Health Care Complaints Commission v Lord

The Complaint

1. At the commencement of the hearing, we gave the Commission leave to amend the complaint filed in NCAT in January 2019. We will refer to the amended complaint as "the Complaint".
2. The Complaint consists of a single complaint of unsatisfactory professional conduct and it comprises three particulars, to which Ms Lord admits in their entirety. The particulars are set out below.
3. In the Complaint, the Commission claims that the conduct the subject of each of the three particulars, amounts to "unsatisfactory professional conduct" within the meaning of s 139B(1)(a) of the National Law - "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". In the alternative, the Commission claims that when two or more of particulars are taken together, a finding of unsatisfactory professional conduct is justified.

Background to the Complaint

1. To put the conduct the subject of the Complaint in context, it is necessary to set out some background facts.
2. Ms Lord was first registered as a nurse in April 2016. In August 2016 she commenced at the Wagga Wagga Rural Referral Hospital (the Hospital) in the Transitional Nursing (new graduate) program. In the first six months of that program she worked in the Hospital's medical ward. On the day of Patient A's death, Ms Lord was working the afternoon shift in the Hospital's orthopaedic ward as a "supernumerary". Ms Hogg was the designated nurse-in-charge of that shift. Registered Nurse, Dru Heath, was designated to care for Patient A. This was Ms Lord's second day in the orthopaedic ward.
3. During the "shift handover", a member of the nursing staff on the morning shift gave Ms Lord and Ms Heath a briefing about Patient A. She advised that five days earlier Patient A had undergone knee replacement surgery; he had an extensive cardiac history; he was diabetic (insulin dependent) and his "vital signs" (respiratory rate, pulse, blood pressure, temperature and level of consciousness) were within "normal parameters". In addition, she advised that Patient A had been reviewed by a physiotherapist who assessed him as being able to mobilise on elbow crutches, requiring one person to assist him.
4. The following is a summary of Ms Lord's interaction with Patient A on the day of his death. It is largely taken from a chronology prepared by the Commission and a statement prepared by Ms Lord, dated 9 June 2017. 14:00 Ms Lord and Ms Heath introduce themselves to Patient A. Ms Lord observes Patient A's vital signs and concludes they were within "normal parameters". Shortly after 14:00 Ms Lord asks Patient A if he needs anything. He replies "no". 15:30 With Ms Lord's assistance, Patient A walks to and from the ensuite bathroom in the room he shares with Patient B using elbow crutches. Ms Lord reports to Ms Heath that Patient A opened his bowels. 17:00 Ms Lord checks the blood glucose levels of all diabetic patients, including Patient A. Reports to Ms Heath that Patient's A levels were within "acceptable parameters". 17:30 Patient A informs Ms Lord that he needed to open his bowels again and did "not feel up to walking". Ms Lord assists Patient A onto a commode chair. Patient A says he feels sick. Ms Lord leaves to get a vomit bag. Patient A vomits on to the floor. On her return he vomits again. Ms Lord records incident on Patient A's fluid balance chart. 17:45 Patient A vomits immediately after taking (orally) 4 mg of Ondansetron (anti-nausea medication). Ondansetron 4 mg IV prescribed by medical officer and given by Ms Heath and Ms Lord. 18:30 Patient A eats a small amount of dinner. Tells Ms Lord he feels nauseous. 18:30 approx. Patient A tells Ms Lord he needs to use the toilet again. Ms Lord observes Patient A requires a greater level of assistance and encouragement to be transferred onto the commode chair, than on last occasion she assisted him to the toilet. Patient A has another bowel movement. He walks back to bed unassisted using elbow crutches. Ms Lord claims Patient A told her he did not require assistance. Ms Lord reports above to Ms Heath. 19:20 Ms Lord checks Patient A's vital signs and finds all within "acceptable parameters". When questioned by Ms Lord, Patient A reports he is in pain. She claims he was "somewhat agitated and restless". Ms Lord reports to Ms Hogg (Ms Heath was not on the ward at the time) that she is concerned about Patient A "not feeling well". Ms Hogg says he is fine and reacting to having been given a lot of medication to assist him to open his bowels. Ms Lord claims that she felt "unable to express my concerns any further as [Ms Hogg] told me [Patient A] was fine". Ms Lord checks Patient A, who reports "significant abdominal cramping". Ms Lord reports to Ms Hogg and enquires whether Patient A can be given medication for pain relief earlier than the scheduled time (20:00). Ms Hogg gives a similar response to that recorded above however agrees with Ms Lord's recommendation to give Patient A pain relief medication before the scheduled time, commenting "some Endone would help keep him quiet for a while". Ms Lord claims she was "a bit upset" and felt Ms Hogg had not listened to the concerns she had raised about Patient A. 19:30 Patient A is given MS Contin (slow release morphine a narcotic analgesic given for pain relief) 20mg and Endone (an immediate release narcotic analgesic, also given for pain relief) 10mg. Ms Lord completes Patient A's stool and "between the flags (BTF)" documentation. (BTF is a system used in NSW public hospitals to identify and review deterioration in a patient's condition. It uses observation charts shaded in the colours of surf lifesaving flags, red and yellow, to identify vital signs outside normal, safe limits.) 20:00 While checking on Patient B, Ms Lord asks Patient A if he needs anything. He replies "no". 20:15 Ms Lord checks on Patient A who reports pain has subsided and requests that she put up the bed rails. He sleeps for a short period. 20:30 Ms Lord gives Patient A further scheduled medication. He complains of stomach cramps and says he needs to use the toilet again. Ms Lord claims Patient A appeared tired and had greater difficulty using crutches than on the last occasion she assisted him to use the toilet. Ms Lord reports her observations to Ms Hogg. Ms Hogg requests a medical officer to prescribe medication for stomach cramps. 20:55 Ms Lord observes that Patient A appears uncomfortable. Patient A complains of stomach cramps and asks for a bedpan, reporting he is "very tired". 21:00 Ms Lord claims being told by Ms Heath and Ms Hogg that Patient A was now classified as a "rehab patient" and should be told to walk to the bathroom and "stop being lazy". Ms Lord claims she was distressed being told to be "tougher" with Patient A. 21:15 approx. Ms Lord finds Patient A sitting at end of bed incontinent of faeces. Ms Hogg comes to assist Ms Lord and tells Patient A to stand and transfer to commode chair. 21:30 approx. Ms Lord and Ms Hogg shower Patient A. 22:00 Patient A is returned to bed with the assistance of an orderly, Ms Hogg and Ms Lord. Shortly after 22:00 Night shift nurse, RN Parslow finds Patient A sitting at end of the bed with his legs on the floor. RN Parslow assists Patient A back to bed. On returning to his room five minutes later, Ms Parslow finds Patient A to be "unresponsive". 22:00 Ms Parslow alerts RN Shavina Sehdev. Duress alarm activated. Cardiopulmonary resuscitation (CPR) commenced. 22:27 CPR stopped. Patient A pronounced dead.

Particular 1

1. Particular 1 relates to Ms Lord's communication with Patient A between 21:30 and 22:00 (the shower incident): "On 15 February 2017 between around 21:30 and 22:00 [Ms Lord] communicated in an inappropriate and unprofessional manner with Patient A in circumstances where: a. she raised her voice to him and made statements to the following effect: i. "Up you get. What are putting your hand out for? I'm not helping you. I'm not pulling you up." ii. "Alright, well you can just stay in your chair then." iii. "Hold on to that and hold yourself up" … v. "no, sit up" vi. "you can't do that, and if you do that you're going to hurt us" vii. "you are going to hurt us". b. she communicated with Patient A in a manner that lacked empathy and respect, in circumstances where Patient A had symptoms of weakness, breathlessness and was complaining of pain and nausea."
2. As noted, Patient B was so concerned with their treatment of Patient A, that when Ms Lord and Ms Hogg took him to be showered at about 21:30, he made a recording on his mobile phone. The recording and a transcript of the recording were tendered in these proceedings. The recording runs for just over 20 minutes and appears to commence after Ms Lord and Ms Hogg have showered Patient A and they were attempting to dry him and to return him to bed.
3. In a statement provided to Police on 1 March 2017, Patient B claimed that prior to commencing to make the recording, he heard Patient A say "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. In addition, he stated that he believed Patient A to be in "agony". He wrote 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 1. 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.

Did the conduct the subject of Particular 1, demonstrate that the knowledge, skill or judgment possessed, or care exercised by Ms Lord 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 Lord (the relevant standard), and second, evaluate whether the conduct the subject of Particular 1 demonstrates that the "knowledge, skill or judgment possessed", or the "care exercised", by Ms Lord in the practice of her profession of nursing, fell "significantly below" the relevant standard. It is not in dispute that the conduct described in each three Particulars was "in the practice of" the profession of nursing.
2. Evaluating whether the skill or judgment possessed, or care exercised, by Ms Lord fell significantly below the relevant standard requires consideration to be given to the circumstances surrounding the impugned conduct. Ms Lord was in a difficult position. She was an inexperienced nurse working in a graduate program. It was her second day in a new ward in a field where she had no previous experience. Earlier in the evening she had been instructed by Ms Hogg and Ms Heath, in effect, to "toughen up" and to insist that Patient A be required to walk to the bathroom with assistance and that this was a necessary part of his rehabilitation. It was evident that as the shower incident progressed, Ms Lord was becoming increasingly anxious that she might be unable to prevent Patient A from falling, a not unreasonable concern given that he was double her weight and the evident deterioration in his condition. A further relevant contextual factor was the appalling example set by Ms Hogg who throughout the shower incident spoke harshly to, and on occasion, shouted at, Patient A.
3. Nonetheless, despite these difficulties and Ms Lord's inexperience, the relevant standard required Ms Lord to speak to Patient A respectfully, not with a raised voice, and in a manner which demonstrated empathy, especially given his evident distress and deteriorating condition. She failed to do so. The impugned conduct was not in the nature of an occasional inappropriate or gratuitous comment. Nor was it a momentary departure from the relevant standard. It continued over a period of about five minutes.
4. Ms Lord agrees that the conduct described in Particular 1 amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law.
5. We are satisfied that the conduct the subject of Particular 1 demonstrated that the skill possessed, and care exercised by Ms Lord fell significantly below the relevant standard.

Particular 2

1. Particular 2 relates to Ms Lord's alleged failure to adequately respond to the deterioration in Patient A's condition: "On 15 February 2017 between around 21:30 and 22:00 [Ms Lord] responded inadequately to the deterioration in Patient A's condition, in that she: a. failed to obtain and document a set of vital signs; b. failed to escalate Patient A's care in accordance with: i. the Clinical Emergency Response System ('CERS'); and …"

Does the conduct described in Particular 2 demonstrate that the knowledge, skill or judgment possessed, or care exercised by Ms Lord fell significantly below the relevant standard?

1. The conduct the subject of Particular 2 concerns Ms Lord's failure to adequately respond to the deterioration in Patient A's condition, specifically her failure to obtain and document a set of vital signs and to escalate Patient A's care in accordance with the Clinical Emergency Response System (CERS). CERS is a policy of the Hospital that outlines the steps that must be taken in response to a patient whose condition appears to be deteriorating.
2. While Ms Lord concedes that the conduct the subject of Particular 2, taken together with the conduct the subject of Particulars 1 and 3, amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law, she does not concede that the conduct the subject of Particular 2 of itself, amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a).
3. In an undated report prepared at the request of the Commission, RN Marianne McGhee (Exhibit R1, Tab 19) responded to questions asked by the Commission relating to, among other things, the conduct the subject of the Complaint. In Ms McGhee's opinion, Ms Lord's response to the deterioration in Patient A's condition, as evidenced by his complaints of abdominal pain, feelings of nausea, vomiting, shortness of breath and feeling faint fell below the relevant standard.
4. In our view, the standard reasonably expected of an inexperienced nurse would be to possess the knowledge and skill to be able to identify that the multiple complaints made by Patient A during the shower incident, taken together with their apparent worsening and his evident difficulty in comprehending simple instructions, was evidence of a rapid and significant deterioration in his condition. In addition, the standard reasonably expected of an inexperienced nurse would be to possess the knowledge, skill and judgment to recognise that it was necessary to respond to those symptoms by, among other things, obtaining a set of vital signs and activating a CERS response.
5. Did Ms Lord's inaction in light of the evident deterioration in Patient A's condition demonstrate judgment and skill that fell significantly below that standard? Again, context is relevant to that evaluation. Ms Lord had repeatedly raised with Ms Hogg and Ms Heath her concerns about Patient A, in particular his complaints of abdominal pain. She was told in effect that those complaints were unremarkable and to be expected given that Patient A had been given "significant amount of aperients [medication used to relieve constipation]". In addition, it is significant in our view that despite observing firsthand, Patient A's evident deterioration, at no time during the shower incident did Ms Hogg, the senior nurse, take action or indeed convey any concern to Ms Lord.
6. Having regard to these contextual factors, Ms Lord's inaction, specifically her failure to obtain a set of vital signs and to escalate Patient A's care in accordance with the CERS protocol, demonstrated knowledge, skill and judgment that fell below the relevant standard. Largely because of Ms Hogg's inaction, we are not satisfied that it demonstrated knowledge, skill and judgment that fell significantly below that standard.

Particular 3

1. Particular 3 relates to Ms Lord's failure to maintain adequate nursing notes documenting the deterioration in Patient A's condition: "On 15 February 2017 [Ms Lord] failed to maintain adequate nursing notes documenting the deterioration in Patient A's condition, including: … b. Patient A's complaints of abdominal pain, nausea and inability to ambulate independently; c. the action she took in response to Patient A's complaints; …"

Does the conduct described in Particular 3 demonstrate that the knowledge, skill or judgment possessed, or care exercised by Ms Lord fell significantly below the relevant standard?

1. Tendered in these proceedings was a progress note made by Ms Lord in respect of Patient A. Ms Lord commenced making that note about 20 minutes after Patient A was declared dead. According to Ms Lord, shortly before the duress alarm was activated she commenced typing a progress note. However, when this occurred, she abandoned that task and raced into Patient A's room to assist. She claims that about 20 minutes after Patient A's death, she returned to complete the note and found that she had failed to save the document. She claims that on her return not only was she shaken by the experience of Patient A's death, but she felt intimidated by the presence of senior nursing staff who she claims stood behind her as she made the note.
2. The note contains a single mention of Patient A complaining of abdominal pain, apparently referring to the complaint made at 19:20. On Ms Lord's account, Patient A complained to her of abdominal pain on four other occasions: at 17:30, 19:30, 20:30 and 21:00. The note does not record the steps taken by Ms Lord in response to those complaints, which included reporting her concerns to Ms Hogg (17:30, 19:20, 20:30) and Ms Heath (19:30). Nor does the note record that on Ms Lord's recommendation Patient A was given pain relief medication before the scheduled time (20:00).
3. In these proceedings, Ms Lord claimed that parts of the progress note were inaccurate, specifically the comment that Patient A was "behavioural, not willing to sit upright … Pt resistive, pushing against active movement throwing body weight forward". She claims that she recorded those comments because she felt pressured to do so by her colleagues. It is of concern that a nurse, even an inexperienced nurse, for whatever reason would make an inaccurate entry in a patient's notes. However, Particular 3 does not allege that Ms Lord knowingly made false or inaccurate entries in the progress note.
4. In these proceedings Ms Lord claimed that she was not directed to make progress notes in respect of Patient A, or indeed any other patient. She concedes, however, that the notes she made did not adequately document the deterioration in Patient A's condition. In our view, the standard reasonably expected of any nurse, including one with little experience, when making progress notes is to adequately record the deterioration in a patient's condition. In this instance, Ms Lord failed to do so. We find that failure demonstrated that the judgment she possessed and care she exercised fell significantly below the relevant standard.

Conclusion

1. Particulars 1 and 3 taken individually and Particulars 1, 2 and 3 taken together amount to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. Particular 2, taken individually, does not amount to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law.

Statutory framework and principles governing the exercise of the power to make disciplinary orders

1. Where, as here, a complaint made under the National Law is admitted, the Tribunal may exercise any of the powers in Sub-div 6, Div 3 of Pt 8 of the National Law, which include the power to caution or reprimand the practitioner: s 149A(1)(a).
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. While the health and safety of the public is the paramount consideration, the jurisdiction exercised by the Tribunal is nonetheless protective not punitive.
3. 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.
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".

Difference between a caution and a reprimand

1. In Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 (Dowla (No 2)), the Tribunal considered at [42] the difference between a caution and a reprimand under s 149A(1)(a) of the National Law and cited with approval the decision of the Victorian Civil and Administrative Tribunal in Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (Coleman), in which the Tribunal explained at [14]: [T]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences. In Peeke v Medical Board of Victoria (unreported, Marks J. 19 January 1994). His Honour commented on a view that had been expressed to the effect that to impose a reprimand was to trivialise a serious lapse in professional standards. His retort was succinct - I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications.
2. As noted by the Tribunal in Dowla (No 2) at [44] , a reprimand, if imposed, will appear on the record of a practitioner's registration maintained by the Australian Health Practitioner Regulation Agency (AHPRA): s 225(j). In contrast, the National Law does not require AHPRA to record a caution on practitioner's record.

Ms Lord's employment history since March 2017

1. The Hospital suspended Ms Lord from employment after the death of Patient A. She subsequently resigned from the Hospital and returned to live with her family in Newcastle. Between August 2017 and May 2018, Ms Lord worked as a registered nurse at Maitland Private Hospital. In September 2018, she commenced working as a registered nurse through a nursing agency, Health Care Australia and with various aged facilities. Ms Lord has not worked since July 2019 on account of ill health.
2. Ms Lord claims that her conduct in relation to Patient A is the only occasion a complaint or expression of concern has been made about her conduct as a nurse. That claim is consistent with a character reference provided by RN Danae Jenkins. Ms Lord worked as a care worker in an aged care facility managed by Ms Jenkins for two to three years from 2012. In July 2018, Ms Lord was re-employed as a registered nurse by Ms Jenkins where she remained until July 2019 when she resigned because of ill health. In a letter dated 2 April 2019, prepared for the purpose of these proceedings, Ms Jenkins wrote that Ms Lord is an "excellent carer who provided a high standard of personal care to residents". She wrote that she had no performance issues with Ms Lord and indeed on several occasions, Ms Lord had raised with her, concerns about the care provided by other members of staff. She wrote that she is aware of, and has discussed with Ms Lord, the conduct the subject of the Complaint. She wrote she found the conduct "hard to believe" and "quite inconsistent with the person I know". Ms Jenkins wrote that when she re-employed Ms Lord in 2018, she was fully aware of the circumstances surrounding her earlier employment. She wrote that she has "full confidence" in Ms Lord's "approach, ethics and ability to discharge her responsibilities capably".
3. We find, as claimed, that Ms Lord fully appreciates that her conduct the subject of the Complaint, fell short of the standard reasonably expected of a registered nurse, even one with her limited level of experience. In addition, we are satisfied that Ms Lord is genuinely contrite and remorseful. This is evident from the admissions she made in July 2017 in the s 150 proceedings before the Nursing and Midwifery Council of NSW, the self-reflection log she prepared for those proceedings together with the admissions she made and the evidence she gave in these proceedings. We find that Ms Lord is deeply ashamed of her conduct and her failure to advocate for Patient A and, in addition, is genuinely committed to ensuring that such conduct is not repeated. We are confident that Ms Lord has learnt a valuable lesson from the incidents that occurred on 15 February 2017. We find that there is no material risk that the admitted conduct will be repeated.
4. In addition, we accept Ms Lord's claim that she now fully appreciates that as a registered nurse she is required to act as an advocate for patients, and on occasion this might require her to challenge opinions expressed or action taken by colleagues, including more senior health practitioners. In these proceedings, Ms Lord gave several examples where in the past two years she challenged the opinion of colleagues in circumstances where she considered that they had made a poor clinical decision. These include an occasion where a medical practitioner had brushed aside Ms Lord's stated concerns about a patient's repeated complaint of pain. As a result of Ms Lord's intervention and persistence, the medical practitioner acquiesced and referred the patient for further testing. The patient was found to have a pulmonary embolism, a potentially life-threatening condition.

Submissions on form of disciplinary orders

1. The Commission accepts that Ms Lord is genuinely contrite and has demonstrated insight into the deficiencies of her conduct. In addition, the Commission accepts that Ms Lord's inexperience is a relevant consideration in the exercise of the Tribunal's power to make disciplinary orders. Nonetheless, the Commission contends that a reprimand is the more appropriate order, citing in support the comments of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) at [34]-[39] about the general deterrent effect of disciplinary orders.
2. Ms Lord, on the other hand, submits that a caution is the more appropriate order, contending that it better recognises the mitigating circumstances surrounding the impugned conduct, including the poor guidance and example set by Ms Hogg, Ms Hogg's aggressive treatment both of herself and Patient A, her inexperience, the fact that the conduct occurred over a relatively short period (approx. 21:30 to 22:00), and the high standard of care she had provided to Patient A up until that time.
3. In addition, Ms Lord submits that her employment history since that time, together with the education she has undertaken since March 2017, demonstrates that she has learned a valuable lesson and as a result has become a more diligent and assertive nurse.

Decision

1. It is not in issue that Ms Lord has demonstrated insight and remorse for the impugned conduct. Nor is it suggested that there is a risk that the conduct will be repeated or that Ms Lord is not a fit and proper person to be a registered nurse. The real issue between the parties is whether a caution adequately serves to denounce Ms Lord's conduct and signals to the profession its unacceptability.
2. We agree with the observations made by the Tribunals in Dowla (No 2) and Coleman that there is a material difference between a reprimand and a caution and that a caution is in fact and is seen to be a "lighter" disciplinary measure than a reprimand. We are satisfied that in the unusual circumstances of this case, a caution is the more appropriate order. In reaching that conclusion we accept that Ms Lord's conduct, in particular the conduct the subject of Particular 1, ought to be denounced. The prosecution of the Complaint and these proceedings are denunciatory in part. A decision to caution Ms Lord is also denunciatory, though to a lesser extent than a reprimand. While in exercising the power to make disciplinary orders, the protection of the health and safety of the public must be the paramount consideration, nonetheless, the form of orders must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom disciplinary orders are imposed). In our view, the issue of a caution sufficiently denounces Ms Lord's conduct and, in addition, takes into account the objective and subjective features of this case and is both a reasonable and proportionate exercise of the discretion to make disciplinary orders.

Costs

1. Neither party made an application for costs.

Orders 1. Ms Lord is issued a caution under s 149A(1)(a) of the National Law.

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