Health Care Complaints Commission v Hogg

Does the conduct described in each particular amount to unsatisfactory professional conduct as defined by s 139B(1)(a)?

1. In support of the contention that the conduct described in each particular amounts to unsatisfactory professional conduct as defined by s 139B(1)(a), the Commission relies upon the opinion expressed by Registered Nurse, Marianne McGhee. In an undated report prepared at the request of the Commission, Ms McGhee responded to a series of questions asked by the Commission about the conduct the subject of the Complaint. In addition, Ms McGhee gave oral evidence. In Ms McGhee's opinion the conduct described in each of the nine particulars of Complaint 1 fell "significantly short" of the standard reasonably expected of a nurse with a level of training or experience equivalent to that of Ms Hogg.

Particular 1

1. Particular 1 states: "1. On 15 February 2017 around 17.15 to 17.30 the practitioner inappropriately insisted Patient A mobilise to the toilet in circumstances where: a. Patient A had requested a bed pan; b. she had not questioned Patient A in relation to his request for a bedpan; c. Patient A had been administered aperients on around 8 occasions between 1035 on 14 February 2017 and 1100 that day; d. Patient A was observed by the practitioner to be unsteady on his elbow crutches and required the assistance of two nursing staff to sit on a commode chair; e. she had not conducted an objective assessment of Patient A's condition or delegated the task to an experienced registered nurse."

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

1. 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.
2. 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.
3. 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.
4. 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.

Did the conduct the subject of Particular 1 demonstrate that the knowledge, skill or judgment possessed, or care exercised by Ms Hogg fell significantly below the standard reasonably expected of a nurse of an equivalent level of training or experience?

1. To answer this question, we must first identify the standard "reasonably expected" of a nurse of an equivalent level of training or experience to Ms Hogg (the relevant standard). Second, we must evaluate whether the conduct the subject of Particular 1 demonstrates that the knowledge, skill or judgment possessed, or care exercised by Ms Hogg in the practice of her profession fell "significantly below" the relevant standard. It is not in dispute that the conduct described in each particular of Complaint 1 was "in the practice of" the profession of nursing.
2. While the nurse-in-charge, the then 23-year-old Ms Hogg was relatively inexperienced. She was first registered in 2015 after completing a Bachelor degree in Nursing. In February 2015, she commenced the Hospital's 12-month new graduate program. Since February 2016, she had been working full-time as a Registered Nurse in the Hospital's Orthopaedic Ward.
3. In Ms McGhee's opinion, the standard reasonably expected of a nurse with an equivalent level of training and experience to Ms Hogg would be to question a patient in Patient A's situation the reason they had requested a bed pan, especially if that day they had walked to the bathroom using elbow crutches apparently without issue. She hypothesises that if Ms Hogg had questioned Patient A, it is likely that she would have been alerted to a level of deterioration in his condition, which may have prompted a clinical review.
4. We agree with Ms McGhee that, in the circumstances, Ms Hogg's insistence that Patient A mobilise to the toilet at 17:30 demonstrates that the skill possessed, and care exercised by Ms Hogg fell significantly below the relevant standard.

Particular 2

1. Particular 2 states: "On 15 February 2017 at around 17.30 the practitioner failed to conduct an objective assessment of Patient A's condition or delegate the task to an experienced registered nurse, in circumstances where: a. Patient A had been mobilising well on elbow crutches earlier that day; b. Patient A had mobilised to the toilet at 1530 that day; c. Patient A was observed by the practitioner to be unsteady on his elbow crutches and required the assistance of two nursing staff to sit on a commode chair between 17:15 and 17:30."
2. Whether, as Ms McGhee hypothesises, an assessment of Patient A's condition, if it had been undertaken would have revealed a "level of deterioration" in Patient A's condition, is not to the point. Given the factual matters listed in sub-particulars (a), (b) and (c), an assessment was clearly warranted. Ms Hogg concedes, and we agree, that her failure to undertake, or arrange to be undertaken, an objective assessment of Patient A's condition at 17:30, demonstrates that the knowledge, skill or judgment she possessed, and care exercised, fell significantly below the relevant standard.

Particular 3

1. Particular 3 states: "On 15 November Februray 2017 from around 19.20 to 19.40 the practitioner responded inappropriately and unprofessionally to Patient A's complaints of abdominal pain, in that she: a. failed to conduct, or delegate another registered nurse to conduct an assessment of Patient A, including: i. a full set of vital observations; ii. a pain score; iii. a Glasgow Coma Scale assessment; iv. a set of neuro-vascular observations; v. an abdominal assessment; b. failed to review Patient A's progress notes; c. failed to consider Patient A's comorbidities and new diagnosis of deep vein thrombosis; d. as the In-Charge Nurse, failed to respond appropriately to the concerns of registered nurse Lord in relation to Patient A."
2. Ms Hogg denies sub-particulars (a)(i), (ii) and (iii). She admits the balance of Particular 3.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Does the admitted conduct the subject of Particular 3, demonstrate that the knowledge, skill or judgment possessed, or care exercised by Ms Hogg fell significantly below the standard reasonably expected of a nurse of an equivalent level of training or experience?

1. Ms Hogg took steps in response to Patient A's complaint of abdominal pain, including paging the Medical Officer and arranging for Patient A to be given additional pain medication. However, in our view that response was inadequate, especially given on her account Patient A rated his pain at 7/10 (recorded as 0/10 at 14:24) and she had failed to review his progress notes to determine whether this might indicate grounds for concern.
2. Ms Hogg concedes, and we agree that the admitted conduct - her failure to: undertake, or arrange to be undertaken a set of neuro-vascular observations and abdominal assessment; review Patient A's progress notes; consider Patient A's co-morbidities and new diagnosis of deep vein thrombosis, and respond appropriately to the concerns raised by Ms Lord in relation to Patient A - demonstrates that the skill and judgment she possessed, and the care she exercised fell significantly below the relevant standard.

Particular 4

1. Particular 4 states: "On 15 November February 2017 at around 20.30 the practitioner responded inappropriately and unprofessionally to Patient A's complaints of abdominal pain, in that she: a. failed to conduct, or delegate another registered nurse to conduct an assessment of Patient A, including: i. a full set of vital observations; ii. a pain score; iii. a Glascow Coma Scale assessment; iv. a set of neuro-vascular observations; v. an abdominal assessment; b. failed to review Patient A's progress notes; c. as the ln-Charge Nurse, failed to respond appropriately to the concerns of registered nurse Lord in relation to Patient A; d. failed, at around 20.30 to request the After Hours Medical Officer examine and review Patient A."
2. At 20:30, Patient A again complained of abdominal pain. This was his third complaint of abdominal pain in just over an hour. Ms Hogg concedes, and we agree, that her inaction in those circumstances demonstrated that the judgment and skill she possessed, and care exercised fell significantly below the relevant standard.

Particular 5

1. 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."
2. 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.
3. 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.
4. 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.

Particular 6

1. 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."
2. 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.
3. 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.
4. 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. …
5. 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.

Particular 7

1. Particular 7 states: "On 15 February 2017 from around (sic) the practitioner responded inadequately to the deterioration in Patient A's condition between around 21.00 and 22.00, in that she: a. failed to obtain and document, or delegate another nurse to obtain, a set of vital signs; b. failed to obtain a Glascow Coma Scale score, or delegate the task to another nurse; c. failed to perform a neuro-vascular assessment, or delegate the task to another nurse; d. failed to call for an urgent medical review, or delegate the task to another nurse; e. failed to escalate Patient A's care in accordance with: i. the Clinical Emergency Response System ('CERS'); and ii. the NSW Health Policy PD2013_049 Recognition and Management of Patients who are Clinically Deteriorating."

Does the conduct described in Particular 7 fall significantly below the relevant standard?

1. As noted at [47], 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 21:30, having observed his inability to mobilise and his pain, discomfort and distress throughout the shower incident, it ought to have been evident that his condition had deteriorated further. Her response to that deterioration was grossly inadequate. A nurse with an equivalent level of skill or training to Ms Hogg could reasonably be expected to conclude from the worsening of Patient A's symptoms that something was seriously amiss, warranting remedial action of the type listed in Particular 7. Ms Hogg's failure to respond to the evident deterioration in Patient A's condition demonstrated that the judgement and knowledge possessed by Ms Hogg fell grossly below the relevant standard.

Particular 8

1. Particular 8 reads: "On 15 February 2017 the practitioner failed to maintain adequate nursing notes documenting the deterioration in Patient A's condition, including: a. Patient A's vital observations; b. Patient A's ongoing complaints of abdominal pain; c. Patient A's difficulty ambulating to the toilet; d. Patient A's new symptoms of nausea, vomiting and faintness; e. the concerns expressed by registered nurse Lord about Patient A's condition; f. her attempt to obtain a medical review for Patient A at around 19:30."
2. An issue raised but not fully explored in these proceedings was the delineation of responsibility between Ms Hogg, Ms Heath and Ms Lord for maintaining nursing notes in respect of Patient A. As noted above, Ms Heath and Ms Lord were designated to care for Patient A. Ms Hogg as in-charge nurse was not allocated responsibility for any particular patient. Her role was to manage and to provide general clinical support to nursing staff.
3. Nonetheless, in circumstances where there was an evident deterioration in Patient A's condition which Ms Hogg had witnessed, in our view she was required to document that deterioration or to delegate that task. Her failure to do so demonstrated that the care exercised by Ms Hogg fell below the relevant standard.

Particular 9

1. Particular 9 states: "9. On 15 February 2017 the practitioner failed to provide adequate support and guidance to RN Lord, in circumstances where: a. she was the In-Charge Nurse; b. RN Lord was a new graduate nurse; c. RN Lord was working her second shift on the orthopaedic ward; and d. RN Lord was rostered on as supernumerary; e. she dismissed RN Lord's concerns about Patient A."
2. Throughout the evening of 15 February 2017, Ms Hogg repeatedly dismissed Ms Lord's concerns about Patient A. Ms Hogg agrees with the proposition that she failed to provide adequate support and guidance to Ms Lord. Notwithstanding her own inexperience both as a nurse and acting in the role of in-charge nurse together with the considerable demands placed upon her in managing a relatively inexperienced nursing team, we find that the care exercised by Ms Hogg fell below the relevant standard.

Summary

1. Sub-particulars (a)(i), (ii) and (iii) of Particular 3 are not established. The admitted conduct amounts to unsatisfactory professional conduct as defined by s 139B(1)(a). Given this conclusion, it is not necessary to decide whether we are independently satisfied that the conduct particularised in Complaint 1 also amounts to unsatisfactory professional conduct as defined by s 139B(1)(l).

Complaint 2

1. 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.
2. 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].
3. 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.

What disciplinary orders should be made?

1. The parties agree that the discretion to make disciplinary orders should be exercised but disagree on the form of orders that should be made. The Commission submits that the appropriate order is cancellation. Ms Hogg on the other hand contends that the more appropriate order is the imposition of conditions on her registration.

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

1. 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.
2. 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.
3. 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].
4. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order."
5. 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.

Submissions

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Ms Hogg's mental health post-February 2017

1. 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.
2. 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.
3. 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".
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

History post-2017

1. Ms Hogg was unemployed for about nine months after being suspended from the Hospital in February 2017. She claims that throughout that period she was deeply distressed and was suffering from anorexia. She claims to be deeply remorseful and ashamed of her actions and it has took a long time to "process what I did". When questioned in these proceedings, she stated that her most egregious error was her treatment of Patient A during the shower incident for which she is extremely regretful.
2. Ms Hogg claims that she now recognises that at the time of the offending conduct she was very unwell and "cognitively overloaded", sleeping 12 to 14 hours a day. She claims to acknowledge that she should have taken responsibility for her mental health. She concedes that it was irresponsible to attend work in Februray 2017, at a time when she was plainly unwell. She claims that she is now able to monitor her condition and if she were to become unwell, would not attend work.
3. She claims that since February 2017 she has made many changes to her life and has diligently adhered to all treatment recommendations made by Dr Johnson.
4. Ms Hogg undertook that if her registration is reinstated, to comply with any conditions the Tribunal decides to impose.

Character evidence

1. Tendered in these proceedings were several statements supportive of Ms Hogg which we have taken into account.
2. 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.
3. 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".
4. 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.

Decision: appropriate form of disciplinary orders

1. 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.
2. 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.
3. 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.
4. 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.)
5. 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.

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

1. 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.
2. 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].
3. 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].
4. 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.
5. 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.
6. 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.

Orders

1. 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.

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: 29 November 2019