On 13 January 2021 the Tribunal published its findings in relation to the application by the Health Care Complaints Commission (the HCCC) for orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Seamus McArthur, a Registered Nurse: Health Care Complaints Commission v Youssef; Health Care Complaints Commission v McArthur [2021] NSWCATOD 2. These reasons for decision should be read with the decision in Stage 1 of these proceedings.
The application to the Tribunal was heard together with a complaint against RN Nelley Youssef. The complaints against each practitioner were brought in relation to their conduct on 9 February 2017, when they were rostered to work on the respiratory and infectious diseases ward at Prince of Wales Hospital, Randwick NSW (the Hospital).
The background to the complaints was summarised in the earlier reasons:
[4] Patient A was an 80 year old man who had been admitted to Ward DB4 the afternoon before after spending several days in the Intensive Care Unit (ICU) for hypotension with a background of infective exacerbation of chronic obstructive pulmonary disease (COPD). Patient A had an established laryngectomy stoma following surgery for laryngeal cancer in 2002. Patient A had a total laryngectomy, which meant that his larynx had been surgically removed and a permanent neck stoma created. That stoma was his sole airway.
[5] Patient A sought RN McArthur's assistance in preparing for a shower. RN McArthur at that time, with the consent of Patient A, applied a Mepilex occlusive dressing that covered the whole of Patient A's stoma. Prior to applying the dressing, RN McArthur checked with RN Youssef to see if the application of the dressing would be appropriate, which course of action RN Youssef agreed to. RN McArthur then left Patient A to shower.
[6] Some time later RN Youssef entered the bathroom and observed that Patient A was non-responsive. Attempts were made to resuscitate Patient A which were unsuccessful.
[7] NSW Police attended, and an autopsy report was prepared for the Coroner and witness statements were taken from a number of Hospital staff. The autopsy report concluded that the disease or condition directly leading to death was "occlusion of the external airway in the context of a permanent tracheostomy after the treatment of laryngeal carcinoma". The Tribunal was informed at the hearing that the matter is still being considered by the Coroner; there are no pending criminal proceedings.
Complaint One against RN McArthur was that he was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, in that he inappropriately applied a Mepilex occlusive dressing to cover Patient A's laryngeal stoma before he commenced his shower, and demonstrated a lack of knowledge of the underlying anatomy and clinical history of Patient A and a lack of knowledge that the laryngectomy stoma was Patient A's sole airway. Complaint Two was that he was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice of nursing in providing false and misleading information in a statement provided to NSW Police and in a letter sent by his representative to the HCCC, relating to the timing between when the dressing was applied to cover Patient A's stoma and when he left Patient A in the shower, and what he observed of Patient A and their interactions in that period of time. Complaint Three was that he was guilty of professional misconduct, relying on the particulars of Complaints One and Two.
RN McArthur admitted the three particulars of Complaint One. The Tribunal found that he was guilty of unsatisfactory professional conduct as alleged in Complaint One. The Tribunal recorded some misgivings as to the accuracy of details in some of the information provided by RN McArthur, however was not satisfied that the evidence supported a finding that he provided information knowing it was false or with an intention to mislead. The Tribunal did not find Complaint Two established, and did not find that he was guilty of professional misconduct as alleged in Complaint Three.
[2]
Issues
The issues for the Tribunal to determine are:
1. whether and if so in what manner the Tribunal should exercise its disciplinary powers under Part 8, Division 3, Subdivision 6 of the National Law; and
2. who will bear the costs of the proceedings.
[3]
Applicable legislation and principles
RN McArthur admitted the particulars of Complaint One, and the Tribunal found that he was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law. The Tribunal may, under s 149A(1) of the National Law:
149A General powers to caution, reprimand, counsel etc [NSW]
(1) …
(a) caution or reprimand the practitioner;
(b) impose the conditions it considers appropriate on the practitioner's registration;
(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);
(d) order the practitioner to complete an educational course specified by the Tribunal;
(e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal;
(f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
…
The power to make any of these orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held:
[20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:
1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.
2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.
3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
[21] The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(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. The protection of the health and safety of the public must be the paramount consideration: s 3A.
In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said:
[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
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".
[4]
The hearing
The evidence on which RN McArthur relied in the Stage 1 hearing included a statement dated 29 June 2020, character references, and documents relating to his continuing professional development. RN McArthur provided further documents for the Stage 2 hearing to update his continuing professional development. RN McArthur gave oral evidence in the Stage 1 hearing, and in the Stage 2 hearing on 18 May 2021.
RN McArthur was registered as a Registered Nurse in March 2015 and had been working as a casual employee at the Hospital since mid-2016. At the time of the Stage 1 hearing RN McArthur was employed on a casual basis as an RN in the Emergency Department (ED) at Gosford Hospital, and had been studying since March 2018 a Bachelor of Science with a major in Biology. In oral evidence on 18 May 2021, RN McArthur stated that he has continued to work at Gosford, still on a casual basis. He has chosen to work on a casual basis, and the work is quite stable. He works 3 to 5 shifts a week, of up to 12 hours. He has had some shifts where he is in charge in specific areas in emergency as a Clinical Resource Nurse supervising other staff. He has completed the degree and has used the knowledge gained in his nursing work, for example, in informing other staff about issues such as antibiotic resistance. He sees himself continuing to nurse in future, remaining in the ED, and writing best practice articles. It was important to get the degree and broaden his knowledge.
RN McArthur said that in reflecting on what occurred with Patient A, he has tried hard to get back to work. His work in the ED gives him a range of skills and it helps to have supportive staff. It was a horrible mistake that was made, and it has been hard for the patient's family and for RN Youssef, and he does not want anything like that to happen again. It has guided him to be a better nurse, to check with his managers, and to broaden his knowledge. He has informed the Nurse Unit Manager (NUM) and the Executive team of the issues.
In response to a question about the Tribunal not accepting his evidence that Patient A had been able to speak "in full sentences", RN McArthur said that he had not attempted to mislead the Tribunal, and had tried to be honest. He had reflected on all the findings, including the finding about the presence of the sign above Patient A's bed. He would now check about different types of stomas, and check with his managers and with hospital policies.
[5]
Submissions
The HCCC submitted that a reprimand is the appropriate protective order to be made. It had initially submitted that a period of indirect supervision would also be appropriate, however its position at the hearing was that a reprimand would be consistent with what is reasonably necessary for the protection of the public.
The HCCC submitted that it is to RN McArthur's credit that he admitted the particulars of Complaint One, and that he approached RN Youssef for advice when asked to assist Patient A to shower. It is also relevant that there was a sign above Patient A's bed warning that the stoma was his sole airway; however the HCCC accepted that RN McArthur had not been attempting to mislead in his evidence in the Stage 1 hearing. The HCCC submitted that in circumstances where RN McArthur has continued to practise unsupervised, there have been no complaints or disciplinary issues since the incident in 2017, and he is a valued member of the ED team at Gosford, a period of supervision is not necessary.
RN McArthur accepted that a reprimand was appropriate.
RN McArthur submitted that he has shown contrition for his action in applying the dressing to Patient A's stoma at the time of the incident, and that contrition has continued. He has been truthful regarding his involvement in the matter. He submits he does not pose a risk of further misconduct. His actions in February 2017 have been for the most part of four years at the forefront of his mind, and he has learnt a timely lesson so early in his career, and taken steps to improve his skills in the profession since the incident. RN McArthur submitted that he has shown commitment to the profession by improving his knowledge and in his determination not to make a similar mistake in future. His references confirm that he is conscientious in his professional practice and not afraid to ask if he is unsure of what he is about to do.
[6]
Discussion and findings on protective orders
It is to RN McArthur's credit that he admitted the particulars of Complaint One, and that he approached RN Youssef, a more senior colleague, for advice before applying the dressing to cover Patient A's stoma in February 2017. The Tribunal also finds that it is to RN McArthur's credit that he has remained in the nursing profession, and that he has continued his professional development in order to improve his knowledge and skills, and is contributing to the knowledge of colleagues.
In his statement of 29 June 2020, RN McArthur provided details of steps he has taken to improve his knowledge of laryngectomies and tracheostomies, including identifying relevant policies from other hospitals and undertaking an online course, and he stated that he believed he knows much more about the care of patients who have undergone such procedures and can ensure he will not make such a mistake again. He stated that he will make sure that those more junior to him that he works with will understand the anatomy involved and the care required.
The character references from RN Azuza Hamano, Dr Morgan Schulze and Dr Victoria Venning, provided in June 2020, were provided by individuals who have worked with RN McArthur, and who are aware of the complaint against him. All attest to his competence, and that he is hard working, safe and compassionate. While prepared before the Stage 1 findings of the Tribunal were published, all state that the opinion expressed about RN McArthur would not change if the particulars of the complaint were proven. RN McArthur has provided more recent professional development and appraisal documents, including a statement by the Acting NUM in the ED dated 14 May 2021 that RN McArthur is a competent and professional casual nurse in the ED, who works within his scope of practice and asks for help and guidance when required.
In his statement of 29 June 2020, RN McArthur apologised unreservedly for any disrepute that the mistake he made in February 2017 may have caused the profession or the public at large, and that he is sincerely sorry for what happened, and will not be so misguided in the future.
Having considered the evidence as to the steps taken by RN McArthur to improve his knowledge and skills, his continued work in the profession without complaint or disciplinary issues since 2017, the confirmation by his current manager of his competency, and his remorse and reflection on what happened in February 2017, the Tribunal accepts that RN McArthur is a safe and competent practitioner, and does not pose a risk of further misconduct being repeated.
In considering what the appropriate protective order is, the Tribunal notes the discussion of the difference between a caution and a reprimand under s 149A(1)(a) of the National Law in Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156, referring to the decision of Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738:
[42] … In that decision the Tribunal explained at [14]:
"Counsel is correct in saying that there is little guidance available. The ordinary meaning of [t]he 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 trivialize 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.'"
The Tribunal is satisfied that it is appropriate to reprimand RN McArthur pursuant to ss 149(a) and 149A(1)(a) of the National Law. A reprimand of a health practitioner is a serious matter. The reprimand will appear on the National Register maintained by the Australian Health Practitioner Regulation Agency, and it is a public record that the respondent's conduct has fallen below the standard expected of such a professional. It sends a message of deterrence to other practitioners and upholds the reputation of the profession. The Tribunal is satisfied that in the circumstances of this case a reprimand will serve the public interests in maintaining proper ethical and professional standards in the profession and public confidence in those high standards, and provide an element of deterrence both for RN McArthur and for other health professionals. As confirmed by the HCCC, a reprimand can only be removed from the National Register on application by the respondent to the Nursing and Midwifery Council of New South Wales.
[7]
Costs
The HCCC seeks an order for costs under cl 13 of Sch 5D to the National Law, submitting that an order for 50% of the costs of the proceedings attributable to RN McArthur would be appropriate. While Complaints Two and Three were not established, and even though RN McArthur admitted the particulars of Complaint One, the proceedings were taken and a finding of unsatisfactory professional conduct made.
RN McArthur accepts that an order that he pay 50% of the HCCC's costs attributable to the proceedings against him is appropriate, given that Complaints Two and Three were not proven.
The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282:
[85] In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)
The Tribunal agrees that an order that RN McArthur pay 50% of the HCCC's costs of the proceedings against him should be made.
[8]
Orders
The Tribunal orders:
1. The respondent is reprimanded;
2. The respondent is to pay 50% of the Health Care Complaints Commission's costs of the proceedings against him, as agreed or assessed.
[9]
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: 21 June 2021