Health Care Complaints Commission v Massey

Complaint 1 - Criminal Conviction

1. The Commission relies on s 144(a) of the National Law in Complaint 1 on the ground that the Respondent has been convicted of a criminal offence in New South Wales.
2. The documentary evidence before the Tribunal records, as we point out above, that the Respondent was convicted of a criminal offence as alleged.
3. We are satisfied on the evidence presented by the Commission, and find, that the Respondent was convicted of criminal offences in New South Wales supporting the making of a complaint under s 144(a) of the National Law. Accordingly, Complaint 1 has been made out.
4. In respect of the offence committed by the Respondent it is necessary for us to consider all the circumstances in which it occurred.
5. We are not satisfied on the evidence before us that the Respondent intended that the drugs that were, on her account, refused by the patients were placed in her bag and taken away from the premises for her own use or consumption. The nature of the drugs, alone, make that a highly unlikely outcome.
6. The Respondent in cross examination said that she recorded the medications intended for patients as "administered", as opposed to "declined" by mistake, perhaps because she was busy or distracted. These errors appear on numerous occasions on numerous days and over a reasonably lengthy period in the records of the facility. The entries were made in respect of patients in a dementia ward. The patients are therefore probably less capable than persons not suffering from those conditions to recall, or challenge, the accuracy of what is said to have occurred.
7. We do not accept that these were simply errors. It is unlikely, in our view, that the errors would have occurred on as many occasions because the Respondent was busy or distracted. We also do not accept that the patients in fact declined their medication on each of the occasions that these entries were made.
8. It is clear that if the drugs had in fact been refused by the patients they could not be re-used and had to be disposed of safely by one or other of the measures implemented by the facility over time to achieve that outcome.
9. What is clear, however, is that the Respondent on her own account inaccurately recorded in the required records for each of the patients that the relevant medication had been administered when that was not the case. The medication could not have been administered if later found in the street.
10. In those circumstances, the Respondent faced somewhat of a dilemma. Drugs which had been recorded as administered to the patients were not drugs which were to be disposed of. There was therefore a significant risk to the Respondent that if it was observed, or discovered, that she was disposing of the drugs which had been recorded as "administered" in the records required to be kept by the institution in the facility's bins or containers, serious questions were likely to have been raised. Why were drugs recorded as "administered" being disposed of? The risk was thus also that questions would arise as to whether the patients had in fact declined the administration of the medications as contended by the Respondent.
11. It is therefore not out of the question, and in our view, more likely, that the Respondent was not disposing of the medication on the premises so as to avoid detection. The Respondent was keeping secret the medications which she said had been recorded as "administered" by placing them in her bag which was taken home. Apparently, the bag was brought back to the premises whenever the Respondent was at work. It appears that the quantity of drugs accumulated over the period that the Respondent engaged in the conduct the subject of this Complaint. Her method of operation was only brought to an end when her bag was stolen and the contents distributed onto the street where they were found by the police and which then lead, ultimately, to the charges being laid against her.
12. We do not accept the Respondent's evidence that she was too busy or distracted. In our view, that contention is not probable given the repeated occasions that these "errors" occurred and in the absence of a logical explanation as to why the drugs were being carried secretly in her bag. If patients were refusing the medications that should not have led to the medication being secreted into the bag every time. The Respondent should have pursued the matter with her supervisors or medical practitioners. She had the drugs in her possession to show precisely what was being rejected by the relevant patients and inquiries could be made as to the reason for refusal. Had the Respondent done so her erroneous recording of what occurred would most likely have been exposed.
13. The Respondent was by her conduct fundamentally undermining the system designed for the care of vulnerable patients in the facility. By not administering the drugs, not recording that they were refused, if that was in truth the case, and thereby not allowing others more senior to her, including medical practitioners, to get a proper overview of the medication being taken, or not being taken as the case may be, by the relevant patients was at odds with the care that these patients deserved. It was this course of conduct on the part of the Respondent which led to her conviction in the Local Court.
14. In our view the seriousness of the conduct arises not so much from what was admitted as larceny, but from the circumstances and events which eventually lead to the Respondent's conviction. We should add that if the medications had in fact been refused by the patients, and were then to be safely disposed of in the facility, as is agreed should have happened for such medication as they could no longer be used, then apparently the Respondent was stealing patients' drugs that were otherwise to go in a bin.
15. In our view, the conduct of the Respondent requiring denunciation is the failure to administer the prescribed medications and the erroneous recording of relevant information and what, in our view, is more likely, namely, the steps taken by the Respondent to remove the drugs from the premises so as to avoid detection of her conduct.

Complaint 2 - Failure to Notify

1. Complaint 2 is that the Respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that the Respondent failed to notify the National Health Practitioner Board ("the National Board") of the charges that were laid against her by the New South Wales police within seven days of those events and that the Respondent failed to notify the National Board within seven days that she had been convicted, on 22 November 2021, with an offence punishable by 12 months imprisonment or more.
2. The Commission argues that provisions requiring the notification of certain types of criminal charges to the National Board are a significant tool in the regulatory framework and that by not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. It argues that these provisions are part of the protective architecture of the National Law. We accept those submissions as according with the National Law.
3. On the evidence before the Tribunal it is clear that the Respondent was charged with an offence punishable by 12 months imprisonment or more on 1 September 2021 and failed to notify the National Board as required by the National Law. Further, the evidence established that the Respondent did not notify the National Board within seven days that she had been convicted, on 22 November 2021, with an offence punishable by 12 months imprisonment or more.
4. Accordingly, on the evidence before the Tribunal we are satisfied that Complaint 2 has been made out. The Respondent failed to comply with an important obligation imposed for the maintenance of the integrity of regulatory systems (Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [22]-[34]). A finding that the Respondent contravened the notification requirements in the National Law results in a conclusion that the Respondent engaged in unsatisfactory professional conduct.

Complaint 3 - Improper or Unethical Conduct

1. Complaint 3 is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that the Respondent engaged in improper or unethical conduct relating to the practice or purported practice of nursing. The words "improper" and "unethical" are not defined in the National Law. The Tribunal has accepted that the ordinary meaning of improper is not right, or not in accordance with propriety of behaviour and includes not being in accordance with truth, fact, reason or rule and includes abnormal, irregular, incorrect, inaccurate, erroneous or wrong.
2. The meaning of unethical relevantly means contrary to moral precept, immoral or in contravention of some code of professional conduct (see, for example, Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51] - [52]). The relevant test is an objective one.
3. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was also considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 where the Tribunal stated at [25] - [26]: "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."
4. It is relevant to observe that in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160, the Tribunal observed: "89. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81]."
5. The National Board's Code of Conduct for Nurses establishes that nurses must practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. The code imposes an obligation on nurses to comply with local policy including to safely administer and store medications.
6. The Commission also points to the National Board's Enrolled Nurse Standards for Practice which establishes that enrolled nurses must place the people receiving care at the centre of care. In addition, there is an obligation to accurately report information regarding the health and functional status of people receiving care. Enrolled nurses must provide accurate and appropriate information to enable informed decision making by others.
7. The particulars of Complaint 3 are, first, that the Respondent failed to properly dispose of medications intended for a range of patients which were then recovered by the New South Wales police on 14 August 2021 in that she took the medications from the premises of her employer into her own possession and stored them in her car.
8. As will be apparent from our reasoning above, this particular does not easily accommodate what, in our view, are the more likely events. If the medication were administered, as recorded, then they could not have been disposed of. If the medication had in fact been rejected by the relevant patients then, in those circumstances, they should have been disposed of in accordance with the procedures of the facility and not taken off the premises in the Respondent's bag.
9. The second particular is that the Respondent failed to accurately record patient medications in that for each of the patients in the facility's care the medications intended for the particular patient were incorrectly recorded by the Respondent as having been administered to the patient when in fact they had not been administered. As we point out above, the medications could not have been administered as they were placed into the Respondent's bag which was later stolen.
10. It is then particularised that by the conduct in the two particulars referred to above the Respondent breached the medication and record keeping practices of the facility and her conduct amounted to unsatisfactory professional conduct.
11. The conduct as so particularised is relied upon by the Commission in combination as a course of conduct amounting to unsatisfactory professional conduct.
12. The Commission submitted that the Respondent's conduct posed a serious risk to the health and safety of patients in the facility. The Commission submitted that: 1. the medication was intended for vulnerable elderly patients in an aged care facility; 2. the medication had been prescribed to the patients by their treating medical practitioners to address their health conditions and alleviate their pain; 3. the Respondent did not administer their medication; 4. the Respondent made false records to suggest that she had administered the medication; 5. accordingly, other nursing and medical staff would be unaware that the medication had not been administered so would be unable to rectify the errors; 6. the Respondent must have known that her nursing and medical colleagues would rely on her incorrect entries and assume that the patients had received their medication; 7. after failing to administer the medication during the first shift, rather than return to the aged care facility at her next shift to remedy that situation, the Respondent repeated her conduct over subsequent shifts and concealed the evidence in her car; 8. the Respondent stored the medication in her own car then police located it on a local street which was unsafe; 9. it appears that the Respondent was influenced by self interest (she took the medication and made incorrect entries to avoid getting into trouble: "I'd had enough of getting hauled into the office"); 10. the Respondent placed her personal interests above patient safety.
13. The Tribunal has previously considered conduct involving 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 wellbeing of vulnerable patients and concluded that it could not be considered as anything other than a breach of a nurse's ethical obligations to their patients and amounts to professional misconduct, relying upon Health Care Complaints Commission v Konigson [2021] NSWCATOD 186 at [98]-[127].
14. It will be noted that the Respondent's conduct was not isolated: 1. the Respondent made inaccurate records and took medication into her possession on 24 occasions; 2. the Respondent's conduct potentially put 22 vulnerable patients at risk; 3. the Respondent did not administer about 18 different types of medication (including some medication which is Schedule 4 prescription only medication); 4. the Respondent did not administer some critical medication for serious health conditions (including medication for cardiac, kidney and hypertension problems which would raise serious issues with patient progress if not administered); 5. the Respondent's conduct continued over 14 separate shifts over a 15 week period.
15. The Commission also submitted that the Respondent's conduct adversely impacted her nursing profession.
16. In our view, the conduct of the Respondent as established, recording that drugs had been administered when, on the evidence, they clearly had not, was unethical and improper and in breach of the obligations on the Respondent as set out in the various codes referred to above. This was a serious neglect of her duties and well below the standard that could be required of a competent, diligent practitioner. The conduct was not truthful with potentially serious consequences for the patients in the facility.
17. We endorse the submissions by the Commission that proper record keeping of the administration of medications in a facility of this kind where vulnerable patients were being cared for was critical. The Respondent failed significantly to care for patients as she was required to do.
18. In our view, on the evidence before the Tribunal, Complaint 3 is made out.
19. The conduct demonstrates that the care exercised by the Respondent in the practice of her profession was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or expertise.
20. The Respondent's conduct also amounted to improper or unethical conduct relating to the practice or purported practice of her profession.
21. We find unsatisfactory professional conduct established both under ss 139B(1)(a) and 139B(1)(l) of the National Law.

Complaint 4 - Professional Misconduct

1. Complaint 4 is that the Respondent is guilty of professional misconduct under s 139E of the National Law in that she engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. It is also claimed that the Respondent engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounts to conduct of a sufficiently serious nature to justify the suspension or cancellation of her registration.
2. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 the term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.
3. In our view, the instances of unsatisfactory professional conduct taken together are sufficiently serious to justify suspension or cancellation of the Respondent's registration.
4. We have come to that conclusion based on the seriousness of the misconduct, the false recording of relevant and important information, the conduct of concealing her actions and the conclusions reached in respect of Complaint 3.

Complaint 5 - Impairment

1. The Commission relies on s 144(d) of the National Law in respect of Complaint 5 to argue that the Respondent has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder that detrimentally effects or is likely to detrimentally effect the Respondent's capacity to practise the profession of nursing. The particular impairment is schizophrenia.
2. The Commission relies on a report from a consultant psychiatrist, Dr Anthony Samuels, dated 30 November 2021. The Respondent was referred to Dr Samuels for assessment because of concerns about her health. Dr Samuels is a highly qualified and experienced practitioner in this field.
3. In his report, Dr Samuels records that the Respondent informed him that she had been diagnosed with schizophrenia more than 20 years ago. She was placed on medication which she takes religiously.
4. Dr Samuels concluded that the Respondent's mental health was good.
5. In his professional opinion, Dr Samuels stated that the Respondent does have an impairment within the meaning of the National Law, namely, chronic schizophrenia which was well controlled by the taking of medication. She had a history of substance misuse that had been in prolonged remission. He concluded that the Respondent's impairment does have the potential to impact upon her professional functioning. Dr Samuels said he did not have a clear understanding in regard to why she removed the medications "which had been refused" by patients from the facility which resulted in her losing her job and being criminally convicted for the offence of larceny. He recorded that the Respondent was adamant that she had not taken the medications for her own purposes but that there were problems with the disposal system at the facility. We have dealt with these latter issues above.
6. Dr Samuels then recommended that the Respondent, if she were to return to nursing, should enter the Council's impairment program.

Protective Orders

1. Having found that the subject matters of the complaints have been proved the Tribunal must consider the appropriate protective orders being made. The Tribunal's jurisdiction is primarily protective, not punitive.
2. In respect of this issue we have at the forefront of our consideration the relevant principles outlined above.
3. The Commission submits that in this case suspension of the Respondent's registration is appropriate under s 149C(1)(b) of the National Law because the Respondent is guilty of professional misconduct and suspension is required to protect the public by denouncing the seriousness of the Respondent's conduct and in order to indicate to the Respondent and to the profession of nursing at large that such conduct cannot be condoned. We agree with that submission. Further, it is contended that suspension is required to protect the public by maintaining professional standards and that if the public were to be made 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. We agree with that submission as well.
4. We do not, in the circumstances, need to consider whether the Respondent is unfit in the public interest to practise nursing.
5. The Tribunal considers that a period of suspension of 6 months is an appropriate period to meet the protective purpose of orders made particularly when considered together with conditions on the Respondent's registration upon a return to nursing which, in our view, should also be imposed. As we understood the Respondent's position she did not challenge a period of 6 months.
6. We think the 6 month suspension period is appropriate because the Respondent has not yet fully demonstrated genuine insight into her offending and misconduct and has not yet engaged in rehabilitation.
7. Further, it appears that the Respondent has a history of failing to engage with regulators as is incumbent on a registered practitioner to do. She failed to respond to communications with the Nurses' Registration Board, failed to properly respond to Council communications on occasion and failed to notify AHPRA of her charge on 1 September 2021 or attend relevant Council meetings pursuant to the inquiries under s 150C of the National Law.

Conditions

1. The Tribunal is of the view that this is a case where it is also appropriate that conditions be imposed on the Respondent's registration.
2. The Commission seeks the following practice conditions: "Education (a) Provide evidence to the Nursing and Midwifery Council within 3 months after the expiry of the suspension period, that the practitioner has enrolled in the education course "Medications: How we do it better" provided by the New South Wales Nursing and Midwives' Association. (b) Provide evidence to the Nursing and Midwifery Council within 6 months after the expiry of the suspension period that the practitioner has successfully completed the education course described in (a). (c) If the course described in (a) is unavailable, they must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why they are making this proposal, by no later than 3 months after the expiry of the suspension period. Health care & treatment (a) The practitioner is to attend a psychiatrist appointed by the Nursing and Midwifery Council of NSW for the purposes of undertaking a health assessment. The cost of the assessment will be at the Council's expense. (b) The practitioner is to attend for treatment by a psychiatrist of her choice. The frequency of attendance is to be determined by the treating psychiatrist. The practitioner: i. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of any of the following: • Failure to attend for treatment; • Termination of treatment; • A significant change in health status (including a significant temporary change). ii. Must provide the Council with the professional details of the treating psychiatrist. (c) The practitioner is to attend for treatment by a general practitioner of her choice. The frequency of attendance is to be determined by the treating general practitioner. The practitioner: i. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of any of the following: • Failure to attend for treatment; • Termination of treatment; • A significant change in health status (including a significant temporary change). ii. Must provide the Council with the professional details of the treating general practitioner. Supervision (a) To practise under Direct 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, i. to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. ii. to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. iii. to authorise the Council to provide nominated and approved supervisors with a copy of relevant decisions. Indirect supervision and supervisor reports. (b) Not to practise until a supervisor has been approved by the Nursing and Midwifery Council of NSW. Employment (a) The practitioner is prohibited from undertaking agency nursing. (b) The practitioner is required to provide a copy of the reasons for decision in this matter, and a copy of these orders, to all current and future employers."
3. The Tribunal is of the view that the health care and treatment condition proposed in subparagraphs (a) and (b) above is not appropriate. The evidence does not support the need for that regime to be imposed on the Respondent.
4. In respect of supervision the Tribunal regards a condition as to supervision as necessary. It is, however, not prepared to impose direct supervision. We are of the view that such a condition will be too onerous and, to some extent, impractical. Indirect supervision should be imposed. The Tribunal will, however, impose an additional condition on the Respondent's registration, namely, that the administration of medication to patients, and the recording of such administration, must in all instances be counter-signed by another nursing practitioner employed by the Respondent's employer at the relevant time.
5. Although there is no evidence before us of actual harm to the patients in the facility, the proper administration of medication, the proper recording of the administration of such medication, and the proper disposal of medication that is not used, are very important elements in relation to the care of patients in the facility. The conditions, in our view, will add to the protections required for patients in the Respondent's care.

Costs

1. The Tribunal has a broad discretion, unfettered, in respect of the awarding of costs: see Quasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].
2. The usual outcome is that costs follow the event.
3. In the current matter there are no factors denying the Commission its costs and, accordingly, an order will be made that the Respondent should pay the costs of the Commission as agreed or assessed.

Conclusion 1. The Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW). 2. The Respondent is guilty of professional misconduct within the meaning of under s 139E of the Health Practitioner Regulation National Law (NSW).

Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration is suspended for a period of six months. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW) an application for review of Order (1) under Division 8 of the Health Practitioner Regulation National Law (NSW) may not be made until the expiry of a period of six months from the date of this decision. 3. There is imposed on the Respondent's registration as a nurse practitioner the following conditions: Education (a) Provide evidence to the Nursing and Midwifery Council within 3 months after the expiry of the suspension period, that the practitioner has enrolled in the education course "Medications: How we do it better" provided by the New South Wales Nursing and Midwives' Association. (b) Provide evidence to the Nursing and Midwifery Council within 6 months after the expiry of the suspension period that the practitioner has successfully completed the education course described in (a). (c) If the course described in (a) is unavailable, they must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why they are making this proposal, by no later than 3 months after the expiry of the suspension period. Health care & treatment (a) The practitioner is to attend for treatment by a general practitioner of her choice within 3 months after the expiry of the suspension period. Thereafter the frequency of attendance is to be determined by the treating general practitioner. The practitioner: i. is to authorise the treating practitioner to inform the Nursing and Midwifery Council of any of the following: • Failure to attend for treatment; • Termination of treatment; • A significant change in health status (including a significant temporary change). ii. Must provide the Council with the professional details of the treating general practitioner. Supervision (a) To practise 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, i. to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. ii. to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. iii. to authorise the Council to provide nominated and approved supervisors with a copy of relevant decisions. (b) Not to practise until a supervisor has been approved by the Nursing and Midwifery Council of NSW; (c) The administration or dispensing and recording of drugs or medications to patients must in all instances be counter-signed by another nursing practitioner employed by the practitioner's employer at the relevant time. Employment (a) The practitioner is prohibited from undertaking agency nursing. (b) The practitioner is required to provide a copy of the reasons for decision in this matter, and a copy of these orders, to all current and future employers. 1. The Respondent shall pay the Commission's costs under Clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2023