Health Care Complaints Commission v Nguyen

RN Nguyen

1. RN Nguyen was registered as a RN in New South Wales on 23 January 2017. At the time of the conduct the subject of the complaint she was employed as a graduate RN at PKA. On 6 December 2017 she was rostered as the graduate RN on the afternoon shift, and was responsible for the supervision of a student nurse on her shift that day. RN Nguyen arrived for work at about 1.00pm and left at about 9.30pm.
2. RN Nguyen was interviewed during the JH&FMHN investigation on 12 March 2018 and 4 April 2018.
3. Proceedings under s 150 of the National Law were held by the Nursing and Midwifery Council of NSW (the Council) on 26 March 2018. The Council delegates were satisfied that no conditions on RN Nguyen's registration were necessary, and the matter remained with the HCCC for investigation.
4. At the time of the Tribunal hearing RN Nguyen was working as a 5th year RN at PKA, employed by St Vincent's Hospital which has taken over health care management from JH&FMHN.

Background

1. The following summary is based on the Agreed Statement of Facts and on evidence that the Tribunal understands not to be in dispute, and identifies factual issues in dispute.
2. Parklea Correctional Centre (PKA) is located in the north-western suburbs of Sydney and houses approximately 800-900 remand, minimum, and maximum security inmates. In December 2017 PKA was privately managed by The GEO Group Australia Pty Ltd (GEO) on behalf of Corrective Services NSW (CSNSW). Health services at PKA were operated by the Justice Health & Forensic Mental Health Network (JH&FMHN).
3. On 6 December 2017 Patient A, a 37 year old man with a documented medical history of epilepsy, asthma, Crohn's disease, hypertension and opioid dependence, was transferred to PKA from Sydney Police Cells, arriving at about 11.38am. Patient A was placed in a holding cell, and at about 2.07pm was taken to the Processing Area at Reception. Patient A had been in custody previously, most recently in November 2017.
4. The Reception Screening Assessment (RSA) is a medical interview conducted by JH&FMHN staff to identify any potential medical or physical needs of a newly received inmate. EN Lynda Steele was the Reception nurse on the afternoon shift. EN Steele was interviewed as part of the JH&FMHN investigation on 6 March 2018 (ex A1, tab 71), and gave oral evidence to the Tribunal. EN Steele saw Patient A shortly after 2.00pm. She telephoned the CNS D&A and advised her that Patient A was very unwell and vomiting and that she was unable to attend to the RSA. The CNS D&A arranged for her to send Patient A to the Clinic straight away.
5. EN Steele completed a Health Problem Notification Form (HPNF) at 2.36pm (ex A1, tab 125) noting "RSA not completed, Pt in withdrawal, Hx epilepsy HTN", and informing CSNSW/GEO officers: "House in clinic till cleared by D&A". In oral evidence EN Steele confirmed that the HPNF form was completed to notify nursing and correctional staff why she had housed Patient A in the Clinic.
6. Patient A was taken to the Clinic by wheelchair.
7. EN Steele's shift in Reception ended at 10.00pm, and she then went to the Clinic to return the keys. EN Steele stated that while the normal process is for the reception screening nurse to give a handover to the night staff at that time, she did not hand over anything as she had already handed over care of Patient A to the drug and alcohol staff and they had taken over that patient. She was not aware of the treatment plan as she was still in Reception and therefore any handover would not have been relevant. She did not write in Patient A's notes as he was really unwell and she had to get him straight up to see the drug and alcohol team, as the drug and alcohol doctor was about to leave and had stayed back to see the patient.
8. The clinical handover from the morning shift JH&FMHN staff to the afternoon shift staff occurred in the Clinic Meal Room (also referred to as the "lunch room" and the "tea room"). As that handover took place during Patient A's reception, he was not included in the verbal or written handover.
9. The CNS D&A provided a statement as part of the JH&FMHN investigation dated 2 March 2018 (ex A1, tab 68), and gave oral evidence at the Tribunal hearing. In oral evidence the CNS D&A described her role at PKA as being to see anyone entering the Clinic in acute withdrawal or detox daily until they were cleared for transfer into the main area. Her responsibilities included reviewing anyone who came in on treatment such as methadone, there being over 100 on treatments at that point, and organising doctors' appointments and procedures. She first heard of Patient A when she received a telephone call from the reception nurse, EN Steele, who said she had an unwell patient and asked if there was a doctor available who could give an order for an injection because the patient had been vomiting. The CNS D&A and the drug and alcohol doctor were finishing a clinic and the doctor agreed to stay back and assess the patient. The doctor looked the patient up on the computer to get some background information on him, and she went to find someone to give an injection.
10. The CNS D&A located some staff in the lunchroom, where the handover from morning to afternoon shift had just finished. The CNS D&A said words to the effect: "I've got a really unwell patient coming from detox. I need someone out now to give an IM injection." The evidence of the CNS D&A was that there were four people in the meal room, RN Gallagher (Nurse Unit Manager (NUM) for the morning shift), RN Balagtas (NUM for the afternoon shift), RN Nguyen and RN Stratten. RN Nguyen's evidence was that she had left the tearoom before the CNS D&A arrived. RN Stratten's evidence was that she was exiting the room when the CNS D&A arrived. RN Balagtas has denied being present.
11. At approximately 2.45pm RN Gallagher administered IM Stemetil to Patient A, and recorded this on the medication chart. Prior to administration, Patient A's details, the drug, and the dose were checked against Patient A's medication order with RN Stratten.
12. Patient A was reviewed by the CNS D&A and D&A Medical Officer, Dr Lee, in the drug and alcohol review room. Dr Lee and the CNS D&A separately recorded their observations and the treatment plan in Patient A's progress notes (ex A1, tab 129).
13. Dr Lee's note of the treatment plan states: "1.Detox cell 2.Panedeine, Stemetil +Symptomatic 3.Nil Diazepam yet 4.On Valporate 1gm BD 5.Repeat Obs 4/24 -Call ROAMS -If need, benzodiazepam regime 6.Thiamine 7.MO/ROAMS contact tomorrow. 8.Await ROI"
14. The CNS D&A took baseline observations, which she recorded in Patient A's progress/clinical notes. She noted that Patient A was "extremely unwell - in opiate withdrawal. Pt pale, sweating, clammy, rhinorrhea, piloerection", that he gave a history of taking Xanax or diazepam daily and IV heroin, and that he was too unwell for a full history. The CNS D&A recorded the treatment plan: 1.IMI Stemetil & Panadeine for opiate withdrawal 2.to remain in detox & monitored closely 4/24 obs 3.D&A ROAMS to be contacts if concerns regarding pt & if pt displays any signs of benzo withdrawal 4.for GP due to multiple morbidities 5.PHN Clinic nurse given oral handover 6.review by D&A nurse (author) in am 7.further D&A MO review on Friday 8/12/17
15. Patient A's vital signs (observations) were recorded on the Standard Adult General Observation (SAGO) chart (ex A1, tab 131) and on the D&A Substance Withdrawal Monitoring Chart (ex A1, tab 132). The medications ordered by Dr Lee were entered on the medication charts (ex A1, tab 133). The CNS D&A completed a new HPNF form, signed at 3.29pm (ex A1, tab 124), stating: Previous custody. RSA not completed due to pt unwell with substance withdrawal - observe sweating, vomiting, diarrhoea Epilepsy - smacking of lips, disorientated, loss of consciousness, twitching Placed in detox
16. The recommendation was "To remain in clinic until RSA completed and until cleared by drug and alcohol".
17. At approximately 2.46pm, Patient A was taken by wheelchair to Clinic cell 34.
18. At about 4.20pm, as she was leaving for the day, the CNS D&A provided a verbal handover to RN Stratten, who was in the medication room. The CNS D&A stated that she had made the note "PHN clinic nurse given oral handover" in Patient A's progress notes because morning handover had already been completed and she was concerned about the patient and wanted to make sure she was not leaving the Clinic until she had given a handover to the Clinic nurse. She put the notes in the pigeon hole at the Nurses' Station and took the medication chart directly to the Clinic nurse in the medication room.
19. The CNS D&A stated that RN Gallagher was in the Nurses' Station as she put the notes back and she gave him a brief update of what had happened.
20. The evidence of the CNS D&A was that her handover to RN Stratten included that Patient A was in detox and unwell; observations were required every four hours; and she had just performed a set of observations. She went through what the patient presented with, what they had ordered and what had been given, and what the plan was, and that she had done a baseline set of observations. She said he had been given Stemetil, and mentioned that within the 8 hours they would be able to do two more sets of observations, and she discussed medication. She gave the handover directly to RN Stratten; RN Nguyen was on the opposite side of the room packing medication.
21. RN Gallagher's evidence to the Tribunal was that he was present and participated in the handover. The evidence of the CNS D&A, RN Stratten and RN Nguyen was that he was not present for this handover, each accepting that it was possible he was within earshot in the adjacent treatment area.
22. The evidence of the CNS D&A was that she handed RN Stratten Patient A's medication chart. RN Stratten did not recall being given the medication chart, however recalled that the CNS D&A had a piece of paper with her during the handover.
23. RN Nguyen was also rostered on the afternoon shift, and was allocated packing and administering the medications for Areas 1 and 2 and 4 of PKA. RN Stratten was allocated packing and administering the medications for Areas 3 and 5 and the Clinic.
24. Following the morning handover, RN Nguyen and a student nurse she was supervising packed the Areas 1 and 2 medications. After they had finished that task RN Nguyen and RN Stratten agreed that RN Nguyen would also pack the Clinic medications.
25. At about 6.00pm, RN Nguyen and the student nurse accompanied by Correctional Officers went to administer the medications to patients in Areas 1 and 2. When they returned RN Nguyen and RN Stratten agreed that RN Nguyen would also administer the Clinic medications. After returning from the task in Areas 1 and 2, RN Nguyen administered the medications to patients in the Clinic. At about 7.00pm RN Nguyen, the student nurse, CO Ravinder Sarin and CO Florence Foisa attended cell 34 to administer medications to Patient A during the Clinic medication round.
26. RN Nguyen gave Patient A Panadeine and Thiamine, mistakenly telling him that the Thiamine was diazepam. Patient A refused Epilim (valproate), prescribed for his epilepsy. RN Nguyen recorded the administration of Thiamine and Panadeine, and the refusal of Epilim, on Patient A's medication chart, and told RN Stratten that Patient A had refused the prescribed Epilim medication. RN Stratten's evidence was that she told RN Nguyen to document the refusal in Patient A's progress notes; RN Nguyen did not recall RN Stratten asking her to do so.
27. At about 8.30pm RN Nguyen left the Clinic to do the medication round in Area 4, a minimum security complex outside PKA maximum security prison. She completed her shift at about 9.30pm without returning to the Clinic.
28. Between about 9.30pm and about 10.00pm, RN Stratten provided a handover to the night shift staff, RN Jeremy Nuevo and EN Sara Day. The evidence of RN Nuevo and RN Balagtas was that RN Balagtas was present; and RN Stratten and EN Day agreed that was possible.
29. Events during the night shift are disputed. The evidence of CO Sarin was that at about 10.18pm he received a Stenefon (intercom) call from Patient A requesting to see a nurse; that he informed RN Nuevo who asked why Patient A wanted to see a nurse; that he went to cell 34 and spoke to Patient A who verbally abused him, and repeated his request and refused to give a reason; and that he passed that information on to RN Nuevo. RN Nuevo does not agree with CO Sarin's report of this call. It is not disputed that there was a Stenefon call between Patient A and CO Foisa from the Clinic Officers Station, where RN Nuevo was present, in which CO Foisa asked Patient A if everything was OK and he replied "No everything is ok miss", she asked "Are you sure" and he replied "yes".
30. RN Nuevo and EN Day did not have any other interaction with Patient A during the night shift. At about 5.55am, RN Nuevo wrote in Patient A's progress notes: "Nursing: Pt settled overnight. Nil issues raised."
31. At about 6.00am, EN Steele arrived at the Clinic for the morning shift. RN Nuevo provided a handover to EN Steele. In oral evidence EN Steele recalled being told at the handover that Patient A had had a good night, that he was sleeping well; she could not recall who made that remark.
32. Both RN Nuevo and EN Day were scheduled to end their shifts at 7.30am. Both accepted in evidence to the Tribunal that they left around 6.38am.
33. At about 7.11am, EN Steele and CO Stankovski attended cell 34 for the morning medication rounds, where they found Patient A had died.
34. The Tribunal was informed that no decision has been made yet as to whether a Coroner's inquiry will be held.

The Main Clinic

1. The Main Clinic is located in Area 1 of PKA. There are 14 cells, described by the CNS D&A as observation cells: eight Clinic cells (A to H) and six numbered cells (34 to 39), with a maximum capacity of 34 patients. At the time of the incident the Clinic housed 14 patients. Clinic Cells A-H were located on both sides of a corridor where the Nurses' Station, the Officers' Station, the Drug & Alcohol room, and the Examination & Dispensary (Medication Room) were located. Cells 34-39, referred to by staff as "Detox" cells, were located on both sides of the corridor near the NUM1, NUM2 and Clinical Nurse Educator (CNE) offices.
2. It was not in dispute that patient progress notes and other medical records were kept in the Nurses' Station, in a pigeonhole for each cell. A whiteboard located on the wall of the Officers' Station in the Clinic (ex A1, tab 60) recorded the name and Master Index Number (MIN) for each of the inmates located in the Clinic cells, with comments including "mental health hold", and "GEO placement". RN Balagtas' evidence was that the whiteboard was not always accurate because GEO would shuffle the patients.
3. The roster for Wednesday 6 December 2017 (ex A1, tab 61) had 14 staff on duty between 6.00am-4.30pm on the morning shift, including RN Gallagher as NUM, and the CNS D&A (8.00am-4.30pm). The afternoon shift (1.30pm-10.00pm) had five staff rostered, with RN Francis Balagtas as NUM. EN Steele was rostered on Receptions (2.30pm-11.00pm), RN Stratten on Areas 5, 3 and Clinic pills (1.30pm-10.00pm), and RN Nguyen on Main Clinic and Area 4 supervised (1.00pm-9.30pm). There were two staff rostered on Night Shift (9.30pm-7.30am), RN Nuevo and EN Day, for all areas.
4. The 14 staff rostered on the morning shift for Thursday 7 December 2017 (ex A1, tab 62) included EN Steele (6.30am-3.00pm) as Clinic Nurse and Transfers Out, with RN Grazie Crammond (Clinical Nurse Educator (CNE)) as Nurse in Charge (NIC).
5. It was not in dispute that the clinical handover from the morning to afternoon shift took place in the tearoom, and handover from the afternoon to night shift took place in the Nurses' Station. Clinical handover on 6 December 2017 from the morning to afternoon shift occurred between 2.00pm to 2.30pm, and from the afternoon to night shift between about 9.30pm to 10.00pm. The evidence was that the handover was verbal, with a hard copy handover sheet.
6. The handover sheet in evidence (ex A1, tab 108) is headed "Clinic Handover Wednesday 6 December 2017 21:22", and lists cells A-H and 34-39, with columns recording for each patient the name and MIN, Date & Time of Arrival, Reason in Clinic, Date Cleared, and Diagnosis/Comment. Recorded for Cell 34 is the name and MIN of Patient A; 6/12/17 as the Date and Time of arrival; "Detox" as the Reason in Clinic; and for Diagnosis/Comment: RSA yet to be completed. Hx of Crohn's disease, Epilepsy. Currently in Opiate W/D. IM Stemetil 12.5mg given. PRN meds charted.
7. In addition to the 14 Clinic cells, the Handover sheet records under the heading "Hospital" one inmate presently in Westmead Hospital, and two "Patients of Concern", one located in wing 4A and the other in wing 5C.
8. The copy of the Handover sheet in evidence was provided by RN Gallagher to the Council delegates at his hearing under s150 of the National Law on 21 May 2018. RN Gallagher's evidence was that he retrieved this from the records kept in his office.
9. EN Steele's evidence was that the handover document was updated by the nurse in charge of the Clinic each shift electronically; the forms would be printed in a handover book kept in the Nurses' Station, as a reference; and each staff member on the next shift would have a copy of it.
10. It was not in dispute that the handover sheet in evidence was printed at 9.22pm. The evidence as to who updated it and when is unclear. RN Stratten could not recall whether she had put the information for Patient A on the handover sheet. RN Gallagher, RN Nguyen and the CNS D&A gave evidence that they did not. RN Nuevo's evidence was that a different version of the handover sheet, which did not include the information that Patient A was in opiate withdrawal, that he had been given Stemetil, and that PRN medications had been charted, was used in the handover to the night shift.

NSW Health and JH&FMHN policy documents

1. The particulars of the complaints against each of the respondent nurses are framed by reference to provisions of a number of NSW Health and JH&FMH policy documents. As noted in the HCCC's opening submissions, the amendments to the complaints in relation to each of the respondent practitioners included amendments to give more particulars of particular policies that are referred to in the evidence. The relevant policies are: 1. NSW Health Policy Directives 1. NSW Health Policy Directive Health Care Records - Documentation and Management (ex A1, tab 123) includes: 2.4 Documentation by nurses and midwives Documentation by nurses and midwives must include the following: (a)care/treatment plan, including risk assessments with associated interventions (b)comprehensive completion of all patient /client care forms (c)any significant change in the patient/client's status with the onset of new signs and symptoms recorded (d)if a change in the patient/client's status has been reported to the responsible medical practitioner documentation of the name of the medical practitioner and the date and time that the change was reported to him/her (e)documentation of medication orders received verbally, by telephone/electronic communication including the prescriber's name, designation and date/time. 2.5. Frequency of documentation The frequency of documentation entries should conform to the following as minimum requirements. … 2.5.3 Non-Admitted Patients/Clients An entry must be made in the health care record for each patient/client attendance (including video conference sessions) and for failures to attend. Entries should reflect the level of assessment and intervention. The results of significant diagnostic investigations and significant changes to the patient/client's condition and/or treatment should be documented. … 1. JH&FMHN policies: 1. JH&FMHN Clinical Handover (Policy number 1.075) (ex A1, tab 117) provides a standard set of principles for all types of clinical handover. Relevant provisions are: Section 2.1 Mandatory Requirements The importance of implementing "safe clinical handover" has been recognised and mandated under NSW Ministry of Health (MoH) policy directive PD2009 060 Clinical Handover - Standard Key Principles. JH&FMHN has developed and implemented the following standard key principles for clinical handover: 1.Leadership - nominate a leader at each clinical handover 2.Valuing Handover -set an expectation that this is an essential part of daily work 3.Handover Participants - identify participants, and involve participants in the handover process 4.Handover Time - set an agreed time, duration and frequency of handover, expect punctuality 5.Handover Place - set a specified location, preferably face to face 6.Handover Process - standardised process, JH&FMHN will utilise the Introduction, Situation, Background, and Assessment and Recommendation (ISBAR) framework. The standard key principles for clinical handover apply to all clinical staff employed by JH&FMHN and offer direction for the shift-to-shift clinical handover of patients, and the handover of patients to other clinicians or facilities. All clinical handover events must meet these requirements. Section 2.2 Implementation - Roles and Responsibilities … Nursing Unit Manager (NUM), Line Manager or delegate is responsible for: ● Implementing the standard key principles of clinical handover, establishing agreed times, durations, processes and frequencies for clinical handovers to occur ● Monitoring and evaluating local clinical handover on a regular basis through an audit process (at least every six months), with feedback of results, risks and any action required to all stakeholders ● Escalating results of auditing including any identified risks and planned actions to the Nurse Manager ● Capturing audits and results of audits in TRIM (TRIM containers to be identified locally) ● Ensuring any handover tools used within the workplace adhere to the ISBAR framework ● Ensuring the standard key principles for clinical handover are included in the local orientation and in service programs for all new and current clinical staff ● Ensuring the After Hours Nurse Manager and Cluster Nurse Managers are provided with a clinical handover of any patients of concern … Nurses are responsible for: ● Ensuring work practices are consistent with standard key principles for clinical handover ● Ensuring any tools used follow the ISBAR framework ● Attending and participating in the handover of all patients that are relevant to them ● Ensuring that they understand the information they are receiving during handover and if not seek clarification from the person who is handing over ● Ensuring any information handed over is documented in the patient's health record ● Escalating any concerns regarding a patient to the NUM and relevant medical officer ● Participating in the monitoring and evaluation of clinical handover. … Section 3.1 Clinical Handover - Standardised Format Clinical handover communication and documentation is improved by a standardised format for communication such as the ISBAR framework. ISBAR provides a framework to outline how a conversation is conveyed between people in a consistent and reliable way. ISBAR is the format that JH&FMHN utilises for clinical handover and is an acronym which stands for: I:Introduction ● Introduce yourself and your role in the patient's care ● State the unit you are calling from when speaking over the phone S:Situation ● Specify the patient's name, diagnosis and current condition or situation ● Explain what has happened to trigger the conversation B:Background ● State the admission date of the patient, his or her diagnosis, and pertinent medical history ● Give a brief synopsis of what has been done so far (e.g lab tests) ● Advise of any safety alerts that staff need to be aware of e.g work health and safety risks, aggression, manual handling risk A:Assessment ● Give a summary of the patient's condition or situation ● Note clearly the trend in patient observations ● Explain what you think the problem is or say "I'm not sure what the problem is, but the patient's condition is deteriorating" ● Expand upon your statement with specific signs and symptoms R:Recommendation ● Explain what you would like to see done (e.g lab tests, treatments, or "I need you to see the patient now") ● State any new treatments or changes ordered (e.g monitoring and frequency or when to re-notify the medical officer if there is no improvement in the patient) … 3.2 Situations where Clinical Handover is Required There are numerous occasions where clinical handover is required as part of everyday work; this may be face to face (preferred), written or via telephone. It is the responsibility of all staff to handover clinical information in a timely and accurate manner that will ensure the best outcome for the patient and staff. It is the responsibility of all staff to ensure they understand what is being handed over to them; this may require staff to repeat back and /or ask questions. Occasions where handover is required include: ● Shift to shift (changeover of staff) ● Patient transfers for a test or appointment ● Patient transfer/discharge to another hospital/facility/unit ● Patient transfer from one unit to another within a hospital ● Multidisciplinary team handover ● Patient transfer to and from and within the community (where appropriate) ● Deteriorating patient All clinical handovers must use the standard key principles and the ISBAR framework as outlined in this policy. 3.2.1 Shift-to-shift Clinical Handover Clinical handover must take place at the end/commencement of each shift in all JH&FMHN clinical sites; this will ensure continuity of information and is vital to the safety of patients and staff. In sites where staff are not rostered on duty 24 hours a day other clinical handover methods must be in place. This could include a written handover, which is easily accessible to the next shift of staff. … 1. JH&FMHN Accommodation - Clinical Recommendation (Adults) (Policy number 1.340) (ex A1, tab 116) provides: It is Justice Health & Forensic Mental Health Network (JH&FMHN) policy to provide clinically based recommendations regarding a patient's cell placement within the NSW correctional system. This must be based on an assessment of the patient's risk of causing harm to self or others, in light of the information available to JH&FMHN at the time of making the health recommendation and the patient's physical and mental health requirements. It is ultimately the responsibility of Corrective Services NSW (CSNSW) staff and the Commissioner to consider the clinical recommendation regarding cell placement made by the JH&FMHN staff and make a determination for cell placement based on this and the security and safety requirements of the inmate as per s 232 of the Crimes (Administration of Sentences) Act 1999. … 3.1 Placement Options … 3.1.7 Detoxification Placement Patients experiencing acute substance withdrawal, or who are expected to develop substance use withdrawal symptoms or who are intoxicated should be considered for placement either in an Assessment Cell or a Clinical Observation bed, depending on the resources at the Centre. Placement facilitates increased access by health staff where there is a need to monitor the overall health status of the patient. Clinical need and judgment will determine how often a patient will require reviewing. However, twice daily must be the minimum. These reviews must be documented in the patient's Health Record…. Clinical staff must specify on the JH&FMHN Health Problem Notification form (Adults)…whether the patient needs an Assessment cell or a Clinical Observation Bed and what observations are needed. 1. JH&FMHN Medication Guidelines (2017) (ex A1, tab 118) includes provisions for Medication Administration. Section 6.2 provides Principles for Safe Medication Administration, which relevantly includes: The objective of safe medication administration is that the correct patient receives the correct dose of the correct medication at the correct time and by the correct route of administration. JH&FMHN promotes the quality and safe use of medication and all persons responsible for administering medications must: … ● Ensure all prescribed and non-prescribed medications are taken in the presence of the administering nurse. The nurse must observe the patient swallowing the medication, with a cup of water, unless the patient is authorised to possess the medication for self-administration … ● Record the administration transaction on the medication chart and/or other appropriate parts of the medical record, including signature and date: records of medication administration must be accurate and include all required details … ● Not administer medications that have been prepared for delayed or advanced administration by another nurse. ● Prepare, administer, and record medication administration: a nurse must never administer a medication prepared by another person (except those prepared by the Pharmacy Department) … ● In circumstances where a medication cannot be administered, record all details on the medication chart and in the patient's medical notes as to why the medication was not given … 6.2.2 Delayed Administration Provision Delayed administration may be defined as the advance preparation of a patient's dose or doses of medication, which are intended for administration to the patient at the next immediate treatment time. Under this provision, medication prepared by a nurse for delayed administration must be administered by the same nurse to the patient within the same shift at the next immediate treatment time. This apply on one dose only (next dose). JH&FMH nurses may package medications for delayed administration to patients in ambulatory settings only. Preparation of medication(s) for delayed administration must not occur in the in-patient setting. Medications prepared for administration under this provision: 1.must be supplied in clear, sealable and hygienic plastic bags. 2.must be clearly labelled with the patient's name and MIN/CIM number 3.must be packed to a maximum of 3 different medications per plastic bag 4.must be prepared and supplied by the same nurse to the patient, and 5.must be issued to the patient with clear dosing instructions. … 6.2.9 When Medication is not Administered In circumstances where a medication is not, or cannot be administered, the details as to why the medication was not administered must be indicated on the medication chart and in the patient's medical notes. In the majority of cases it is the responsibility of the patient to collect his or her medication. If the patient fails to collect their medication, then the nurse should contact the medical officer/nurse practitioner for advice. … 1. JH&FMHN Clinical Observation Beds in Health Centres (Adults) (policy number 1.025) (ex A1, tab 115) applies to Health Centres (Adult Correctional Centres or Police Cells). It states that Clinical Observation beds are non admitted beds located in Adult Health Centres that are used to accommodate patients who require a higher level of observation for Primary Health, Drug & Alcohol, Population Health and Mental Health issues. The policy identifies JH&FMHN Clinical Observation Bed Locations, including 16 Observation beds at PKA, with 24 hour nursing cover. The policy provides: 2.2 Implementation - Roles & Responsibilities Placement on the Advice of a Medical Officer Once a decision has been made by the MO of the respective clinical stream to place a patient in a Clinical Observation bed, the MO must advise nursing staff of: ● the required level of observation ● regularity of clinical measurements ● any further investigations or follow up, and ● any symptoms that may indicate that the patient's condition is deteriorating and any action that may need to be taken in this event. For all other Clinical Observation bed placements, the purpose for placement and level of monitoring required must be documented in the patient's Health Record by the NUM or delegate. NUM or Delegate The NUM or delegate is responsible for the shift by shift overall co-ordination and management of patients placed in Clinical Observation beds and is the initial point of contact for staff with clinical concerns. They must review the treatment plan and co-ordinate any treatment ordered by the treating MO. They are responsible for ensuring the treating MO is informed of any changes in the patient's health condition. 3. Procedure Content 3.1 Placement If placement occurs out of hours, the Remote Offsite Afterhours Medical Services Protocol (ROAMS) must be followed to contact the appropriate on call MO. The MO must provide the appropriate Clinical Director with a handover of the case as per the clinical stream handover protocol to enable continuity of care to be transferred to the appropriate Chief Medical Officer (CMO), Visiting Medical Officers VMO or Staff Specialist covering that Health Centre. All patients placed in Clinical Observation Beds must be reviewed by nursing staff each shift and an entry regarding their clinical condition made in the Health Record. Clinical measurements must also be recorded in the frequency requested by the MO on the appropriate NSW Health Standard Adult General Observation chart (SAGO observation chart). Any discussion of a patient's initial or ongoing care with the on call MO whilst the patient is placed in the Clinical Observation bed must be recorded in the patient's Health Record. If a patient's clinical condition deteriorates while placed in the Clinical Observation bed, the appropriate MO must be contacted by the NUM or delegate and the patient transferred to the local Emergency Department if indicated.

The Complaint

1. Complaint One of the Amended Complaint is that RN Nguyen is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that she has engaged in conduct that demonstrates the 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. The particulars of Complaint One are: 1. The practitioner failed to: 1. Accurately document the administration of medication, namely thiamine, that she administered to Patient A, in accordance with the JH&FMHN Medication Guidelines, point 6 (Medication Administration); 2. Specify the time she administered medication, namely Panadeine, to Patient A, in accordance with the JH&FMHN Medication Guidelines, point 6 (Medication Administration); 1. The practitioner failed to ensure that clinical information regarding Patient A's clinical management details were recorded in the written handover and/or in the "treatment plan" section/patient notes, in accordance with: 1. NSW Health Policy Directive, Health Care Records - Documentation and Management point 2.4 (Documentation by nurses); 2. NSW Health Policy Directive, Health Care Records - Documentation and Management, point 2.5.3 (Non-Admitted Patients/Clients); 3. JH&FMHN Policy 1.075 Clinical Handover, point 3.2 (Situation where Clinical Handover is Required); 4. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles & Responsibilities - Nurses); 5. JH&FMHN Medication Guidelines Point 6.2 (Principles of Safe Medication Administration); 6. JH&FMHN Policy 1.340 Section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement.
2. In closing submissions the HCCC did not press Complaint Two of the Amended Complaint, that RN Nguyen is guilty of professional misconduct under s 139E of the National Law.
3. RN Nguyen admits particulars 1 and 2 of Complaint One. The Tribunal notes that at the time she provided a Reply to the complaint, in which she admitted those particulars, RN Nguyen was legally represented. She has subsequently represented herself at the Tribunal hearing.

Tribunal hearing

1. The HCCC relied on a bundle of documents in four volumes, 133 tabs (ex A1), and tendered the Agreed Statement of Facts (ex A2). Exhibit A1 includes: 1. The Complaint, and certificates of registration status of RN Nguyen (tab 2); 2. Expert report provided by Ms Christine Muller (tab 11); 3. Correspondence between the HCCC and RN Nguyen, including notifications under s 28 and s 40 of the Health Care Complaints Act 1993 (tabs 28, 32); 4. Annotated Clinic floor plan, photograph of whiteboard, and staff rosters for 6 and 7 December 2017 (tabs 59-62); 5. JH&FMHN investigation interviews with the practitioner on 12 March 2018 and 4 April 2018 (tabs 72, 76); 6. Other JH&FMHN investigation interviews, including interviews with the CNS D&A on 2 March 2018, and EN Steele on 6 March 2018 (tabs 68, 71); 7. Reasons for decision and transcript of s 150 proceedings (tabs 89, 90); 8. Corrective Services NSW Death in Custody Investigation Report (tab 109), including: 1. Statements by CO Sarin, CO Foisa and other correctional officers; 2. CCTV images and summary; 3. Transcript of interviews with inmates in cells adjoining and close to cell 34; 1. Autopsy report; 2. JH&FMHN and NSW Health Codes of Conduct, Guidelines and Policies; and 3. Patient A clinical records.
2. RN Nguyen relied on: 1. Bundle of documents (ex TN 1): 1. Statement dated 1 August 2020, including admission to particulars 1 and 2 of Complaint One; 2. Education documents; 3. References; 1. Updated curriculum vitae, CPD documents, and two references (ex TN 2).
3. RN Nguyen gave oral evidence.
4. The HCCC provided written opening and closing submissions. RN Nguyen provided written closing submissions in reply.

RN Nguyen's evidence

1. In her statement of 1 August 2020, RN Nguyen admitted particulars 1 and 2 of Complaint One. She stated that she has no recollection of being present when the CNS D&A told staff about a patient "coming from detox", and she does not believe she was present. Her recollection was that after the handover from the morning shift had finished she and the student nurse were leaving the room when a nurse came in and said that the D&A nurse and doctor were going to Reception to see an unwell patient.
2. RN Nguyen accepted that she failed to amend the medication chart to accurately reflect the time of administration of thiamine during the afternoon pill round, and apologised for the oversight. She accepted that on that occasion she failed to comply with JH&FMHN Medication Guidelines. She accepted that she did not enter the time she administered Panadeine on the medication chart, and apologised for the oversight. By way of explanation and not excuse, she asks the Tribunal to bear in mind that she was a new graduate nurse and had only been at PKA for a few months and this was her first shift in the Clinic in addition to being allocated cell areas. RN Nguyen asks the Tribunal to accept that she was not aware that Patient A was a patient of concern, and had not been informed of that by any of her colleagues during the shift. Had she been aware she would have taken the time to review his records and become aware of the plan and actioned that plan such as taking a set of observations; and she accepts with the benefit of hindsight that it would have been best practice to read the clinical notes before commencing the medication round.
3. Patient A's medication chart (ex A1, tab 133) records administration on 6 December 2017 of thiamine at 8pm, and two Panadeine, with no time recorded. The word "Epilim" is crossed out, and an "R" inserted. At the JH&FMHN interview on 12 March 2018 RN Nguyen stated that she gave the thiamine to Patient A at about 7.30-8.00pm, and did not recall giving him two Panadeine. RN Nguyen stated that she may have packed it, and that is why she had a few white tablets in her hand, and she just remembered the big one, the thiamine. She may have given him the Panadeine if she signed for it; she remembered there were a few white tablets plus the purple ones. At the subsequent interview on 4 April 2018 RN Nguyen stated that she could only remember administering the Epilim and the thiamine and was not sure about the Panadeine; and she agreed that the time was not recorded for the Panadeine. RN Nguyen stated that she was aware she should have documented that in the patient's clinical notes, and she knows it is best practice to update the clinical notes once the medication charts have been updated. RN Nguyen stated that she accepted that she should have noted the refusal of Epilim on Patient A's progress notes.
4. In relation to Particular 2, RN Nguyen admits that she did not look at Patient A's clinical notes during her shift, or update his clinical notes or the handover notes. RN Nguyen stated in her interview on 4 April 2018 that the only handover she remembered was for the Clinic patients, and there were no handover sheets for the areas she was allocated. In her response to the HCCC's letter under s 40 of the Health Care Complaints Act 1993 she admitted her error in not recording in the clinical notes that Patient A refused his routinely prescribed Epilim, and admitted that it would have been prudent to read the clinical notes before commencing the medication round. Had she done so she would have been aware Patient A was on a management plan, and she was not otherwise informed of that by RN Stratten or any other colleague during her shift. This was the first shift where she had provided assistance in the Clinic in addition to being allocated areas outside, and she had offered that assistance as she had noted that RN Stratten was very busy.
5. In oral evidence RN Nguyen stated that she had not known that Patient A was housed in the main Clinic. She was in the dispensary area with the student nurse, packing the Areas 1 and 2 pills, and she did not hear what was said during the handover conversation between the CNS D&A and RN Stratten. RN Nguyen stated that she asked RN Stratten whether she would like her to also pack the Clinic pills, which would otherwise have been RN Stratten's responsibility. After she returned from distributing the Areas 1 and 2 medications she saw RN Stratten who was quite flustered. RN Stratten told her she had to go back to Area 3 to administer insulin that she had forgotten in her round. RN Stratten handed back the medications to be administered to the main Clinic patients. RN Nguyen then went to the Officers' Station to inform them that she was ready to administer the medication because it was getting late. RN Nguyen recalled administering the medications, with two corrections officers. She did not read the progress notes for Patient A, and had not known about the management plan put in place by the CNS D&A and the medical officer. She now knows it is best practice to check the progress notes on every patient housed in the Clinic before administering the medication. She understood that RN Stratten had relinquished that responsibility to her in terms of handing the medication back to her.
6. Just before she left the main Clinic to go to Area 4, RN Stratten asked if there was anything to be handed over; and she told her that Areas 1 and 2 were unremarkable but in the main Clinic the patient at the end of the Clinic on the right hand side had refused his medication. At that point she had no idea who the patient was. She explained that the patient had refused his Epilim; she did not recall if RN Stratten told her to document that on his progress notes. RN Nguyen said that she left the main Clinic and went to Area 4 which is minimum security outside the maximum security gaol, and went to the dispensary room to start packing the Area 4 medication to administer to the Area 4 patients, and went home from there.
7. In her interview on 12 March 2018 in the JH&FMHN investigation RN Nguyen provided detail of the administration of medication to Patient A, at approximately 7.30-8.00pm. When the officers opened the cell he was sleeping facing the other end of the bed and the officers yelled at him to get up and put some clothes on. He was naked under the blanket. He did not have a cup of water so she walked up the hallway and got a cup of water and came back, and the officers opened the cell again. Patient A was sitting on the side of the bed. She gave him the water and poured the medication out of the bag into the palms of her hand. He took the white tablets and asked what they were and she said she thought that they were diazepam; he took them and said they were not diazepam. She asked about the purple ones and he said he did not want them. She went back to the medication room to find the medication chart and wrote "refused for the purple Epilim" and that is when she realised that she had given him thiamine not diazepam. RN Nguyen was asked about the record of 2 Panadeine in the medication chart, and said that she did not remember: she might have packed it and that is why there were a few white tablets in her hand.
8. In the interview on 4 April 2018 RN Nguyen was asked whether she had done a handover for the patients for the areas she had been in for the night shift, and said that she had not. RN Nguyen agreed with the interviewer that the Clinic nurse in the afternoon shift should update the handover notes for the night shift. RN Nguyen was also asked about the preparation of the medications for the Clinic, and said that she prepared them to help RN Stratten out as she was behind with dispensing her medication; she had finished hers because she was allocated with a student nurse and they had finished packing for Areas 1 and 2. RN Stratten handed her the Clinic pill folder and reminded her that there was a short term and a telephone order charted for Patient A. RN Nguyen agreed that it was a practice to help out other nurses in preparing medication, and said she now knows it is not best practice. RN Balagtas would not have been aware that she and not RN Stratten packed the medication for the Clinic, because she did not see him on that shift. She saw him once when she went to administer the medication because she went to get Patient A a cup of water; and RN Balagtas was sitting in his office.

Expert evidence

1. The HCCC relied on expert evidence provided by Ms Christine Muller. Ms Muller has been a registered nurse since 1982 specialising in adult mental health. She has a Masters degree in Nursing and was endorsed as a Nurse Practitioner (Adult Mental Health) in 2003. Ms Muller has worked as a mental health nurse, since 2008 with JH&FMHN in NSW adult correctional centres. Ms Muller prepared a report relating to each of the respondents. Ms Muller gave oral evidence addressing thematic issues, including clinical handover, and packing and distribution of medications. She was cross examined by or on behalf of each of the respondent practitioners.

Report 15 September 2019

1. In her report (ex A1, tab 11) Ms Muller noted that at the time of the incident RN Nguyen had not yet completed her "Transition into Clinical Practice" year and had at best three months experience working with custodial health. She noted the culture within the health centre where it was common practice to prepare medications for another nurse to administer or administer medications prepared by another nurse. In that context she regarded RN Nguyen's conduct in offering to pack the Clinic medication that RN Stratten intended to administer to be below the standard expected of a registered nurse of equivalent qualification and experience, but not significantly below.
2. Ms Muller noted that medications were prepared in another area of the health centre to be administered at a later time and without the medication charts being present rather than the usual hospital practice of administering medications as dispensed with a medication chart present. In her opinion, RN Nguyen's inexperience as an RN influenced her error in informing Patient A that she was administering diazepam rather than thiamine. A registered nurse should be able to recognise the medication they have prepared for administration; and in her opinion RN Nguyen's error was below the standard expected, but not significantly below.
3. In relation to RN Nguyen's failure to document Patient A's refusal to take his Epilim, Ms Muller noted from her experience working in custodial health that despite medication guidelines and best practice principles, it is common practice for many nursing staff not to document in the clinical record when a patient refuses routine medication. RN Nguyen's error in not recording that was below the expected standard, but not significantly below.
4. Ms Muller was strongly critical of RN Nguyen's failure to document the time of administration of Panadeine and thiamine to Patient A. In her opinion medication administration is a basic skill of a nurse and documentation of administration time is a crucial component of medication administration; and despite RN Nguyen's limited experience as a registered nurse, that failure was significantly below the expected standard.
5. Ms Muller addressed RN Nguyen's failure to conduct and record any observations of Patient A during her shift. In her opinion her lack of clinical experience coupled with a lack of direction from a senior registered nurse impacted on her failure to complete or record any substance withdrawal observations. In her opinion RN Nguyen's actions while not ideal were in keeping with those expected of a registered nurse with equivalent experience and qualification. In her opinion RN Nguyen could have been more inclusive in her handover to RN Stratten regarding Patient A, which would have included what was Patient A's unusual behaviour when receiving medication; however, given that she was not aware of the need for substance withdrawal observations to be completed it was unreasonable to expect those would have been completed on her own volition given her novice nurse status.

Oral evidence

1. In her oral evidence Ms Muller was asked about her experience working in custodial settings, and stated she started work with JH&FMHN in 1998, employed as a reception nurse for three years before accepting a role as a nurse consultant. She worked as a patient safety and clinical risk manager for two years, and since 2008 has worked as a nurse practitioner in mental health, all in a custodial setting. She has worked in PKA on and off over the years, and has experience working in reception prisons. Ms Muller acknowledged that her qualifications are focussed on mental health, and commented that she had worked exclusively in reception because of her skills in drug and alcohol and mental health. She acknowledged that since 2000 her role had focussed on mental health, however in custodial mental health there is a need to look at the whole patient; and she would always do observations and check co-morbidities, and consider physical health as well as mental health and drug and alcohol status, and how medications interact with each other. In custodial mental health managing drug and alcohol problems is core business.
2. Ms Muller commented on expected practice for handover, which she said should be at the beginning and end of a shift, away from distraction, and using the ISBAR process (see [60(2)(a)] above). The nurse in charge or nurse unit manager, as well as all staff on duty in the oncoming and the leaving shifts, should participate. The role of the NUM would be to ensure that the area is free of distractions and that the ISBAR process is followed. The written handover sheet in evidence (ex A1, tab 108) is a tool to prompt the person giving the handover and the person receiving handover that has been used in many organisations. Clinical notes of what needs to happen during the oncoming shift can be made. It should be updated at the end of each shift or as the situation changes. That sheet is not currently used in JH&FMHN, rather a printed handover book is used.
3. Ms Muller was asked about reviewing patient notes, and commented that during clinical handover, particularly for patients who are housed in the Clinic itself, it is a reasonable expectation to open up the file and get more information about what has happened than the few lines written on a handover sheet. That may be recommended treatment plans, what medication had been administered, and a patient's physical observations; or if in fact there is a patient housed in the Clinic by the security service provider for management reasons.
4. Ms Muller stated that a minimum expectation for patients who are in the medical cells is that they are seen at least twice on the shift; for a patient who has just started detox and actively started to withdraw, the minimum would be fourth hourly observations. Depending on their detox score that might increase to second hourly or hourly. The detox score is a set of observations including blood pressure, pulse, respiration, whether there is any piloerection or abdominal pain, whether they have watery eyes or runny nose, nausea, vomiting, diarrhoea, their level of anxiety, or if they are hallucinating. There are withdrawal scale tools routinely used, such as the D&A Substance Withdrawal Monitoring Chart (ex A1, tab 132). While those observations would be recorded there, they would also be recorded on the SAGO chart. Ms Muller stated that the reason a patient is in a medical observations cell is to allow for better access, and the policy says that a patient in a medical observation cell needs to be assessed twice daily at a minimum, for physical observations and a verbal interaction as well as observing.
5. Ms Muller was asked about packaging and administration of medication. She noted that it is against the law for a nurse to administer medications that they had not prepared themselves. The reason is that medications frequently are not in their original package, but are actually put into a bag, and there is no capacity to check what is being administered. The person administering the medication should know what it is because they packed it. The exception would be if a pharmacist has packaged the medication.
6. Ms Muller was asked about the roles of the NUM 1 and NUM 2. She stated that the NUM 1 has a clinical role, where they may need to comment on policy and do some administrative tasks while leading the clinical team, whereas a NUM 2 being more senior would have some clinical responsibilities but more strategy involvement. The NUM 1 could help out in reception depending on the workload, whereas the NUM 2 has more of a focus on operational issues but still retains responsibility for the care of the patients and to report to the afterhours nurse manager if there are patients of concern who need to be monitored. The nurse in charge (NIC), generally on night duty or weekends or public holidays, assumes overview of everything happening in the Clinic on that day. The NUMs and the NIC have the responsibility to escalate and direct care.
7. Ms Muller was asked about the significance of a patient asking to see a nurse. She stated that her understanding was that patients need to be seen whether or not they are abusing an officer, as it is a health issue. A lot of patients do not like disclosing to the security service provider what is going on with their health, and the security providers are not health professionals. Ms Muller agreed that such a request would be a prompt to review the patient's notes. Ms Muller commented that it was consistent throughout each of the shifts on 6 December 2017 that there was an overall failure to open up a hardcopy file to see what had happened in relation to patient care. Some of the patients would have been in the Clinic the night before, in which case the staff would be well aware of them, but she would expect, at a minimum, a review of the notes of the new patients who had come into the Clinic.
8. Ms Muller was asked about what the term "patient of concern" means in Justice Health, and said that a patient of concern may mean somebody who has a complex health issue, for example as recorded on the handover sheet, a patient who was terminally ill but was being managed in the mainstream population, or patients with an acute mental health issue or at risk of harm to self or others, or who are detoxing. Ms Muller agreed that by that definition all patients within the Clinic are patients of concern, and that patients in the Clinic would not need to be included in the patients of concern section of the handover sheet. Ms Muller clarified that sometimes the security service provider would house people in the health centre for management or non-health issues, which would be specified.
9. Ms Muller commented that in her opinion only three of the Clinic patients listed on the handover sheet in evidence (ex A1, tab 108) were acutely unwell. The rest of the patients were being managed under the Risk Intervention Team (RIT) protocol and it was unlikely they would need anything more than some supervised medications. The "RIT stepdown" patients had been acutely unwell, and were then managed through the day on a RIT management plan, and were there for safety, not medical or detox reasons.
10. Ms Muller commented on the context of custodial health, stating that it is a hybrid between a hospital and a community health setting. Access is limited, as in some instances people are only out of their cell for one hour a day; and by and large security takes priority over health, which is why patients who are unwell are housed in the health centre (clinic) where there is better access. It is a challenging environment, with a need to negotiate with the security service provider to be able to access the patients. Access is less difficult because they are in the health centre, but the doors are locked and the health staff do not have keys and need the security provider to allow access. Ms Muller agreed that that would make reading the files more important. By and large the population is reasonably healthy, and there may be acute health issues such as chest pain. In reception gaols detox is a core business: people are coming in off the street or from police cells, and it is usually 24 hours since they had any unprescribed substances, so the onset of substance withdrawal was expected. In custodial health, syringes and needles are counted and have to be booked out, so it is quite unusual for someone to receive an injection. For someone to require an injection would indicate that they are really quite unwell. Asked whether it is usual for a patient that unwell to stay in the custodial setting, Ms Muller said that Patient A had been assessed by a medical officer and a CNS and they were happy that the patient could be managed, but specified that if not, to call the on call nurse practitioner or medical officer again.

Ms Muller's expert evidence

1. The Tribunal is satisfied that Ms Muller's evidence is based on extensive experience in nursing in a custodial setting, informed by her qualifications and expertise in mental health nursing. Her individual reports on each of the respondent practitioners, and responses in oral evidence, reflect her consideration of the admitted and disputed issues of fact, and take into account both the context of the custodial setting and the relative experience and qualifications of each of those practitioners. In making its findings as to whether any of the respondent practitioners is guilty of unsatisfactory professional conduct or professional misconduct the Tribunal is entitled to take into account any admissions made by a practitioner, and to act on the specialist expertise of its professional members in considering whether there has been a departure from the relevant standard of conduct. That task is assisted by relevant and soundly based expert evidence, and in that regard, the Tribunal gives weight to the evidence of Ms Muller.

Submissions

1. The HCCC submits that the Tribunal should find the complaint of unsatisfactory professional conduct against RN Nguyen proven. The complaint of professional misconduct is not pressed.
2. The HCCC submits that RN Nguyen was, in the main, a witness of truth who was trying to assist the Tribunal to the best she could given her memory of the events of 6 December 2017; and that she made appropriate concessions and readily accepted when she could not recall the detail of what had happened, other than an understandable tendency to hesitate in giving evidence that she knew would be contrary to the interests of her colleagues. The HCCC relies on the evidence of Ms Muller, in particular concerning RN Nguyen's documentation of administration of Panadeine to Patient A, and the administration of thiamine, and her failure to adhere to the requirements of JH&FMHN policy 1.025 Clinical Observation Beds in Health Centres (Adults) point 3.1, and JH&FMHN policy 1.340 Accommodation - Clinical Recommendation (Adults) point 3.1.7, and the JH&FMHN Medication Guidelines.
3. In reply, RN Nguyen submitted that she acknowledges and understands that this is a very serious matter. She acknowledged that her practice should have been better, and she has taken steps to improve her practice to provide the best quality care for all patients.

Consideration

1. RN Nguyen has admitted that she failed to accurately record the administration of thiamine and Panadeine to Patient A, and that she failed to read Patient A's clinical notes or update his clinical notes or the handover sheet.
2. As originally drafted, particular 1 of Complaint One referred to point 6.2.1 of the JH&FMHN Medication Guidelines policy; as amended, it refers to point 6 of that policy. As originally drafted, particular 2 referred to RN Nguyen's failure to ensure that clinical information was recorded in "the written handover"; as amended, it refers to "the written handover and/or in the 'treatment plan' section/patient notes". The Tribunal understands that to be referring to both the written handover sheet (the format and purpose of which is discussed above at [55]-[58]), and the patient's clinical notes, which in Patient A's case, include the clinical/progress notes, SAGO chart, Substance Withdrawal Monitoring Chart, the HPNF and the medication charts (discussed above at [27]-[30]). The amendment to particular 2 also added the references to NSW Health Directive Health Care Records, and to JH&FMHN policy 1.340 section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement.
3. Under s 149 of the National Law, the important aspect of the complaint is its "subject-matter", which "provides the jurisdictional gateway for the Tribunal to exercise its disciplinary powers": Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 (Shuquan Liu), at [34]. Wilson J held: 36. It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint. 37. The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.
4. The Tribunal is conscious that while at the time she provided her written Reply to the Complaint as originally drafted, RN Nguyen was legally represented, she no longer has representation. As Wilson J held in Shuquan Liu at [43], procedural fairness requires that the practitioner be put on notice if a finding of unsatisfactory professional conduct might be made on a basis other than that advanced by the HCCC. The HCCC's position as stated in opening submissions is that particulars of various NSW Health and JH&FMHN policies that are said to be contravened have been given for each of the particulars, acknowledging that it would open for the Tribunal to find that the factual matter alleged in the opening part of the particular has been proven and that some of the specified policies have been contravened, but not others.
5. The Tribunal is satisfied that the substance of the allegations made in Complaint One was addressed in RN Nguyen's evidence to the Tribunal. The Tribunal is independently satisfied that her admitted failure to accurately record on the medication chart both the fact, and time, of the administration of thiamine and Panadeine to Patient A during the Clinic medication round was in breach of section 6 of the JH&FMHN Medication Guidelines. Particular 1 is established.
6. Patient A's refusal of the routinely prescribed Epilim in the medication round was a matter that should have been recorded in his clinical notes, as required by the NSW Health Policy Directive Health Care Records - Documentation and Management, points 2.4 and 2.5.3, and the JH&FMHN Medication Guidelines at point 6.2.9, given the increased risk of seizures in a detoxing patient known to have epilepsy. RN Nguyen accepted that she should have noted the refusal of Epilim in Patient A's progress notes. The Tribunal accepts that RN Nguyen informed RN Stratten, the afternoon shift Clinic nurse, of the refusal. RN Stratten was allocated primary care of Patient A, and led the handover from afternoon to night shift. While it was her responsibility, as the afternoon shift Clinic nurse, to ensure that the handover sheet was updated, RN Nguyen had attended Patient A. RN Nguyen also had a responsibility as nurse under section 2.2 of the JH&FMHN policy 1.075 Clinical Handover to ensure that work practices were consistent with standard key principles for clinical handover and that handover tools followed the ISBAR framework. That did not occur, and the Tribunal is independently satisfied that particular 2 is established.
7. Particulars 1 and 2 of Complaint One are established.
8. Complaint One alleges that that conduct constitutes unsatisfactory professional conduct under s 139B(1)(a) of the National Law: 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. …
9. The term "conduct" is defined in s 138(1) of the National Law to mean "any act or omission".
10. In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 the Tribunal described the evaluative task required by s 139B(1)(a) in the following terms: 25. Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such.
11. Ms Muller's opinion was that RN Nguyen's failure to document the time of administration of thiamine and Panadeine was conduct significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience. That opinion was expressed having regard to the fact that RN Nguyen had only limited experience as a registered nurse and at best only three months experience working in custodial health.
12. The Tribunal agrees with the evidence of Ms Muller that medication administration and therefore documentation is a basic skill and competency of a registered nurse. The Tribunal accepts that RN Nguyen administered the medication for Clinic patients including Patient A in order to assist a busy colleague, on what appears to have been a busy shift. Notwithstanding that, the Tribunal finds that in not appropriately documenting the administration of the medication, RN Nguyen's conduct demonstrated that her knowledge skill or judgment, and care exercised, was significantly below the standard reasonably expected of a registered nurse of an equivalent level of training or experience. That conduct was, as designated by s 139B(1)(a) of the National Law, unsatisfactory professional conduct.
13. Ms Muller was critical of RN Nguyen's failure to document in Patient A's clinical notes that he had refused to take Epilim, noting that those actions while not ideal were in keeping with a registered nurse with equivalent experience and training. RN Nguyen's evidence was that she told RN Stratten about the refusal. RN Stratten in the JH&FMHN investigation interview on 6 March 2018 said that she had responded that it was the patient's right to refuse but that RN Nguyen should document it, and she assumed that she had. Having regard to the evidence as to RN Stratten's response, the Tribunal accepts that RN Nguyen told RN Stratten, the Clinic nurse with primary responsibility for his care, that Patient A had refused Epilim. That refusal should have been documented, as required by NSW Health Policy Directive Health Care Records Documentation and Management points 2.4 and 2.5.3, and the JH&FMHN Medication Guidelines point 6.2, as identified in particular 2(a), (b) and (e) of Complaint One. The Tribunal finds that in failing to document the refusal in Patient A's clinical notes, RN Nguyen's conduct was significantly below the standard expected of a registered nurse of equivalent training and experience. That was, as specified by s 139B(1)(a) of the National Law, unsatisfactory professional conduct. The Tribunal accepts the evidence of Ms Muller that while RN Nguyen's action in not updating the handover sheet to record the refusal of Epilim was not ideal, it was in keeping with what would be expected of a registered nurse of equivalent qualification and experience.
14. Complaint One is established.
15. The HCCC does not press the complaint that RN Nguyen's conduct was unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, as professional misconduct under s 139E of the National Law. The Tribunal records that on its assessment of the evidence, it would not in any event have made such a finding.

Conclusion

1. The finding of unsatisfactory professional conduct means that it is open to the Tribunal to consider making any of the protective orders specified in s 149A or s 149B of the National Law. Whether it is appropriate to make any such order, and if so, which, is to be determined following a further hearing.
2. Given the Tribunal constitution requirements for that hearing and the Stage 2 hearings in the related matters, the parties are urged to confer on suitable dates and to collaborate to enable the hearings to be listed consecutively, if practicable.
3. The Tribunal orders: 1. The Respondent is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW); 2. The matter is to be listed for hearing as to what, if any, protective orders should be made as a consequence of the Tribunal's findings, on a date to be fixed having regard to the availability of the parties and their representatives; 3. The following directions are made: 1. The HCCC is to provide to the Tribunal and the Respondent notice of any protective orders sought as a consequence of the Tribunal's findings, and any further evidence and submissions, on or before 10 November 2022; 2. The Respondent is to provide to the Tribunal and the HCCC any further evidence and submissions in response, on or before 24 November 2022; 3. The HCCC is to provide to the Tribunal and the respondent any further material in reply, on or before 1 December 2022; 4. The matter is listed on 24 November 2022 at 9.15am by AVL to fix a hearing date for the Stage 2 hearing, and to make any further necessary directions; 5. The proceeding will be listed for a stage 2 hearing on a date after 1 December 2022.

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: 25 October 2022