Health Care Complaints Commission v Searle [2025] NSWCATOD 131;

1. For the following reasons, we have decided to make the first three orders sought by the Commission. We will make our order as to the costs of the proceedings once the practitioner has filed submissions. If he does not file and serve submissions within 14 days of the publication of these reasons, we will make the costs order sought by the Commission.

1. The Commission first filed an Application for Disciplinary Findings and Orders on 14 March 2025.
2. On 1 May 2025, the practitioner sent an email to the Tribunal stating:

Please find attached my reply in this matter.

It is argued the HCCC has what they want and the matter does not need to proceed.

Please advise that the matter has been withdrawn by HCCC and no further action is required.

1. In the attached Reply to Application for Disciplinary Findings (Reply), the practitioner stated:

I cancelled my registration with APHRA and notified Ms Boehm of the same before the hearing date.

My cancellation of registration is not to be considered in anyway as any admission of guilt and I deny all charges.

Due to my health I am not in a position to "fight" or appear before the tribunal.

I have no intention and will not be reapplying for my registration as a REGISTERED NURSE, and give this undertaking.

(capitalisation as in original)

1. Attempts were then made by the Commission to clarify whether:
   • the practitioner would appear at the listed Stage 1 hearing, notwithstanding what he had stated in the email and the Reply;
   • whether the hearing could be proceed as a combined Stage 1 and Stage 2 hearing.
2. Those attempts to contact the practitioner were unsuccessful, and no response to any of its enquires were received.
3. In those circumstances, upon proof of those matters:[1]

(1) the hearing on 16 July 2025 proceeded as a combined Stage 1 and Stage 2 hearing, and on the basis that the two complaints made by the Commission were denied by the practitioner;

(2) we permitted to allow the Commission to rely on an Amended Application for Disciplinary Findings and Orders which it had filed on 9 May 2025, it having been served on the practitioner.

1. There were two complaints before the Tribunal. The background to both complaints was stated as:

The practitioner was first registered as a registered nurse on 21 December 2001.

The practitioner was employed as a registered nurse at Murwillumbah District Hospital ('MDH') in the Northern NSW Local Health District during 2020 and was rostered as the Nurse-in-Charge of the shift from 2130hrs on 2 November 2020 to 0730hrs on 3 November 2020 (the 'relevant period').

Patient A was an elderly man suffering from Merkle Cell Carcinoma with multiple metastases and a large wound on his thigh area. Patient A had been admitted to the emergency department at MDH on 31 October 2020 following a deterioration in his health.

The practitioner was responsible for the care of Patient A throughout the relevant period.

Around 0455hrs on 3 November 2020, Patient A was found deceased in his hospital bed.

1. Complaint One was that the practitioner is guilty of unsatisfactory professional conduct under s 139B of the National Law in that:

(1) he engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner on equivalent level of training or experience: National Law, s 139B(1)(a); and

(2) he engaged in improper or unethical conduct relating to the practice or purported practice of nursing: s 139B(1)(l).

1. The Particulars of Complaint One were as follows:

(1) The practitioner failed to adequately monitor, observe and assess Patient A in accordance with his comprehensive care plan, including assessment of the following factors:

(a) respiratory rate;

(b) oxygen saturations;

(c) heart rate;

(d) blood pressure;

(e) ACVPU (meaning the practitioner's level of consciousness including changes to mental state);

(f) temperature;

(g) pain score.

(2) the practitioner failed to familiarise himself with Patient A's condition, medical and nursing notes, including his resuscitation plan.

(3) the practitioner failed/refused to appropriately respond to Patient A's call bell/calls for assistance, at approximately:

(a) 2350hrs on 2 November 2020;

(b) 0200hrs on 3 November 2020; and

(c) 0300hrs on 3 November 2020.

(4) the practitioner failed to observe and recognise a change/deterioration in Patient A's condition, in circumstances where:

(a) a behavioural change between 1 and 2 November 2020 was evident on the clinical notes for Patient A;

(i) In Patient A's refusal of pain medication;

(ii) In the change in Patient A's demeanour and comfort levels;

(iii) In Patient A's report of intractable pain;

(b) EN Dawes had taken Patient A's temperature and advised the practitioner of the reading of 38.8 degrees Celsius at approximately 0245hrs on 3 November 2020.

(c) the practitioner attended upon Patient A to administer Panadol, without a full set of observations being taken at approximately 0309hrs on 3 November 2020.

(d) the practitioner did not conduct a pain assessment at any stage despite Patient A's constant reports of intractable pain.

(5) the practitioner failed to appropriately document, assess, follow up or act upon the concern of another staff member in relation to Patient A in circumstances where EN Dawes raised concerns about Patient A's behaviour and temperature at 0245hrs on 3 November 2020, when she attended upon Patient A instead of the practitioner.

(6) the practitioner responded inadequately to the change/deterioration in Patient A's condition, in that he:

(a) failed to observe and recognise the following changes in Patient A's condition:

(i) verbalised agitation;

(ii) discomfort;

(iii) intractable, constant pain;

(iv) refusal of treatment/medication;

(v) feeling cool and shaking;

(vi) returning an increased temperature reading;

(b) failed to undertake a full pain assessment following a change/deterioration in Patient A's condition;

(c) failed to call for a Clinical Review of Patient A upon observing a change/deterioration in his condition and upon Patient A returning an increased temperature reading;

(d) made an incorrect clinical decision to reduce observation frequency for Patient A from four hourly to six hourly;

(e) failed to escalate Patient A's care in accordance with:

(i) the Clinical Emergency Response System (CERS); and

(ii) the NSW Health Policy PD2013_049 Recognition and Management of Patients who are Clinically Deteriorating.

(7) the practitioner responded inappropriately and unprofessionally to other staff members raising concerns about Patient A's condition in breach of the Code of Conduct Standards, PD2015_049 when he said to EN Dawes:

(a) "don't worry about him, he carried on like that all last night. The guy is a fuckwit" in relation to Patient A at approximately 0300hrs on 3 November 2020;

(b) "he's an idiot. Don't worry about him. He's an idiot" in relation to Patient A at approximately 0320hrs on 3 November 2020.;

(8) the practitioner was using his personal mobile device to a level that impacted his work performance and fulfilment of responsibilities both as the nurse assigned to Patient A and the Nurse-in- Charge;

(9) as Nurse-in-Charge, the practitioner failed to respond adequately to the concern of another staff member towards Patient A in circumstances where:

(a) EN Dawes raised concerns for Patient A after recording a temperature reading of 38.8 degrees Celsius;

(b) this should have triggered a Clinical Review in accordance with the NC-NNSW-PRO-7653-16 'Nurse/Midwife-In-Charge Clinical Review;

(10) The practitioner failed to maintain adequate nursing notes in relation to the care and treatment of Patient A in accordance with Health Care Records Documentation and Management PD2012_069 when he failed to record details:

(a) resulting from observations made of Patient A, including pain score;

(b) of the deterioration/change in Patient A's condition;

(c) of Patient A's refusal of observations and pain medication;

(d) of the alteration of Patient A's observation period from four hourly to six hourly;

(e) of the decision not to initiate a Clinical Review;

(f) of Patient A's resuscitation plan.

(11) the practitioner failed to check on Patient A when an odour on the ward was identified by other staff on duty at approximately 0425hrs on 3 November 2020;

(12) the practitioner failed to initiate a Rapid Response when he found Patient A lying across his bed with an obvious bowel bleed, as per the NC-NNSW-PRO-7653-16 Nurse/Midwife-in-Charge Clinical Review policy, and as per Patient A's Resuscitation Plan.

1. The Commission submits that each of the particulars (and each of the sub-particulars therein), of this Complaint in and of itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, the Commission submits that a finding of unsatisfactory professional conduct is justified.

1. Complaint Two was that the practitioner was guilty of professional misconduct under s 139E of the National Law in that he had:

(1) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or

(2) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.

1. The Particulars of Complaint Two are Complaint One and the Particulars thereto both individually and cumulatively.

(1) Exhibit A, being a 967 page bundle of materials including but not limited to the LHC Investigation report dated 10 December 2021 (16 pages); a further Investigation report dated 23 June 2023 (71 pages); the s 150 reasons for decisions; The documents before the Nursing and Midwifery Council of NSW (Council) for the purposes of the s 150 proceedings; The transcript of an interview between LHD staff and the practitioner of 24 March 2023; witness statements of various nurses who worked with the practitioner on the night in question; the expert report of Ms Marianne McGhee dated 29 April 2024; documents provided to the Council by the respondent; including his CV, a reflection of practice dated 24 February 2021 and medical records; and various Codes of Conduct and Clinical Guidelines.

(2) Exhibit B, being a 103 bundle of materials primarily being:

(a) various NSW Health policy statements with respect to Clinical Handover, Use of Mobile Telephone and Wireless Communication Devices and Mobile Phone and Mobile Computing Devices

(b) various NSW Health Guidelines with respect to End of Life Cart and Decision Making and Pain Management. Also included in the bundle was the Nursing and Midwifery Board of Australia's (Board) National Competency Standards for the Registered Nurse and the International Council of Nurses 2012 Code of Ethics for Nurses.

(3) Exhibit C, being a 22 page of materials including AHPRA and Council evidentiary certificates, the supplementary expert report of Ms Marrianne McGhee dated 11 July 2025 and associated documents;

(4) Exhibit D, being a 31 page bundle of documents of the Commission's correspondence with the practitioner prior to the hearing.

1. No evidence or submissions were filed by the practitioner in the Tribunal proceedings. However, as noted, there was evidence of the practitioner before the Council.

1. We had the benefit of detailed and careful submission of the Commission, cross-referenced to the evidence the Commission relied on.
2. As the evidence was not challenged in anyway, and having independently satisfied ourselves of the matters alleged by the Commission, we make the following primary findings. Additional findings will be set out in our Consideration section.

1. From 2002, the practitioner started working as a registered nurse at Murwillumbah District Hospital (MDH) within the Northern NSW Local Health District (LHD).

1. At approximately 1pm on 31 October 2020 Patient A was brought to MDH by ambulance then admitted to the Emergency Department (ED).
2. Patient A was an 82 year old man suffering from Merkle Cell Carcinoma with multiple metastases, a large wound on his thigh area, pain in his groin region, swollen leg, fever and suspected cellulitis.
3. Patient A was triaged by nursing staff, who made notes including observations and pain scores.
4. A medical officer examined Patient A and made notes including:

82 male [brought in by ambulance] with fevers ... Merkel cell carcinoma diagnosed 9 months ago... currently immunotherapy and radiotherapy ...next immunotherapy Tuesday ... Recent admission to hospital for septicaemia ...Been improving since discharge ...Last week commenced on dexamethasone - much improvement following this, regained appetite, gaining weight, more energy... 2 days ago feeling more unwell systemically, generally lethargic and body aching spiked temp at home, ambos recorded at 38.4... Latest oncologic plan to try another round of immunotherapy on Tuesday, although oncology team have suggested that further treatment may not be recommended Patient A himself is very optimistic...Discussed with Patient A about his wishes regarding [Cardiopulmonary resuscitation (CPR)], invasive airways and [Intensive Care Unit (ICU)] admission, and although his fundamental approach is to try any active treatments, he 'does not wish to be a vegetable or paralysed or anything like that' ... myself, Patient A and his daughter ... in agreement Patient A would not be for CPR, intubation or admission to ICU, otherwise, currently for all active treatments - resus plan filled and signed with patient thus far with nil end of life plans as of yet

1. A resuscitation plan was prepared, indicating that, in the event of deterioration, the following may be appropriate:
   • pharyngeal suction;
   • supplemental oxygen;
   • non-invasive ventilation;
   • bag and mask ventilation; and
   • other non-urgent interventions,

1. Further, Clinical Review Call and Rapid Response Call were to be activated, but no CPR in the even of a cardiopulmonary arrest.
2. The resuscitation plan also noted "For active treatments within reason, but prioritising quality over quantity of life" and "Known to Pal care".
3. A medical officer charted medication, including 5mg Oxycodone (Endone) PRN (as needed) for breakthrough pain, 1000mg Paracetamol (tablet) PRN for pain/fever;
4. Patient A was then transferred from the ED to the medical ward.
5. At 1440, Patient A was administered 5mg Endone.

1. From 2130, the practitioner started the night shift as a registered nurse at MDH and provided care to Patient A.
2. At 2215, the practitioner documented receiving handover, including: "Patient Between the Flags: Yes and Patient has current Resus Plan: Yes".

1. The following day, 1 November 2020, at 0326, Patient A was administered 5mg Endone.[2]
2. At 1055, a medical officer reviewed Patient A and made notes including

Impression Febrile illness? [urinary tract infection]? cellulitis ... Notify concerns.

1. At 1527, another nurse recorded observations including temperature 36.5.
2. At 1607, Patient A was administered 5mg Endone.
3. At 1647, a medical officer reviewed Patient A and made notes including:

Patient looks very well ... nil distress [breathing spontaneously], talking animatedly (as has been doing all day), ...Temp normal, feeling a bit cold ... Feels fine... Talking and well throughout.... Attempted ABG x2 - failed, declined further attempts Attempted VBG - unsuccessful, declined further attempts... Plan... Notify any resp distress/concern.

1. At 1947 on 1 November 2020, another nurse recorded observations of Patient A including a temperature 37.6.
2. At 2057 on 1 November 2020, another nurse made a progress note including "Visited by friend-very chatty".

1. The next day, on 2 November 2020 at 0001, the practitioner documented the care plan for Patient A. The practitioner recorded the observation frequency was four hourly. The practitioner left one section blank ("Resuscitation Plan in place? Yes/No") but completed the other sections;
2. At 0043, the practitioner administered 5mg Endone to Patient A.
3. At 0159, the practitioner recorded observations for Patient A including a temperature of 37.8.
4. At 0200, the practitioner administered 1000mg Paracetamol to Patient A.
5. At 0435am, the practitioner made a progress note for Patient A:

Pt awake for most of the shift Pt in pain and given endone Observations attended temp 37.8 Panadol given Pt stating he has family issues going on Pt not in any pain [at the time of report (ATOR)].

1. At 0454 and 0458am, the practitioner made progress notes for other patients.
2. At 0623, the practitioner administered medication to another patient.
3. At 0650, the practitioner recorded observations for Patient A including a temperature 36.7. Two minutes later, at 0652, the practitioner again recorded observations for Patient A including a temperature 35.8.
4. At 0655, the practitioner recorded observations for another patient, including:

at 0719, another registered nurse made a record for Patient A including "consult social work PAL... Reason for Consult: End of life Issues, check on palliative care register".

1. At 1007, the Clinical Nurse Specialist made a record for Patient A including "consult cancer liaison" and:

Dx Merkel cell ca Immunotherapy due Tuesday 3/11 ... PC to ... daughter - arranged to meet on Med Ward at 1115h today ...PLAN:...Discuss Pt at Palliative Case Review mane.

1. At 0730, the practitioner ended the previous night shift.
2. At 1033, a medical officer reviewed Patient A and made notes about planned medication.
3. At 1103, another nurse recorded observations, including temperature 37.5;
4. At 1158-1159, Patient A was administered 5mg Endone and 1000mg Paracetamol.
5. At 1408, another nurse documented receiving handover, including:

Patient Between the Flags: Yes" and Patient has current Resus Plan: Yes.

1. At 1905, another nurse administered Patient A 5mg Endone.[3]
2. At 2056, another nurse made a progress note including:

Pt alert and orientated ... Observations - Between the flags... pain relief administered as per MAR ... Daughter came to visit twice this shift. Nil further concerns noted.

1. From 2130, the practitioner started the night shift (with RN Murphy and EN Dawes) and was rostered as the Nurse-in-Charge.
2. The practitioner received a verbal handover at the nurses station.
3. There were about 13 patients on the ward; EN Dawes was assigned to about 5 patients; RN Murphy was assigned to a "special" patient in Room 3, but also undertook the observations for all patients in Room 3.
4. The practitioner was assigned to about 7 patients, including Patient A. The practitioner was responsible for the patients in Rooms 1, 2 and 3 (except the patient who was being "specialled" in Room 3).
5. Throughout the night shift, the practitioner was responsible for the care of Patient A, who was in Bed 1 in Room 1.
6. The practitioner had access to Patient A's medical records.
7. While Patient A had a terminal diagnosis, according to the practitioner he was not expected to die at the time; and was scheduled for another round of immunotherapy the next day, Tuesday 3 November 2020.
8. Patient A remained on fourth hourly observations; so the practitioner was expected to take fourth hourly observations, unless the medical officers changed the frequency.
9. For periods during the night shift, the practitioner stayed in the nurses' station using his mobile phone.
10. At 2200, the practitioner checked the drugs of addiction safe.
11. At 2212, the practitioner documented nursing handover and attempting to administer paracetamol to another patient who refused.
12. At 2215, the practitioner documented progress notes for another patient and entered the medication room.
13. At 2313, the practitioner recorded Patient A's set of observations, including a temperature of 36.9. The practitioner decided to reduce the observation frequency from four to six hourly, but did not document that decision.

1. Around 0000-0100, NUM Hillaire attended the ward.
2. At times after that, the practitioner walked around the corridor and shone a torch to see that all patients were in their beds.
3. Around 0200, EN Dawes heard Patient A yelling out, agitated. EN Dawes asked the practitioner if there was anything wrong with the patient, and the practitioner replied:

1. Around 0200, EN Dawes attended Patient A who was agitated, fidgeting, and distressed as he could not get to the drink on his bedside table. EN Dawes found his buzzer and gave him a cold drink and asked him if he was OK. RN Murphy, who was sitting in the doorway of Room 3, heard Patient A call out, sounding agitated, saw EN Dawes get up leave the office. After she attended Patient A the noise ceased.
2. Around 0230, EN Dawes heard a patient calling out, moaning and groaning, and the following conversation ensued:

EN Dawes: Who is that?

Practitioner: It's 1-1.

EN Dawes: Well what's his story?

Practitioner: Don't worry about him, he carried on like that all last night, the guy is a fuck wit.

1. EN Dawes attended Patient A again, (who was "really shaking"), and the following conversation ensued:

EN Dawes: What's wrong?

Patient A: I'm really, really cold.

1. EN Dawes got Patient A a warm blanket, she walked back up to him and took his temperature, which was 38.8, she asked him about pain, he said "No, I'm just really cold", she said "Okay, I'll go down and let your nurse know",.
2. EN Dawes then told the practitioner "Your patient in 1-1, his temperature is 38.8". The practitioner did not respond, and EN Dawes repeated "Did you hear me? He's 38.8". Again, the practitioner did not respond.
3. Around 0245, the practitioner got up from the nurses station, went to the treatment room, attended Patient A, returned to the nurses station, EN Dawes asked the practitioner "Was he okay?" and the practitioner responded:

He's an idiot, don't worry about him. He's an idiot.

1. At 0309 on 3 November 2020, the practitioner entered the medication room, administered Patient A liquid Panadol and documented administering 1000 milligrams of paracetamol to Patient A. The practitioner did not use or record any pain score scale. The practitioner did not take or record a set of observations at that time.
2. At 0408 hours, the practitioner retrospectively documented receiving handover for Patient A, including: "Patient Between the Flags: Yes" and "Patient has current Resus Plan: No". The practitioner's entry was incorrect, because Patient A did have a current resuscitation plan.
3. Sometime around 0300 or 0430, EN Dawes noticed a faecal smell coming from one of the rooms, EN Dawes said something to the practitioner about "a smell", and asked the practitioner "Can you smell that?", he said "I can't smell anything". EN Dawes left the nurses station and walked around the patients to have a look, she asked RN Murphy if she could smell something, the patients in Room 3 were checked but they had not passed faeces. EN Dawes asked the practitioner "Have any of yours dirtied themselves?" and he replied that they were "fine".
4. Around 0445, the practitioner walked into Patient A's room, saw a large bleed and noticed a distinct odour. As the practitioner said in his interview conducted as part of the subsequent investigation by NSW Health in relation to the his professional conduct during this night shift:

The patient had passed away. He was not breathing. He had no pulse, he had nothing. He was, he had a major bleed and had bled to death ...

[T]hen the doctor came up and certified him. He was not for recuss, and he certainly had - and I'm talking a large lead. And he had no pulse, either radial or carotid, he had fixed and dilated pupils. And there was no breath sounds, he wasn't breathing. And he was actually, had been passed for a little while, because he wasn't there ...

1. Around 0500, the practitioner walked back from Patient A's room to the nurses station and told EN Dawes that Patient A was "had gone". The practitioner told EN Dawes that he needed to call the doctor and "the wardie" to help clean up. EN Dawes ran along the corridor, RN Murphy went to get the resuscitation trolley, EN Dawes said "No, don't get trolley, patient is deceased".
2. The practitioner used the phone in the nurses station to call a medical officer in the emergency department. The practitioner did not initiate a rapid response.
3. EN Dawes went to Patient A's room and saw there was blood. The following discussion ensured:

Dawes: Was he for resus?"

Practitioner: It's too late",

Dawes: What was he for clinical review or a rapid?

Practitioner: I don't know.

1. RN Murphy went to Patient A's room, saw the pool of blood, checked for signs of life, couldn't feel a pulse, saw his pupils were dilated, he was white and quite cool. The practitioner told RN Murphy "Oh he's dead but don't worry, he's not for resus".
2. At 0455, a medical officer attended and declared Patient A deceased.
3. At 0505, a medical officer made a record, including "non responsive to verbal or tactile stimuli, pupils fixed dilated, nil cardio respiratory activity".
4. Around 0500, Wardsman Rollins went to Patient A's room and saw blood and it appeared that Patient A had evacuated his bowels. The practitioner told Wardsman Rollins "I only did obs fifteen or twenty minutes ago".
5. At 0533, the practitioner made a retrospective progress note for Patient A:

Pt given panadol at 3am -temp 37.6

pt r/v at 4am temp 36.9

Left the pt sitting up on the side of the bed-pt uncomfortable.

N/s r/v pt at 4.50am for 5am

Found the pt supine across the bed with no signs of life

Pt had a large bleed from the bowel

N/s called A&E Dr to review the pt as he had a NO CPR Order

Dr pronounced life extinct at 0455hrs

Supervisor contacted his daughter -who is on her way up

Pt washed and bed cleaned in preparation

Into Gods care we trust-RIP.

1. The temperatures mentioned in the retrospective progress note were not recorded in Patient A's observations within the medical records.
2. The practitioner did not complete a care plan for Patient A during the night shift. NSW Health Northern NSW Local Health District Investigation Report dated 10 December 2021

1. On 4 July 2022, Council delegates held a hearing pursuant to s 150 of the National Law. Their decision was published on 14 July 2022, concluding as follows:

CONCLUSION

Having regard to our assessment of the information and evidence relevant to the above issues we concluded that Mr Searle does pose a risk public health or safety which requires us to take action, because of the following risk factors:

1 As Mr Searle has not been engaged with council and as such there is limited evidence from his treating practitioners about his health and engagement; and how this might affect his practice or plans to return to work.

2 The LHD investigation was stopped as they could not interview Mr Searle due to his poor health and being unable to respond and engage in that process.

3 Mr Searle by his own admission has a major health concern and is not capable to work at present.

We are also of the view that this risk can be addressed by the imposition of conditions which include Mr Searle not being able to practice as a Registered Nurse until review by the Nursing and Midwifery Council of NSW

ORDER

Under section 150(1)(b) of the National Law (NSW) the Council imposed the following conditions on Mr Glenn Bowden Searle's registration as of 4 July 2022:

1. Not work as a Registered Nurse, until reviewed by the Nursing and Midwifery Council of NSW.

REFERRAL

This matter will remain with the HCCC pursuant to section 150D of the National Law (NSW) to be dealt with as a complaint for investigation.

NSW Health Northern NSW Local Health District Investigation Report dated 23 June 2023

1. NSW Health subsequently conducted an investigation into the practitioner's conduct on the night of 2 November 2020. The five allegations investigated were:

(1) Allegation 1: that the practitioner failed to perform his responsibilities as the shift Nurse-in-Charge as per Procedure NC-NNSW-PRO-7682-16;

(2) Allegation 2: that the practitioner failed to comply with the CORE values and standards of NSW Health as per PD2015_049 NSW Health Code of Conduct by not:

(a) promoting a positive work environment;

(b) acting professionally and ethically;

(3) Allegation 3: that the practitioner did not apply safe, person-centred, evidence-based nursing care for the health and wellbeing of the patients in the Medical Unit;

(4) Allegation 4: that the practitioner failed to:

(a) adequately review and update the nursing care plan for Patient A;

(b) treat Patient A with courtesy and respect:

(i) when the Enrolled Nurse expressed concerns about Patient A being distressed and was calling out, he said "he is a fuckwit, don't worry about him", or words to that effect;

(ii) when the Enrolled Nurse expressed further concerns about an hour later, he said "don't worry about him, he is an idiot", or words to that effect;

(c) adequately monitor Patient A;

(d) adequately respond appropriately when it appeared Patient A had clinically deteriorated, including clinical review/s and/or call a rapid response/s when warranted;

(e) appropriately attend to Patient A when it appeared that he had soiled himself;

(f) assess pain and offer adequate pain relief to Patient A when warranted;

(g) provide appropriate end-of-life nursing care to Patient A;

(5) Allegation 5: that the practitioner spent an unreasonable amount of time on personal devices whilst on duty as a Nurse-In-Charge outside of work allocated breaks.

1. The investigation found each of Allegations 1 to 4 to be substantiated. The investigation did not find Allegation 5 to be substantiated, but found that the evidence showed that the practitioner spent an unreasonable amount of time at the staff station which resulted in a reduced level of care and support being provided to patients and other staff.
2. We note that the investigation team were not able to interview the practitioner for the purposes of its report. On that basis, the conclusions in the report were considered to be preliminary and subject to review should the practitioner participate in an interview or provide additional information.

1. The practitioner subsequently participated in a Record of Interview with the investigation team.
2. A 100 page transcript of the Record of Interview appears at pp 194 to 293 of Exhibit A.
3. Following the Record of Interview the investigation team produced a second investigation report.

NSW Health Northern NSW Local Health District Investigation Report dated 23 June 2023

1. In this report only Allegations 1 to 4 were investigated. Again, the investigation team found the allegations substantiated, and concluded that there were 'performance issues' with the practitioner's professional performance. These were deemed sufficiently serious to warrant reporting to the Australian Health Practitioner Regulation Agency (AHPRA) if the practitioner was registered or the Commission if not registered.

1. The Commission's submissions are extensive, accurate, and persuasive.
2. They are also uncontested. Where appropriate, we will refer to those submissions in our Consideration section.

1. No submissions were received from the practitioner.

1. Particular 1 concerns the practitioner's failure to adequately monitor, observe and assess Patent A in accordance with his comprehensive care plan.
2. Given the facts set out above, we find the facts alleged in Particular 1 to be proved. We note in particular that:

(1) the practitioner was obliged to comply with the NSW Health Policy Recognition and management of patients who are deteriorating (including minimum four hourly vital sign observations for adult inpatients);

(2) during the night shift, the practitioner did not complete a care plan for Patient A;

(3) apart from the set of observations recorded at 2313, the practitioner did not record any other set of observations for the remainder of the night shift;

(4) that means that no observations were conducted for about 5 hours and 30 minutes, until around 0445, when the practitioner attended Patient A and found Patient A with a large bleed;

(5) apart from the observations recorded at 2313, the practitioner did not assess Patient A's respiratory rate, oxygen saturations, heat rate, blood pressure or ACVPU;

(6) apart from the temperature recorded at 2313 and the temperatures mentioned within the practitioner's retrospective progress note written after Patient A's death (which were not recorded in Patient A's observations within the medical records), the practitioner did not assess Patient A's temperature;

(7) the practitioner did not use or record any pain score scale at any time during the night shift.

1. Accordingly, we find Particular 1 of Complaint One proved.
2. It is convenient at this point to consider whether the facts the subject of Particular 1 constitute unsatisfactory professional conduct.
3. Unsatisfactory professional conduct includes conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice of nursing is significantly below standard reasonably expected of a practitioner on equivalent level of training or experience: National Law, s 139B(1)(a).
4. In our view, the facts underlying Particular 1 are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note that:

(1) the practitioner was obliged to comply with the NSW Health Policy Recognition and management of patients who are deteriorating (including minimum four hourly vital sign observations for adult inpatients);

(2) the standard reasonably expected of a practitioner of an equivalent level of training or experience would be to undertake Patient A's complete vital signs as ordered, which according to Patient A's Comprehensive Care Plan was four hourly, this includes the respiratory rate, blood pressure, temperature, pulse rate, pain assessment and [Alert, Confusion, Voice, Pain, and Unresponsive (ACVPU)];

(3) we accept the expert opinion of Ms McGhee that the practitioner's conduct was significantly below the relevant standard because:

(a) the practitioner failed to adequately monitor, observe and assess Patient A's four hourly observations and failed to assess Patient A's level of pain and discomfort;

(b) a full set of vital signs is standard care that would have been reasonably expected of a practitioner with the practitioner's level of experience and training;

(c) the practitioner failed to undertake four hourly observations as ordered, and should have undertaken a pain assessment to determine the extent/level of pain.

1. Particular 2 concerns the practitioner's failure to familiarise himself with patient's condition, medical and nursing notes, including his resuscitation plan.
2. Given the facts set out above, we find the facts alleged in Particular 2 to be proved. We note in particular that:

(1) on 31 October 2020, a couple of days before the night shift, a resuscitation plan was prepared for Patient A stating "Clinical review call are to be activated" (Yellow Zone on Standard Adult General Observation Chart) and "Rapid response call are to be activated" (Red Zone) but, in the event of Cardiopulmonary arrest "No CPR";

(2) the resuscitation plan had been prepared with Patient A, his daughter and his doctor, who agreed that Patient A would not be for CPR but otherwise, currently for all active treatments, with nil end of life plans as of yet;

(3) the resuscitation plan signed by Patient A was within Patient A's medical records. According to the resuscitation plan, Patient A was for "active treatment within reason but prioritizing quality over quantity of life" and he was for both clinical review and rapid response, both clearly ticked on the resuscitation plan;

(4) the practitioner should have been familiar with Patient A's resuscitation plan;

(5) as the practitioner had also cared for Patient A the previous night shift, he should have been highly aware of Patient A's resuscitation status. During the previous night shift, the practitioner (correctly) documented "Patient has current Resus Plan: Yes";

(6) during the night shift, at 0408 hours, the practitioner (incorrectly) documented "Patient has current Resus Plan: No". The practitioner's entry was incorrect, because Patient A did have a current resuscitation plan;

(7) When EN Dawes went into to Patient A's room and saw him bleeding, the practitioner's comments indicate that he was not familiar with Patient A's resuscitation plan. EN Dawes asked the practitioner "Was he for resus", the practitioner said, "It's too late", EN Dawes asked "What was he for clinical review or a rapid?" and the practitioner said "I don't know";

(8) when RN Murphy went to Patient A's room and saw him bleeding, the practitioner's comments and actions indicate that he was not familiar with Patient A's resuscitation plan. The practitioner told RN Murphy "Oh he's dead but don't worry, he's not for resus". While Patient A was "not for resus", he had chosen clinical review and rapid response. The practitioner's actions (not initiating clinical review or rapid response) also indicate that he was not familiar with Patient A's resuscitation plan.

1. Accordingly, we find Particular 2 of Complaint One proved.
2. We also find that the facts underlying Particular 2 are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note that:

(1) the practitioner was obliged to comply with the Nursing and Midwifery Board of Australia (NMBA) Code of Conduct for Nurses (including that nurses must take a person-centred approach to managing a patient's care, supporting the patient in a manner consistent with their values and preferences and must accept that the person has the right to refuse treatment);

(2) the standard reasonably expected of a practitioner with an equivalent level of training or experience would be to document this vital information (that Patient A was not for resuscitation but was for clinical review and rapid response) so that, as the Nurse In Charge, the practitioner would be informed to provide the most effective and holistic care available should an emergency occur on the ward during the night shift so that the best practice for patient care would be undertaken;

(3) the practitioner failed to provide best practice when he incorrectly documented that Patient A did not have a Resuscitation Plan. As the Nurse-In-Charge, the practitioner should have been familiar with all of the patients on his ward that required a resuscitation plan and documented this accordingly;

(4) we accept the expert opinion of Ms McGhee that the practitioner's conduct was below the relevant standard because, as the nurse assigned to Patient A and as the Nurse-In-Charge it was his responsibility to be aware of the resuscitation status for all of the patients on his ward.

1. Particular 3 concerns the practitioner's failure or refusal to appropriately respond to patient's calls for assistance at 2350 on 2 November 2020 and 0200 and 0300 on 3 November 2020.
2. The facts set out above plainly establish these matters and we find Particular 3 proven.
3. We also note that EN Dawes attended to Patient A, who was not her assigned patient, and observed Patient A to be distressed. EN Dawes recalls attending to Patient A on at least two-three occasions, without the support of the practitioner in attendance. The practitioner did not attend to Patient A when he called out in distress.
4. We also find that that these facts are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note that:

(1) the practitioner was obliged to comply with the NMBA Code of Conduct for Nurses (including that nurses apply person-centred and evidence-based decision-making and have a responsibility to ensure the delivery of safe and quality care);

(2) we accept the expert opinion of Ms McGhee that the practitioner's conduct was significantly below the relevant standard because, he demonstrated a lack of accountability and responsibility and empathy towards Patient A, the practitioner failed in his duty of care by not following up and assessing Patient A when he called for assistance.

1. These Particulars may be considered together, as Particular 4 is concerned with the practitioner's failure to observe and recognise a change or deterioration in Patient A's condition, and Particular 6 concerns the practitioner's inadequate response to that change or deterioration.
2. During the previous shifts:

(1) Patient A was described as optimistic, "talking animatedly", "very chatty"

(2) Patient A had been administered Endone on several occasions (most recently at 1905, shortly before the night shift started);

(3) Patient A had (normal) temperature readings of 37.8 and Patient A was not in any pain during the previous night shift and had a (normal) temperature 37.5 during the day shift;

(4) Patient A was noted to be alert and orientated, observations between the flags and nil further concerns were noted.

(1) Patient A was not administered any Endone and, according to the practitioner, refused Endone;

(2) Patient A was moaning and groaning calling out and feeling cool and shaking and, according to the practitioner, said he was in "intractable pain", "I'm always in pain";

(3) EN Dawes took Patient A's temperature at 38.8, reported that to the practitioner, who knew that that was a high temperature, but did not respond.

1. Therefore, during the night shift, there were changes (compared to previous shifts) being verbalised agitation, discomfort, intractable (increased) pain, refusal of treatment (Endone), feeling cool and shaking and EN Dawes' increased temperature reading (38.8) which the practitioner failed to observe and recognise.
2. Further, the practitioner responded inadequately to the change/deterioration in Patient A's condition, in that he:

(1) administered Panadol (1000 milligrams of paracetamol at around 0309) but did not take a full set of observations;

(2) did not increase the observation frequency. Rather, he decided to reduce the observation frequency from four hourly to six hourly;

(3) did not undertake a full pain assessment. The practitioner did not use or record any pain score scale;

(4) did not call for a clinical review; and

(5) failed to escalate Patient A's care.

1. Given these matters, we find the facts underlying Particulars 4 and 6 to be proved.
2. We also find that that these facts are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note that:

(1) the practitioner was obliged to comply with the NSW Health Policy Recognition and management of patients who are deteriorating (including ongoing assessment in monitoring changes in physical state and vital sign observations and increasing the frequency of assessment when the patient's vital sign observations fall within a coloured zone or assessment identifies any other signs and symptoms of deterioration);

(2) the standard reasonably expected of a practitioner with an equivalent level of training or experience would be to observe and assess Patient A four hourly and escalate a clinical review if there was a deterioration or a new onset of pain and discomfort;

(3) we accept Ms McGhee's criticisms of the practitioner's clinical judgment in reducing observation frequency and his lack of professional insight into a deteriorating patient and her opinion that the practitioner's conduct as significantly below the relevant standard in that:

(a) as Patient A was admitted with Merkel Cell Carcinoma with metastases to his chest and bowel while also suffering from a leg ulcer with cellulitis, any changes to his condition should have been flagged for a clinical review;

(b) the practitioner should have undertaken a full and complete set of vital signs whilst also triggering a clinical review;

(c) the practitioner should have been completed regular observations;

(d) the practitioner should have reviewed the clinical notes;

(e) the practitioner should have advised the "In Charge of Patient A's altering condition".[4]

1. These Particulars may be considered together, as they are concerned with the practitioner's failures, as the Nurse-in-Charge, to follow up or act upon EN Dawes' concerns about Patient A's behaviour and temperature.
2. From 2130, the practitioner was rostered as the Nurse-in-Charge.
3. Around 0230, EN Dawes heard a patient calling out, moaning and groaning, she asked the practitioner "Who is that?", the practitioner replied, "It's 1-1". EN Dawes attended Patient A again, he was "really shaking", she asked him "What's wrong?", he replied "I'm really, really cold", she got him a warm blanket, she walked back up to him and took his temperature, 38.8, she asked him about pain, he said "No, I'm just really cold", she said "Okay, I'll go down and let your nurse know", she told the practitioner "Your patient in 1-1, his temperature is 38.8, the practitioner did not respond, she said "Did you hear me? He's 38.8", he didn't respond. EN Dawes said the patient had "a temp" and she said the temperature and the practitioner knew she meant a high temperature.
4. RN Murphy saw EN Dawes get up and answer the second call, heard EN Dawes tell Patient A that she would get him a nice cold drink, saw EN Dawes walk back to the nurses' station and heard RN Dawes tell the practitioner that the patient's temperature was 38.8. RN Murphy heard EN Dawes tell him several times that the temperature was 38.8, RN Murphy did not hear the practitioner respond, he did not leave his chair.
5. The practitioner did not respond appropriately to EN Dawes' concern.
6. A temperature of 38.8 should trigger a clinical review, it met the criteria of a yellow zone observation requiring clinical review within 30 minutes. Yellow zone represents early warning signs of deterioration and the criteria for which a clinical review may be required. As Patient A's temperature was 38.8, this would have automatically triggered clinical review.
7. The practitioner did not conduct a clinical review.
8. Around 0245, the practitioner got up from the nurses' station, went to the treatment room, attended Patient A, returned to the nurses' station, EN Dawes asked him "Was he [that is, Patient A] okay?" and the practitioner responded "... don't worry about him... "
9. RN Murphy saw the practitioner get up and left the nurses station to attend Patient A, RN Murphy asked the practitioner about Patient A then the practitioner said he was fine.
10. EN Dawes vocalised her concerns with the practitioner about Patient A's temperature, he ignored this vital information, but, as the Nurse-In-Charge, the practitioner should have triggered a clinical review. When alerted by EN Dawes of Patient A's condition of shaking and feeling cold with a temperature of 38.8, the practitioner should have triggered a clinical review as this was a clear change in Patient A's condition (see Ms McGhee's expert report).
11. Since EN Dawes had concerns about Patient A, the practitioner, as Nurse-In-Charge should have provided immediate guidance and support in an open and supportive manner, should have reviewed Patient A immediately and assessed his condition, and should have listened and respected EN Dawes' level of concern and provided support to her and to Patient A by acting on her concerns and following mandated hospital protocols (again see Ms McGhee's expert report).
12. Given these matters, we find the facts underlying Particulars 5 and 9 to be proved.
13. We also find that that these facts are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note that:

(1) the practitioner was obliged to comply with the LHD Procedure Rostering & Role Responsibilities of Allocated Registered Nurse (including coordinating the efficient and safe management of patients and staff and conducting Nurse In Charge clinical reviews of patients who have had a deterioration or change in their condition to ensure there is an appropriate plan of care in place and ensuring that junior staff are adequately supported and supervised;

(2) we agree and accept Ms McGhee's expert opinions that:

(a) the practitioner's conduct was significantly below the relevant standard because he did not provide safe and efficient care to Patient A, did not oversee his peers, did not adequately support EN Dawes, did not demonstrate a coordinated approach to care when he failed to follow up EN Dawes' concerns;

(b) the practitioner did not demonstrate good leadership, did not demonstrate good clinical judgment, did not work collaboratively, failed to coordinate care, failed to attend to patient care safely and efficiently, did not support staff and dismissed EN Dawes' concern.

1. This Particular concerns the practitioner responding inappropriately and unprofessionally to other staff members raising concerns about Patient A's condition.
2. We have already found that:

(1) at approximately 0300 on 3 November 2020, the practitioner said to EN Dawes "don't worry about him, he carried on like that all last night. The guy is a fuckwit"; and

(2) at approximately 0320 on 3 November 2020, the practitioner said to EN Dawes "He's an idiot. Don't worry about him. He's an idiot".

1. Given those findings, we find the facts underlying Particular 7 to be proved.
2. We also find that that these facts are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note that:

(1) the practitioner was obliged to comply with the NSW Health Code of Conduct, (including treating patients with courtesy and respect and treating staff in a way that promotes harmonious working relationships and avoiding conduct that could bring NSW Health into disrepute);

(2) the practitioner was obliged to comply with the LHD Procedure Rostering & Role Responsibilities of Allocated Registered Nurse (including modelling effective communication as a leader);

(3) we accept Ms McGhee's expert opinion that the practitioner's conduct was significantly below the relevant standard because he did not promote an open and respectful work environment, he used strong language that has not demonstrated respect for Patient A or his colleagues and he has not demonstrated a professional disposition.

1. This Particular concerns the practitioner's use of his personal mobile phone, and whether he was using it to such a level that it impacted on his work performance and fulfilment of responsibilities both as the nurse assigned to Patient A and the Nurse-In-Charge.
2. As submitted by the Commission, we are satisfied that the evidence establishes that:

(1) for periods during the night shift, the practitioner stayed in the nurses station in the medical ward using his mobile phone;

(2) the practitioner did not attend to Patient A because he was preoccupied on his mobile phone during work hours;

(3) EN Dawes attended to Patient A because the practitioner was on his personal mobile phone;

1. Given those findings, we find the facts underlying Particular 7 to be proved.
2. We also find that that these facts are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note that:

(1) the practitioner was obliged to comply with the NMBA Code of Conduct for Nurses (including that nurses must provide leadership to ensure the delivery of safe and quality care).

(2) the practitioner was obliged to comply with the NSW Health Code of Conduct (including treating all staff in a way that promotes harmonious and productive working relationships and a collaborative teamwork approach and acting at all times in a way which is consistent with NSW Health's duties of care to its patients);

(3) the practitioner was obliged to comply with the NSW Health Policy Use & Management of Misuse of NSW Health Communications Systems (including permitting personal use which is reasonable, responsible and limited basis and does not interfere with the effective and efficient performance of work responsibilities and including that excessive personal use is measured by its impact on the effective and efficient performance of work duties);

(4) the practitioner was obliged to comply with the NSW Health Policy Use of Mobile Telephones (discouraging mobile phone use by staff in general ward areas);

(5) the practitioner was obliged to comply with the LHD Procedure Rostering & Role Responsibilities of Allocated Registered Nurse (including coordinating the efficient and safe management of patients and staff);

(6) as the Nurse-In-Charge, the practitioner was required to be available to his nursing colleagues and the patients they are caring for;

(7) we accept Ms McGhee's expert opinion that that the practitioner's conduct was significantly below the relevant standard because he did not demonstrate leadership and did not demonstrate a coordinated approach to care, instead he was preoccupied on his mobile device, when his patient was requiring assistance.

1. This Particular is concerned with the practitioner's failure to maintain adequate nursing notes in relation to the care and treatment of Patient A.
2. The evidence establishes that:

(1) from 2130, the practitioner started the night shift and was rostered as the Nurse-in-Charge;

(2) the practitioner was assigned to Patient A. The practitioner had access to Patient A's medical records from previous shifts. The practitioner was responsible for making entries in Patient A's medical records during the night shift.

(3) at 2313, the practitioner recorded Patient A's set of observations, including temperature 36.9. At that time, the practitioner had access to Patient A's last observations, and could see the last observations were about 12 hours prior (at 1103 on 2 November 2020). Apart from the set of observations recorded at 2313, the practitioner did not record any other set of observations for the remainder of the night shift;

(4) at 0309 on 3 November 2020, the practitioner entered the medication room, administered Patient A liquid Panadol and documented administering 1000 milligrams of paracetamol to Patient A; the practitioner did not use or document any pain score scale;

(5) according to the Care Plan which the practitioner had completed during the previous night shift, Patient A was on four hour observations. The practitioner did not complete a care plan for Patient A during the night shift. According to the practitioner, he decided to reduce the observation frequency from four hourly to six hourly during the night shift, but he did not document that;

(6) according to the practitioner, he did hourly rounding, and observed his patients on his hourly rounds, and he agrees his documentation was not adequate. If so, he should have recorded what events took place during any patient observations and interactions and recorded them at the time they occurred;

(7) according to the practitioner, Patient A refused observations and pain medication, but he did not document that;

(8) the practitioner did not conduct a clinical review. The practitioner did not document his decision not to initiate clinical review;

(9) at the start of the night shift, the practitioner received verbal handover at the nurses station. Much later, at 0408 hours, the practitioner retrospectively documented receiving handover for Patient A, including: "Patient Between the Flags: Yes" and "Patient has current Resus Plan: No". The practitioner's entry was incorrect, because Patient A did have a current resuscitation plan;

(10) at 0533, the practitioner made a retrospective progress note for Patient A., which does not document the deterioration/change in Patient A's condition during the night shift, and the temperatures mentioned in the retrospective progress note were not recorded in Patient A's observations within the medical records.

1. Given those findings, we find the facts underlying Particular 10 to be proved.
2. We also find that that these facts are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note that:

(1) the practitioner was obliged to comply with the NSW Health Policy Health Care Records (including that health care records must be accurate statements of clinical interactions relating to care and services provided and response, advice sought and provided, observations taken and results and must be sufficiently clear, structured and detailed to enable other members of the health care team to assume care of the patient and must be made at the time of an event or as soon as possible afterwards.[5] Documentation by nurses must include care plan and any significant change in the patient's status.[6] Entries should reflect in a timely way the level of assessment and intervention. The results of significant changes to the patient's condition should be documented as these occur);[7]

(2) the standard reasonably expected of a practitioner with an equivalent level of training or experience would be to document contemporaneously and record any patient and colleague interactions and observations, as close to the time they occurred;

(3) the practitioner acknowledged that his documentation was not of a standard it should have been for Patient A;

(4) we accept the expert opinion of Ms McGhee (who was critical of the practitioner not documenting Patient A's observations, his complacency and lack of responsibility) that the practitioner's conduct was significantly below the relevant standard because he has not documented contemporaneously or accurately.

1. This particular deals with the practitioner's failure to check on Patient A when an odour on the ward was identified at about 0425 on 3 November 2020.
2. The evidence establishes that:

(1) sometime around 0300 or 0430 (the precise timing is unknown), EN Dawes noticed a faecal smell coming from one of the rooms, and EN Dawes said something to the practitioner about a smell, asking "Can you smell that?". The practitioner said "I can't smell anything", and left the nurses station and walked around the patients to have a look, she asked RN Murphy if she could smell something, the patients in Room 3 were checked but they had not passed faeces. EN Dawes asked the practitioner "Have any of yours dirtied themselves?" and he replied that they were "fine";

(2) the practitioner did not check on Patient A when the odour was identified;

(3) around 0445 the practitioner walked into Patient A's room, saw a large bleed and noticed a distinct odour;

1. Given those findings, we find the facts underlying Particular 11 to be proved.
2. We also find that that these facts are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note that:

(1) the practitioner was obliged to comply with the LHD Procedure Rostering & Role Responsibilities of Allocated Registered Nurse (including coordinating the efficient and safe management of patients and staff and conducting clinical reviews of patients who have had a deterioration or change in their condition);

(2) the standard reasonably expected of a practitioner with an equivalent level of training or experience to that of the practitioner would be to assess and investigate where the odour was coming from. This would require visual observation and assessing the safety and comfort of all patients under his care;

(3) we accept the expert opinion of Ms McGhee that the practitioner's conduct was significantly below the relevant standard because he failed to reassess Patient A after the smell was detected by EN Dawes, he failed to observe Patient A to assess his condition when the odour was detected, and, had he investigated the odour at the time, a clinical review may have been initiated.

1. This Particular concerns the practitioner's failure to initiate a rapid response when he found Patient A line across his bed with an obvious bowel bleed.
2. We have already found that:

(1) in the retrospective progress note for Patient A prepared by the practitioner at 0533, the practitioner recorded that he had found patient A "supine across the bed with no signs of life" and that he "had a large bleed from the bowel".

(2) a resuscitation plan was prepared upon Patient A''s admission, and we note that the practitioner admitted that Patient A was for Clinical Review and Rapid Response.[8]

(3) no such Rapid Response was initiated.

1. Given these matters, we find Particular 12 established.
2. We also find that that these facts are sufficient in themselves to constitute unsatisfactory professional conduct under s 139B(1)(a) of the National Law. In this respect, we note:

(1) Ms McGhee's expert opinion that, as the nurse assigned to Patient A and as the Nurse-In-Charge it was the practitioner's responsibility to be aware of the resuscitation status for all of the patients on his ward. As the practitioner had also cared the patient had the previous night, he should have been highly aware of Patient A's resuscitation status;

(2) the NNSW LHD policy titled "Nurse/Midwife-In-Charge Clinical Review" states:

3.2 Clinical Review/Rapid Response

3.2.1 A Medical Clinical Review MUST be called if:

• Requested by the N/MIC following A-G assessment.

• The N/MIC is unable to review the patient within 30 minutes due to workload.

• The patient deteriorates further (but observations remain within the Blue or Yellow zone) before, during or after N/MIC Clinical Review.

• Deterioration is not reversed within one hour of N/MIC Clinical Review.

• There is concern by any staff member.

• There is concern by any patient, family member or carer (please refer to NNSW-LHD-PRO-0259-17 REACH: Patient, Family and/or Carer Initiated Escalation of the Deteriorating Patient for staged escalation processes).

3.2.2 A Rapid Response MUST be called if:

A • Red zone observation breach occurs.

• Three or more simultaneous yellow zone observation breaches occur.

• Medical Clinical Review is not attended within 30 minutes.

• The patient deteriorates further before, during or after Medical Clinical Review.

• Deterioration is not reversed within one hour of Medical Clinical Review.

• There is serious concern by any staff member.

• There is serious concern by any patient, family member or carer (please refer to NNSW-LHD-PRO-0259-17 REACH: Patient, Family and/or Care

Initiated Escalation of the Deteriorating Patient for staged escalation processes).

...

Rapid Response - This is an urgent review for patients who have Red Zone observations or Additional Criteria undertaken by a Rapid Response Team, or designated responders), as defined in the local CERS protocol.

Red zone observation breaches include any observations in the Red zone PLUS any additional criteria that are not covered by CURRENT altered calling criteria OR a Not for Rapid Response order on a CURRENT Resuscitation Plan (refer to NC-NNSW-PRO-6517-12 Between the Flags - Altered Calling Criteria and NC-NNSW-PRO-7468-15 Resuscitation Plans for NNSW LHD - Adult and Paediatric for more information).

Yellow zone observation breaches include any observations in the Yellow zone PLUS any additional criteria that are not covered by CURRENT altered calling criteria OR a Not for Clinical Review order on a CURRENT

Resuscitation Plan (refer to NC-NNSW-PRO-6517-12 Between the Flags - Altered Calling Criteria and NC-NNSW-PRO-7468-15 Resuscitation Plans for

NNSW LHD - Adult and Paediatric for more information).

(3) the "Nurse/Midwife-In-Charge Clinical review" policy';

(4) the NSW Health policy, "Recognition and management of patients who are deteriorating" dated 12 June 2020.

1. For all these reasons, we find Complaint One established.

1. Complaint Two is that the practitioner was guilty of professional misconduct under s 139E of the National Law in that he had:

(1) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or

(2) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.

1. The Tribunal stated in Health Care Complaints Commission v Le [2021] NSWCATOD 104 that:

71. The principles relating to findings of professional misconduct were stated in Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 at [69] to [75] which we paraphrase as follows:

(1) Whether and to what extent the misconduct of the respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [55];

(2) Guidance as to the circumstances in which suspension or cancellation of registration are appropriate is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") (Basten and Emmett JJA agreeing). His Honour stated:

[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.

(3) Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.

(4) Whether conduct is sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82];

(5) As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186, "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation". His Honour further notes:

[20] 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. ...

1. As the Tribunal accepted in Health Care Complaints Commission v Richards [2024] NSWCATOD 37 at [103]:

(1) professional misconduct 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 at [19];

(2) whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]; and

(3) in assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.

1. The Commission submits that facts underlying Complaint One are sufficiently serious to amount to professional misconduct because:

(1) the practitioner must have known that it was important to do adequate observations; he had been a registered nurse since 2001, and it is a fundamental obligation of any registered nurse to do comprehensive observations when required, he was the nurse in charge during the night shift and he had prepared the care plan on the previous night shift which clearly required four hourly observations;

(2) the practitioner must have known that Patient A was vulnerable and unwell (he received verbal handover when he started the night shift, he was assigned to Patient A during the night shift, he had attended Patient A during the previous night shift, he had access to Patient A's medical records which mentioned his extensive Merkel cell carcinoma, chronic ulcer, cellulitis and leg oedema, the practitioner had seen that Patient A's leg was oedematous, "absolutely huge", "five or six times the size of any normal leg", the practitioner knew that the medical officer had ordered Endone, strong pain medication;

(3) the practitioner must have known that it was important to appropriately respond when there is a change/deterioration in a patient's condition; EN Dawes clearly raised her concerns about Patient A's elevated temperature but the practitioner ignored her;

(4) the practitioner must have known that it was important to appropriately document observations and refusals; he understood that he was required to document contemporaneously, he documented observations at 2313 (but not subsequently) and he documented that another patient refused medication (but not Patient A));

(5) the practitioner's conduct placed Patient A at risk of harm; had the practitioner observed Patient A and attended to him instead of being on his mobile phone, his condition may have been escalated for a clinical review.

1. We entirely agree, and are of the firm view that, when the established facts constituting Complaint One are considered cumulatively, the established conduct of the practitioner amounts to professional misconduct.

1. The relevant provisions of the National Law are as follow:

3A Guiding principles [NSW]

(1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.

(2) The other guiding principles of the national registration and accreditation scheme are as follows -

...

3B Objective and guiding principle [NSW]

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

...

149C Tribunal may suspend or cancel registration in certain cases [NSW]

(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied -

(a) the practitioner is not competent to practise the practitioner's profession; or

(b) the practitioner is guilty of professional misconduct; or

(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or

(d) the practitioner is not a suitable person for registration in the practitioner's profession.

...

(4) If the person is no longer registered, the Tribunal may -

(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and

(b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and

(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.

(4A) If the Tribunal decides under subsection (4)(a) that if the person were still registered the Tribunal would have suspended the person's registration, the person may not apply for registration in the health profession during the period for which the person would have been suspended if registered.

...

(7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.

1. Again, we had the benefit of persuasive submissions of the Commission, but no submissions from the practitioner.
2. The Commissions submits that, in approaching our task, the relevant principles include:

(1) the protection of public safety and health is paramount: National Law, see s 3B;

(2) the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91];

(3) deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637;

(4) the objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct. Denouncing such conduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the requisite standard will not be permitted to practice: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35];

(5) in assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Litchfield at 638;

(6) the Tribunal's jurisdiction is primarily protective, not punitive: Litchfield at 637;

(7) the adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order: Prakash at [101]. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91].

(8) it is unavoidable that protective orders may be incidentally: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31];

(9) asserted reformation of a practitioner's character is exceptional and requires clear proof: Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 6 SR (NSW) 448, at 461.

1. We accept those submissions, which are well established by the authorities cited, and note the have been applied many times by the Tribunal.
2. The Commission seeks an order that the Tribunal would have cancelled the practitioner's registration pursuant to s 149C(1)(b) of the National Law in that he is guilty of professional misconduct. The Commission submits, correctly, that:

(1) when a finding of professional misconduct is made, the Tribunal has a discretion to make a cancellation order: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67].

(2) whether the conduct is sufficiently serious to warrant cancellation is a matter of degree and judgment (Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]) which requires an assessment of the gravity of the conduct found proved, and consideration of remorse and insight, if any, demonstrated by the practitioner: Health Care Complaints Commission v King [2013] NSWMT 9;

(3) once a finding of professional misconduct is made, the Tribunal is permitted to consider all its findings when determining whether the cancellation order is made and its duration: Gad v Health Care Complaints Commission [2002] NSWCA 111 at [55]; Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [163].

(4) cancellation may, in serious cases, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession: Litchfield; Savile v Health Care Complaints Commission [2006] NSWCA 298 at [45]; Prakash at [64];

1. The Commission submits that an order that the Tribunal would have cancelled the practitioner's cancellation is required to:

(1) denounce the practitioner's conduct;

(2) deter other nurses from similar conduct;

(3) uphold high professional standards of the nursing procession (the public has the right to expect that nurses will work collaboratively to provide safe effective care to vulnerable patients who are unwell).

1. We agree.
2. The practitioner failed to provide appropriate care to a 82 year old male patient on the night in question. The practitioner was working as the Nurse-In-Charge of the night shift. He failed to adequately assess Patient A, failed to adequately respond to the change/deterioration in Patient A's condition and failed to initiate clinical review. The practitioner also failed to maintain adequate nursing notes.
3. Disturbingly, the practitioner failed to appropriately respond to Patient A's calls for assistance and failed to appropriately respond to concerns about Patient A raised by an enrolled nurse, describing Patient A as a "fuckwit" and an "idiot".
4. As the Tribunal stated in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106:

92. The public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: [Prakash v Health Care Complaints Commission [2006] NSWCA 153] at [91].

93. Protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91].

94. Nevertheless, although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83].

95. As noted in Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69], there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include:

the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction;

the unacceptability of certain kinds of conduct; and

the maintenance of confidence in the high standards of the profession.

96. Whether the seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].

1. In our view, there must be an order that we would have cancelled the practitioner's registration.
2. We have come to that conclusion given the objective seriousness of the totality of the practitioner's conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession.
3. Any order short of deregistration would be an inadequate response to the seriousness of the practitioner's misconduct.
4. The appropriate period before the practitioner is permitted to apply for a review of our proposed order is one year.

1. The Commission has already sought an order that it be paid its costs of the proceedings.
2. The Tribunal has repeatedly indicated, as has the Court of Appeal, that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
3. In correspondence to the Commission, the practitioner has indicated that he does not have the financial resources to pay costs. However, in Philipiah at, [42], Emmett J, with whom Meagher JA and Beech-Jones J agreed, stated that

As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule.

1. For a recent application of that rule, see Health Care Complaints Commission v Khorami (No 2) (Costs) [2023] NSWCATOD 76 at [24] where the Tribunal stated:

Courts have consistently refused to decline to make an order for costs where one is justified on the basis that the party against whom an award is made is or may be impecunious: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25. All that said, we will set a timetable for submissions on costs.

1. In these circumstances, we propose to order the practitioner to pay the Commission's costs.
2. As we have not heard from the practitioner, we will allow him 14 days to file and serve submissions if he opposes that order.
3. The Commission may reply within a further 14 days if necessary.
4. We propose to consider costs on the papers and without a hearing: NCAT Act, s 50(2). Either party opposing that course should address that issue in their submissions.

(1) The Particulars of Complaint One are established.

(2) Complaint One is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW).

(3) The Particulars of Complaint Two are established.

(4) Complaint Two is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW).

(5) Under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) the Tribunal orders that if the practitioner were still registered the Tribunal would have cancelled his registration (pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) because he is guilty of professional misconduct).

(6) Under s 149C(4)(b) of the Health Practitioner Regulation National Law (NSW), the Tribunal orders that the practitioner is disqualified from being registered for a period of 1 year.

(7) Under s 149C(4)(c) of Health Practitioner Regulation National Law (NSW), the Tribunal orders that the National Board is required to record the fact that if the practitioner were still registered, the Tribunal would have cancelled the practitioner's registration in the National Register kept by the Board.

(8) Costs are reserved.

(9) The respondent is to file and serve its submissions and if necessary evidence as to costs on or before 9 October 2025.

(10) The applicant may reply on or before 9 October 2025.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.

[3] HCCC Material: LHD report p 335; HCCC Material: Hospital records p 813

[4] This is how this criticism appears in the expert report. However, as Ms McGhee was not required to attend the hearing, we are not sure to whom she is referring.

[5] NSW Health, Health Records - Documentation and Management policy, December 2012, 2.2 "Standards for Documentation and 2.4 "Documentation by nurses and midwives".

[6] NSW Health, Health Records - Documentation and Management policy, December 2012, 2.4 "Documentation by nurses and midwives".

[7] NSW Health, Health Records - Documentation and Management policy, December 2012, 2.2 "Standards for Documentation and 2.5 "Frequency of Documentation".

[8] Record of Interview, 24 March 2023, p 88.