Health Care Complaints Commission v Shrimpton

NCAT Occupational|2018-11-09

Introduction

Ms Shrimpton was first registered as a Nurse on 14 February 2011. Most recently Ms Shrimpton worked for NSW Health, Central Coast Area. This case is about her conduct whilst working at a Central Coast Hospital. It is alleged that Ms Shrimpton dishonestly and/or inappropriately used an elderly patient's credit card for her own advantage, and that this conduct occurred in the week before the patient's death.
On 17 October 2016 Ms Shrimpton was arrested and charged with dishonestly obtain property by deception being an offence under section 192E of the Crimes Act NSW.
On 21 October 2016 Ms Shrimpton resigned from her employment, effective from 4 November 2016.
On 31 October 2016 the Nursing and Midwifery Council of New South Wales (the Council) conducted a fact finding meeting under section 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). The Council suspended Ms Shrimpton's registration. This suspension remains in place.
On 1 December 2016 the Council referred the matter to the Health Care Complaints Commission (the Commission).

The Application before the Tribunal

On 14 June 2018 the Commission, applied to the Tribunal for disciplinary findings and orders under the National Law against Ms Shrimpton. The application attached a Complaint dated 14 June 2018. It comprises four individual complaints.

The Hearing

Ms Shrimpton did not attend the substantive hearing. Prior to the hearing the Tribunal conducted directions hearings relating to the filing and service of documents. Material was filed by the Commission demonstrating that it had provided Ms Shrimpton with a copy of the Application and Complaint detailing the allegations against her, notice of the hearing date as well as the material it relied upon to prove its case.
In response to correspondence sent by the Commission Ms Shrimpton sent an email to the Commission dated 1 November 2018. She stated that she would not be attending the hearing and she did not intend to file any material in response to the Complaint.
The Commission submits that Ms Shrimpton has been given adequate notice of the Complaint and that it is appropriate for the Tribunal to proceed pursuant to s 165J(3) of the National Law.
There has been no contact from Ms Shrimpton with the Tribunal about the Application and Complaint or the hearing. She has not filed any material in response to the Application and Complaint.
The Tribunal was satisfied from the material before it that Ms Shrimpton was aware of the proceedings. The Application and attached Complaint was served on her. There was no request made to the Tribunal from Ms Shrimpton for an adjournment of the hearing. In the light of these matters and the contents of her email to the Commission, the Tribunal was satisfied that it was appropriate for the hearing to proceed in Ms Shrimpton's absence and to determine the factual matters underpinning the Complaint.
However for reasons that are explained later in this decision, Ms Shrimpton should be given the opportunity to consider the factual matters as found by us and set out in this decision before we make final orders in the matter. This will give Ms Shrimpton the opportunity, should she choose to avail herself of it, to make submissions about the orders that could be made including those that are proposed by the Commission.

Written material

In July 2016, Patient A, who was 77 years of age, was admitted to hospital suffering from leg ulcers. Patient A had previously withdrawn $500 in cash and took a portion of that money, approximately $300 cash, in her purse with her to the hospital.
On 15 August 2016 Patient A was discharged and returned home. On returning home Patient A had a fall and was readmitted to the same hospital the next day.
In addition to cash Patient A also had a St George visa card in her purse which she took back with her to hospital. According to a statement made by Patient A's son to the Commission, Patient A typically paid for things using cash, not her debit/credit card. She used her card to withdraw cash only. This is supported by Patient A's bank statements which show that whilst her account had regular direct debits set up to various entities and utilities she did not use the card linked to that account for single item purchases. Rather she used the card to withdraw cash either through an ATM or EFTPOS.
By late August 2016, Patient A was on heavy doses of morphine and had lost her ability to hold a conversation and recognise people. Consequently, Patient A was assessed for admission to a nursing home.
An ACAT assessment progress note nursing dated 24 August 2018 records that Patient A required full assistance with personal care and was eligible for permanent residential care. The notes also record that Patient A had Chronic Obstructive Pulmonary Disease and received 24 hour Oxygen. It was noted that she was unable to move without assistance, was hearing impaired and at times had to use a pen and paper to communicate.
On 23 August 2018, a progress note by a registered nurse records that Patient A's handbag and purse had been emptied on her bed. Keys were found under the blankets, cards and other purse items were found under the bed, money was found in several places around the room including the garbage bin. The nurse records that she was uncertain if all money was located but commented that it was not as much money as previously documented. The note records that Patient A's purse and keys were then locked in a bedside cupboard.
On 2 September 2016 Patient A's sister visited her in hospital. She needed to obtain Patient A's Medicare number and when she checked Patient A's purse, all the money save for a few coins was missing. In a statement to police dated 21 November 2016 Patient A's sister stated that in the week leading up to her death Patient A did not recognise her, could not have a proper conversation and was on heavy doses of morphine. She did not believe that Patient A would have given her credit card to anyone and at no time did Patient A mention giving her card to anyone to use.
Patient A passed away on 6 September 2016. On that day Patient A's son collected Patient A's belongings. According to his statement her wallet was on the bedside table. On a later inspection of the wallet, Patient A's son found no cash nor did he find her St George Visa card.
After his mother's death Patient A's son attended her bank to tell them of her death and to close her account. In the course of doing this he found out that her account had been used whilst she was in hospital. He then reported the matter to the Police.
Bank statements for Patient A's St George account identified that the following debit purchases were made while Patient A was bedridden in hospital: 1. On 31 August 2016 at Woolworths Gosford $39.90 2. On 31 August 2016 at Best & Less Gosford $35.00 3. On 5 September 2016 at White Neish Gosford $69.95
According to the clinical progress notes, Ms Shrimpton was assigned to the care of Patient A in the evening on 25 August 2016, in the afternoon on 30 August 2016, in the afternoon on 1 September 2016, and in the evening on 4 September 2016. On 30 August 2016 Ms Shrimpton records that Patient A was "confused and disorientated when roused".
In response to a sustained effort by Patient A's son to have the matter investigated NSW Police contacted Woolworths, Best & Less and White Neish. Receipts and CCTV footage were obtained from Woolworths and White Neish. Best & Less were unable to produce anything to Police.
The receipts showed: 1. On 31 August 2016, at Woolworths at 10:19 am, $39.00 was receipted for the purchase of two Mother Energy drinks and two cosmetic make-up products. 2. On 5 September 2016, at White Neish clothes store at 12:37 pm, $69.85 was receipted for the purchase of a Size 10 Willow checked shirt. The manager of the store recorded "Kristen Shrimpton" as the buyer.
A statement made to police by a clinical Nurse Educator, indicates that Ms Shrimpton attended a training course conducted by the educator on the morning of 31 August 2016 but told her that she was sick and was going home. The educator stated that Ms Shrimpton left the course before 10 am. The educator noted in her statement that nurses are required to wear their uniform when attending training.
The manager of the White Neish clothes store told police that the purchaser was wearing a nurse's uniform. She also noted that she had recorded Ms Shrimpton's name as the purchaser in the event that an exchange may be required because she had not tried the shirt on.
The police investigator in charge Detective Senior Constable Raymond Hetherington arrested Ms Shrimpton on 17 October 2017. He composited identification photo boards for the investigation.
Detective Hetherington looked at the CCTV footage from Woolworths and outside the White Neish shop and positively identified Ms Shrimpton in both pieces of footage.
In a statement dated 26 October 2016 Detective Hetherington stated that at the time the Woolworths transaction was recorded CCTV footage shows Ms Shrimpton in her nurse's uniform approaching the Woolworths self-serve checkout at 10:19 am on 31 August 2016 and leaving Woolworths and walking towards the exit drinking a can of Mother energy drink.
Detective Hetherington also stated that the CCTV outside White Neish shows Ms Shrimpton in her nurse's uniform entering the store at about 12:30 pm on 5 September 2016 and leaving it at about 12:37 pm carrying a small white shopping bag. The transaction on Patient A's credit card at White Neish was recorded as taking place at 12.37 pm.
Patient A passed away on 6 September 2016. According to sign in sheets Ms Shrimpton was not on duty that day. Ms Shrimpton was rostered on 5 September 2016 and then on 8 September 2016.
In a statement made to police on 30 September 2016 Patient A's son said he received a telephone call on 18 September 2016 from a woman ringing from the hospital to tell him that she had found Patient A's credit card and would post it to him. Patient A's son didn't record the caller's name but told her that he would come to the hospital to retrieve it. It can be inferred from other material before us that the caller was Ms Shrimpton.
In an email sent by Ms Shrimpton to her manager dated 19 September 2016, she refers to having a telephone conversation with Patient A's son on 18 September 2016. Her email was unclear as to who made the telephone call. Her email stated that Patient A's son had asked about two charges being made to his mother's credit card from Woolworths and Best & Less. Ms Shrimpton stated that she told Patient A's son she was unaware of those charges and "offered for him to talk to someone higher but he declined."
On 21 September 2016, Ms Shrimpton's supervisor asked her about this telephone call. Ms Shrimpton admitted that she had telephoned Patient A's son because she had found Patient A's credit card located in the ward clerks' desk with the son's contact details on it. The supervisor asked the ward clerks about this claim but they said that they had not seen any patient's credit card.
In an internal email about the matter dated 31 October 2016 Ms Shrimpton's supervisor observed that it is not hospital policy for the ward clerks, or any staff member, to leave a patient's credit card in a desk or drawer.
Ms Shrimpton was charged with an offence under s. 192E of the Crimes Act being dishonestly obtain property by deception on 17 October 2016. By the time of the Council's determination on 31 October 2016 which resulted in her suspension, Ms Shrimpton was required by provisions contained in the National Law to have notified AHPRA in writing that she had been charged. In a letter to the Commission dated 7 September 2017 AHPRA stated that it had never received any such notice from Ms Shrimpton.
On 23 February 2017, the criminal charge was withdrawn. The Commission was advised orally by the Officer-in-charge of the investigation that the prosecutor in the Local Court withdrew the charge because it was thought that the Police could not prove that Patient A did not consent to the use of her card.
On 14 September 2017 the Commission issued a notice to Ms Shrimpton under s. 34A of the Health Care Complaints Act 1993 requiring her to reply to the allegations which now form the basis to the first complaint.
In a reply received by the Commission on 7 October 2017 Ms Shrimpton did not answer the allegations regarding the purchases at Woolworths and Best & Less. As regards the purchase from White Neish Ms Shrimpton denied knowingly or intentionally using Patient A's credit card and claimed that: 1. she had only become aware of her purchase from the White Neish retailer using Patient A's credit card when she attended Gosford Police Station to be interviewed about the matter; 2. Patient A often had her personal possessions scattered about her room; and 3. she must have been handed Patient A's card and while attending to another task must have confused it for her own and inadvertently retained possession of the card.

Evidence given by Patient A's son

In addition to written statements from Patient A's son we had the benefit of oral evidence given by him at the hearing.
His evidence is summarised as follows: 1. On his mother's second admission to hospital she had her credit card and a substantial amount of cash in her wallet. 2. After his mother's death he had looked for his mother's credit card in her possessions at the hospital and had been unable to find it. In the course of closing his mother's bank accounts he learned that his mother's credit card had been used on three occasions in the week before her death whilst she was in decline and seriously unwell. 3. He had to approach the police on two separate occasions and conduct his own inquiries about the purchases including ascertaining the existence of CCTV footage at the White Neish dress stop before some police action was taken to identify who had used his mother's credit card. 4. He did not approach the hospital about the credit card until he received a telephone call from a woman at the hospital who claimed to have found the credit card. He received this call after he had been to the bank but before he had made his statement to the police. The caller was unable to tell him where the card was found. She indicated that she had been told to call him to advise that the card had been found and she would post it to him. He replied that as the matter was in the hands of the police he would collect the card in person. He gave no details about the items purchased with the card including where the transactions took place. He attended the hospital within the hour to find that no one at the hospital knew anything about the card or indeed the making of the telephone call. 5. In the week or so prior to his mother's death she was on a lot of medication including morphine. She was confined to a chair and or her bed. He agreed that clinical progress notes which reported that his mother presented as drowsy, confused and disorientated were a fair description. 6. He believed that that there was "absolutely" no chance that his mother would have willingly given her credit card to a nurse or indeed anyone else. This was because she had never even given him her card, she hated being in hospital and she hated nurses. He found it inconceivable knowing his mother as he did that she would have bought a nurse a present or a gift.

Expert Peer Review Report

An Experts Report dated 2 August 2018 was prepared by RN Shaw which examined Ms Shrimpton's conduct. RN Shaw has been a registered nurse for some 25 years. Amongst an extensive range of roles, she has held positions as a clinical co-ordinator, Clinical Nurse Specialist and Nurse Educator. This written report was supplemented by oral evidence that she gave at the hearing.
RN Shaw canvassed a range of possibilities in her report reflecting a number of alternative scenarios in which Ms Shrimpton did or did not have permission to use Patient A's credit card and the explanations she offered to her supervisor about where she had found the credit card.
In RN Shaw's opinion even if Ms Shrimpton had Patient A's consent to use the card to purchase personal items for herself or for Patient A, the standard reasonably expected of a practitioner of an equivalent level of training or experience is that they would not usually become involved in the financial dealings of a patient. A nurse in such a situation should have recognised that Patient A was not in a fit mental state to give a valid consent and would have declined the request. It should have been recognised that taking and/or using a credit card was not in the best interest of Patient A. If Patient A had given her credit card to Ms Shrimpton, then Ms Shrimpton had a duty to inform her manager of this.
RN Shaw referenced various breaches by Ms Shrimpton of the NSW Health Code of Conduct and the Nursing and Midwifery Board of Australia's (NMB) Code of Professional Conduct and Code of Ethics.
The NSW Health Code of Conduct relevantly provides that staff members must demonstrate honesty and integrity and ensure their actions and decisions are not influenced by self-interest or considerations of personal gain or other improper motives: see paragraph 4.2.
The NMB Codes relevantly provide that nurses are expected to respect the vulnerability and powerlessness of people in their care. This can include not taking gifts, and taking all reasonable steps to respect and ensure the safety and security of possessions and property of persons requiring care: see Code of Conduct statements 2.4, 3.4, 8.1 and 8.7 and Code of Ethics statement 1.2.
RN Shaw was strongly critical of Ms Shrimpton's conduct where her email advice to her manager was to the effect that she informed Patient A's son she was unaware of any inappropriate charges to his mother's credit card, and her subsequent explanation to her supervisor that she found the credit card in the ward clerk's desk. In RN Shaw's view this was inconsistent with a nurse's ethical obligations which would have been to be truthful in their dealings with colleagues and upon finding a credit card it should have been immediately reported to an appropriate manager: see Code of Ethics statement 6.3 and Code of Conduct statements 3.4, 9.1, 9.2 and 10.1
Ms Shaw expressed the view that the following scenarios fell significantly below what is reasonably expected of registered nurse: 1. If Ms Shrimpton had permission to use Patient A's credit card either for Patient A's purpose or for her own personal use, a registered nurse would have recognised Patient A was not competent to allow that consent; 2. If Ms Shrimpton used Patient A's credit card without Patient A's consent this amounted to theft; and 3. Ms Shrimpton gave an untruthful account to her supervisors when directly asked about the allegation.

The Issues

Although Ms Shrimpton did not participate in the hearing she has not advised the Tribunal that she concedes the Application and attached Complaint. Equally, she has not presented any evidence which contests the particulars of the Complaints or contradicts the evidence relied upon by the Commission.

The use of Patient A's credit card (Complaint One)

The evidence demonstrates that Ms Shrimpton dishonestly and knowingly used Patient A's credit card for her own financial advantage because: 1. At the time of purchase on 5 September 2016 from the White Neish shop Ms Shrimpton's name was given as the customer and she was wearing her name badge. In a written response to information put to her by the Commission she subsequently admitted that she purchased the item from White Neish although she denied the intent behind the purchase. 2. Detective Hetherington identifies Ms Shrimpton in the CCTV footage from the White Neish shop as being the same person shown in CCTV footage making a purchase at Woolworths on 31 August 2016 at the same time that a transaction is recorded against Patient A's credit card. His evidence is to the effect that it is Ms Shrimpton who used Patient A's credit card at Woolworths on 31 August 2016. 3. It can be logically inferred that Ms Shrimpton also used Patient A's card on 31 August 2016 at Best & Less as it had been used by her on that same day at Woolworths. 4. Ms Shrimpton admitted having a telephone call with Patient A's son. His evidence is that he did not discuss with the caller that there had been purchases from Woolworths or Best & Less on his mother's card. However, in Ms Shrimpton's email to her manager of 19 September 2016 she details that Patient A's son told her that there were debits from Woolworths and Best & Less. These are details Ms Shrimpton would only have known if she had used Patient A's card. 5. No other staff member in the hospital was aware of Patient A's credit card. 6. It is clear that Patient A either did not consent to the use of her credit card or she was not in a state to give consent. Knowing Patient A's character as they did neither her son nor her sister believed that there was any chance that she would have given her credit card to a nurse or allowed it to be used by anyone. Both observed that Patient A was on heavy doses of morphine, was in severe pain and on occasions was confused and disorientated. This is confirmed by the hospital progress notes for Patient A. These matters and the timing of the subject purchases in the week prior to Patient A's death, which included a purchase on the day prior to her death, demonstrate that there was an absence of consent by Patient A for the use of her credit card. 7. Ms Shrimpton knew that Patient A was confused and disorientated and not capable of giving consent for the use of her credit card. Hospital progress notes made from mid-August through to the week prior to Patient A's death on 6 September, including several made by Ms Shrimpton, indicate that Patient A was confused and disorientated. 8. On the day that Patient A died Ms Shrimpton was not at work. She returned to work on 8 September. At this point she is faced with a dilemma. Having used the credit card on 5 September, a day before Patient A's death, what does she now do with Patient A's credit card. 9. Ms Shrimpton calls Patient A's son on 18 September claiming to have found the credit card. Ms Shrimpton does not disclose to any supervisors or any other staff member that she had found Patient A's credit card, until directly asked about it by her supervisor on 21 September 2016. Even if she found the credit card in the ward clerk's desk as she told her supervisor it doesn't explain how the card was in her possession and used by her on 5 September.
For these reasons we find that the particulars relied on in support of Complaint One are established.

The accounts given by Ms Shrimpton to her employer and the Commission about her conduct (Complaint Two)

Ms Shrimpton advised Patient A's son that she had found his mother's credit card. However in an email to her manager of 19 September 2016 about the conversation with Patient A's son, she does not disclose that she had found credit card nor does she disclose any information about her use of the credit card.
Ms Shrimpton does not disclose to any supervisor or any other staff member that she had found Patient A's credit card, until directly asked about it by her supervisor on 21 September 2016 where she claimed to have found it in the ward clerks desk. No other staff member, including the ward clerks were aware of or had seen the card. Ms Shrimpton's supervisor indicates that placing a patient's credit card in a ward clerk's desk would be against hospital policy.
We find that that Ms Shrimpton did not give a full and truthful account to either her manager or supervisor about Patient A's credit card or its use. As referenced by the expert report this conduct was in breach of obligations under to act professionally and ethically as set out in the NSW Health Code of Conduct and the Nursing and Midwifery Board of Australia's (NMB) Code of Professional Conduct and Code of Ethics: for example Code of Ethics statement 6.3 and Code of Conduct statements 3.4, 9.1, 9.2 and 10.1
We have found that Ms Shrimpton dishonestly and knowingly used the credit card at the White Neish shop on 5 September. In her response to the Commission on 7 October 2017 Ms Shrimpton stated that she had only become aware of the purchase from the White Neish shop using Patient A's credit card when she attended Gosford Police Station and explained that her use of the card had been in error. In the light of our finding about Ms Shrimpton's use of the credit card we find that these statements to the Commission were false and misleading.
For these reasons we find that the particulars relied on in Complaint Two are established.

Failure to notify the National Board of the Police Charge (Complaint Three)

Ms Shrimpton had a lawful duty under the National Law to notify AHPRA of the charge laid against her by NSW police on 17 October 2016. She was required to do this within seven days. The letter from AHPRA clearly indicates that this was not done within the time frame or indeed at all. Accordingly the particular relied on in Complaint Three is established.

Complaints One, Two and Three: Unsatisfactory Professional Conduct sections 139B(1)(a) and (l); and 139B(1)(b)

Ms Shrimpton dishonestly used a credit card belonging to an elderly patient for her own financial advantage whilst that patient was in her care. When Ms Shrimpton was questioned by her supervisor and her conduct was investigated by the Commission she failed to give a candid and truthful account. She failed to notify AHPRA as she was required to do by law that she had been charged with an offence punishable by at least 12 months imprisonment.
The various Codes of Conduct referred to in this decision inform us as to what the profession, as a whole, reasonably expects of its members. This includes but is not limited to acting in a way that does not exploit the vulnerability of patients. Ms Shrimpton was in clear breach of these codes. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as 1. Not "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrne [1995] 193 CLR 501 at 514-515: see Health Care Complaints Commission v Phung (No. 1) [2012] 1 NSWDT at 68. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s. 139B(1)(l) stating at paragraphs 47 to 49: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.
It is clear that Patient A did not consent or was not in a state to give consent for the use of her credit card. Ms Shrimpton knowingly took advantage of that vulnerability and used Patient A's credit card for her own personal use. It amounted to fraudulent conduct.
Ms Shrimpton's fraudulent conduct, opportunistic theft and dishonesty shown in her dealings with her peers and to AHPRA by failing to report the charge against her fall far below the standards reasonably expected of a registered nurse. It was improper.
Further it is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at paragraph 81.
It was Ms Shrimpton's duty to be candid and honest with the Commission. This is an integral part of the proper functioning of the regulatory system. By her actions Ms Shrimpton demonstrated a disregard for the Commission and its role. This conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical.
In our view Ms Shrimpton's lack of candour with her colleagues, AHPRA and the Commission can be explained on a desire to avoid the consequences of her behaviour. It was improper and unethical.
Ms Shrimpton's conduct is made all the more shameful by the fact that she deliberately contacted and misled a grieving family member. Upholding public confidence in the nursing profession requires that this conduct be denounced as unacceptable.
We are satisfied that the complaints of unsatisfactory professional conduct as detailed in Complaints One, Two and Three are proved. Complaint Four: Professional Misconduct section 139E of the National Law
The Commission submits that the conduct of Ms Shrimpton, which we have found constitutes unsatisfactory professional conduct, when considered either individually or cumulatively is of a sufficiently serious nature to amount to professional misconduct.
There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: see Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 at paragraphs 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at paragraph 35.
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": see paragraph 19.
The protective objects of the National Law inform the Tribunal's evaluative task as to whether the conduct amounts professional misconduct. In Health Care Complaints Commission v Do Meagher JA, with whom Basten and Emmett JJA agreed, stated at 35: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In our view when the complaints are considered individually and together there has been a significant departure from the standard of conduct to be expected of a nurse.
The exploitation of a frail, aged and vulnerable patient is conduct of a nature which strikes at the heart of public confidence in the profession. What Ms Shrimpton then said to the bereaved son of Patient A after her death about the credit card further diminished trust which the public should be entitled to hold in in the profession. To make matters worse Ms Shrimpton then compounded her conduct with her lack of candour with her colleagues, AHPRA and the Commission.
We find that the unsatisfactory professional conduct displayed by Ms Shrimpton is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law.
We are satisfied that the complaint of professional misconduct as detailed in Complaint Four is proved.
Protective Orders - Stage Two Proceedings
In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at paragraph 34.
The day before the hearing, the Commission sent Ms Shrimpton an email in which it attached a copy of the proposed orders that it intended to seek at the Hearing. The email was sent to Ms Shrimpton at 6.40 pm on Wednesday 7 November 2018.
The Commission indicated in its email that it sought cancellation of her registration and she not be allowed to seek a review for a period of 2 years. It also sought an order that she not be permitted to work in health services as an assistant in nursing until she is re-registered. An order for costs was also sought.
This meant that at the time of the hearing although Ms Shrimpton knew about the matters that would be considered by the Tribunal, she had very little time to consider the significance of the specific orders sought by the Commission and the impact of those orders on her as they related to her future registration and working life.
Further it is not clear to us whether Ms Shrimpton understands that the Tribunal is not limited to only making orders as proposed by the Commission. For example if we determine that cancellation of her registration is appropriate it is up to us to determine the period before which she can apply for re-registration.
In our view given the seriousness of the findings and conclusions we have made above about Ms Shrimpton's conduct and the Commission's flagging of the orders it seeks including cancellation of her registration, the setting of a non-review period before which she can seek re-registration and a bar on her providing health services; it is in the interests of fairness that Ms Shrimpton be given the opportunity to consider the significance of our decision and the Commission's position. She should have the opportunity to make submissions about her circumstances or provide further material to the Tribunal should she wish to do so. This will allow her to put forward her circumstances so we can take those into account when making our decision about protective orders.
It may be in in Ms Shrimpton's interests to obtain legal advice to assist her in identifying any relevant material and the crafting of any submissions she may wish to make.
In addition Ms Shrimpton will be informed that regardless of what position the Commission takes as to the nature and extent of protective orders it seeks the Tribunal is not limited by the Commission's position. Ultimately it is for the Tribunal to determine the appropriate protective orders based on all the material and circumstances before it.
Accordingly having found the complaints of unsatisfactory professional conduct and professional misconduct proved, the Tribunal makes the following directions for the provision of written submissions from the parties for stage two of the proceedings being the final orders: 1. The applicant is to provide any further evidence and submissions to the Tribunal and the respondent within 14 days of the date of this decision 2. The respondent is to provide any further evidence and submissions to the Tribunal and the applicant within 28 days of the date of this decision 3. The applicant is to provide any further material in reply to the Tribunal and the respondent within 35 days of the date of this decision 4. the question of final orders is to be determined on the papers however the parties are given liberty to restore the matter to the list should they wish to seek an oral hearing of stage two of the proceedings

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: 19 February 2019

At a glance

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Judgment (12 paragraphs)

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Cases Cited (8)

Cited By (22)