago if you'd stopped carrying on. Patient A - That's alright. Ahhh Ahhh. Oh bloody hell. Patient A - Inaudible. BL - Hurry up. JH - Tell me to hurry up one more time. Patient A moaning inaudibly. Patient A - Oh dear. Nurses talking in background. Patient A - Inaudible. BL - No. Sit back. C'mon sit back. JH - Fiona did you take?? No you didn't all good. BL - Pardon? JH - Ask Fiona. BL - C'mon. Well. You need to sit up. Patient A - Ah that's it. Patient A - Inaudible moaning. Patient A - Ahhh keep going. Ahh Ahh. Keep going. BL - Keep going? Alright. JH - Yep that's fine. Nurses talking in background. JH - As I said. It would have been a lot quicker if you'd stopped carrying on. So stop telling us to hurry. You can be patient. BL - Lift your leg. Patient A panting BL inaudible JH - Na, I've still got to do it up pet, that's why I've got it. Cool. BL - Alright. Lift this leg. Patient A - Ah. Oh dear. Oh quick, hurry. I'm going to collapse. JH (Voice raised) - You're not going to collapse. Stop it. Patient A moaning and panting. BL speaks inaudibly. JH - Do it when he is in the bed. BL - Okay. JH - Feet up. BL - Lift your feet up. Patient A moaning inaudibly Patient A - Ahhh I can't do it. JH - That's alright. Just make sure it's off the ground so when Breanna takes you, you're not going anywhere. BL - Alright. Patient A - Moaning and groaning. BL - No. No what are you doing? Patient A - I've got to hang on. BL (voice raised) - No, you need to hold onto the chair. Patient A inaudible. BL - [Patient A's first name], no. Patient A inaudible. Patient A grunting. BL - Come on. Patient A - Argh. BL - Lean back. JH (Shouting) - So you tell us to hurry then you obstruct us getting you back to bed? Do you really think this behaviour is what we need to deal with right now? Patient A (Panting) - No. Ahhhh shit. BL - You're going to have to pull this leg in otherwise it's going to get caught. Patient A - Mmm. Mmmm. Patient A inaudible JH - Right. Patient A - Quick. BL - Quick? JH (Voice raised) - Well. If you Patient A moaning Patient A - Arghhhh. JH (Voice raised) - You need to do that yourself. Patient A - I know. JH (Voice raised) - I weigh 55 kilos I cannot be doing this. You weigh a lot more than 55 kilos. Patient A - Ahh ahh. I know, what am I supposed to be doing? Aghh BL - Sit up. Patient A - Oh, owwwww. …
In these proceedings, Ms Hogg conceded that the manner in which she communicated with Patient A during the shower incident was "nothing short of appalling". Her tone was bullying, aggressive and belittling. The statements made to Patient A listed in Particular 6 were entirely unacceptable. The impression likely to have been conveyed to Patient A was that because he had elected to have knee surgery, he was not entitled to voice complaints of pain and discomfort and that by "shitting himself" he was sub-human and disgusting. A further aggravating feature was that it was or should have been evident to a nurse of Ms Hogg's training and experience that Patient A was disoriented and experiencing significant pain and acute distress. While we accept Ms Hogg's claim that she too was probably distressed and anxious that Patient A might fall, her conduct was nonetheless entirely inappropriate. It demonstrated that the care exercised by Ms Hogg fell grossly below the relevant standard.

[18]

Complaint 2

The Commission alleges and Ms Hogg concedes that the proven and admitted conduct particularised in Complaint 1 found to amount to unsatisfactory professional conduct, also amounts to professional misconduct as defined by s 139E(b) of the National Law. Section 139E states: 139E MEANING OF "PROFESSIONAL MISCONDUCT" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Whether conduct found to amount to unprofessional misconduct can be characterised as being of a "sufficiently serious nature" to justify an order for suspension or cancellation requires the Tribunal to make an evaluative judgement: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [20]. Referring to the definition of professional misconduct contained in the now repealed Medical Practice Act 1992 (NSW), which is in similar but not identical terms to the definition contained in the National Law, Basten JA emphasised that the definition is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made in the particular circumstances: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67].
In our view, the concession made by Ms Hogg, that the proven and admitted instances of unsatisfactory professional conduct considered together are of a sufficiently serious nature to justify suspension or cancellation, was properly made. That conduct, in particular Ms Hogg's mistreatment of Patient A during the shower incident (Particular 6) together with her failure to adequately respond to the progressive deterioration in his condition throughout the evening of 15 February 2017 (Particulars 5, 7), in our view is of a sufficiently serious nature to justify suspension or cancellation of Ms Hogg's registration.

[20]

Statutory framework and principles that govern the power to make protective orders

Where, as here, a complaint made under the National Law is proven or admitted, the Tribunal may exercise any of the powers in Sub-div 6 of Pt 8 of the National Law. They include the powers to caution, reprimand, impose conditions on a practitioner's registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or to complete an educational course. Where, as here, the practitioner has been found guilty of professional misconduct, the Tribunal may exercise the power to suspend or cancel the practitioner's registration: s 149C(1) of the National Law.
The National Law directs that in exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: s 3A.
While the health and safety of the public is the paramount consideration, the jurisdiction exercised by the Tribunal is nonetheless protective not punitive. Any order designed to protect the public from a repeat of the conduct that is the subject of the Complaint found proven, requires an evaluation of the seriousness of that conduct and the nature and extent of any justifiably apprehended harm that might be caused if it were to be repeated. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order."
In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA stated at [20] that in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.

[21]

Submissions

The Commission argues that cancellation together with a 12-month disqualification period are appropriate orders for the following reasons. First, such orders ensure that if and when Ms Hogg seeks to be reinstated, an assessment is undertaken to determine whether at that point in time her psychiatric condition remains stable. Second, citing the comments of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) at [34]-[39], the Commission contends that cancellation serves the public interest by denouncing the misconduct and signalling to the profession its unacceptability. Third, a cancellation order appropriately acknowledges the serious nature of the offending conduct. Finally, a relatively short disqualification period acknowledges Ms Hogg's youth, inexperience at the time of the offending conduct and the contrition and insight she has gained since engaging in psychiatric treatment.
Ms Hogg urges the Tribunal not to cancel her registration but rather to impose several conditions on her registration, including a requirement that she remains under the treatment of Dr Johnson, practise under indirect supervision and participate in a formal mentor program. She contends that having regard to the following factors, such order will be sufficiently protective of the public.
First, her demonstrated insight and remorse. She points to the unchallenged evidence given by her treating psychiatrist and colleagues who have provided character references in these proceedings, which support her self-report of being extremely remorseful for her actions.
Second, while not excusing the conduct, the evidence of her poor mental health in 2017 which, in the opinion of her treating psychiatrist, contributed to her conduct.
Third, her treating psychiatrist's opinion that her mental health is currently stable and with treatment is likely to remain so. In addition, the evidence that she has been diligent in adhering to all treatment recommendations and that this is likely to continue.

[22]

Ms Hogg's mental health post-February 2017

In September 2017, Ms Hogg was referred to psychiatrist Dr Luke Johnson. Since that referral Ms Hogg has seen Dr Johnson about once every six weeks. She remains in his care. Dr Johnson prepared a report for these proceedings dated 15 April 2019 and gave oral evidence.
Dr Johnson wrote that when Ms Hogg first presented seeking treatment for what she then believed to be depression, she was "very distressed". He wrote that he initially mistook Ms Hogg's "depressive episodes" as reactive to her dismissal from the Hospital. However, following her poor response to anti-depressant therapy and positive response to mood stabilising medication, he made a revised diagnosis of cyclical mood disorder, specifically Bipolar Disorder. He wrote that within a month of being treated with Lithium (medication used to reduce the severity and frequency of mania), Ms Hogg's mood improved dramatically.
In Dr Johnson's view, at the time of the offending conduct, Ms Hogg was suffering an untreated mood disorder and her treatment of Patient A was entirely in keeping with a hypo-manic episode, a common feature of Bipolar Disorder, in which the person has periods of mood elevation and tends to become "entitled, irritable and argumentative".
Dr Johnson wrote that over the 18 months he has been treating Ms Hogg, he has observed that with treatment, her mood cycle reduced in both amplitude and severity. He categorised her current symptoms as "sub-clinical". He disclosed that Ms Hogg recently had a hypo-manic episode, which he described as far milder than the episodes she experienced in 2017. In cross-examination, he described Ms Hogg's symptoms during that episode as a "little bit elevated" but not "grandiose" or "uninhibited" as in 2017.
Dr Johnson wrote that with treatment he has observed Ms Hogg's condition greatly improve. She is now able to maintain stable employment. Despite this progress, in his opinion Ms Hogg will require lifelong treatment.
In Dr Johnson's opinion Ms Hogg is now fit to return to work as a nurse. He is confident that her condition will remain stable, unless Ms Hogg: (i) suffers a significant medical illness, which causes stress hormones to be released; (ii) takes medication, which is likely to interfere with mood stabilising medication such as Champix (a quit-smoking prescription medication), or (iii) stops taking mood-stabilising medication. He stated that Ms Hogg has been compliant with all treatment recommendations and appears to be genuinely committed to maintaining good mental health.
In his view, Ms Hogg is deeply remorseful and apologetic for her conduct in respect of Patient A and she is now fit to practise as a nurse. In his view, she is not of unsound character and has not displayed anti-social personality traits. In reaching that assessment, Dr Johnson acknowledged that Ms Hogg has an interest in showing him her "best side" but in his view she was "definitely unable to do so" in those periods when she has been under his care and hypomanic.
Dr Johnson stated that he considered whether Ms Hogg may have a personality disorder. He is confident that she does not because of her positive response to mood stabilising medication.

[24]

Character evidence

Tendered in these proceedings were several statements supportive of Ms Hogg which we have taken into account.
Former colleague, Enrolled Nurse, Alana Parks, worked with Ms Hogg at the Hospital between early 2016 and February 2017. She stated that before February 2017, the care Ms Hogg provided to patients was of the "highest standard". In her view, Ms Hogg is extremely remorseful for the conduct the subject of the Complaint and has sought counselling and psychiatric treatment to ensure it is not repeated. In addition, Ms Hogg has developed and implemented strategies to cope with "high stress situations in a professional manner". She wrote that since late 2016, Ms Hogg had been under a lot of pressure at work, being in-charge of a 30-bed orthopaedic ward with inadequate and inexperienced staff. In Ms Parks' opinion, Ms Hogg is a fit and proper person to be a registered nurse.
Throughout 2016, Registered Nurse, Rhianon Diaz, worked closely with Ms Hogg, usually on the same ward and the same shift. Ms Diaz wrote that Ms Hogg was "very driven and hardworking" and always put her patients first. Ms Diaz stated that while she was known to be outspoken, she never heard Ms Hogg raise her voice with patients. She wrote that while she does not condone Ms Hogg's conduct, especially the way she spoke to Patient A during the shower incident, she nonetheless believes Ms Hogg should be given the opportunity to continue to practise because she has seen her to be a "wonderful nurse to so many patients".
Casey Moan and Ms Hogg have worked together for the past 12 months for a workers compensation insurer. Ms Hogg is currently working as an injury management consultant. Ms Moan wrote that in her role as a case manager she has observed Ms Hogg dealing with injured workers. At all times she has been "beyond helpful" in ensuring that injured workers are given the care they require. In Ms Moan's view, Ms Hogg is a fit and proper person to work as a nurse. She stated that the conduct the subject of the Complaint does not reflect the caring and professional nature she has observed Ms Hogg to exhibit.

[25]

Decision: appropriate form of disciplinary orders

In this matter, the exercise of the discretion to make disciplinary orders turns on two key issues. First, whether there is a real and material risk that the offending conduct will be repeated and, if the answer to that question is no, whether an order cancelling Ms Hogg's registration is nonetheless necessary and appropriate to protect the health and safety of the public.
We accept Dr Johnson's opinion that Ms Hogg's Bipolar Disorder was a significant contributing factor to the offending conduct. In addition, we accept Dr Johnson's opinion that with treatment, Ms Hogg's condition has been and is likely to continue to be stable and that Ms Hogg has been and is likely to continue to be compliant with treatment recommendations and remain committed to maintaining good mental health. In addition, we accept, as does the Commission, that Ms Hogg has demonstrated insight and remorse. We are satisfied that with appropriate conditions she does not pose a real and material to patient health and safety.
However, that finding does not dispose of the question of what are the appropriate disciplinary orders in the circumstances of this case. The offending conduct, in particular Ms Hogg's inadequate response to the evident deterioration in Patient A's condition, together with her mistreatment of Patient A, in particular, during the shower incident, was nothing short of appalling. The protection of the public demands that this conduct be denounced. Had Ms Hogg's registration not already been suspended for a significant period, we would agree with the Commission's submission that cancellation is necessary and appropriate in order to signal to the profession and the community, the extent to which Ms Hogg's conduct fell short of the proper standard expected of members of the nursing profession. We have decided that the continuation of the suspension for a further six months serves to adequately denounce the offending conduct. At the end of that period she will have been barred from practice for over three years. In addition, we have decided Ms Hogg should be severely reprimanded.
In reaching our decision to suspend rather than to cancel Ms Hogg's registration, we have taken into account the argument made by the Commission that a decision to suspend rather than cancel presupposes that Ms Hogg's psychiatric condition will remain stable. To address that concern, we have added to the conditions agreed by the parties: a requirement that before accepting employment as a registered nurse, Ms Hogg provide to the NSW Nursing and Midwifery Council (the Council), a supplementary report prepared by Dr Johnson, addressing whether: (i) in his opinion, Ms Hogg's Bipolar Disorder remains stable, (ii) in his opinion, Ms Hogg remains fit to work as a nurse, in that she does not pose a risk to patient safety; (iii) Ms Hogg continues to comply with treatment recommendations. (We note that the Commission maintains its position that cancellation is the appropriate order and that its agreement to the proposed conditions does not indicate otherwise.)
In addition, we have added to the conditions proposed by the parties, that if not covered in the proposed refresher course (see Order 3 (g) below) that Ms Hogg undertake a course in ethical practice, communicating with patients and caring for deteriorating patients.

[26]

Should Ms Hogg be required to pay the Commission's costs, and, if so what portion of its costs?

The Commission seeks an order that Ms Hogg pay its costs in these proceedings. Ms Hogg submits that the Tribunal should order that each party bear their own costs.
In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40].
Ms Hogg does not suggest that the Commission engaged in disentitling conduct in these proceedings. However, she submits that the discretion to make a costs order should not be exercised because of the inevitable financial hardship it will impose. While we have considerable sympathy for Ms Hogg's position and the inevitable financial burden a costs order represents, the authorities have consistently stated that a party's straitened financial position is not a justifiable reason to depart from the general rule in respect of costs: Health Care Complaints Commission v Philipiah at [42].
However, we have decided that Ms Hogg should not be ordered to pay all of the Commission's costs. With the agreement of the parties, the complaints referred by the Commission in respect of Ms Hogg and Ms Lord were listed to be heard concurrently. On the first day of the hearing, which was listed for two days, Ms Lord applied for an adjournment on the grounds that she was unwell and unable to attend the hearing. The Commission opposed that application. A significant part of the first morning of the hearing was devoted to dealing with that application, which was ultimately granted. The hearing of the complaint made in respect of Ms Lord ran for one and a half days.
Counsel for the Commission properly concedes that it would be unjust if Ms Hogg were required to bear the costs thrown away as a result of the adjournment application. A couple of hours of hearing time was lost dealing with that application. While not certain, it is possible that the complaint against Ms Hogg would have been able to be heard in a single day were it not for the costs application.
The task of apportioning costs in circumstances such as these is notoriously difficult. We have decided that as a result of the costs application, the proportion of the Commission's costs Ms Hogg should be required to pay should be reduced by a small amount, namely 10 percent.

[27]

Orders

We make the following orders: 1. Ms Hogg is reprimanded. 2. Ms Hogg's registration is suspended for a period of six months from the date of this decision. 3. Pursuant to s 149A of the Health Practitioner Regulation National Law (NSW), for 24 months or such longer period as determined by the Nursing and Midwifery Council of NSW (the NMC) the following conditions are imposed on Ms Hogg's registration: 1. To forward evidence to the NMC within 7 days of commencing any employment as a registered nurse that she has provided a copy of the Tribunal's decision and these conditions to her employer. 2. To obtain NMC approval before changing the nature or place of her practice. 3. Not to be the nurse-in-charge of any shift. 4. Not to engage with an agency for the purpose of nursing. 5. Not to work night duty. 6. Not to have supervisory responsibility for any student or other health practitioner, whether registered or not. 7. To complete before the expiry of any period of suspension imposed by the Tribunal or within 12 months of commencing employment as a registered nurse, the refresher course for registered nurses (the refresher course) offered by the Sydney Adventist Hospital (or other equivalent educational course as approved by the NMC). 1. Within 2 months of the expiry of any period of suspension imposed by the Tribunal, she must provide evidence to the NMC of her enrolment in the course. 2. Within 2 weeks of completing the course she is to provide documentary evidence to the NMC that she has satisfactorily completed the course. 3. Within 12 months of commencing employment as a registered nurse, if not covered by, or in the opinion of the NMC, not adequately covered by the refresher course, to undertake a course of study approved by the NMC in ethical practice, communicating with patients and caring for deteriorating patients (the additional courses). 4. Within 2 weeks of completing the additional courses she is to provide documentary evidence to the NMC that she has satisfactorily completed the additional courses. 1. To practise under indirect close supervision (in accordance with the NMC Conditions handbook). 2. To nominate a nurse manager (or equivalent) who has agreed to oversee supervision and designate supervisors. The practitioner must: 1. provide the NMC with the name, contact details and resume of the nominated nurse manager within two weeks of commencing work; 2. authorise the nurse manager to: (i) notify the NMC of any breach of the conditions or unsafe practice; and (ii) exchange information with the NMC related to compliance with the conditions; and (iii) provide the NMC with a copy of the conditions signed by the practitioner and by the nominated nurse manager indicating awareness of the conditions and authorisation; 1. authorise the nurse manager to provide a written report about the practitioner's performance against the standards for practice for a registered nurse approved by the NMC at 3 monthly intervals. 1. To nominate an experienced registered nurse to act as her professional mentor for approval by the NMC. 1. to meet with the mentor face-to-face on monthly basis for a minimum of 30 minutes, including to discuss the following matters: (i) any issues arising from her transition back to nursing, such as staffing levels and support and training from managers; (ii) managing her mental health in a clinical nursing environment; and (iii) showing empathy and communicating effectively with patients. 1. to authorise the mentor to report, in an approved format, to the NMC every three months about the matters discussed in the mentoring sessions and any non-attendance. 1. To attend for treatment with Dr Luke Johnson, or other treating psychiatrist, at a frequency to be determined by the treating practitioner. 2. Ms Hogg must: 1. provide the NMC with the name and contact details of all treating health practitioners; 2. inform all current and any future treating health practitioners of the conditions; 3. authorise the NMC to provide each treating health practitioner with a copy of the conditions; 4. authorise each treating practitioner to inform the NMC of termination of treatment, serious/immediate concerns about fitness to practise or changes in health status and repeated failure to attend appointments. 1. Ms Hogg is responsible for the cost associated with complying with the conditions. 1. While Ms Hogg's principal place of practice is NSW the NMC is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 2. Ms Hogg is to pay 90% of the costs of the Health Care Complaints Commission, as agreed or assessed.

Parties

Applicant/Plaintiff:

Health Care Complaints Commission

Respondent/Defendant:

Hogg

Legislation Cited (1)

Medical Practice Act 1992(NSW)

Cases Cited (14)

stered nurse approved by the NMC at 3 monthly intervals. (j) To nominate an experienced registered nurse to act as her professional mentor for approval by the NMC. (i) to meet with the mentor face-to-face on monthly basis for a minimum of 30 minutes, including to discuss the following matters: (i) any issues arising from her transition back to nursing, such as staffing levels and support and training from managers; (ii) managing her mental health in a clinical nursing environment; and (iii) showing empathy and communicating effectively with patients. (ii) to authorise the mentor to report, in an approved format, to the NMC every three months about the matters discussed in the mentoring sessions and any non-attendance. (k) To attend for treatment with Dr Luke Johnson, or other treating psychiatrist, at a frequency to be determined by the treating practitioner. (l) Ms Hogg must: (i) provide the NMC with the name and contact details of all treating health practitioners; (ii) inform all current and any future treating health practitioners of the conditions; (iii) authorise the NMC to provide each treating health practitioner with a copy of the conditions; (iv) authorise each treating practitioner to inform the NMC of termination of treatment, serious/immediate concerns about fitness to practise or changes in health status and repeated failure to attend appointments. (m) Ms Hogg is responsible for the cost associated with complying with the conditions. (4) While Ms Hogg's principal place of practice is NSW the NMC is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (5) Ms Hogg is to pay 90% of the costs of the Health Care Complaints Commission, as agreed or assessed. Catchwords: PROFESSIONS AND TRADES - health practitioner - appropriate disciplinary orders - whether practitioner is guilty of professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Jennifer Hogg (Respondent) Representation: Counsel: I Latham (Applicant)

REASONS FOR DECISION

Patient A died on 15 February 2017, five days after undergoing knee replacement surgery at Wagga Wagga Rural Referral Hospital (the Hospital). Following an autopsy, the cause of death was found to be ischemic heart disease on a background of co-morbidities.
An hour before his death, following an episode of faecal incontinence, Patient A was showered by Registered Nurses, Breanna Lord and Jennifer Hogg. A patient sharing the room (Patient B) was so concerned about their treatment of Patient A that he made a recording using his mobile phone. Throughout that recording Patient A can be heard to be groaning, moaning and repeatedly saying he was falling and fainting. Ms Hogg can be heard shouting at and rebuking Patient A for being "uncooperative". On that day, Ms Hogg was the designated nurse-in-charge of the afternoon shift in the Hospital's Orthopaedic Ward. Ms Lord was a new graduate nurse.
In July 2017, the NSW Nursing and Midwifery Council suspended Ms Hogg's registration. The suspension remains in place.
These reasons address a complaint made about Ms Hogg (the Complaint) referred to the New South Wales Civil and Administrative Tribunal (NCAT) by the Health Care Complaints Commission (the Commission). The conduct particularised in that complaint relates to Ms Hogg's role in caring for Patient A in the five hours before his death and her alleged failure to provide adequate support and guidance to Ms Lord. The Commission contends that Ms Hogg's conduct amounts to "unsatisfactory professional conduct" and "professional misconduct" within the meaning of ss 139B(1)(a) and 139E of the Health Practitioner Regulation National Law (NSW) (National Law).
The parties agree that it is appropriate that the Tribunal exercise the discretion conferred by the National Law to make disciplinary orders but disagree about the form of orders. The Commission contends that the appropriate order is the cancellation of Ms Hogg's registration. Ms Hogg contends that the imposition of conditions on her registration is the more appropriate order, pointing out that her registration has already been suspended for more than 24 months.
For the reasons that follow, we have decided to reprimand Ms Hogg, suspend her registration and impose conditions on her registration.
Ms Lord is the subject of a separate complaint referred by the Commission to NCAT. We found Ms Lord's conduct amounted to unsatisfactory professional conduct: Health Care Complaints Commission v Lord [2019] NSWCATOD 182.

[2013] VCAT 738

(2009) 74 NSWLR 523

Cited By (1)

Health Care Complaints Commission v Hall