Health Care Complaints Commission v Konigson

Health Care Complaints Commission v Konigson - [2021] NSWCATOD 186 - NSWCATOD 2021 case summary — Zoe

[3]

Shift on 8 June 2018

On Friday 8 June 2018, Ms Konigson worked the evening shift as the first floor EN and (registered Nurse) RN Sapno was the nurse in charge.
Ms Konigson wrote on the medication charts for: 1. Patient A - an "R" (purporting that Lipitor was refused) and another "R" (purporting that Lyrica was refused); 2. Patient B - her initials (purporting that all medications had been administered); 3. Patient C - her initials (purporting that all medications had been administered); 4. Patient D - her initials (purporting that all medications had been administered); 5. Patient E - her initials (purporting that Atorvastatin, Paracetamol and [?Targin] had been administered) and an "R" (purporting that Coloxyl & Senna was refused); 6. Patient F- her initials (purporting that all medications had been administered); 7. Patient G - her initials (purporting that all medications had been administered); 8. Patient H - her initials (purporting that all medications had been administered); 9. Patient I - her initials (purporting that all medications had been administered); 10. Patient J - her initials (purporting that all medications had been administered); 11. Patient K - an "R" (purporting that Serepax was refused), her initial (purporting that Panadol was administered) and her initial with "R arm" (purporting that the Fentanyl had been administered); 12. Patient L - her initials (purporting that all medications had been administered); 13. Patient M - her initials (purporting that all medications had been administered); 14. Patient L - her initials (purporting that all medications had been administered); 15. Patient O - for 16:00, an "R" (purporting that Panamax was refused) and for 20:00, her initial four times (purporting that Panamax, Seroquel, Cilicaine and Ordine were administered); 16. Patient P - her initials (purporting that all medications had been administered).
Ms Konigson did not administer some of the medications listed in Schedule A of the Complaint;
Ms Konigson discarded some of the medications listed in Schedule A of the Complaint into the sharps container at the Aged Care Facility.
Ms Konigson did not document in the progress notes for Patients A to P any patient refusals to take medications.
We note here that the Statement of Agreed Facts at this point actually referred to Patients A to Q, but, as can be seen, there is no allegation in respect of Patient Q in respect of Ms Konigson's conduct on 13 June 2021. We will make the same adjustment to the Statement of Agreed Facts in the paragraphs that follow.
Except as set out as above, Ms Konigson did not document on the medication charts for Patients A to P any patient refusals to take medications.
Ms Konigson failed to inform the registered nurse in charge that any medications had not been administered to Patients A to P.
Ms Konigson failed to inform the registered nurse in charge of any refusals by Patients A to P to take medications.
Ms Konigson failed to inform the registered nurse in charge that any medications had been discarded into the sharps container.

[4]

Shift on 9 June 2018

On Saturday 9 June 2018, Ms Konigson worked the evening shift as the first floor EN and RN Sapno was the nurse in charge.
Ms Konigson wrote on the medication charts for: 1. Patient A - an "R" (purporting that Lipitor was refused) and another "R" (purporting that Lyrica was refused); 2. Patient B - her initials (purporting that all medications had been administered); 3. Patient C - her initials (purporting that all medications had been administered); 4. Patient D - her initials (purporting that all medications had been administered); 5. Patient E - her initials (purporting that Atorvastatin, Paracetamol and [?Targin] had been administered) and an "R" (purporting that Coloxyl and Senna was refused). 6. Patient F - her initials (purporting that all medications had been administered); 7. Patient G - her initials (purporting that all medications had been administered); 8. Patient H - her initials (purporting that all medications had been administered); 9. Patient I - her initials (purporting that all medications had been administered); 10. Patient J - her initials (purporting that all medications had been administered); 11. Patient K - an "R" (purporting that Serepax was refused) and [? her initial] (purporting that Panadol was administered); 12. Patient L - her initials (purporting that all medications had been administered); 13. Patient M - her initials (purporting that all medications had been administered); 14. Patient N - her initials (purporting that all medications had been administered); 15. Patient O - for 16:00, an "R" (purporting that Panamax was refused) and for 20:00, an "R" (purporting that Panamax was refused) and her initial three times (purporting that Seroquel, Cilicaine and Ordine were administered); 16. Patient P - her initials (purporting that all medications had been administered).
Ms Konigson made some entries in the progress notes: 1. at about 18:48, Ms Konigson wrote a progress note for Patient M about administration of PRN Risperidone authorised by RN Jagdeep (Jay) Kaur; 2. at about 18:52, Ms Konigson wrote a progress note for Patient O about administration of PRN Serepax authorised by RN Brisbane Sapno; 3. at about 20:14, Ms Konigson wrote a progress note for Patient J about bruising.
Ms Konigson did not administer some of the medications listed in Schedule A of the Complaint.
Ms Konigson discarded some of the medications listed in Schedule A of the Complaint into the sharps container at the Aged Care Facility.
Ms Konigson did not document in the progress notes for Patients A to P any patient refusals to take medications.
Except as specified in column 6 of Schedule A (and as set out as above), Ms Konigson did not document on the medication charts for Patients A to P any patient refusals to take medications.
Ms Konigson failed to inform the registered nurse in charge that any medications had not been administered to Patients A to P.
Ms Konigson failed to inform the registered nurse in charge of any refusals by Patients A to P to take medications.
Ms Konigson failed to inform the registered nurse in charge that any medications had been discarded into the sharps container.

[5]

Shift on 13 June 2018

On Wednesday 13 June 2018, Ms Konigson worked the evening shift as the first floor EN and RN Jagdeep Kaur was the nurse in charge.
Ms Konigson wrote on the medication charts for: 1. Patient A - her initials (purporting that all medications had been administered); 2. Patient B - her initials (purporting that all medications had been administered); 3. Patient C - her initials (purporting that all medications had been administered); 4. Patient D - her initials (purporting that all medications had been administered); 5. Patient E- an "R" (purporting that Coloxyl and Senna was refused) and her initials (purporting that all other medications had been administered); 6. Patient F- her initials (purporting that all medications had been administered); 7. Patient G- her initials (purporting that all medications had been administered); 8. Patient H - her initials (purporting that all medications had been administered); 9. Patient I - her initials (purporting that all medications had been administered); 10. Patient J - her initials (purporting that all medications had been administered); 11. Patient K - her initials (purporting that all medications had been administered); 12. Patient L - her initials (purporting that all medications had been administered); 13. Patient M - her initials (purporting that all medications had been administered); 14. Patient N - her initials on the first page (purporting that the medications were administered) and no marks on the second page (no indication whether or not the medications were administered); 15. Patient O - for 16:00, Ms Konigson wrote her initial (purporting that Panamax was administered) and for 20:00, Ms Konigson wrote an "R" (purporting that Panamax was refused) and wrote her initial three times (purporting that Seroquel, Cilicaine and Ordine were administered); 16. Patient P - her initials (purporting that all medications had been administered); 17. Patient Q - her initials (purporting that all medications had been administered);
Ms Konigson did not administer some of the medications listed in Schedule A of the Complaint.
Ms Konigson discarded some of the medications listed in Schedule A of the Complaint into the sharps container at the Aged Care Facility.
Ms Konigson did not document in the progress notes for Patients A to Q any patient refusals to take medications.
Except as set out as above, Ms Konigson did not document on the medication charts for Patients A to Q any patient refusals to take medications.
Ms Konigson failed to inform the registered nurse in charge that any medications had not been administered to Patients A to Q.
Ms Konigson failed to inform the registered nurse in charge of any refusals by Patients A to Q to take medications.
Ms Konigson failed to inform the registered nurse in charge that any medications had been discarded into the sharps container.

[6]

Subsequent events

On 14 June 2018, the Executive Director of the Aged Care Facility Ms Nicoline Maritz spoke to Ms Konigson.
On or after 14 June 2018, Ms Konigson's employer invited her to attend a meeting.
On 20 June 2018, Ms Konigson attended a Mandatory Investigation Meeting with her employer.
Shortly prior to the meeting, Ms Konigson provided a written response to her employer. That response relevantly stated: I acknowledge the fact that I have unwillingly breached non-compliance with P&P 40-143 Medication Management (pg. 23-24 refusal of medication) and Non-compliance with Estia Health Code of Conduct P&P 70- 2 by not properly documenting these refusals and informing my RNs. I've had time to think about the days in question and what may have contributed to this. I have always been able to separate my personal life from my professional and always left my personal problems at home. Over the last few weeks I have found this increasingly difficult as my problems have been building up. With problems being a constant in my home and within my family (including frequent text messages, some I find during my dinner break, with problems I am expected to resolve). This has increased my stress levels throughout my day and has resulted in not being able to sleep properly at night. I am not the one to make excuses for my actions, but I do believe that this added stress, as well as working during busy and demanding times, has contributed to accidently forgetting to provide proper documentation and information to my RNs. And I regret that I have not identified that these issues were starting to affect my job performance. … I have in fact allowed my personal problems to impact on my work performance, which I don't feel I have been aware of until now. Both people I have talked to expressed to me that they feel my job can be quite difficult at times, especially when busy. I have explained to them that I do check each resident's medications between the medication charts and the Webster packs, but I do seem to unintentionally miss signing the medications as it gets busier, resulting in me checking the books and signing them near the end of my shift. It can be quite difficult during an evening shift to ensure all residents receive their medications at the appropriate time. l work around a mental schedule to try and reach each resident before they fall asleep and while they are not being attended to by the care staff. Sometimes doctor rounds affect the times I do the S8 rounds with RNs, resulting in the schedule being moved around. Unfortunately, I do have to wake some residents to take their medications in which they sometimes become non-compliant or unable to be roused. When a resident refuses their tablets, I do reapproach later. I have also found during my last few shifts that some stock was not in the medication trolley which I had to restock during my medication round (empty boxes of Movicol, no thermometer covers, empty Symbicort etc) I always encourage my cognitive residents to let me know if they are planning to go to bed earlier than usual, so I can try to accommodate to everyone as reasonably as I can. I don't believe I usually have a lot of tablet refusals but over the past week I have found there has been an increase. With the weather getting colder I have found residents going to bed earlier which I find do contribute to some of these refusals. After refusals of medications, l earlier than usual, so I can try to accommodate to everyone as reasonably as I can. I don't believe I usually have a lot of tablet refusals but over the past week I have found there has been an increase. With the weather getting colder I have found residents going to bed earlier which I find do contribute to some of these refusals. After refusals of medications, l dispose of them responsibly throughout the medication round. As I dispose of the medications as quick as possible after refusals, and that I have failed to keep a sufficient record, I was unaware of the amount until I was given a list. I do not intend for this (or any incident) to happen in the future and I plan to create tools for myself to ensure I am properly following protocols, as well as maintaining good mental and emotional health for myself so it will not affect my professional life again. I am open to try any tools available and I am curious to see how other nurses can encourage residents to comply with their medications as not all residents respond to the same approaches. … Not only have I unwillingly been non- compliant in my documentation, I feel that personally the worst part of this is the fact that I have let the residents, their families, my colleagues, and my managers down.
On 21 June 2018, Ms Konigson's employment was terminated. A letter of that date (Outcome of Investigation Meeting - Termination of Your Employment) relevantly stated: I refer to the meeting held on 20th June 2018 in which you responded to the allegations put to you. At this meeting you elected not to have a support person present. I have considered all of the allegations and your responses. My findings are set out below. Allegation-Non-compliance with 40-143 Medication Management Policy (Page 23-24 Refusal of medication), Non-compliance with Estia Health Code of Conduct 70-2; On Sunday 10th June 2018, the daughter of [Patient C] reported to the RN in Charge Mrs Jay Kaur that her mother did not receive her prescribed medication as reported to her by her mother [Patient C]. The daughter also raised her concern with the Care Director Mrs Kristen Simpson on Tuesday 10th June 2018 that mum continue[d] to complain to her that she didn't receive her medication in the afternoons, and she identified the shifts when you were allocated to her area (8th & 9th June 2018). Later on the same day 10th June 2018 two nurses found a large amount of drugs disposed of in the sharps container, including the drugs of [Patient C]. … Upon review of the drug charts of [Patents A to Q] requiring [the medications set out earlier in the letter], a pattern was found that not only was it not documented in the drug charts as "R" for refusal of medications, there was no follow through on the guidelines for refused medication, the RN in Charge was not notified and progress notes were not updated. It was also identified that the residents involved are residents that required medication to be administrated in their rooms. I asked the RN in Charge Miss Jay Kaur if you notified her of any medication refused as per P&P 40-143, and she stated that she was not notified. The two nurses reported their suspicion to myself and the care director Mrs Kristen Simpson on Tuesday 12th June 2018 on what they found in the sharp container. I asked our Care Director Mrs Kristen Simpson to replace the sharp bin with a new one and to do spot checks after every shifts. You did work the afternoon of 13th June 2018, and as per our review, we identified again that medication disposed of without the legalities around administration adhered too. Photo evidence of the medication disposed of over the weekend (9th & 10th June 2018) and the afternoon of 13th June 2018 as well as the sharp bins is being kept as evidence. At the meeting held on 20th June 2018 you acknowledged that you had breached the Medication Management Policy and the Estia Health Code of Conduct, by not properly documenting residents refusal of medication and not advising the RN of the refusals. You also acknowledged that the medication round is often a busy time of the day and you sometimes struggle to get through this activity in a timely manner. You also said that you had a reticence to wake sleeping residents or to approach residents in an assertive or firm manner to administer necessary medications. You acknowledged that you are afraid of conflict and difficult behaviours. We have physical evidence of disposed medications for at least 17 residents. The amount of medications disposed by you is abnormally high and inconsistent with other medication rounds in the same wing and shift. Your actions have placed the residents at risk and in danger and this is gross misconduct. On the basis of the above findings, I advise that I have made the decision that your employment with Estia Health is hereby terminated. You are being dismissed for serious misconduct. The dismissal is effective immediately and is without notice.
On 22 June 2018, Ms Konigson's employer lodged a complaint with the Commission.
On 30 July 2018, a hearing was conducted pursuant to s 150 of the National Law. Ms Konigson attended with a support person.
On 30 July 2018, the Council referred the complaint to the Commission.

[7]

Section 150 proceedings

On 4 September 2018, the s 150 decision was published. A condition was imposed that Ms Konigson not work as an enrolled nurse until reviewed by the Council. In its reasons the Council relevantly stated: 19. At the hearing, Ms Konigson maintained that she attempted to administer all medications on the shifts in question. She also stated that some medications found in the sharps container were due twice daily, and may have been discarded on the morning shift rather than on her shift. 20. We asked Miss Konigson why she began having problems administering medications. She responded that, at the time of the incidents described in the Complaints, she had many patients with dementia and "sundowners" who refused their medications, and that despite re-approaching residents, it was sometimes difficult to administer medications. 21. We asked Miss Konigson if she had had similar difficulties administering medications in the past. Initially she stated that she had not. She went on to explain that she usually documents refusals and disposes of medications appropriately, but in the instances being discussed, more residents than usual had refused medications. 22. We asked Miss Konigson if it was common for residents to refuse their medications at Estia Health Albury. She responded that there can be many 'R' entries on the medication charts, but that she did not think that it was a common occurrence. Miss Konigson was unable to state how many patients on her typical medication round would refuse their medications. 23. Miss Konigson advised that she usually documents medication refusals by placing an 'R' in the medication chart, telling the RN in charge at the end of a shift, and documenting the refusal in the Health Metrix. 24. We asked Miss Konigson about her statement that she seems to "unintentionally miss" signing for medications as it gets busier, resulting in the medications documentation being checked and signed near the end of a shift (Exhibit 4). She responded that if it is busy, she may not sign for medications at the time of administration. 25. We highlighted that these practices are in breach of the local medication administration policy as well as legislation.
The Council found that Ms Konigson had a limited understanding of her responsibilities as an EN regarding medication administration. It also found her failure to notice her shortcomings in relation to her documentation of medication refusals indicative of a serious lack of insight. The Council found Ms Konigson's understanding of the importance and clinical significance of correct medication administration to be severely lacking.
The Council noted that: … stress, as well as working during busy and demanding times, contributed to her "accidentally forgetting" to provide proper documentation and information to the RNs … [Ms] Konigson was unable to explain what she meant by "accidentally forgetting" when asked during the hearing.
The Council concluded that: 61. Having regard to our assessment of the information and evidence relevant to the above issues we conclude that Miss Konigson's practice does pose a risk to the public's health and safety which requires us to take action, because of the following risk factors: a. Serious concerns regarding conduct, involving breaches of local policy and legislation relating to medication administration b. Serious risk posed to the health and safety of residents c. Apparent lack of insight and remorse about the potential impact of her actions on the safety of those under her care. 62. We seriously considered whether Ms Konigson's reported health issues and stress at the time of the reported incidents were a major contributing factor to her behaviour. However, it is unclear that the stressors she described could have led to the behaviours reported. 63. Our overwhelming concern relates to Miss Konigson's conduct. Whether the conduct was a wilful disregard of the expected standards and legislation for medication administration or a serious lack of knowledge and appreciation of the seriousness and potential risks of the behaviours is as yet unclear. 64. We are also mindful of the public interest aspects of this case. If the public were to be aware that a nurse could practise in such a potentially harmful way with vulnerable persons in her care, the trust in the practitioner, the profession and the regulatory system would likely be seriously undermined.
On 8 March 2019, the Commission notified Ms Konigson that it had completed its investigation and proposed to refer the matter to the Council to consider taking action under s145B of the National Law.
On 10 May 2019 the Commission notified Ms Konigson that, after consultation with the Council, it had decided to refer the matter to the Council.

[9]

Relevant Law

It is appropriate to set out the relevant provisions of the National Law. These are as follows.
Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. A "NSW provision" is defined in s5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note: This definition is an additional New South Wales provision.
Section 139B of the National Law (which is also an additional provision for NSW), which relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. . . . (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law (again, an additional provision for NSW), provides: 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.

[10]

Complaint One

The first complaint is that Ms Konigson is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that Ms Konigson engaged in:
As noted, Ms Konigson has admitted that her conduct was unsatisfactory professional conduct under s 139B(1)(a) of the National Law. Independently of Ms Konigson's admission, we find this complaint proved.
However, Ms Konigson does not accept, or admit, that her conduct was unsatisfactory professional conduct under s 139B(1)(l) of the National Law, that is that it is "improper or unethical conduct".
The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated: 21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 22. The Macquarie Dictionary offers several definitions of both words which include: Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. 24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53]. 25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances.
It may be that the phrase "improper or unethical" is a hendiadys in the sense that it is a phrase which invokes the application of values, the content of which derives no elucidation from reference to synonyms, nor from a supposed differentiation from other similar words: see Cooper v The Owners - Strata Plan No 58068 [2020] NSWCA 250 per Basten JA at [24] to [27], in particular at [25]. His Honour was considering the meaning of the expression "harsh, unconscionable or oppressive" which appears in s 139(1) of the Strata Schemes Management Act 2015 (NSW). His Honour stated: Thirdly, the phrase is better understood as a triune, three words conveying a single criterion. It is towards the other end of a scale from the hendiadys "just and equitable". It invokes the application of values, the content of which derives no elucidation from reference to synonyms, nor from a supposed differentiation from other similar words such as "unjust".
It is not necessary to decide this matter, as are satisfied that the admitted conduct of Ms Konigson was clearly improper conduct. We are additionally satisfied that the conduct was unethical, in the sense that it was a clear breach of Ms Konigson's ethical obligations to care for her patients.
We have the benefit of careful and detailed submissions of Ms Toose who appeared for Ms Konigson. Ms Toose submitted that s 139B(1)(l) had been considered in cases such as Health Care Complaints Commission v Ryken [2016] NSWCATOD 58; Qasim v Health Care Complaints Commission [2015} NSWCA 282; King v Health Care Complaints Commission [2011] NSWCA 353; Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192 and Lindsay v Health Care Complaints Commission [2010] NSWCA 194. It was submitted that these cases suggest that this subsection has been used to allege that the conduct is improper or unethical if the conduct is sexual or is exploitative or threatening of patients. It was not suggested that the subsection is limited to these kind of allegations but that the matters before the Tribunal relate to Ms Konigson's practice as an enrolled nurse in circumstances where her health was impacting on her ability to work safely.
Given that the conduct was not intentional and her functioning and performance was affected by her health and her personal circumstances at the time, is submitted that s 139B(1)(l) is not applicable to these proceedings and that the Complainant has not met its burden with regard to proving Complaint One (ii).
We reject that submission. We find it surprising that the failure to dispense medication in accordance with medication charts, not bringing this to the attention of a supervisor, actions which clearly had the potential to endanger the lives of 17 vulnerable patients might be considered as anything other than a breach of a nurse's ethical obligations to their patients.
We find unsatisfactory professional conduct established both under s 139B(1)(a) and s139B(1)(l) of the National Law.

[11]

Complaint Two

Complaint Two is that Ms Konigson is guilty of professional misconduct under s 139E of the National Law in that she: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
The Commission submitted that the Tribunal should accept the evidence of Ms Lisa Spencer whose expert opinion was that multiple aspects of Ms Konigson's conduct were significantly below the standard of an enrolled nurse with equivalent experience and qualification including:

her failure to escalate for some support from the RN for the safe administration of medications;
her failure to document patient refusals in the medication chart, progress notes and report to the RN on duty;
discarding medication over three shifts while initialling the medication chart to indicate she had given it.

The Commission submitted that Ms Konigson's conduct was professional misconduct because: 1. Ms Konigson discarded medication during three separate shifts so the conduct was not an isolated event; 2. Ms Konigson discarded a range of critical medication (including Anti Hypertensives, Analgesics, Statins to lower Cholesterol, Anti Arrhythmic, anti-emetics, Anti-convulsant, Benzodiazepines, Diabetic Medications, Antibiotics and antipsychotics); 3. Ms Konigson's conduct put patient safety at risk. Ms Konigson's failure to administer the medication and escalate for some support from the RN had the potential for "poor clinical outcomes or adverse events" and "is a serious breach of the EN responsibilities." Ms Konigson's conduct over a "series of shifts indicates a serious lapse of responsibility and clinical judgement significantly below any accepted standard of an EN with her level of experience." The "consequence of non administration could be fatal in someone with high co morbidities." Discarding medications while initialling the medication chart to indicate she had given it "is a serious breach of Medication Management". The "clinical outcomes could have and may very well have been dire for some of these residents"; 4. when RN Kaur saw the "handful" of discarded medication in the sharps container she thought that it was so serious that she reported it: "I don't think that's fair with the residents"; 5. Ms Konigson's employer considered Ms Konigson's conduct was so serious that it lodged a formal complaint and terminated her employment; 6. the s 150 delegates considered the conduct was so serious that they imposed a condition that she not work as an enrolled nurse until reviewed by the Council.
Ms Konigson submits that: 1. the Commission has not met a sufficient evidentiary burden to establish professional misconduct; 2. the Tribunal has the discretion to take into account the particular facts and circumstances of the matter before it and those matters may take into account extenuating circumstances. When determining professional misconduct "each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct": Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]; 3. in her oral evidence before the Tribunal, the Commission's own expert, Ms Spencer, when asked if there was anything she wished to change in her report, stated words to the effect of: I still think it does fall well below the standard, but perhaps not 'significantly below'. Having said that, Samantha should have sought resources, support around her and followed…. It is reasonable to say that I could possibly change my initial report from significantly below to well below, and there were reasons for that. 1. after further examination-in-chief by the Commission, Ms Spencer confirmed that she did still feel that the conduct was significantly below the standard, however her evidence was strongly empathetic towards the Ms Konigson and conspicuously lacking strong criticism. Therefore, Ms Spencer's evidence could be best characterised as 'wavering' as to whether the conduct was, in fact, significantly below the standard. In circumstances where the expert is wavering as to whether or not the conduct is significantly below the standard and has not expressed any explicit level of criticism of the conduct, there is not sufficient evidence to establish professional misconduct; 2. In relation to the second limb of s139E of the National Law, Ms Konigson submits that the events, the subject of the Complaint occurred on 3 days within a 5 day period and should be considered as the one instance, and "strongly refutes" the suggestion that because the conduct occurred over three separate shifts "it was not an isolated event".

[13]

Expert report of Lisa Spencer

As noted earlier, the Commission relied on an expert report of Ms Lisa Spencer, whose expertise was not questioned by Ms Konigson. The salient aspects of her report 17 August 2020 include the following: Following a review of the prescribing medications for all 17 residents … I note there is a combination of critical medication not administered. 6.1 These include anti hypertensives, analgesics, statins to lower cholesterol, anti amhythmics, anti-emetics, anti-convulsants, benzodiazepines, diabetic medications, antibiotics and antipsychotics. The consequence of this non administration could be fatal in someone with high co morbidities, this would include a potential stroke for someone not taking their anti hypertensives, hyperglycemia in someone not given their diabetic medication, increased falls and exacerbation of Parkinsonian symptoms for someone not taking their Madopar, increased behaviors for someone not taking their anti-psychotics, fluid over load for a resident not given Lasix, and associated breathlessness and risk of respiratory arrest if this was ongoing. Seizures for those who were not given their anti-convulsant, and a risk of death if blood levels became seriously low over a matter of days. 6.2 Septicaemia could prevail if an infection becomes overwhelming with non- administration of antibiotics. And finally, no analgesia given to most of these residents whether opioids or paracetamol would exacerbate significant issues of pain and discomfort for the resident and needless suffering over a matter of days. 6.3 The failure to Implement strategies, and escalate for some support from the RN for the safe administration of medications falls significantly below the standard, and the subsequent potential toward poor clinical outcomes or adverse events, this is a serious breach of the EN responsibilities. … 7.1 It is without a doubt outside any acceptable practice and standard to not record 'R' for refusal of any medication by a resident. Should a resident refuse their medication, this must be documented in the resident's medication chart and progress notes. It is accepted practice that staff go back and attempt to administer medications and the resident still refuses staff are to report to the RN on duty. The LMO is also to be notified if this happens on a regular basis. This failure to document is significantly below the expected standard. … 16.1 Following the review of all the attached documents, transcripts of interviews I conclude the EN is in serious breach of her medication management responsibilities and her duty of care has been severely compromised with her failure to document refusal of medication and her obvious intent to hide the discarded medication in the sharps bin on not just once but multiple occasions. Her actions are significantly below the expected standard. (emphasis added)
Following the preparation of that report, on 10 November 2020 the Commission provided Ms Spencer with material from the s 150C proceedings and Dr Samuel's report of 2 July 2019, and asked her whether that material caused her to change her opinions. Ms Spencer responded on 13 November 2020 relevantly as follows: Taking into consideration her external stressors at the time of the incidents, I do have some compassion for her however it doesn't change the serious nature of the incident and in my professional opinion her conduct falls significantly below the expected standard on an Enrolled Nurse. 17 residents went without medication over a period of several days, and they were deliberately discarded. The clinical outcomes could have and may very well have been dire for some of these residents. It is a significant breach of medication management and the local Estia policy and procedures. Moving forward Samantha I hope will learn best practice would be to raise her personal issues or concerns with the RN and or Management and ask for some support or time off to deal with her personal issues. I hope Samantha will be shown some compassion around her registration restrictions and they will be reduced so she can pursue her career as a registered nurse, however this should be in a well supervised and controlled setting where she can be adequately supported. (emphasis added)
Following the preparation of that statement, on 1 February 2021 the Commission provided Ms Spencer with further material. Ms Spencer responded on 10 February 2021 relevantly as follows: … I would like to categorically state that I believe nothing can change the fact that aspects of Samantha Konigson care fell significantly below the standard expected of an experienced EN, on the days in June, 8th 9th and 13th at Estia Care. This includes the deliberate non administration of a significant number of medications, to 17 residents over several shifts, signing off they had been given and then discarding them. The failure to escalate or report to more senior staff at all about any resident refusal or difficult behaviour was and is very poor and potentially dangerous practice.
Ms Spencer then states that after reading the report from Dr Samuels and the response from the NSW Nurses Association before a professional disciplinary body, she believes that there will be little benefit to anyone and that this is now referred to the Director of Proceedings for possible prosecution before a professional disciplinary body. This view does not assist us in our deliberations. We note however that Ms Spencer "would be extremely surprised if [Ms Konigson] ever made this mistake again".
In her evidence to the Tribunal Ms Spencer confirmed her opinions that Ms Konigson's care in question fell significantly below the standard expected of an experienced EN.
We agree with that assessment. In our view the conduct complained of constitutes professional misconduct.

[16]

Ms Konigson's submissions

Ms Konigson says that the appropriate protective order is a caution, together with conditions on her registration.
Although it is not admitted, in the event that professional misconduct is found by the Tribunal, Ms Konigson submits that the three month suspension sought by the Complainant is not appropriate. She says that the outcome should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114].
Ms Konigson submits that: 1. she had conditions placed on her registration which amounted to an effective suspension of her practice for over 10 months whilst the Commission conducted their first investigation into the matter. Since 7 June 2019, she has had numerous conditions on her registration. Those conditions have been in place whilst the Commission undertook a second investigation and have remained in place pending the outcome of this proceeding. In all, she has now been subject to some form of conditions for over three years; 2. despite the inherent stress of being subject to a complaint and associated regulatory processes, she has continued to take steps to remedy the conduct through significant further education and psychological treatment; 3. in the time since the conduct the subject of these proceedings, she has completed a Bachelor of Nursing and has applied for registration as a Registered Nurse; 4. in addition to her Bachelor of Nursing, she has also undertaken a significant amount of continuing professional development with regard to medication management, totalling over 25 hours; 5. she has recognised that her mental health and personal stressors significantly affected her performance on 8, 9 and 13 June 2018 and since that time has sought psychological treatment and has developed and implemented strategies to identify stressors and act to reduce their impact on her functioning; 6. Ms Konigson had been employed by Estia Health for over 4 years as at June 2018 and had for three of those years had worked as an Enrolled Nurse and had not been subject to any previous complaints or performance issues; 7. Ms Konigson was experiencing mental health issues and personal issues in June 2018 that were impacting on her functioning which she had not recognised nor sought treatment for at that stage; 8. Ms Konigson gave evidence to the Tribunal confirming that she had received education and training in medication administration, had been assessed, and was aware of Estia policy. While the Commission, in oral submissions, characterised this evidence as 'concerning' and stated that she 'must have been aware' and 'knew' what she was doing, this evidence, in fact, speaks clearly of the impact of her mental health issues and personal stressors on her functioning at the time, as opposed to an intentional departure from accepted standards; 9. Ms Konigson was open and honest when giving evidence before the Tribunal. The Commission characterised some of the Respondent's admissions also as 'concerning'. The aspects of her oral evidence, whereby she agreed to a multitude of 'possibilities' put to her by the Commission about things that she cannot recall should not be characterised in this way. These concessions were consistent with the admissions Ms Konigson has made in relation to the Complaint as well as evidence before the Tribunal about her lack of detailed memory of these shifts.
For those reasons, it was submitted that in the circumstances, a caution pursuant to s 149A(1)(a) of the National Law was the most appropriate protective order.
It was submitted that cautioning Ms Konigson would serve as a sufficient denunciation of her conduct while taking into account the subjective features of this matter which including her mental health and personal stressors at the time, her genuine remorse and contrition, the significant further education undertaken since the event and the psychological treatment that she has engaged in.

[17]

Consideration

We accept that Ms Konigson:

is remorseful;
is developing insight;
has taken a number of rehabilitate or remedial steps;
has engaged with the nursing profession by completing her Bachelor of Nursing; and
is genuinely sorry about her actions.

And we acknowledge the very complimentary reference provided by Ms Todhunter and Mr Parker.
However, we find the matters relied on by Ms Konigson to submit that her registration should not be cancelled or suspended to be unpersuasive.
We accept that Ms Konigson is sorry for what she has done, but we are not persuaded that even at the time of the hearing she really understood why what she did was wrong.
As we said a number of times during the hearing, indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340.
Whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
Having considered all the submissions and the applicable principles, we consider that there should be the short period of suspension sought by the Commission.
We consider that, objectively, the professional misconduct of Ms Konigson is of such a serious nature that any protective order short of suspension would be an inadequate response to the seriousness of her misconduct: Law Society of NSW v Foreman (1994) 34 NSWLR 408.
As we noted above, there were 17 patients involved. One was in his 60s, three in their 70s, six in their 80s and six in their 90s, the oldest being 93 years of age. They were significantly compromised and vulnerable people. And the conduct was a serious breach of Ms Konigson's ethical and professional obligations.

[18]

Conditions on registration

The Commission proposed the following conditions be placed on Ms Konigson's registration pursuant to s 149A(1)(b) of the National Law: 1. To practice under the indirect supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. 1. to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. 2. to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. 1. To practise no more than 32 hours per week. 2. Not to work night duty (between 10.00 pm and 6.00 am). 3. Ms Konigson must not work as sole practitioner on any shift, ward or unit. 4. Not to undertake agency nursing. 5. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of [Tribunal decision], that Ms Konigson has provided a copy of the Tribunal decision to her nursing employer/s. 6. Within seven (7) days of a change in the nature or place of practice, Ms Konigson forward evidence to the Nursing and Midwifery Council of NSW that she has provided a copy of the full conditions to the nursing employer/s. 7. to authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. She must only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions. 8. Ms Konigson is responsible for the costs of complying with these conditions.
Ms Konigson submits that: 1. although she has not practiced as an enrolled nurse in the three years since the complaint was made, in this time she has qualified as a registered nurse. This she submits must be taken into account when assessing the need for conditions and, if so, which conditions might be appropriate; 2. any conditions imposed on her Enrolled Nurse (Division 2) registration of the Respondent will be highly influential when the Nursing and Midwifery Board of Australia contemplates her application for registration as a Registered Nurse (Division 1); 3. it is essential that any recently qualified registered nurse is afforded the opportunity to consolidate their theoretical knowledge into clinical practice. For most Registered Nurses, it is highly desirable to obtain a place in a New Graduate (Transition to Nursing) program of employment as soon as possible after completing their qualification leading to registration. A Tribunal finding is, on its own, going to pose a barrier to the Respondent obtaining a place in a New Graduate Program; 4. any conditions placed on the Respondent's current registration will also influence conditions on her future registration; 5. any conditions considered by the Tribunal should not be so onerous as to prevent her from fulfilling the inherent requirements of the role and should only be so ordered if the Tribunal is satisfied that they are necessary for the protection of the public; 6. no assessment has been undertaken by the Nursing and Midwifery Council of the appropriateness of the Respondent's conditions since June 2019; 7. the conditions proposed by the Commission regarding supervision, limited practice hours, no night duty and no agency work are not based on any present assessment of risk.

[20]

Costs

The Tribunal's power to make a costs order is found in cl 13 of Sch 5D to the National Law. That clause provides as follows: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
In applying the provisions of cl 13, the general rule is that costs follow the event and that costs are intended to compensate the successful party, absent any disentitling conduct: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182.
The onus is on the other party, here Ms Konigson, to establish a basis for any departure from this usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24].
Most of Ms Konigson's costs submissions were premised on the Tribunal not finding professional misconduct. Otherwise, she submitted any costs order should take into account the following factors: 1. prior to the filing of a Complaint before the Tribunal, the Commission had the benefit of a recommendation of Dr Anthony Samuels that the matter be dealt with as a "performance issue". No opinion regarding "conduct" was given; 2. the Commission also was in receipt of a submission on behalf of the Respondent setting out reasons why this matter should have been dealt with in a non-disciplinary manner; 3. there is no mechanism by which the Director of Proceedings transparently demonstrates consideration of the factors listed in ss 90C(1)(a)-(d), nor is the respondent afforded any further opportunity to provide information that may affect such a determination beyond a s 40 submission; 4. the Commission also has the discretion as to which disciplinary body the Complaint should be brought before, namely, the Tribunal or, for a complaint of unsatisfactory professional conduct, a Professional Standards Committee; 5. this decision has costs implications as a Professional Standards Committee is not empowered under the National Law to make a costs order in favour of the Complainant; 6. prior to filing a Complaint with the Tribunal, the Commission had the benefit of an email from their own expert, Ms Lisa Spencer dated 10 February 2021 providing further opinion/clarification. In this email, Ms Spencer states that "I believe the matter should be resolved, and I support the letter from Brett Holmes that this should be 'referred to the Nursing and Midwifery Council of NSW in order for it to be efficiently and effectively dealt with in a non-disciplinary manner as a performance issue." Yet, more than two months after receiving this further opinion, a Complaint was filed with the Tribunal; 7. the Complaint was referred to Tribunal for prosecution in circumstances where other mechanisms were available to deal with the Complaint in either a non-disciplinary manner or by way of a Professional Standards Committee; 8. another factor to be considered is the conduct by the Commission "in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing". While the Commission submitted that "the Commission took a number of steps during the matter to minimise costs and progress the matter, including serving the Commission's material on time, preparing a proposed statement of agreed facts to limit the issues in dispute and not briefing counsel", rudimentary compliance with the timetable set down by the Tribunal should not be considered as a "step to minimise costs". A proposed statement of agreed facts was prepared by the Complainant, however there were no real facts in dispute in this matter due to the early and long-standing admissions of Ms Konigson. Upon the award of any costs order in favour of the Complainant, the cost of preparation of such a document would be borne by Ms Konigson; 9. two witnesses were called by the Commission in circumstances where they were not required for cross-examination by Ms Konigson. In doing so, the Complainant incurred costs presumably in the preparation and organisation of these witnesses and Ms Konigson should not incur any costs associated with this.
We do not consider that any of these matters individually, or cumulatively, warrant any other order than an order that Ms Konigson pay the Commission's costs as agreed or as assessed.

[21]

Orders

The Tribunal orders that: 1. Ms Konigson's registration as an enrolled nurse is suspended for a period of 3 months from the date of this decision. 2. The following conditions are imposed on Ms Konigson's registration: 1. to practice under indirect supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body; 2. to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council; 3. to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council; 4. to practise no more than 32 hours per week; 5. not to work night duty (between 10.00 pm and 6.00 am); 6. not to work as a sole practitioner on any shift, ward or unit; 7. not to undertake agency nursing; 8. within seven days of a change in the nature or place of practice, Ms Konigson is to forward evidence to the Nursing and Midwifery Council of NSW that she has provided a copy of the full conditions to the nursing employer/s. 9. to authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. 10. Ms Konigson must only be employed as a nurse in circumstances where the employer has agreed to notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice; and exchange information with the Nursing and Midwifery Council of NSW related to compliance with the conditions. 11. Ms Konigson is responsible for the costs of complying with these conditions. 12. Ms Konigson is to forward evidence to the Nursing and Midwifery Council of NSW within seven days of the publication of these reasons that she has provided a copy of the Tribunal decision to her nursing employer/s. 1. The appropriate review body for the purpose of a review under ss 163 to 163C of the Health Practitioner Regulation National Law is the Nursing and Midwifery Council of NSW when Ms Konigson has a principal place of practice in NSW. 2. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while Ms Konigson's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. 3. Ms Konigson is to pay the Commission's costs as agreed or assessed.

At a glance

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Decision date

Source

Judgment (22 paragraphs)

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Legislation Cited (2)

Cases Cited (20)

Cited By (6)