Health Care Complaints Commission v McLean

Complaint One

1. The first complaint is that the respondent is guilty of unsatisfactory professional conduct under s 139B of the National Law in that he engaged in conduct that demonstrated the knowledge, skill or judgment possessed, or care exercised, by the respondent in the practice of nursing was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. The particulars of Complaint One are, in summary, that: 1. On 23 October 2014, the respondent: 1. inappropriately administered one Risperidone tablet to each of Patients B, C and D from Patient A's Webster pack (particulars (1), (2) and (3)); 2. failed to document the administration of Risperidone to Patients B, C and D (particular (4); 3. failed to discuss his concerns about the medication regime of Patients B, C or D at MVH with a medical officer and failed to obtain a written order prior to administering Risperidone (particular (5); 1. On 24 October 2014, the respondent: 1. inappropriately removed three Risperidone tablets from Patient A's Wester pack and placed them in Patient B's medication pouch to be administered to Patient B (particular (7); 2. inappropriately pre-prepared, on 11 occasions, medication pouches for administration to residents not in accordance with MVH Guidelines (particular (8); 3. failed to discuss his concerns about the medication regime of residents at MVH with a medical officer and obtain a written order prior to administering Risperidone in the manner described above (particular (9); 1. In the period 1 April 2014 to 24 October 2014, the respondent 1. inappropriately removed Risperidone tablets from a number of resident's Webster packs and administered the medication, approximately twice a week, over a period of a couple of months, to each of Patients B, C and D (particular (11); 2. failed to discuss his concerns about the medication regime of residents at MVH with a medical officer/s, senior nursing colleague or the patients prior to administering Risperidone to Patients B, C and D in the manner described above (particular (12).
3. The Commission alleges that by administering Risperidone in the manner described above in relation to each particular the respondent acted contrary to the: 1. NSW Health Department (File No 03/6937) Guide to Handling Medication in Nursing Homes in NSW; 2. Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia; 3. Nursing and Midwifery Board of Australia Code of Ethics for Nurses in Australia; 4. National Competency Standards for the Enrolled Nurse (particulars (6), (10) and (13)).

Complaint Two

1. The second complaint is that the respondent is guilty of professional misconduct under s 139E of the National Law in that he: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; 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 suspension or cancellation of his registration.
2. The Commission repeats, both individually and cumulatively, the particulars for Complaints One as the particulars for Complaint Two.

Evidence before the Tribunal

1. Two volumes of materials, numbering 50 documents, were filed by the Commission. These documents include, but are not limited to: evidentiary certificates provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Council; statements of five witnesses; documents described as the "McLeay Valley House Investigation"; the medication sheets and a copy of the Webster packs for a number of patients under the care of the respondent at the relevant time; correspondence between the Commission and the respondent; Health Department guidelines and policies, and patient records in the expert reports of Ms Tracey Jubb dated 29 June 2015 and 16 July 2015.
2. No documents were filed by the respondent pursuant to direction of the Tribunal, or otherwise.
3. The only oral evidence at the hearing was given by the respondent, who attended by telephone. He was sworn and gave a short statement and presented brief submissions. The respondent: 1. Said words to the effect of "I can't deny any of it. At the time they were not given, they were thrown away. I've paid dearly for it already". 2. Stated that he received $640 per fortnight in unemployment benefits, of which $400 was paid in rent. 3. Indicated that he had a one month old baby and was struggling financially. 4. Did not admit that the Risperidone was given all the time. He said that the facility was a dementia specific facility with a medication room around the corner.
4. The respondent was cross-examined by Mr Maybury.
5. In relation to the events of 23 October 2014, the respondent: 1. Agreed that he took Risperidone from Patient A's Webster pack. 2. Agreed that he did not intend to give the Risperidone to Patient A. 3. Did not recall whether he administered the Risperidone to other patients or not. 4. Took the Risperidone with intention to give it to other patients he felt the need to do so. 5. Agreed that Patients C and D were charted for Risperidone "as needed". 6. Agreed that Patient B was not charted for Risperidone "as needed" and that there was no occasion for Patient B to be administered Risperidone. 7. Accepted that he undertook no consultations in relation to the administration of Risperidone and stated that he "should have but didn't". 8. Agreed that on the occasions he administered Risperidone from Patient A's Webster pack to Patients C and D he did not record the administration. 9. Agreed that the conduct of taking medication from Patient A with intention of giving it to others took place in the six-month period from April 2014 to 24 October 2014. 10. Agreed that on 23 October he took three tablets from Patient A's Webster pack to give to Patients B, C and D if needed when giving them other medications. 11. Agreed that he made no record of whether he gave the tablets to Patients B, C and D and stated that he had no recollection whether he did or not. 12. When asked whether he had done so on previous occasions over a 6½ month period he said that he was not denying it. 13. Accepted that he gave medication inappropriately on numerous occasions.
6. In relation to particular (1) of Complaint One, the respondent said he did not recall whether he administered Risperidone to Patient B but admitted that paragraphs (a), (b), (c) and (d) of particular (1) were factually correct, that is that: 1. Patient A's Webster pack had been dispensed and labelled by a pharmacist for Patient A; 2. Patient B had not been charted or prescribed this medication by a medical practitioner; 3. there had been no clinical indication for the administration of this medication to Patient B; 4. he acted contrary to cl 58 of the Poisons and Therapeutic Goods Regulation 2008 (PTG Regulation).
7. In relation to particular (2) of Complaint One, the respondent stated that the particular was correct. When asked whether in fact he administered the Risperidone tablet he stated that he may possibly have given the Risperidone to Patient C, and agreed that it was "more likely than not".
8. In relation to particular (3) of Complaint One, the respondent agreed that the particular was correct and stated that it was "more likely than not" that he gave the Risperidone to Patient D.
9. He agreed that it was the case that for each of Patients C and D it was the case that more often than not that he administered to them the Risperidone as alleged. He accepted that he made no record of this administration, had agreed that no record was made because there was no justification for giving the Risperidone. He said that he should have made a record but he did not.
10. In relation to Patients C and D, when the Risperidone could be administered as needed, the respondent stated that he did not record the giving of the drug because it was "just a routine I got into".
11. The respondent agreed that he was giving somebody else's drugs to a patient. The respondent was asked directly why he took the drugs from Patient A. He said he could not explain, that "they were there", and asked the cross examiner "what you want me to say?" He agreed that he did not seek advice or guidance from a medical officer in relation to the administration of the drugs as alleged.
12. In relation to particular (7) of Complaint One, which related to the events of 24 October 2014, the respondent accepted that he took three Risperidone tablets from Patient A. He denied that he placed the tablets into Patient B's medication pouch as alleged in particular (7), and stated that he placed one into each of Patients B, C and D's medication pouches. Counsel put to him that this was inconsistent with the statement of Ms Wilma Sims of 23 March 2015. Ms Sims is the Director of Nursing at MVH. He denied that he told her that he placed the three tablets in Patient B's pouch, as he was not given a chance to complete his sentence, and had been told to leave immediately when questioned on 24 October 2014.
13. The respondent accepted that in acting as alleged on 24 October 2014, he was not acting in accordance with MVH protocols, made no assessment of the patient, did not administer the medication from the appropriate container, did not check the relevant medication charts and took it upon himself to dispense medication against policy and good clinical and medical practice. When asked why he acted in this way, and whether it was easier to have less disruptive patients, the respondent said that there were some residents with an ability to reason, but others did not.
14. In relation to the period of April 2014 to 24 October 2014, the respondent said it was his usual practice to act in this manner and gave Patient A's medications to each of Patients B, C and D on a number of occasions. He agreed that he made no record of this and further agreed that he was aware that Patient B had not been prescribed Risperidone. He agreed that he had not sought to get approval from the medical officer, and further agreed that he thought such medication may help Patient B. Counsel put to the respondent that such actions might help the respondent in caring for Patient A and make work easier for him. The respondent said that this was not correct, but agreed that he should have referred Patient B to a doctor.
15. The respondent accepted that his conduct was totally inappropriate nursing practice. He agreed that it was potentially unsafe. He agreed that this medication was not prescribed nor recorded, and therefore was dangerous. He agreed that it was particularly dangerous in circumstances where the patient did not have their "full wits" about them and could not communicate. He agreed that accurate records were critically important in a hospital, that he knew it then and knew it at the time of the hearing. He agreed that he knew it was wrong and therefore he has not denied his conduct.
16. In further cross examination, the respondent said that he had not sought work in the healthcare profession since his dismissal on 24 October 2014. When his registration came up for renewal in 2015 he did not renew it because he had insufficient funds. Nor had he continued with his continuing professional development, he had been too busy trying to find employment. He explained he had applied for over 300 jobs. However, it was his intention to reregister in the future as he wanted to "redeem" himself.
17. He said that his behaviour was unacceptable and that he made a stupid decision. He did not know what to say to explain why he did it.

Relevant principles

1. In making its findings of fact, the relevant principles are to be applied by the Tribunal: 1. The Tribunal is not bound by the rules of evidence: see Sch 5D of cl 2 of the National Law and s 38(2) of the Civil and Administrative Tribunal Act 2013. 2. While the Tribunal may inform itself in any way "it thinks fit", it should base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined: Sudath v HCCC [2012] NSWCA 171 at [75]. See too Smith v the Nursing and Midwifery Board of Australia [2013] NSWNMT 10 NSW at [18] and [19]. 3. The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw (1983) 6 CLR 336 and other authorities including Forster v Hunter New England Area Health Service [2010] NSWCA 106). Also see the discussion of the authorities in Health Care Complaints Commission v Smith [2015] NSWCATOD 85 at [131] to [134].

Findings

1. Based on the filed materials, and the admissions made by the respondent, the Tribunal makes the following relevant findings of fact. In summary, the Tribunal accepts the Commission's submission that based on the evidence: 1. An audit of PRN medication conducted on 23 October 2014 by RN Sims and RN Rae showed significant discrepancies. There were a number of Risperidone tablets, in the order of 195, missing from numerous resident's Webster packs that were unaccounted for in the medication charts or Leecare system. 2. A further audit was conducted by RN Sims and RN Rae on 24 October 2014, after the Respondent had worked an evening shift the day before, and before he started his shift that day. This showed further Risperidone tablets were unaccounted for. 3. On 24 October 2014, RN Rae viewed CCTV footage of the medication room in real time whilst the respondent was inside preparing medications. RN Rae then made a time stamped chronology with a description of what she saw by reviewing the recording of that episode. This included the Respondent preparing the medication trolley without checking the medication charts or assessing the residents. 4. Immediately after viewing the real time CCTV, RN Rae advised RN Sims what she had seen. They then examined the medication room and found three Risperidone tablets missing from one of the patient's Webster packs. 5. RN Sims then brought the Respondent to the medication room and told him that some Risperidone tablets were missing from a patient's Webster pack. When asked to explain, the Respondent advised they were in Patient B's pouch. When advised by RN Sims that he was suspected of administering Risperidone without clinical indication and without orders or recording them, the Respondent did not deny those allegations but simply apologised. 6. On 29 October 2014 RN Sims and Ms Deborah Jennings, Human Resources Manager, interviewed the Respondent. During that interview the Respondent: 1. Admitted that he had taken 3 Risperidone tablets from Patient A's pack and gave them to Patient B, Patient C and Patient D; 2. Admitted that he did not complete the required documentation; 3. Had previously given uncharted or not prescribed Risperidone to those same 3 residents about 2 times per week over a period of a couple of months; 4. Admitted that he did not document any of that conduct.
2. In particular, the Tribunal finds that: 1. On 28 May 1998, the respondent was registered as an enrolled nurse by the Nurses' Registration Board of NSW (the Board). 2. On 10 November 2003, the respondent was endorsed to administer medication by the Board. 3. Prior to the transition to national registration 1 July 2010, the records held by the Nurses and Midwives Board of NSW indicate, effectively, that the respondent was registered as an enrolled nurse from 28 May 1998 to 1 July 2010. He had had no conditions placed on his registration. 4. At the time of the hearing, the respondent was unregistered. 5. On 23 October 2014, registered nurse C Gavin informed the Director of Nursing at MVH, Ms Sims, that she thought some medications were missing from PRN medication packs. At 11 AM DON Sims conducted an audit in the Wattle Unit, which revealed that several PRN medication packs had Risperidone tablets that were missing and unaccounted for on the corresponding residents appear in medication chart. This included some nine residents, including Patients A, C and D. 6. On 24 October 2014 at 9 AM DON Sims conducted another audit of the PRN medications in the Wattle Unit medication room. Since the audit the previous day, four Risperidone tablets have been taken from Patient A's PRN medication pack and no entry had been made on her medication chart to indicate that these medications had been administered. 7. DON Sims directed CNS F Rae to monitor the CCTV in the Wattle Unit medication room and the respondent was observed the following: 1. at 1525 the respondent entered the medication room and began to prepare medications. He removed medication from Webster packs and crush them while in the medication room and placed them in plastic pouches; 2. at 1548 the respondent removed the PRN medication packs from the bottom drawer of the high care Wattle Unit medication trolley; 3. at 1549 he removed several medications from one of the PRN packs on the stack. He placed those tablets into pre-prepared pouches and crush the tablets in pouches that already contained crushed medications, effectively mixing the medications; 4. at 1555 the respondent left the medication room with the medication trolley. 1. At 1558 DON Sims and CNS F Rae went to the medication room of the Wattle Unit to check the PRN packs. They found three Risperidone tablets missing from Patient A's PRN pack. They went to find the respondent. They found him at 16.01 in the main lounge area doing medication rounds. He was asked to return to the medication room with the medication trolley where a conversation took place. DON Sims asked the respondent to explain where the three Risperidone tablets that he took from Patient A's PRN pack were. The respondent indicated that they had been placed in Patient B's medication pack. 2. Patient B had not been prescribed Risperidone. 3. DON Sims and CNS Rae found Patient B's crushed medication pouch on the trolley. DON Sims advised the respondent that he had committed a serious breach of care and of the medication policy. DON Sims informed the respondent that he had been stood down, effective immediately, pending investigation. He was instructed to leave. The respondent handed his keys to DON Sims and said that he was sorry. 4. A compulsory disciplinary interview was held on 29 October 2014. The meeting was attended by the respondent, DON Sims and Ms Deborah Jennings, the Human Resources Manager. During the conversation the respondent said that on 23 October 2014 he dispensed three Risperidone tablets from Patient A's PRN pack and gave one tablet of Risperidone to each of Patient B, Patient C and Patient D. He said that he did not complete the required documentation as per the Thompson Health Care policy and procedures. He was asked whether or not he ever gave uncharted or not prescribed Risperidone at any other time to one or other of Patients B, C and D, or any other resident. The respondent stated that he took Risperidone from other residents' PRN medication packs and gave it to each of Patients B, C and D if they were unsettled, about two times a week, over a period of a couple of months. The respondent stated that none of this administration of Risperidone was documented. 5. On 31 October 2014 the respondent's employment was terminated. In a letter dated that day, Ms Jennings stated: Management Has Considered Your Responses and Has Concluded That Your Conduct Was Unprofessional and Totally Unacceptable. As an endorsed Enrolled Nurse you are not authorised to administer an-(?) prescribe medications and you are required to follow the Thompson Health Care Medication Management: administration procedures when administering medications. Your actions in dispensing and administering the Risperidone medication without appropriate documentation, clinical indication or in [Patient B's] case, without a prescription was unlawful and totally incomprehensible. You have unnecessarily jeopardise the health and safety of residents in your care. Having considered your responses during the interview and the seriousness of these issues management has ultimately lost the necessary trust and confidence in your suitability to remain in employee of this facility. Consequently, the decision has been made to terminate your employment effective immediately on the grounds of serious misconduct 1. On 8 April 2015 the Commission sent the respondent a Notice to Give Information under s 34A(1)(a) of the Health Care Complaints Act 1993. The respondent in an undated letter, appearing behind tab 39 of the Commission's documents. His letter commences by stating: It has been more than six months since I was dismissed by Thomson Health Care. . . . I remain unemployed + on Newstart allowance + am finding day-to-day living extremely difficult. I apologised to Wilma Sims and Thompson Health Care in my dismissal meeting with them. Was never my intention to cause harm to any resident, only to ensure safety to my colleagues. I know that what I did was wrong + unprofessional + I sincerely regret my conduct.
3. The letter then responds to the questions asked by Commission. The relevant questions asked, and the responses given, were as follows: 1. Why did you administer Risperidone to residents at MVH without authority? I was concerned for the safety of my colleagues. A few of the residents could be quite aggressive when being attended. 2. In addition to [Patients B, C and D], did you administer Risperidone to any other patients without authority? No. 3. Describe how [you] prepared Risperidone for administration to the residents you have identified in question two above. It was crushed within the regular medications 4. In respect of each resident listed in question two above please provide the following information: (a) the time period during which you administered Risperidone to its resident I had been doing it on and off for a couple of months (b) the dosage given (if you are unable to remember this detail please state the average dosage given to the best of your recollection) It was only one Risperidone now and then. 5. Where did you obtain the Risperidone administered to residents without authority? From other residents packs 6. Footage shows that whilst you are in the CCTV Wattle Unit Medication room between 15:46 hours and 15:54 hours on 24 October 2014, you remove tablets from residents Webster packs on about 11 occasions, crush them in plastic pouches and wrote something on the pouches . . . (a) Please explain your conduct in this regard. Because it was too disruptive to the daily "sundowner sessions" which occurred prior to evening meals. Was this your usual practice when preparing and dispensing residents medications? For residents attending "sundowners" - yes.

Relevant Law

1. It is appropriate to set out the relevant provisions of the National Law. These are as follows.
2. 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 . . . (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 . . . (3) The guiding principles of the national registration and accreditation scheme are as follows - . . . (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.
3. Section 3A of the National Law, which is an additional provision for NSW, relevantly provides: 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.
4. Section 139B of the National Law (which is 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.
5. Section 139E of the National Law (which is an additional provision for NSW), which 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.

Complaint One

1. The Commission alleges that the respondent is guilty of unsatisfactory professional conduct in relation to the respondent's conduct on 23 October 2014, 24 October 2014 and the in the period 1 April 2014 to 24 October 2014. The respondent's conduct on 23 October 2014: Particular (1)
2. Particular (1) relates to the provision of Risperidone to Patient B by the respondent. It is not in dispute that Patient B had not been prescribed, or had charted, this medication.. This is a contravention of reg 58 of the PTG Regulation, which only permits someone in the position of the Respondent to dispense restricted substances as prescribed by an authorised medical practitioner. The Tribunal notes that Risperidone is a Schedule 4 substance and requires a prescription: see the expert report of Ms Jubb of 29 June 2015.
3. The Tribunal notes that: 1. The conduct the subject of particular (1) has been admitted by the respondent. 2. Ms Jubb states that this conduct fell significantly below that expected of a practitioner in the position of the respondent, and that she is strongly critical of this conduct.
4. In the circumstances, the Tribunal finds particular (1) of Complaint One proven. The respondent's conduct on 23 October 2014: Particulars (2) and (3)
5. These particulars relate to administration of Risperidone to Patients C and D. This conduct has been admitted by the Respondent.
6. On the basis that this particular relates to one day only, Ms Jubb considered it fell below the standard expected but not significantly below. Therefore, this particular of itself would not amount to unsatisfactory professional conduct.
7. The Tribunal agrees with this conclusion. The Tribunal finds that this conduct, being the unwarranted administration to two patients on the one day, does not fall significantly below the standard required of an endorsed enrolled nurse of the respondents training and experience. Accordingly, the Tribunal notes that, while the conduct has been admitted, finds that particulars (2) and (3) are not proven. The respondent's conduct on 23 October 2014: Particular (4)
8. This conduct, the failure to document the administration of Risperidone on 23 October 2014 to Patients B, C and D, has been admitted. On the basis that this particular relates to one day only, Ms Jubb considered it fell below the standard expected but not significantly below. Therefore, this particular of itself would not amount to unsatisfactory professional conduct.
9. The Tribunal disagrees with this conclusion. The Tribunal finds that this conduct, namely the failure to document and to record the administration of Risperidone to three patients on the one day, does fall significantly below the standard required of an endorsed enrolled nurse of the respondents training and experience. The Tribunal notes that the conduct has been admitted, and finds that particular (4) proven. The respondent's conduct on 23 October 2014: Particular (5)
10. There is no doubt that the conduct, being the failure to consult a medical practitioner and obtain authorisation to administer Risperidone, occurred. As 1. The conduct the subject of particular (5) has been admitted by the respondent. 2. Ms Jubb states that this conduct fell significantly below that expected of a practitioner in the position of the respondent, and that she is strongly critical of this conduct. The Tribunal finds particular (5) of Complaint One proven. The respondent's conduct on 23 October 2014: Particular (6)
11. Ms Jubb confirms that the Respondent's conduct on 23 October 2014 was in breach of the NSW Health Department Guide to Handling Medication in Nursing Homes in NSW and the Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia.
12. As Ms Jubb points out, in breaching the Code of Professional Conduct, the Respondent acted unsafely and outside the law. He also did not respect his patients' dignity and broke their trust. Ms Jubb states this conduct fell significantly below that expected of a practitioner in the position of the Respondent. She is also strongly critical of this conduct.
13. The Tribunal accepts that this conduct amounts to unsatisfactory professional conduct, and finds that particular (6) proven. The respondent's conduct on 24 October 2014: Particular (7)
14. The one serious matter that appears to be an factual dispute between the parties was whether, on 24 October 2014, the respondent removed three Risperidone tablets from Patient A's PRN medication pack and placed them in Patient B's medication pouch to be administered to Patient B (as alleged by the Commission in particular (7) to Complaint One), or whether one tablet was placed in each of the PRN medication packs of each of Patients B, C and D, as claimed by the respondent at the hearing.
15. The Tribunal accepts the Commission's submission on this matter and finds that particular (7) as alleged to be proven. The Tribunal has reached this view on the basis of: 1. The evidence of Ms Sims that the respondent told her on 24 October 2014 that he had done so (see the statement of Ms Sims of 23 March 2015); 2. The evidence of Ms Jennings that the respondent agreed at a meeting held on 29 October 2015 in the presence of Ms Sims and herself that he had said so (see the statement of Ms Jennings of 1 July 2015); 3. The contemporaneous notes of the meeting of 29 October 2015 prepared by Ms Jennings.
16. The Commission submits that Patient B was not prescribed Risperidone, and that this was also a breach of reg 58 of the PTG Regulation. No clinical indication was recorded or has been given. The dosage would be considered an overdose.. Ms Jubb states this conduct fell significantly below that expected of a practitioner in the position of the Respondent. She is also strongly critical of this conduct.
17. The Tribunal finds this conduct amounts to unsatisfactory professional conduct, and finds that particular (7) proven. The respondent's conduct on 24 October 2014: Particular (8)
18. Particular (8) concerns the inappropriate pre-preparation, on 11 occasions, of medication pouches for administration to patients, which pre-preparation was not in accordance with MVH guidelines. The Tribunal accepts the Commission's submission that there is no doubt that this conduct occurred, as described by RN Rae. RN Rae confirms this pre-preparation of medications was in breach of the protocols at MVH, and the respondent admitted the conduct.
19. In acting in this manner, Ms Jubb considered the Respondent's conduct fell significantly below that expected of a practitioner in the position of the Respondent. She is also strongly critical of this conduct. The Tribunal agrees, and finds particular (8) proven. The respondent's conduct on 24 October 2014: Particular (9)
20. This particular relates to the failure of the respondent to discuss his concerns about the medication regime of patients with a medical officer and to obtain a written order prior to administering Risperidone. Again, the Tribunal accepts the Commission's submission that there is no doubt that the conduct occurred. Ms Jubb accepted that, in failing to do so, the respondent acted significantly below the standard expected of someone in his position. She was strongly critical of that failure. The Tribunal agrees, and finds that this conduct amounts to unsatisfactory professional conduct, and finds particular (9) proven. The respondent's conduct on 24 October 2014: Particular (10)
21. Ms Jubb confirms that the Respondent's conduct on 24 October 2014 was in breach of the NSW Health Department Guide to Handling Medication in Nursing Homes in NSW and the Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia. The Tribunal is satisfied that the conduct also breaches the Board's Code of Ethics for Nurses in Australia and its National Competency Standards for the Enrolled Nurse.
22. As Ms Jubb points out, in breaching the Code of Professional Conduct, the Respondent acted unsafely and outside the law. He did not respect his patients' dignity and broke their trust. Ms Jubb states this conduct fell significantly below that expected of a practitioner in the position of the Respondent. She is also strongly critical of this conduct.
23. The Tribunal accepts that this conduct amounts to unsatisfactory professional conduct, and finds that particular (10) proven. The respondent's conduct in the period 1 April 2014 to 24 October 2014: Particular (11) to (12)
24. As noted by, the respondent admitted that he removed Risperidone tablets intended for Patient A and administered them to each of Patients B, C and D, two times a week for "a couple of months". The Commission submits that this may have been an understatement, given that some 195 Risperidone tablets remain unaccounted for on audit. The Commission submits, and the Tribunal accepts, that even on the conduct admitted, this is unsatisfactory professional conduct. The Tribunal accepts that this conduct amounts to unsatisfactory professional conduct, and finds particulars (11) to (12) proven. The respondent's conduct in the period 1 April 2014 to 24 October 2014: Particular (13)
25. Ms Jubb confirms that the Respondent's conduct in the period 1 April 2014 to 24 October 2014: was in breach of professional conduct codes including the the Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia. The Tribunal is satisfied therefore that the conduct also breaches the NSW Health Department Guide to Handling Medication in Nursing Homes in NSW, the NSW Board's Code of Ethics for Nurses in Australia and its National Competency Standards for the Enrolled Nurse.
26. As Ms Jubb points out, the Respondent acted unsafely and outside the law. He did not respect his patients' dignity and failed to inform their families that they were receiving antipsychotic medication. Ms Jubb states this conduct broke the trust inherent in the relationship between the respondent, the residents of MVH and their families. She stated that his conduct was unethical and diminished the community's trust and confidence in the nursing profession. She found that the respondent's conduct fell significantly below that expected of a practitioner in the position of the Respondent. She was also strongly critical of his conduct.
27. The Tribunal accepts that this conduct amounts to unsatisfactory professional conduct, and finds particular (13) proven.

Summary

1. Given the Tribunal's findings of fact above, and the respondent's admissions, the Tribunal is satisfied that, in respect of Complaint One, each of particulars (1) and (4) to (13) established, and that the respondent is guilty of unsatisfactory professional conduct.

Complaint Two

1. The Commission alleges that the respondent is guilty of professional misconduct. Two particulars are given, being the particulars for Complaints One, which are relied on both individually and cumulatively.
2. The Tribunal has noted that above that s 139E sets out the meaning of "professional misconduct" in NSW as: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. 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.
3. The determination of whether conduct amounts to professional misconduct therefore has as its starting point, an objective assessment of the respondent's conduct against the standard reasonably expected of an equivalent practitioner. When coming to a decision about whether conduct is sufficiently serious to justify the sanction of de-registration, circumstances which bear on that objective assessment of the conduct may properly be taken into account: Health Care Complaints Commission v Gow [2013] NSWMT 2 at [67].
4. In making a finding of professional misconduct, the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18].
5. The Commission submits, and the Tribunal accepts, that the respondent's conduct was deliberate and occurred over a period time. Cumulatively it must be considered to be professional misconduct. Accordingly, the Tribunal finds the respondent guilty of professional misconduct in that he has committed more than one instance of unsatisfactory professional conduct (namely the conduct the subject of particulars (1), (4), (5), (7), (8), (9), (11) and (12) of Complaint One), which conduct the Tribunal has found to be contrary to the NSW Health Department Guide to Handling Medication in Nursing Homes in NSW, the Board's Code of Professional Conduct for Nurses in Australia, Code of Ethics for Nurses in Australia and the National Competency Standards for the Enrolled Nurse, which, when the conduct is considered together, amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration.
6. The Tribunal also considers that the conduct of removing three Risperidone tablets from Patient A's Webster PRN pack and placing them in Patient B's medication pouch to be administered to Patient B in circumstances where: 1. Patient B had not been charted or prescribed this medication as there was no authorisation from a medical practitioner to administer this medication. 2. There had been no clinical indication for the administration of this medication to Patient B; 3. The dosage of three 0.5mg Risperidone tablets for Patient B would be considered an overdose and an unsafe amount of the medication, to be unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, amounting to professional misconduct.

Conclusion

1. The Tribunal finds that: 1. Each of particulars (1), (4), (5), (6), (7), (8), (9), (10), (11), (12) and (13) of Complaint One proven, and that the respondent is guilty of unsatisfactory professional conduct. 2. Complaint Two is proven, and that the respondent is guilty of professional misconduct.

Disciplinary Powers

1. Section 149C of the National Law relevantly provides that: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied- (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order") do any one or more of the following- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note : Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.

Relevant principles

1. The relevant principles to be applied include the following: 1. The disciplinary powers of the Tribunal are set out in s 149 of the National Law. The Tribunal has a range of powers which appear in ss 149A and 149B. 2. The paramount consideration in proceedings such as this is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3 at [31]. 3. The jurisdiction of the Tribunal is protective in nature, and not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. 4. In the exercise of protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the nursing profession, the preservation of public confidence in the nursing profession and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]. 5. The purpose of the proceedings include the need to deter others from engaging in similar conduct: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]: . . . it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.

The Commission's submissions

1. The Commission submits that the principles to be applied in determining the appropriate protective order are not controversial and include: 1. The protection of the public is of paramount consideration; 2. The maintenance of the high standards of the profession; 3. Deterring not only the particular practitioner but others who may stray from the appropriate standards; a reminder to the profession; and 4. To emphasise the unacceptability of the conduct involved. 5. In determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v Health Care Complaints Commission (2002) NSWCA 111 at [55]. 6. In protective jurisdictions the object of protection of the public includes deterring the practitioner from repeating his or her misconduct and deterring others who might be tempted to behave in a similar way: NSW Bar Association v Hamman (1999) NSWCA 404. 7. To ensure that the public, and professional colleagues, can place their confidence in the practitioner, "one element of deterrence is providing an assurance to the public that serious lapses in the conduct of ... practitioners will not be passed over or lightly put aside, but will be appropriately dealt with": Law Society of NSW v Foreman (1994) 34 NSWLR 408; Craig v Medical Board of South Australia [2001] SASC 169.
2. The Commission submits that the Respondent's conduct is a serious breach of the standards that the public have a right to expect of a practitioner. The objective seriousness of the conduct of the Respondent, the fact it was deliberate, the fact that it occurred over a period of time and the absence of any evidence of rehabilitation on the part of the Respondent all militate strongly in favour of an order cancelling the Respondent's registration. As the Respondent is not currently registered, the Commission submits that the Tribunal should make the following orders: 1. That if Mr McLean were still registered, that the Tribunal would have cancelled his registration (s149C(4)(a) National Law); 2. That he be disqualified from being an enrolled nurse for a period of 18 months to 2 years (s149C(4)(b) National Law); 3. That the National Board record the fact that if he were still registered, the Tribunal would have cancelled his registration (s149C(4)(c) National Law); 4. That the Respondent be prohibited, from providing any 'health services' as defined in s 4 of the Health Care Complaints Act 1993 (NSW) until such time as a reinstatement order is made (s149C(5)(a) National Law).

The respondent's submission

1. In essence, the respondent submits that he has suffered enough. He has been unemployed since the time of his termination of his employment, and finding it very difficult to cope financially. He would like to return to the nursing profession.

Consideration

1. The Tribunal accepts the submissions of the Commission. The conduct of the respondent remained unexplained at the hearing. He did not repeat his written submission that he was administering drugs inappropriately to dementia patients because of safety issues for other staff. He was able to offer no explanation as to why he administered the Risperidone as he did. He has admitted to egregious breaches of his duties in the maladministration of the drugs to the three patients over a lengthy period of time.
2. The Tribunal notes that the respondent accepted that in acting as alleged on 24 October 2014, he was not acting in accordance with MVH protocols, made no assessment of the patients, did not administer the medication from the appropriate container, did not check the relevant medication charts and took it upon himself to dispense medication against policy and good clinical and medical practice.
3. In relation to the period of April 2014 to 24 October 2014, the respondent said it was his usual practice to act in this manner and gave Patient A's medications to each of Patients B, C and D on a number of occasions. He agreed that he made no record of this and further agreed that he was aware that Patient B had not been prescribed Risperidone. He agreed that he had not sought to get approval from the medical officer, and further agreed that he thought such medication may help Patient B.
4. The respondent himself accepts that his conduct was totally inappropriate nursing practice. He agreed that it was potentially unsafe. He agreed that the medication he administered was not prescribed nor recorded, and therefore was dangerous. He agreed that it was particularly dangerous in the individual circumstances of the patients suffering dementia. He agreed that accurate records were critically important in a hospital, that he knew it then and knew it at the time the hearing. He agreed that he knew it was wrong and therefore he has not denied his conduct.
5. He said that his behaviour was unacceptable and that he made a stupid decision. He did not know what to say to explain why he did it.
6. The Tribunal considers that, were the respondent still registered, the appropriate course would have been to cancel his registration.

Prohibition Order

1. If the Tribunal either suspends or cancels a practitioner's registration under s 149C(1) or (3) or if the Tribunal makes a disqualification order under s 149C(4) of the National Law, it is then open to the Tribunal to consider imposing a prohibition order. The National Law requires that the Tribunal must be satisfied that a person "poses a substantial risk to the health of members of the public" prior to making a prohibition order under s 149C(5).
2. The Tribunal proposes to make the prohibition order sought. We find that a prohibition order, in conjunction with a period of deregistration, is required given the respondent's conduct, his lack of explanation for it and the length of time the conduct had occurred. Given the significant risk posed by the respondent's conduct we are satisfied that a prohibition order should be made.

Costs

1. The Commission seeks its costs. This is a costs jurisdiction, and costs normally follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75 at [40].
2. The Tribunal proposes therefore to make an order that the respondent pay costs, as agreed or assessed. The respondent has leave to file submissions if he seeks some other order, or that no order as to costs should be made. Such submissions should be made within 14 days after the publication of these reasons. The Commission may reply within a further 14 days if necessary.

Orders

1. The Tribunal orders that 1. The respondent is guilty of unsatisfactory professional conduct. 2. The respondent is guilty of professional misconduct. 3. The respondent is publicly reprimanded. 4. Were the respondent still registered, the Tribunal would have cancelled his registration 5. The respondent may not apply for a review of order 4 for a minimum period of two years from the date of this decision. 6. The respondent not provide health services to the public while not registered as a nurse. 7. The respondent is to pay the Commission's costs.

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ANNEXURE A: AMENDED COMPLAINT The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Brian Patrick McLean ("the practitioner") of Unit 5/2 Ferry Street, EAST KEMPSEY, NSW 2440, being a formerly registered endorsed enrolled nurse under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice of nursing Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE The practitioner obtained his enrolled nursing qualifications in 1997. At all relevant times, the practitioner was an endorsed enrolled nurse providing nursing services at Macleay Valley House ('MVH'), a Thompson Health Care Residential Aged Care Facility in Frederickton, New South Wales. On 1 April 2014, the practitioner commenced work permanently in the Dementia Specific Unit (also known as the 'Wattle Unit'). On 23 October 2014, the Director of Nursing ('the DON') at MVH investigated concerns raised by a registered nurse in relation to missing medications. The DON conducted an audit of the PRN medication packs in the Wattle Unit medication room and found a total of 195 Risperidone tablets missing from nine resident's PRN medication packs. Risperidone is a Schedule 4 anti-psychotic drug. These tablets were unaccounted for on the corresponding resident's PRN medication chart. On 24 October 2014, the DON conducted a further audit of the PRN medication packs in the Wattle Unit medication room and found that four Risperidone tablets had been taken from Patient A's PRN medication pack. No entry had been made on Patient A's PRN medication chart to indicate the medications had been administered. A review of the CCTV monitor of the Wattle Unit medication room was undertaken and the practitioner was seen in the Wattle Unit medication room on 24 October 2014 from approximately 3:36pm to 3:53pm. The practitioner was called for an interview on 29 October 2014 and on 31 October 2014, the practitioner's employment with Thompson Health Care was terminated. PARTICULARS OF COMPLAINT ONE 23 October 2014

1. The practitioner inappropriately administered one Risperidone tablet to Patient B from Patient A's Webster pack in circumstances where: (a) the PRN Webster pack had been dispensed and labelled by a pharmacist for Patient A; (b) Patient B had not been charted or prescribed this medication by a medical practitioner; (c) there had been no clinical indication for the administration of this medication to Patient B; (d) the practitioner acted contrary to clause 58 of the Poisons and Therapeutic Goods Regulation 2008.
2. The practitioner inappropriately administered one Risperidone tablet to Patient C from Patient A's PRN Webster pack in circumstances where the PRN Webster pack had been dispensed and labelled by a pharmacist specifically for Patient A and the practitioner did not document if the administration was clinically indicated as he did not: (a) document his assessment of Patient C's challenging behaviour; (b) sign the PRN order; (c) document the effect of the dose.
3. The practitioner inappropriately administered one Risperidone tablet to Patient D from Patient A's PRN Webster pack in circumstances where the PRN Webster pack had been dispensed and labelled by a pharmacist specifically for Patient A and the practitioner did not document if the administration was clinically indicated as he did not: (a) document his assessment of Patient D's challenging behaviour; (b) sign the PRN order; (c) document the effect of the dose.
4. The practitioner failed to document the administration of Risperidone to Patients B, C or D in either their resident's medication chart or the electronic care notes.
5. The practitioner failed to discuss his concerns about Patients B, C or D with a medical officer and obtain a written order prior to administering Risperidone in the manner described above at particulars 1 to 4.
6. By administering Risperidone in the manner described above at particulars 1 to 5, the practitioner acted contrary to the: (a) New South Wales Health Department (File No 03/6937) Guide to Handling Medication in Nursing Homes in NSW; (b) Nursing and Midwifery Board of Australia Code of Professional Conduct for Nurses in Australia; (c) Nursing and Midwifery Board of Australia Code of Ethics for Nurses in Australia; (d) Nursing and Midwifery Board of Australia Standards for Practice for Enrolled Nurses. National Competency Standards for the Enrolled Nurse; 24 October 2014
7. The practitioner inappropriately removed three Risperidone tablets from Patient A's PRN Webster pack and placed them in Patient B's medication pouch to be administered to Patient B in circumstances where: (a) Patient B had not been charted or prescribed this medication as there was no authorisation from a medical practitioner to administer this medication; (b) there had been no clinical indication for the administration of this medication to Patient B; (c) the dosage of three 0.5mg Risperidone tablets for Patient B would be considered an overdose and an unsafe amount of the medication; (d) the practitioner acted contrary to clause 58 of the Poisons and Therapeutic Goods Regulation 2008.