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.
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).
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.
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.
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.
Patient A was taken to the Clinic by wheelchair.
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.
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.
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.
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.
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.
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).
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"
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
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
The recommendation was "To remain in clinic until RSA completed and until cleared by drug and alcohol".
At approximately 2.46pm, Patient A was taken by wheelchair to Clinic cell 34.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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".
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."
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.
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.
At about 7.11am, EN Steele and CO Stankovski attended cell 34 for the morning medication rounds, where they found Patient A had died.
The Tribunal was informed that no decision has been made yet as to whether a Coroner's inquiry will be held.
[2]
The Main Clinic
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
[3]
NSW Health and JH&FMHN policy documents
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 policies relevant to the complaint against RN Nuevo 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 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.
[4]
The Complaint
There are two complaints. Complaint One of the Amended Complaint is that RN Nuevo is guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law in that he:
1. 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; and
2. has engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
The particulars of Complaint One are:
1. The Practitioner, as the NIC, failed to carry out his duties in that he failed to read the Clinical Notes and Health Records of Patient A, in accordance with:
1. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles & Responsibilities - Nurses/Line Manager or delegate);
1. The Practitioner, as the NIC, failed to direct EN Day to read the Clinical Notes and Health Records of Patient A, in accordance with:
1. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles & Responsibilities - Nurses/Line Manager or delegate);
1. The Practitioner failed to implement the treatment plan ordered by the treating MO, in that he failed to complete, or ensure that EN Day complete, clinical observations, at a minimum of fourth hourly intervals, of Patient A as instructed, in accordance with:
1. JH&FMHN Policy 1.340 Section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement;
2. JH&FMHN Policy 1.025 Clinical Observations, point 2.2 (Implementation - Roles and Responsibilities of Delegate);
3. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles & Responsibilities - Nurses/Line Manager or delegate);
1. The Practitioner failed to respond appropriately, or at all, to Patient A's requests to see a nurse and Patient A's complaint of abdominal pain between about 22:17 hours and about 22:23 hours on 6 December 2017, which were relayed to the practitioner by correction officers in circumstances where:
1. Patient A was being treated in a detox cell within the Clinic;
2. Patient A had been too unwell to complete RSA on his arrival at PKA;
1. The Practitioner failed to accurately document and/or update the clinical notes of Patient A, in that he knowingly made a false or misleading entry in Patient A's medical record by documenting an observation he had not made and/or documenting an observation he knew to be false in accordance with:
1. NSW Health Care Records - Documentation and Management, point 2.4 (Documentation by Nurses and Midwives);
2. NSW Health Code of Conduct, point 4.2 (Demonstrate honesty and integrity);
3. NSW Health Code of Conduct, point 4.3 (Act professional and ethically);
1. The Practitioner failed to ensure that the 'Morning Shift' nursing staff, namely RN Steele and RN Crammond, were provided with a clinical handover of Patient A, being a patient of concern, in accordance with:
1. JH&FMHN Policy 1.340 Section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement;
2. JH&FMHN Policy 1.075 Clinical Handover, point 3.2 (Situation where Clinical Handover is required);
3. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles & Responsibilities - Nurses/Line manager or delegate).
1. The Practitioner failed to seek appropriate approval to leave early and complete the nursing care and management shift he was rostered on to complete, in accordance with:
1. NSW Health Code of Conduct, point 4.2 (Demonstrate honesty and integrity);
2. NSW Health Code of Conduct, point 4.3 (Act professionally and ethically).
Complaint Two is that RN Nuevo is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 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 the suspension or cancellation of the practitioner's registration.
The HCCC alleges that each particular of Complaint One justifies a finding of professional misconduct; or in the alternative, when two or more of the particulars of Complaint 1 are taken together, a finding of professional misconduct is justified.
RN Nuevo admits particulars 1, 2, 3, and 6, and denies particulars 4, 5 and 7 of Complaint One.
[5]
Tribunal hearing
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 Nuevo (tab 4);
2. Expert report provided by Ms Christine Muller (tab 15);
3. Correspondence between the HCCC and RN Nuevo, including notifications under s 28 and s 40 of the Health Care Complaints Act 1993 (tabs 43, 47);
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 27 February 2018 and 28 March 2018 (tabs 65, 73);
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 and s 150A proceedings (tabs 97, 98, 100);
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.
RN Nuevo relied on:
1. Bundle of documents (ex JN1):
1. Response dated 28 August 2020;
2. Response to particulars of Complaint One;
3. References;
4. Educational documents;
1. Statement of Night Shift duties (ex JN2).
RN Nuevo gave oral evidence.
The HCCC provided written opening and closing submissions. RN Nuevo provided written closing submissions in reply.
[6]
RN Nuevo's evidence
In his response in general to all the complaints dated 28 August 2020 (ex JN 1, tab 1), RN Nuevo stated that in hindsight he should have read all of the medical records as soon as possible after the start of the shift and delayed the medication task until he had done so and checked all patients/prisoners were safe and settled. He asked the Tribunal to accept his assertions that he was not aware that Patient A was a patient of concern requiring a higher level of care than usual. If he had been aware he would have visited his cell to review him as soon as he had read his notes and then continued regular reviews throughout the shift with EN Day. He would have delayed any medication inventory until he was assured that Patient A was not at risk.
[7]
Complaint One: Particular 1
In his Response to the Particulars of Complaint One (ex JN 1 tab 2), RN Nuevo admitted that he did not read Patient A's clinical notes or health records, stating that if he had been made aware that the patient was of concern and that he had a special care plan in place he would not have missed reading the notes. He stated that he was not able to read the notes.
That is consistent with his response to the HCCC's notification under s 40 of the Health Care Complaints Act 1993 in which he stated that he relied fully on the handover report; if Patient A had been mentioned during the handover he would have prioritised him and read his notes. In the JH&FMHN investigation interviews RN Nuevo provided some explanation as to why he did not read Patient A's progress notes. On 27 February 2018 he stated that he did not get a chance to look at the notes, and in the interview on 28 March 2018 he stated that he did not look at the notes because he was told that RSA was not completed for Patient A, and when it is not completed at Reception the patients are kept in the Clinic. On that occasion RN Nuevo stated that if someone is ill or critical he would check the notes, but nothing was handed over verbally and nothing was written on the handover sheet. He was busy as well. Apart from the statement of duties for the night he was told to do the pharmacy inventory because the deadline for pharmacy for Christmas and New Year was the following day. A normal pharmacy inventory takes 4-5 hours. He did not look at the medication charts; and EN Day checked the medication charts that night.
In oral evidence to the Tribunal RN Nuevo maintained his position that he was too busy to read Patient A's clinical notes, as he had the additional task of doing the pharmacy inventory and EN Day was left to do nursing duties by herself for the first few hours of shift. If Patient A had been flagged as a detoxing patient he would have read the notes. He did not agree that 4 hourly observations would be required for a patient in the Clinic for the first time and in detox, stating that observations vary with detoxing patients and depend on orders from the doctor and D&A nurse. Taken to the handover sheet in evidence (ex A1, tab 108), RN Nuevo maintained that that is not the sheet used at the time, which had only the information that RSA had not been completed and there was a history of Crohn's disease and epilepsy. Had it included the information that Patient A was in opiate withdrawal and had IM Stemetil and PRN charted, it would have prompted him to pick up that the patient was in withdrawal. RN Nuevo agreed that the handover sheet at tab 108 was printed at 9.22pm, but said it was not provided during handover.
[8]
Complaint One: Particular 2
In response to particular 2, RN Nuevo admitted that he did not direct EN Day to read the clinical notes and health records of Patient A. He has worked with EN Day on night shifts and she is a capable enrolled nurse; and as an EN she is also responsible for reading patient notes and should not need to be directed to complete this task. That position is consistent with his response to the s40 notification in which he stated that EN Day is a competent and well-experienced nurse who had been working with him in JH&FMHN for quite a while and so he had no qualms about doing the pharmacy work at the time. EN Day did not raise any issues concerning Patient A with him.
[9]
Complaint One: Particular 3
RN Nuevo admits that he did not implement the treatment plan in completing or ensuring that EN Day completed, fourth hourly observations of Patient A. In his response to the particulars of Complaint One RN Nuevo stated that this was not handed over verbally or in writing by the previous shift, and if he had been aware of the treatment plan he would have implemented it. His oral evidence was that observations were only done as required, and if they had been told that observations were required, they would wake patients up to do them. RN Nuevo could not recall whether he had been told that Patient A had refused Epilim.
That evidence is consistent with RN Nuevo's responses in the JH&FMHN investigation interviews on 27 February 2018 and 28 March 2018, in which he said that he and EN Day would have observed patients in the Clinic if they got a call, or if they had been given a handover that a particular patient required two hourly or four hourly observations. He was taught that for patients in the Clinic it was only observations as required, otherwise not, because the Clinic was not running as an acute setting but as a community setting. They would not walk around and look at the patients; there are cameras in the cells being monitored by the officers in the Clinic. RN Nuevo stated that after the incident, staff are required to walk around and eyeball the patients.
[10]
Complaint One: Particular 4
RN Nuevo denied particular 4, that he failed to respond appropriately or at all to Patient A's requests to see a nurse. In his Response to the particulars, RN Nuevo stated that he was never asked to attend the patient cells at any time. As he was going to the Medical Records, next to the Officers' Station, he was asked to listen to the call between CO Foisa and Patient A, because CO Sarin did not relay his message properly and he was not sure what the patient needed or requested. As a result CO Foisa contacted the patient to ask if he was ok or required assistance and he heard the patient answer "I am OK Miss"; CO Foisa again asked "Are you sure you are OK? Do you need assistance?" and Patient A again replied "yes Miss". RN Nuevo referred to a call out to a patient who was having chest pain, and stated that he spent 45 minutes with that patient completing assessments and vital observations. If he had had another call out he would have answered it as well.
In oral evidence, RN Nuevo stated that the only time he was in contact with CO Sarin or CO Foisa was when he was asked to stand by while CO Foisa called Patient A on the Stenefon; he heard the call and heard Patient A say that he was OK. He was asked to stand by in case Patient A had any nursing needs: if he had said that he did, he would have responded. He did not know that Patient A had earlier complained of stomach pain.
RN Nuevo's evidence in the JH&FMHN investigation interviews was to the same effect, stating in the interview on 27 February 2018 that there were no call outs or complaints overnight from the officers, and no issues at all overnight. In his response dated 31 October 2019 to the HCCC s 40 notification, RN Nuevo stated after the handover he was tasked to do the end of year pharmacy inventory and ordering, which meant he was away from his normal duties for almost five hours, and he recommenced his normal duties between 2.45-3.00am. It was a busy night and they were not able to take a break. He was never asked by CO Sarin to attend to Patient A: the two officers on duty were having issues communicating with him whether he needed assistance.
RN Nuevo's evidence that there was not a call out is not supported by that of the correctional officers on duty.
CO Sarin provided two statements, dated 7 December 2017 and 9 December 2017 (ex A1, tab 109). In the earlier statement he recorded that at approximately 10.18pm he received a steno call from Patient A requesting to see the nurse; he informed RN Nuevo, who asked him the reason the inmate wanted to see the nurse. He went to cell 34 and asked Patient A about his welfare and the reason he wanted to see the nurse; Patient A verbally abused him, and asked to see the nurse. He went back to the Officers Station and notified RN Nuevo. RN Nuevo came to the Officers Station and asked CO Foisa to ask Patient A about his purpose in seeing the nurse. He did not know what transpired in the conversation between CO Foisa and Patient A.
In his statement dated 9 December 2017 CO Sarin stated that at 7.05pm during the pill round CO Foisa opened cell 34, the nurse got a cup of water for Patient A, who took one or two pills from the nurse's hand and refused to take others, and they then secured the cell. In that statement CO Sarin provided the same information about the interaction with Patient A at 10.18pm as is recorded in the statement of 7 December 2017.
In oral evidence CO Sarin confirmed his written statements. Questioned by RN Nuevo as to how Patient A sounded, CO Sarin could not recall if Patient A sounded stressed; he just said he wanted to see the nurse. He was asked if he could remember what RN Nuevo said to him, and said that RN Nuevo did not refuse. After he went to the other officer he went back to doing paperwork.
In her statement dated 13 December 2017 (ex A1, tab 109) CO Foisa stated that her interaction with Patient A was when he asked by Stenefon to see a nurse, as he was having stomach pains; she advised the nurse who advised her he had been given medication. He called again through the Stenefon and complained about his stomach and the nurse was notified. She attended Patient A for pill parade, he was on supervised medications and was seen by a nurse with nil issues. Towards the end of her shift CO Sarin asked her to call Patient A on the Stenefon as he did not relay his message properly. She then called Patient A on the Stenefon with a nurse present and asked if everything was OK; he replied "No everything is ok miss", she replied "Are you sure", he replied "Yes". That was her last interaction with Patient A.
In oral evidence CO Foisa relied on her statement and had little independent recall of the incident. CO Foisa stated that her first interaction with Patient A must have been through the Stenefon. CO Foisa could not recall who was the nurse to whom she referred in her statement. CO Foisa was asked about the reference in her statement to "called again" and said that was throughout the shift. Towards the end of the shift, CO Sarin who did the last checks could not understand the inmate so he asked her to go on the Stenefon and asked whether he was okay, and the inmate said everything was ok. That was probably around 10.30-11.00pm. The nurse was probably there when they called and he said it was ok. CO Foisa could not remember who the nurse was, or whether it was a male or female nurse. It was a busy day, and there were lots of incidents that day. She remembered working with another officer, and he did not understand what Patient A was saying. In cross examination CO Foisa said that she did not recall what Patient A said when she called him on the Stenefon, but it is what she wrote in the statement. She did not recall what she felt at the time. CO Foisa could not recall whether CO Sarin had raised with her that a nurse had refused to see a patient, and did not recall a nurse refusing to see a patient. If anyone had refused she would have told the JH &FMHN supervisor on site.
In oral evidence EN Day stated that she was not informed of a knockup, and she only recalled officers coming to say hello or goodbye. She did not see any officer come to raise any issue with anyone who was detained in the Clinic. She could not recall seeing RN Nuevo going to the Officers' Station at any time.
[11]
Complaint One: Particular 5
RN Nuevo denied particular 5, stating in his response to the particulars that he documented that Patient A was settled and there were no issues overnight because the patient did not call for any assistance overnight and as far as he was aware he had no issues. The patient was in a camera cell and was monitored by a Clinic officer overnight, and the Clinic officer did not alert him or EN Day of any issues with regards to Patient A, so he honestly documented that he was "settled and no issues overnight". He acknowledged in the JH&FMHN interview on 27 February 2018, and on 28 March 2018, that he did not physically check Patient A, and his entry was based on the fact that there were no call outs.
RN Nuevo's oral evidence was that he wrote that statement at 5.55am based on there being no call outs or issues raised. His evidence was that in the Clinic they would observe as required; and even though Patient A was in a detox cell, GEO will place inmates in those cells until assessment is completed. In cross examination RN Nuevo accepted that even on his version of what happened with CO Sarin and CO Foisa, his note was not a fair note of what happened overnight with respect to Patient A.
[12]
Complaint One: Particular 6
RN Nuevo admits that he failed to ensure that the morning shift staff on 7 December 2017 were provided with a clinical handover of Patient A. In his reply he stated that the handover he was given was incomplete and Patient A was not singled out as a patient of concern and the MO's plan was not discussed or documented. The afternoon NUM relieved him of his duties as a night RN in charge and asked EN Day to continue all duties by herself as he needed to do the pharmacy inventory.
RN Nuevo was asked in the JH&FMHN investigation interviews about the handover to the morning shift on 7 December 2017. On 27 February 2018 he stated that handover took place at 6.30am-7.00am; and he did the handover to EN Steele who was the Clinic nurse that day. There was no discussion of Patient A, and he told EN Steele there were no call outs and it was settled overnight.
In her JH&FMHN investigation interview on 6 March 2018 EN Steele confirmed that she was Clinic nurse on the morning of 7 December 2017. She asked about Patient A and how he was overnight, and was told he was still in the Clinic and had had a settled night. She then packed her medications for the Clinic shift and asked the officer to start with Patient A first.
[13]
Complaint One: Particular 7
Particular 7 relates to the time at which RN Nuevo left PKA on the morning of 7 December 2017. RN Nuevo was rostered on until 7.30am. In the JH&FMHN interview on 27 February 2018, and in the s 150 hearing on 26 March 2018, RN Nuevo stated that he left at around 7.00am. In the JH&FMHN interview on 28 March 2018 RN Nuevo stated that he had told the morning shift they had a busy night. He acknowledged that he did not get permission from the afternoon shift or day shift NUM to leave early, and said that EN Steele had told them to go home after handover. They did not have a break overnight and they finished handover early and went home. RN Nuevo was asked about the CSNSW Activity Report biometric data (ex A1, tab 82) that showed he left the premises at 6.42am, and responded that the biometric data had been out by about 20 to 25 minutes since the previous year.
The HCCC evidence includes (ex A1, tab 84) a photograph of RN Nuevo and EN Day leaving the Gatehouse at 6.38am. RN Nuevo confirmed in oral evidence to the Tribunal that that photograph shows him leaving the Clinic cage at 6.38am, stating that from there they would have to walk to the main entrance to get out of the premises, a few minutes walk.
[14]
Expert evidence
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 on 18 May 2022 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.
[15]
Report 30 September 2019
In her report (ex A1, tab 15) Ms Muller stated that assuming RN Nuevo had been provided with the handover sheet at ex A1, tab 108, he would be aware that Patient A was a patient of concern based on that information, and that he was newly transferred into the Clinic. RN Nuevo should have taken the time to review his clinical record where he would have located the HPNF recording that Patient A was in withdrawal, the Substance Monitoring and SAGO Charts, and the progress notes that identified Patient A's clinical assessment and management plan. Alternatively, and assuming that the handover sheet provided did not make reference to Patient A being in detox and opiate withdrawal, on being informed that he had been transferred from Reception, it would be reasonable to expect that RN Nuevo would review the clinical records to become informed about the new patient transferred to the Clinic, and in doing so identify Patient A's co-morbid conditions, that he was experiencing opiate withdrawal, that he had required IM injection, and note the management plan. That review would also have identified that the clinical observations due at 7.00pm had not been attended and there was a need for this to occur as a priority. Regardless of whether the clinical handover sheet included all the information, in her opinion RN Nuevo's failure to identify that Patient A was a patient of concern was significantly below the standard reasonably expected. Ms Muller did not accept the explanation that RN Nuevo did not read Patient A's notes because he had a busy night. In her opinion direct patient care must always be the primary focus, and his failure to read the notes at any time during the shift was significantly below the standard reasonably expected.
Ms Muller was of the opinion that RN Nuevo should have directed EN Day to read the clinical notes as a routine part of having a newly received patient into the Clinic, and that need was amplified given that he did not read the notes himself as he was busy. In her opinion that was significantly below the expected standard. Ms Muller considered that RN Nuevo's failure to complete, or ensure that EN Day completed, any physical observations on Patient A was poor practice, and significantly below the expected standard.
In Ms Muller's opinion RN Nuevo's practice of only relying on handover to identify patients of concern in his shift was poor: handover is a tool, however it is not foolproof. His practice of not physically reviewing patients unless in receipt of a Stenefon call was inadequate: as a registered nurse of 10 years clinical experience it was up to him to inform the officers that he needed to physically review the patient. His practice of not physically checking on patients unless concerns were raised at handover or receipt of a Stenefon call was significantly below the expected standard.
Ms Muller was of the opinion that it is not acceptable to rely on a response provided by a patient to a correctional officer as in many circumstances patients are reluctant to disclose their health concerns to a non-medical member of staff. RN Nuevo's failure to attend to Patient A was significantly below the expected standard.
Ms Muller considered that on the basis that RN Nuevo was informed that Patient A had contacted officers for nursing assistance but did not document that, or attend the cell to determine the reason for the request; and that he did not differentiate what had been observed and what had been reported and did not complete clinical documentation in a clear and structured manner to enable other members of the health care team to assume care of the patient, RN Nuevo's clinical documentation relating to Patient A was inaccurate and of poor standard and was significantly below the expected standard. Even if he had not been informed by GEO officers that Patient A had made calls asking for nursing assistance, RN Nuevo did not adhere to NSW Health Care Records policy or the NSW Health Code of Conduct.
Ms Muller considered that RN Nuevo, as the registered nurse on duty, was responsible for ensuring the clinical handover sheet was updated at the end of his shift by either updating it himself or delegating the task to EN Day. If as EN Day stated in her JH&FMHN interview on 2 March 2018 she was responsible for the notes for the patients in cells A-H and he was responsible for cells 34-39, he was responsible for ensuring that the clinical handover sheet had been updated even if he was of the opinion that nothing had changed during the night. His failure to do so was significantly below the expected standard. RN Nuevo's clinical handover of Patient A to the morning shift was inadequate, and there was no evidence that the ISBAR framework was used; that was significantly below the expected standard. Ms Muller was of the opinion that RN Nuevo's actions in leaving the centre early without appropriate approval, which would have been from the After Hours Nurse Manager, before completing nursing care and management of Patient A by completing physical observations, and before reading the progress notes and updating the handover sheet, was significantly below the expected standard.
In summary Ms Muller was of the opinion that RN Nuevo did not adhere to the JH&FMHN Clinical Handover Policy, Accommodation Policy or Clinical Observation Beds Policy in that he did not provide clinical handover, and did not ensure that a patient housed in a detoxification cell or in a Clinic cell had clinical review and observations attended. That was significantly below the expected standard.
In cross examination by RN Nuevo Ms Muller was asked whether it would be best practice for the Reception nurse to handover to the night shift a patient who had been placed in the Clinic. She did not agree, commenting that the Reception nurse had handed over to the drug and alcohol nurse and to the medical officer.
[16]
Oral evidence 18 May 2022
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[17]
Ms Muller's expert evidence
The Tribunal is satisfied that Ms Muller's expert 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.
[18]
Submissions
The HCCC submits that to the extent that it is necessary to resolve discrepancies in the evidence in order to determine the complaints, the Tribunal should prefer the account of events given in the interviews that each witness gave early in 2018 over evidence given to the Tribunal that is inconsistent with those interviews or appears to be a recent invention in light of those earlier interviews. On that basis, the HCCC submits that the Tribunal should reject much of the evidence of RN Nuevo. The HCCC submits that he was clearly giving evidence that he thought would best answer the complaint against him and that the Tribunal should find that his evidence was not truthful in two respects: first, his evidence that he did not receive a handover from RN Stratten using the handover sheet at tab 108; and secondly, his evidence that CO Sarin did not tell him that Patient A wished to see a nurse.
The HCCC submits that the admitted matters, particulars 1, 2, 3 and 6 of Complaint One, are serious and in themselves clearly justify a finding of unsatisfactory professional conduct, and professional misconduct.
The HCCC has amended particular 4, by deleting the reference to Patient A's complaint of abdominal pain, based on the evidence of CO Foisa who confirmed that the reference in her statement of 13 December 2017 to Patient A complaining of abdominal pain recounts a separate incident which occurred before the medication round, and not the incident when CO Foisa called Patient A on the Stenefon towards the end of her shift. The HCCC submits that the Tribunal should find that RN Nuevo was told twice that Patient A wished to see a nurse.
The HCCC submits that in considering particular 4, the Tribunal should accept CO Sarin's evidence of the events of the night shift. That evidence, that the relevant events were as recorded in the report he signed on 7 December 2017, is consistent with the CCTV footage which shows CO Sarin checking on Patient A in cell 34 at about 10.19pm on 6 December 2017. It is implausible to suggest that CO Sarin's 7 December 2017 report is fabricated or he would not have accurately recalled the events of the previous evening, or that RN Nuevo does not recall the events recounted by CO Sarin. The Tribunal should accept the expert evidence that RN Nuevo should have attended on Patient A after being told of his request to see a nurse, even if the patient then said that he was fine. The HCCC submits it is even more concerning that the repeated requests to see a nurse did not prompt RN Nuevo to review Patient A's notes. His failures to do so alone justify a finding of unsatisfactory professional conduct and professional misconduct.
The HCCC submits that RN Nuevo's note recorded in Patient A's clinical notes at 5.55am was false and misleading, in circumstances where he was aware that Patient A had twice asked to see a nurse at about 10.20pm on 6 December 2017; and that that reflects a very serious failure of judgment by RN Nuevo and in itself justifies a finding of unsatisfactory professional conduct pursuant to both s 139B(1)(a) and (l) of the National Law, and a finding of professional misconduct.
The HCCC notes that RN Nuevo in evidence accepted that he and EN Day left the Clinic at about 6.38am, as shown on a still from CCTV which is in evidence and is consistent with the PKA Activity Reports that record RN Nuevo and EN Day both checking out at the Gatehouse a few minutes later, at about 6.42am. The shift was not due to end until 7.30am. While EN Steele gave evidence to the effect that she told them to leave after they had provided a handover, she was not a person with authority to give them permission to complete their shift early. RN Nuevo's actions in leaving approximately 45 minutes before his shift was scheduled to end were particularly egregious in circumstances where he had not read Patient A's notes nor attended on Patient A during his shift.
In reply, RN Nuevo submits that the Tribunal should not find the complaint of unsatisfactory professional conduct and professional misconduct to be proven, because he has been honest. He is a safe practitioner and has not had any issues with his registration since the incident in 2017. He realises he should have asked more questions at handover and read all the patients' medical records immediately after clinical handover, and he should have delayed the additional medication tasks until he had personally checked on the welfare of all his patients. Had he been aware of Patient A's condition he would have visited his cell to review him as soon as he had read his notes and then continued regular reviews throughout the shift.
RN Nuevo submits he was only approached by CO Foisa once, to standby in the Officers' Station while they called Patient A. That was because CO Sarin was not sure what the patient requested. He was definitely not approached three times in a span of 20 minutes after clinical handover by CO Sarin for Patient A. Had CO Sarin asked him to see a patient, it would have prompted him to review the patient immediately. He would never let a patient wait if the officers had asked him to see them, especially if asked more than once. He asks the Tribunal to accept his assertions that he was not aware that patient A was a patient of concern requiring a higher degree of care than usual.
[19]
Discussion and findings
RN Nuevo admits that he did not read Patient A's progress notes, explaining that he was busy doing the pharmacy order and that he was not told at handover that Patient A was detoxing. His position at the JH&FMHN interviews in February and March 2018 was that all he was told at handover from the afternoon shift was that Patient A's reception was not done, he was epileptic and had Crohn's disease. At the second of those interviews on 23 March 2018 RN Nuevo denied being told of the substance withdrawal observation plan for Patient A, or that he had refused medication and had been given Panadeine.
It does not appear to be in dispute that there was a written handover sheet used as well as a verbal handover in the shift to shift to shift handover that RN Nuevo received. In the s 150 hearing on 26 March 2018 RN Nuevo stated that it was not verbally handed over, or on the written handover sheet, that Patient A was detoxing and needed four-hourly observations. That there was a written handover sheet as well as an oral handover is also consistent with RN Nuevo's statement in his Reply that he was not made aware that Patient A was a patient of concern by the afternoon nurse who gave the verbal and written handover to himself and EN Day.
In issue is what was recorded about Patient A in any handover sheet that RN Nuevo received as part of the shift to shift handover on 6 December 2017. The Tribunal accepts that, as stated by EN Steele, usual practice was for the clinical handover sheet to be updated in the electronic system during each shift, and the form would be printed and retained in a handover book kept in the Nurses' Station for reference by each nurse looking after the patient. The document would be used in the regular handover process at the end of each shift, each nurse working in the Clinic on the next shift having a copy.
The only copy of such a document in evidence before the Tribunal is the copy at tab 108 of the HCCC's documents, which was provided by RN Gallagher to the Council delegates at his s 150 hearing on 21 May 2018. It is not apparent to the Tribunal why that document, or any other iteration of a clinical handover sheet used in the Clinic on 6 or 7 December 2017, was not located during the JH&FMHN investigation process. A note at the end of that document states that the handover sheet is to be filed in the Clinic handover folder "when next sheet attended - they are kept for 2 months".
There is no evidence to suggest when RN Nuevo, or any other of the respondent RNs, became aware of that version of the handover document either during the course of the HCCC investigation or these proceedings until it was served in the HCCC documents. On the evidence before the Tribunal RN Nuevo is the only one of the respondents to recall there being a discrepancy between the form of the document at ex A1, tab 108 and the version provided to them on the day. The information recorded on that document in relation to Patient A was accurate as at approximately 2.45pm when the CNS D&A and Dr Lee had completed their assessment and RN Gallagher had administered the IM injection. It was not accurate as at the time of the handover from the afternoon shift, by which time Patient A had refused his prescribed Epilim.
EN Day's oral evidence was that there was a handover sheet, however she did not know if the document at tab 108 was that exact one or another one. In oral evidence RN Nuevo maintained that his evidence to the Tribunal was consistent with that he had previously provided at the 2018 interviews. He agreed that his belief that opiate withdrawal and Stemetil were not mentioned on that document was because he would otherwise have behaved differently, saying that even the clinical NUM and EN Day would have picked it up, they would not have missed it.
The time recorded on the document in evidence, 9.22pm, was shortly before handover from the afternoon to night shift. While RN Stratten could not recall precisely, she accepted that it was likely she used that document for the handover which she conducted. EN Day recalled being informed at handover that Patient A had refused Epilim. The Tribunal finds it more likely than not that in the shift to shift handover the handover sheet in evidence was used by RN Stratten, supplemented by additional verbal information, including the refusal of Epilim. The Tribunal does not accept RN Nuevo's evidence that the words "Currently in Opiate W/D. IM Stemetil 12.5mg given. PRN meds charted" were missing.
If that conclusion is not correct, and if those words were not in fact included in the Diagnosis/Comment section of the written handover document available to RN Nuevo at shift to shift handover, the document states that the reason why Patient A was in the Clinic is "Detox". He was one of only two persons housed in the detox cells 34-39 for that reason, and that would distinguish Patient A from all the patients housed in the Clinic cells for mental health or RIT reasons. Even if the verbal handover did not include the information that Patient A was in opiate withdrawal, and that there was a management plan, Patient A was a new admission to the Clinic housed in a Detox cell for whom reception screening had not been completed.
RN Nuevo's evidence in his s 150 hearing was that it was not mentioned in the verbal handover or on the written handover sheet that Patient A was detoxing and he needed four hourly observations. The requirement for four hourly observations was not included in either the version of the handover sheet at tab 108 or in the handover sheet as RN Nuevo recalled it. In the Tribunal's opinion the fact that Patient A was a new admission in the Clinic, housed in a detox cell, for whom RSA had not been completed, was sufficient to have alerted RN Nuevo, as the nurse in charge on the shift, to the fact that he, or EN Day at his request, needed to check the clinical notes to see what care was required. The fact that Patient A was in withdrawal was clear in both versions of the HPNF and the D&A Substance Withdrawal Monitoring chart, and the requirement for four hourly observations was clear in the progress notes recorded by both the CNS D&A and the MO. In oral evidence RN Nuevo explained that a patient of concern is an acutely ill patient, it can be medical, detox or sometimes mental health issues; those patients of concern need to be flagged to the night shift so they can keep an eye on them. However, he agreed with the evidence of Ms Muller that all patients who are housed in the Clinic are of some concern, that they are in the Clinic because they are of some concern unless placed there for security purposes by GEO. The Tribunal concludes that whether or not Patient A was ever formally described as being a "patient of concern" could not have altered RN Nuevo's obligation to read the progress notes. As the Registered Nurse on duty on the night shift, he was required to foster a high standard of patient care and health care delivery (ex A1, tab 46).
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.
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 be 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. The Tribunal is conscious that RN Nuevo has represented himself throughout these proceedings. 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.
Particulars 1 and 2 of Complaint One as originally drafted referred to JH&FMHN policy 1.340 section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement, point 2.2 (Implementation - Roles and Responsibilities). On the documents in evidence, section 3.1.7 of that policy refers to a minimum twice daily review of patients experiencing acute substance withdrawal who are placed in a Clinical Observation bed; and point 2.2 refers to the making of clinically based recommendations to CSNSW staff in relation to cell placement. As amended, particulars 1 and 2 refer to the identification in point 2.2 in JH&FMHN policy 1.075 Clinical Handover of the responsibilities of the NUM, Line Manager or delegate. The responsibilities provided in policy 1.075 do not expressly refer to a requirement to read the clinical notes and health records, rather they address the key issues for clinical handover, and ensuring that it happens.
Neither of the specified provisions of the JH&FMHN policies address the obligation on RN Nuevo to read the clinical notes and health records, or as NIC on the shift, to direct EN Day to read them. However, he has not denied that he failed to read the clinical notes and health records of Patient A, and did not direct EN Day to read them. He was the RN, and NIC on the night shift. The Tribunal agrees with Ms Muller that whether or not he received a written handover sheet noting that Patient A was in opiate withdrawal, or was told that in handover, the fact that Patient A was a new patient in the Clinic transferred from Reception required RN Nuevo to read the clinical notes. The Statement of Duties for the night shift at PKA (ex A1, tab 45) included checking the handover sheet against the whiteboard and updating as required, checking all medical files were in the Clinic office for patients in the Clinic, and checking that the current HPNF matched entries on the clinic handover sheet. The HPNF identified that Patient A was in withdrawal, and had RN Nuevo cross checked the clinical handover sheet with the white board and the HPNF that would have identified that Patient A was a patient of concern and that he needed to read his clinical notes. And if he was occupied for a significant part of the shift in the pharmacy inventory and order leaving EN Day with patient care, RN Nuevo was responsible for ensuring that that was managed appropriately: and that included ensuring that she was aware of the treatment and management plan documented in the notes. Particulars 1 and 2 are established.
RN Nuevo has admitted particular 3, that he failed to implement the treatment plan ordered by the treating MO in that he failed to complete, or ensure that EN Day completed, clinical observations of Patient A. His oral evidence was that RN Balagtas had delegated EN Day to manage all nursing care while he completed the pharmacy inventory; and that he and EN Day divided up the task of writing up patient notes at the end of the shift. As NIC on the night shift, RN Nuevo had responsibility for the co-ordination and management of patients in the cells. He was accordingly subject to the obligation specified in JH&FMHN policy 1.025 Clinical Observation Beds in Health Centres (Adults) point 2.2 to review the treatment plan and co-ordinate any treatment ordered by the treating MO. According to the Position Description (ex A1, tab 46), as a registered nurse RN Nuevo was required to liaise with nursing staff over patient care, including "supervision". Even if some or all patient care had been delegated to EN Day while RN Nuevo was busy doing the pharmacy order and not directly providing care, his obligation was to ensure that it was provided. His failure to do so was a breach of JH&FMHN policy 1.025 as alleged in particular 3, even if it was not contrary to the provisions of JH&FMHN policy 1.340 Accommodation - Clinical Recommendation (Adults) or JH&FMHN policy 1.075 Clinical Handover also relied upon by the HCCC. Particular 3 is established.
RN Nuevo disputes the allegation in particular 4 that he failed to respond appropriately to Patient A's requests to see a nurse. In considering which of the differing versions of the events is to be accepted, the Tribunal notes that there is no recording available of the Stenefon calls made to or by any officer and Patient A. As noted in the CSNSW Investigation Report, the recording function was not operating at the time. There were also issues identified in the CSNSW report with camera monitoring of the cells: the CCTV vision was lost overnight once the cell light was turned off until daylight the following morning because the cell camera was not night vision capable.
In evidence are images from CCTV footage collated from various camera locations (ex A1, tab 109), including outside cell 34 and at the Clinic Officers' station. Those images record that at 10.17pm CO Sarin spoke to RN Nuevo as he walked past the Officers' station; that at 10.19pm the light in Cell 34 was turned on (turned off 14 seconds later), and Patient A is seen to stir, covering his eyes with his hand; and that at 10.23pm CO Sarin returned to the Officers' station, with CO Foisa seated at a work terminal and RN Nuevo standing at the counter, with only his hand visible. In oral evidence CO Sarin confirmed that he is the person standing outside cell 34 and turning on the cell light from the outside wall switch before checking through the cell door peep hole at 10.19pm.
In their evidence to the Tribunal CO Sarin and CO Foisa relied on their written statements provided as part of the CSNSW investigation, and had no independent recollection of the events of 6 December 2017. Those statements were made shortly after those events, and the Tribunal regards them as a reliable contemporaneous record. The sequence of CCTV images confirms that CO Sarin went to the door of cell 34 after a brief interaction with RN Nuevo at the Officers' station, and turned on the light and looked into the cell. Shortly thereafter, he returned to the Officers' station where both CO Foisa and RN Nuevo were present. In the Tribunal's view, no plausible reason has been suggested as to why CO Sarin would go to the door of cell 34 and turn the light on at that time, except in response to a Stenefon call from Patient A. The Tribunal accepts CO Sarin's evidence that in that call Patient A asked to see a nurse, that that message was relayed to RN Nuevo, and that he had gone to cell 34 at the request of RN Nuevo. That there was a call out at around that time is supported by the oral evidence of EN Steele, who stated that when she went to the Clinic at the end of her shift at 10.00pm, the nurses were in the Nurses' Station doing handover; and an officer came to the Nurses' Station and said that someone was calling out for help.
The substance of the subsequent conversation over the Stenefon between Patient A and CO Foisa, with RN Nuevo standing close by, is not disputed.
On the evidence before the Tribunal, in neither call did Patient A give to CO Sarin or CO Foisa a reason why he wanted to see a nurse. The Tribunal agrees with Ms Muller that it would be more likely that an inmate would disclose such information directly to a nurse rather than to a correctional officer. The issue is whether whatever was said by Patient A, or the circumstances in which the correctional officers were alerted, was sufficient to constitute a request for nursing assistance to which RN Nuevo did not respond as alleged in particular 4.
The Tribunal accepts that at the time CO Sarin received the Stenefon call from Patient A, RN Nuevo was occupied with the pharmacy inventory and ordering, a task which had to be completed that night before the Christmas cut off. The Tribunal has some concerns that the RN on duty was required to spend between 4-5 hours of the night shift undertaking that task, reducing the capacity to provide clinical care. Notwithstanding those concerns, and accepting that to check on Patient A would have diverted RN Nuevo from that task, cell 34 was located in the Clinic, around the corner from the corridor where the Officers' Station was located, and there were correctional officers present who could have assisted him to check on Patient A in person. Patient A was housed in the Clinic in accordance with JH&FMHN policy 1.340 in order to facilitate access by health staff if required. While RN Nuevo denies having been expressly told that Patient A was in opiate withdrawal, he was located in a Detox cell in the Clinic, and RN Nuevo was aware that RSA screening had not been completed. The Tribunal is satisfied that as the RN on duty RN Nuevo should have taken steps to check directly with Patient A, and not rely on what he heard over the Stenefon in Patient A's conversation with CO Foisa. RN Nuevo failed to respond to Patient A's request to see a nurse, and particular 4 is established.
RN Nuevo disputes the allegation in particular 5 that he failed to accurately document or update Patient A's clinical notes in his record at 5.55am at the end of his shift, that "Pt settled overnight. Nil issues raised". In the JH&FNHN interview on 27 February 2018 RN Nuevo stated that he did not actually check the patient, and that normally the patients would call the officers but overnight there were no issues; his notes, written at the end of the shift, were based on the fact that there were no call outs.
In his Reply RN Nuevo stated that he documented that Patient A was settled and there were no issues overnight because the patient did not call for any assistance overnight; he was in a camera cell and was monitored by a Clinic officer overnight. He stated that the Clinic officer did not alert him or EN Day to any issues and as a result he honestly documented "Settled and no issues overnight". In oral evidence RN Nuevo maintained his previous assertion that he wrote that statement because there were no call outs and no issues raised that night in the Clinic. Staff would only observe patients as required. He wrote the same note for every other patient that evening.
Particular 5 refers to points 4.2 and 4.3 of the NSW Health Code of Conduct. Section 4.3.1 requires staff to "at all times act in a way consistent with NSW Health's duties of care to its patients and clients and to its obligations to provide a safe and supportive environment on its premises for patients …". Point 2.4 of NSW Health Policy Directive Health Care Records - Documentation and Management provides that document by nurses must include "comprehensive completion" of patient care forms; and at 2.5.3, an entry in the health care record for each patient attendance and for failures to attend. In the context of the interaction between RN Nuevo and the correctional staff in response to Patient A's call out, RN Nuevo's statement that "Pt settled overnight" was not correct. And even if RN Nuevo did not regard the interaction as a call out, in the Tribunal's view it could not properly be described in terms that there were "no issues" overnight. The entry in Patient A's clinical notes was not accurate or comprehensive, and it was misleading. It was an observation that RN Nuevo had not made, even if he may not have actually known or believed it to be false. Particular 5 is established.
RN Nuevo has admitted particular 6. Under point 3.2 of JH&FMHN policy 1.075 Clinical Handover, a clinical handover of Patient A was required for the oncoming morning shift; at best, based on the evidence of EN Steele, the staff were told that Patient A had had a good night and that he was sleeping well. That does not accord with the requirement in point 2.2 of that policy, that the NUM or delegate is responsible for implementing the standard key principles of clinical handover, which under point 2.1 include a requirement that the ISBAR framework be used. Particular 6 is established.
Particular 7 is that RN Nuevo failed to seek approval to leave early before the end of his shift. The evidence before the Tribunal includes the Gatehouse activity report (ex A1, tab 82) which shows that RN Nuevo left at 6.42.46am; and a photograph (ex A1, tab 84 showing him leaving the Clinic cage at 6.38am. Ultimately in oral evidence RN Nuevo conceded that he had left before 7.30am. Points 4.3.5 and 4.3.6 of the Code of Conduct, which require staff to "carry out their duties diligently and efficiently", and to "not absent themselves from the workplace without proper notification, when they are meant to be on duty, …" are relevant.
It is apparent that there was a practice at PKA that night shift staff could leave once the morning shift staff had arrived, especially if they had had a busy night and no break during their shift. However, that does not detract from the requirement to seek appropriate approval, not from the oncoming Clinic nurse. RN Nuevo told the JH&FMHN investigators on 28 March 2018 that he did not get permission from the afternoon or day shift NUM that he was going to leave early. Particular 7 is established.
The particulars of Complaint One are established. The issue is whether any of that conduct constitutes unsatisfactory professional conduct; and if so, whether the complaint of professional misconduct is established
[20]
Whether unsatisfactory professional conduct
The HCCC alleges that the conduct in the particulars in Complaint One constitutes unsatisfactory professional conduct under both s 139B(1)(a) and (l) 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.
…
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 (Amalakumar) 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.
The Tribunal continued, on s 139B(1)(l):
26. In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether "any other improper or unethical conduct relating to the practice … of the practitioner's profession" has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct.
The National Law does not define the words "improper" and "unethical", and those words as used in s 139B(1)(l) have been construed in that context to have their ordinary and natural meaning. The HCCC relies on the discussion in Health Care Complaints Commission v Little [2016] NSWCATOD 146 (Little) at [68]-[69], that "improper" means "not in accordance with propriety of behaviour, manners etc. or abnormal or irregular", and "unethical" means "contrary to moral precept; immoral …or …in contravention of some code of professional conduct". That is the approach adopted in other Tribunal decisions, most recently in Health Care Complaints Commission v Phuoc Loc Le [2022] NSWCATOD 85 at [54]. In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 (Achurch) the Tribunal stated:
41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]).
The HCCC submits, relying on Little at [57]-[61], that conduct can simultaneously be unsatisfactory professional conduct pursuant to s139B(1)(a) and s 139B(1)(l). There is a divergence of views on that issue. In Attia v Health Care Complaints Commission [2017] NSWSC 1066 Walton J held (at [160]) that the opening words of s 139B(1)(l), "any other improper or unethical conduct", makes clear that the provision is dealing with conduct not otherwise dealt with in s 139B(1)(a)-(k). A similar view was expressed in the Tribunal decision in Achurch at [31], that by reason of the opening words "any other…", if conduct falls within s 139B(1)(a), there is no work for subsection (1)(l) to do. In neither decision was Little referred to.
That question was considered in detail by DP Boland ADCJ in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123. In that decision, the Tribunal accepted the submission that in construing s 139B it is necessary to have regard to the objects and principles underpinning the National Law and in particular s 3A, which provides that in exercising any function under the National Law, the protection of the health and safety of the public are the paramount consideration. On that basis, it would be contrary to those public interests if the Tribunal were precluded from making a finding that conduct is unethical or improper merely by virtue of the fact that it also falls below the standard. Her Honour concluded that it is the evaluative assessment of the conduct that distinguishes conduct under s 139B(1)(l) from conduct under s 139B(1)(a), and, referring to the majority decision in King v Health Care Complaints Commission [2011] NSWCA 353, that facts which may establish any of the 11 unsatisfactory professional conduct grounds preceding s 139B (1) (l) may of themselves, if proven, constitute unsatisfactory conduct, and additionally may also constitute "any other improper or unethical conduct".
The HCCC framed its complaint against RN Nuevo alleging unsatisfactory professional conduct under both s 139B(1)(a) and (l) of the National Law. The closing submissions do not identify in relation to the admitted conduct in particulars 1, 2, 3 and 6 which aspects of that conduct fall within either, or both, of those subparagraphs. The closing submissions clarify that the conduct in particular 4 is alleged to have fallen well below the expected standard, that is, subparagraph (a); and that in particular 5, to fall within both subparagraphs (a) and (l). The Tribunal notes that it would have been preferable, particularly where the respondent is self represented, for that clarification to have been provided either in the complaint itself or in submissions.
The Tribunal agrees with Ms Muller's assessment, and finds that RN Nuevo's failure to provide proper nursing care as admitted, or found, in particulars 1, 2, 3, 4, and 6 of Complaint One demonstrates the knowledge, skill or judgment possessed, and care exercised, by RN Nuevo was significantly below the standard reasonably expected of a registered nurse of an equivalent level of training or experience. The Tribunal regards his recording in Patient A's clinical notes that he was "settled overnight" and "nil issues raised" when he had not responded to Patient A's request to see a nurse, and when neither he nor EN Day had reviewed or attended the patient, to be inconsistent with the obligation to act at all times in a way consistent with NSW Health's duties of care to its patients and clients, and to carry out duties diligently and efficiently, stated at 4.3.1 and 4.3.5 of the NSW Health Code of Conduct. His conduct in leaving PKA before the end of his shift without appropriate approval, was contrary to the requirement at 4.3.6 of that Code of Conduct to not absent himself from the workplace without proper notification when meant to be on duty; particularly in circumstances where he had not, as NIC on the shift, ensured the delivery of proper nursing care on the shift. His conduct as found in relation to particulars 5 and 7, in contravention of the Code of Conduct, was unethical.
Consistent with the discussion in Amalakumar, those findings mean that the conduct as particularised in particulars 1, 2, 3, 4 and 6 of Complaint One was unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law; and the conduct as particularised in particulars 5 and 7, was unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law. It is not necessary to consider whether the conduct the subject of particulars 1, 2, 3, 4 and 6 would also fall within s 139B(1)(l) of the National aw, or that in particulars 5 and 7 would also fall within s 139B(1)(a) of the National Law. Complaint One is established.
[21]
Whether professional misconduct
Complaint Two is that RN Nuevo is guilty of professional misconduct as defined under s 139E of the National Law:
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.
The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [19], Basten JA. The characterisation exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20].
At [20] Basten JA explained:
There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances". The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264. And as noted in Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35], the seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred.
The HCCC submits that RN Nuevo's failure to attend Patient A after being told of his request to see a nurse, his failure to review Patient A's notes prompted by those requests, and his inaccurate note in Patient A's progress notes in circumstances where he was aware that Patient A had twice asked to see a nurse, in themselves justify a finding of professional misconduct. In the alternative, the HCCC submits that RN Nuevo's conduct as a whole warrants a finding of professional misconduct.
The Tribunal acknowledges, as did Ms Muller, the challenges of nursing in a custodial setting. The Tribunal has noted above its concerns as to the appropriateness of diverting one of only two nursing staff on the night shift from the provision of clinical care to the task of undertaking the pharmacy inventory and ordering, occupying a substantial part of that shift. However, the Tribunal agrees with Ms Muller that provision of patient care should have been the primary focus, and none was provided by RN Nuevo, either directly or by his requesting EN Day to provide that care. The Tribunal is satisfied that the conduct established in each of particulars 4 and 5 of Complaint One, and when all the particulars are considered together, is conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. RN Nuevo is guilty of professional misconduct under s 139E of the National Law.
[22]
Conclusion
The finding of unsatisfactory professional conduct as alleged in Complaint One 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. As noted above, the finding of professional misconduct as alleged in Complaint Two does not mandate an order of suspension or cancellation under s 149C of the National Law. The Tribunal is required to consider what, if any, of the protective orders provided in Part 8 of the National Law should be made.
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.
The Tribunal orders:
1. The Respondent is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW) and professional misconduct as defined in s 139E 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.
[23]
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
The Health Care Complaints Commission (HCCC) has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Jeremy Riley Nuevo, a Registered Nurse (the practitioner).
The proceedings arise from a mandatory notification to AHPRA by the Regional Nurse Manager Metropolitan West reporting that five Registered Nurses (RN) and one Enrolled Nurse (EN) employed by Justice Health and Forensic Mental Health Network (JH&FMHN) at Parklea Correctional Centre (PKA) were involved in the care of an inmate, Patient A, who was found deceased on 7 December 2017.
The HCCC has brought a complaint against each of the nurses. At the first listing on 8 May 2020 of proceedings 2020/112544 HCCC v Sara Day, 2020/113574 HCCC v Jeremy Nuevo, 2020/113588 HCCC v John Gallagher, 2020/113622 HCCC v Francis Balagtas, 2020/113637 HCCC v Rhondda Stratten and 2020/113651 HCCC v Tania Nguyen, orders were made by consent of all parties that the six matters be joined and heard together, and evidence in each matter be evidence in all of the matters. An order was made prohibiting disclosure of the name of Patient A. The directions included a direction that an Agreed Statement of Facts be provided to the Tribunal.
At a subsequent directions hearing the Tribunal noted that pursuant to s 165B(3) of the National Law the panel members to hear the matters involving the five RNs (the registered nurse matters) were to be two RNs; and that transcript of the evidence of the nurses in the registered nurse matters and that of EN Day may be used in the HCCC v Day proceedings. The Tribunal panel constituted for the hearing of 2020/112544 HCCC v Day includes two Enrolled Nurses.
Two case conferences were held. The HCCC was represented by counsel and instructing solicitor. Two of the RNs and EN Day were represented by NSW Nurses and Midwives Association (NSWNMA) legal officers, and three of the RNs were self represented. An Agreed Statement of Facts and Issues to be determined by the Tribunal was filed on 30 June 2021.
The Complaint against RN Nuevo was amended in February 2021 to include in Complaint One a reference to s 139B(1)(l) of the National Law, and to amend references to various NSW Health and JH&FMHN policies in the particulars.
The Stage 1 hearing of the registered nurse matters and the evidence of EN Day was approved for listing as an in-person hearing in 2021. That listing was vacated when COVID-19 restrictions meant that the hearing could not proceed as an in-person hearing, and the hearing was re-listed for May 2022, the panel including two RNs. The hearing proceeded with the HCCC representatives, and the RNs and their representatives in person. The HCCC's expert witness and Correctional Officer (CO) Ravinder Sarin and CO Florence Foisa appeared in person; the other HCCC witnesses, EN Lynda Steele and the CNS D&A, appeared by telephone. EN Day gave evidence by AVL. The two professional members of the Tribunal panel participated in the hearing by AVL.
The Tribunal may exercise the disciplinary powers conferred by Subd 6, Div 6 of Part 8 of the National Law if (a) it finds the subject-matter of a complaint to have been proved, or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149.
The HCCC bears the onus of proving the complaints against the practitioner, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings: National Law, cl 2, Sch 5D. The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 in the following terms:
52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]).
53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.
The Stage 1 hearing and these reasons relate only to the issue of whether the allegations in the application have been proven to the requisite standard, and whether any conduct found to have occurred constitutes unsatisfactory professional conduct or professional misconduct. A further hearing is required for consideration and determination of what, if any, protective orders are appropriate, if the allegations are proven.
As noted above, an order was made pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A. A further order was made during the hearing, by consent, prohibiting the disclosure of the name of the Drug & Alcohol Clinical Nurse Specialist on duty at PKA on 6 December 2017, identified in these reasons as "the CNS D&A", on the basis that it was desirable to do so by reason of information before the Tribunal of a confidential nature regarding her personal relationships.