The following summary is based on the Agreed Statement of Facts and on evidence that the Tribunal understands not to be in dispute, and identifies factual issues in dispute.
Parklea Correctional Centre (PKA) is located in the north-western suburbs of Sydney and houses approximately 800-900 remand, minimum, and maximum security inmates. In December 2017 PKA was privately managed by The GEO Group Australia Pty Ltd (GEO) on behalf of Corrective Services NSW (CSNSW). Health services at PKA were operated by the Justice Health & Forensic Mental Health Network (JH&FMHN).
On 6 December 2017 Patient A, a 37 year old man with a documented medical history of epilepsy, asthma, Crohn's disease, hypertension and opioid dependence, was transferred to PKA from Sydney Police Cells, arriving at about 11.38am. Patient A was placed in a holding cell, and at about 2.07pm was taken to the Processing Area at Reception. Patient A had been in custody previously, most recently in November 2017.
The Reception Screening Assessment (RSA) is a medical interview conducted by JH&FMHN staff to identify any potential medical or physical needs of a newly received inmate. EN Lynda Steele was the Reception nurse on the afternoon shift. EN Steele was interviewed as part of the JH&FMHN investigation on 6 March 2018 (ex A1, tab 71), and gave oral evidence to the Tribunal. EN Steele saw Patient A shortly after 2.00pm. She telephoned the CNS D&A and advised her that Patient A was very unwell and vomiting and that she was unable to attend to the RSA. The CNS D&A arranged for her to send Patient A to the Clinic straight away.
EN Steele completed a Health Problem Notification Form (HPNF) at 2.36pm (ex A1, tab 125) noting "RSA not completed, Pt in withdrawal, Hx epilepsy HTN", and informing CSNSW/GEO officers: "House in clinic till cleared by D&A". In oral evidence EN Steele confirmed that the HPNF form was completed to notify nursing and correctional staff why she had housed Patient A in the Clinic.
Patient A was taken to the Clinic by wheelchair.
EN Steele's shift in Reception ended at 10.00pm, and she then went to the Clinic to return the keys. EN Steele stated that while the normal process is for the reception screening nurse to give a handover to the night staff at that time, she did not hand over anything as she had already handed over care of Patient A to the drug and alcohol staff and they had taken over that patient. She was not aware of the treatment plan as she was still in Reception and therefore any handover would not have been relevant. She did not write in Patient A's notes as he was really unwell and she had to get him straight up to see the drug and alcohol team, as the drug and alcohol doctor was about to leave and had stayed back to see the patient.
The clinical handover from the morning shift JH&FMHN staff to the afternoon shift staff occurred in the Clinic Meal Room (also referred to as the "lunch room" and the "tea room"). As that handover took place during Patient A's reception, he was not included in the verbal or written handover.
The CNS D&A provided a statement as part of the JH&FMHN investigation dated 2 March 2018 (ex A1, tab 68), and gave oral evidence at the Tribunal hearing. In oral evidence the CNS D&A described her role at PKA as being to see anyone entering the Clinic in acute withdrawal or detox daily until they were cleared for transfer into the main area. Her responsibilities included reviewing anyone who came in on treatment such as methadone, there being over 100 on treatments at that point, and organising doctors' appointments and procedures. She first heard of Patient A when she received a telephone call from the reception nurse, EN Steele, who said she had an unwell patient and asked if there was a doctor available who could give an order for an injection because the patient had been vomiting. The CNS D&A and the drug and alcohol doctor were finishing a clinic and the doctor agreed to stay back and assess the patient. The doctor looked the patient up on the computer to get some background information on him, and she went to find someone to give an injection.
The CNS D&A located some staff in the lunchroom, where the handover from morning to afternoon shift had just finished. The CNS D&A said words to the effect: "I've got a really unwell patient coming from detox. I need someone out now to give an IM injection." The evidence of the CNS D&A was that there were four people in the meal room, RN Gallagher (Nurse Unit Manager (NUM) for the morning shift), RN Balagtas (NUM for the afternoon shift), RN Nguyen and RN Stratten. RN Nguyen's evidence was that she had left the tearoom before the CNS D&A arrived. RN Stratten's evidence was that she was exiting the room when the CNS D&A arrived. RN Balagtas has denied being present.
At approximately 2.45pm RN Gallagher administered IM Stemetil to Patient A, and recorded this on the medication chart. Prior to administration, Patient A's details, the drug, and the dose were checked against Patient A's medication order with RN Stratten.
Patient A was reviewed by the CNS D&A and D&A Medical Officer, Dr Lee, in the drug and alcohol review room. Dr Lee and the CNS D&A separately recorded their observations and the treatment plan in Patient A's progress notes (ex A1, tab 129).
Dr Lee's note of the treatment plan states:
"1.Detox cell
2.Panedeine, Stemetil +Symptomatic
3.Nil Diazepam yet
4.On Valporate 1gm BD
5.Repeat Obs 4/24
-Call ROAMS
-If need, benzodiazepam regime
6.Thiamine
7.MO/ROAMS contact tomorrow.
8.Await ROI"
The CNS D&A took baseline observations, which she recorded in Patient A's progress/clinical notes. She noted that Patient A was "extremely unwell - in opiate withdrawal. Pt pale, sweating, clammy, rhinorrhea, piloerection", that he gave a history of taking Xanax or diazepam daily and IV heroin, and that he was too unwell for a full history. The CNS D&A recorded the treatment plan:
1.IMI Stemetil & Panadeine for opiate withdrawal
2.to remain in detox & monitored closely 4/24 obs
3.D&A ROAMS to be contacts if concerns regarding pt & if pt displays any signs of benzo withdrawal
4.for GP due to multiple morbidities
5.PHN Clinic nurse given oral handover
6.review by D&A nurse (author) in am
7.further D&A MO review on Friday 8/12/17
Patient A's vital signs (observations) were recorded on the Standard Adult General Observation (SAGO) chart (ex A1, tab 131) and on the D&A Substance Withdrawal Monitoring Chart (ex A1, tab 132). The medications ordered by Dr Lee were entered on the medication charts (ex A1, tab 133). The CNS D&A completed a new HPNF form, signed at 3.29pm (ex A1, tab 124), stating:
Previous custody.
RSA not completed due to pt unwell with substance withdrawal - observe sweating, vomiting, diarrhoea
Epilepsy - smacking of lips, disorientated, loss of consciousness, twitching
Placed in detox
The recommendation was "To remain in clinic until RSA completed and until cleared by drug and alcohol".
At approximately 2.46pm, Patient A was taken by wheelchair to Clinic cell 34.
At about 4.20pm, as she was leaving for the day, the CNS D&A provided a verbal handover to RN Stratten, who was in the medication room. The CNS D&A stated that she had made the note "PHN clinic nurse given oral handover" in Patient A's progress notes because morning handover had already been completed and she was concerned about the patient and wanted to make sure she was not leaving the Clinic until she had given a handover to the Clinic nurse. She put the notes in the pigeon hole at the Nurses' Station and took the medication chart directly to the Clinic nurse in the medication room.
The CNS D&A stated that RN Gallagher was in the Nurses' Station as she put the notes back and she gave him a brief update of what had happened.
The evidence of the CNS D&A was that her handover to RN Stratten included that Patient A was in detox and unwell; observations were required every four hours; and she had just performed a set of observations. She went through what the patient presented with, what they had ordered and what had been given, and what the plan was, and that she had done a baseline set of observations. She said he had been given Stemetil, and mentioned that within the 8 hours they would be able to do two more sets of observations, and she discussed medication. She gave the handover directly to RN Stratten; RN Nguyen was on the opposite side of the room packing medication.
RN Gallagher's evidence to the Tribunal was that he was present and participated in the handover. The evidence of the CNS D&A, RN Stratten and RN Nguyen was that he was not present for this handover, each accepting that it was possible he was within earshot in the adjacent treatment area.
The evidence of the CNS D&A was that she handed RN Stratten Patient A's medication chart. RN Stratten did not recall being given the medication chart, however recalled that the CNS D&A had a piece of paper with her during the handover.
RN Nguyen was also rostered on the afternoon shift, and was allocated packing and administering the medications for Areas 1 and 2 and 4 of PKA. RN Stratten was allocated packing and administering the medications for Areas 3 and 5 and the Clinic.
Following the morning handover, RN Nguyen and a student nurse she was supervising packed the Areas 1 and 2 medications. After they had finished that task RN Nguyen and RN Stratten agreed that RN Nguyen would also pack the Clinic medications.
At about 6.00pm, RN Nguyen and the student nurse accompanied by Correctional Officers went to administer the medications to patients in Areas 1 and 2. When they returned RN Nguyen and RN Stratten agreed that RN Nguyen would also administer the Clinic medications. After returning from the task in Areas 1 and 2, RN Nguyen administered the medications to patients in the Clinic. At about 7.00pm RN Nguyen, the student nurse, CO Ravinder Sarin and CO Florence Foisa attended cell 34 to administer medications to Patient A during the Clinic medication round.
RN Nguyen gave Patient A Panadeine and Thiamine, mistakenly telling him that the Thiamine was diazepam. Patient A refused Epilim (valproate), prescribed for his epilepsy. RN Nguyen recorded the administration of Thiamine and Panadeine, and the refusal of Epilim, on Patient A's medication chart, and told RN Stratten that Patient A had refused the prescribed Epilim medication. RN Stratten's evidence was that she told RN Nguyen to document the refusal in Patient A's progress notes; RN Nguyen did not recall RN Stratten asking her to do so.
At about 8.30pm RN Nguyen left the Clinic to do the medication round in Area 4, a minimum security complex outside PKA maximum security prison. She completed her shift at about 9.30pm without returning to the Clinic.
Between about 9.30pm and about 10.00pm, RN Stratten provided a handover to the night shift staff, RN Jeremy Nuevo and EN Sara Day. The evidence of RN Nuevo and RN Balagtas was that RN Balagtas was present; and RN Stratten and EN Day agreed that was possible.
Events during the night shift are disputed. The evidence of CO Sarin was that at about 10.18pm he received a Stenefon (intercom) call from Patient A requesting to see a nurse; that he informed RN Nuevo who asked why Patient A wanted to see a nurse; that he went to cell 34 and spoke to Patient A who verbally abused him, and repeated his request and refused to give a reason; and that he passed that information on to RN Nuevo. RN Nuevo does not agree with CO Sarin's report of this call. It is not disputed that there was a Stenefon call between Patient A and CO Foisa from the Clinic Officers Station, where RN Nuevo was present, in which CO Foisa asked Patient A if everything was OK and he replied "No everything is ok miss", she asked "Are you sure" and he replied "yes".
RN Nuevo and EN Day did not have any other interaction with Patient A during the night shift. At about 5.55am, RN Nuevo wrote in Patient A's progress notes: "Nursing: Pt settled overnight. Nil issues raised."
At about 6.00am, EN Steele arrived at the Clinic for the morning shift. RN Nuevo provided a handover to EN Steele. In oral evidence EN Steele recalled being told at the handover that Patient A had had a good night, that he was sleeping well; she could not recall who made that remark.
Both RN Nuevo and EN Day were scheduled to end their shifts at 7.30am. Both accepted in evidence to the Tribunal that they left around 6.38am.
At about 7.11am, EN Steele and CO Stankovski attended cell 34 for the morning medication rounds, where they found Patient A had died.
The Tribunal was informed that no decision has been made yet as to whether a Coroner's inquiry will be held.
[2]
The Main Clinic
The Main Clinic is located in Area 1 of PKA. There are 14 cells, described by the CNS D&A as observation cells: eight Clinic cells (A to H) and six numbered cells (34 to 39), with a maximum capacity of 34 patients. At the time of the incident the Clinic housed 14 patients. Clinic Cells A-H were located on both sides of a corridor where the Nurses' Station, the Officer Station, the Drug & Alcohol room, and the Examination & Dispensary (Medication Room) were located. Cells 34-39, referred to by staff as "Detox" cells, were located on both sides of the corridor near the NUM1, NUM2 and Clinical Nurse Educator (CNE) offices.
It was not in dispute that patient progress notes and other medical records were kept in the Nurses' Station, in a pigeonhole for each cell. A whiteboard located on the wall of the Officers' Station in the Clinic (ex A1, tab 60) recorded the name and Master Index Number (MIN) for each of the inmates located in the Clinic cells, with comments including "mental health hold", and "GEO placement". RN Balagtas' evidence was that the whiteboard was not always accurate because GEO would shuffle the patients.
The roster for Wednesday 6 December 2017 (ex A1, tab 61) had 14 staff on duty between 6.00am-4.30pm on the morning shift, including RN Gallagher as NUM, and the CNS D&A (8.00am-4.30pm). The afternoon shift (1.30pm-10.00pm) had five staff rostered, with RN Francis Balagtas as NUM. EN Steele was rostered on Reception (2.30pm-11.00pm), RN Stratten on Areas 5, 3 and Clinic pills (1.30pm-10.00pm), and RN Nguyen on Main Clinic and Area 4 supervised (1.00pm-9.30pm). There were two staff rostered on Night Shift (9.30pm-7.30am), RN Nuevo and EN Day, for all areas.
The 14 staff rostered on the morning shift for Thursday 7 December 2017 (ex A1, tab 62) included EN Steele (6.30am-3.00pm) as Clinic Nurse and Transfers Out, with RN Grazie Crammond (Clinical Nurse Educator (CNE)) as Nurse in Charge (NIC).
It was not in dispute that the clinical handover from the morning to afternoon shift took place in the tearoom, and handover from the afternoon to night shift took place in the Nurses' Station. Clinical handover on 6 December 2017 from the morning to afternoon shift occurred between 2.00pm to 2.30pm, and from the afternoon to night shift between about 9.30pm to 10.00pm. The evidence was that the handover was verbal, with a hard copy handover sheet.
The handover sheet in evidence (ex A1, tab 108) is headed "Clinic Handover Wednesday 6 December 2017 21:22", and lists cells A-H and 34-39, with columns recording for each patient the name and MIN, Date & Time of Arrival, Reason in Clinic, Date Cleared, and Diagnosis/Comment. Recorded for Cell 34 is the name and MIN of Patient A; 6/12/17 as the Date and Time of arrival; "Detox" as the Reason in Clinic; and for Diagnosis/Comment:
RSA yet to be completed. Hx of Crohn's disease, Epilepsy. Currently in Opiate W/D. IM Stemetil 12.5mg given. PRN meds charted.
In addition to the 14 Clinic cells, the Handover sheet records under the heading "Hospital" one inmate presently in Westmead Hospital, and two "Patients of Concern", one located in wing 4A and the other in wing 5C.
The copy of the Handover sheet in evidence was provided by RN Gallagher to the Council delegates at his hearing under s150 of the National Law on 21 May 2018. RN Gallagher's evidence was that he retrieved this from the records kept in his office.
EN Steele's evidence was that the handover document was updated by the nurse in charge of the Clinic each shift electronically; the forms would be printed in a handover book kept in the Nurses' Station, as a reference; and each staff member on the next shift would have a copy of it.
It was not in dispute that the handover sheet in evidence was printed at 9.22pm. The evidence as to who updated it and when is unclear. RN Stratten could not recall whether she had put the information for Patient A on the handover sheet. RN Gallagher, RN Nguyen and the CNS D&A gave evidence that they did not. RN Nuevo's evidence was that a different version of the handover sheet, which did not include the information that Patient A was in opiate withdrawal, that he had been given Stemetil, and that PRN medications had been charted, was used in the handover to the night shift.
[3]
NSW Health and JH&FMHN policy documents
The particulars of the complaints against each of the respondent nurses are framed by reference to provisions of a number of NSW Health and JH&FMH policy documents. As noted in the HCCC's opening submissions, the amendments to the complaints in relation to each of the respondent practitioners included amendments to give more particulars of particular policies that are referred to in the evidence. The relevant policies are:
1. NSW Health Policy Directives
1. NSW Health Policy Directive Health Care Records - Documentation and Management (ex A1, tab 123) includes:
2.4 Documentation by nurses and midwives
Documentation by nurses and midwives must include the following:
(a)care/treatment plan, including risk assessments with associated interventions
(b)comprehensive completion of all patient /client care forms
(c)any significant change in the patient/client's status with the onset of new signs and symptoms recorded
(d)if a change in the patient/client's status has been reported to the responsible medical practitioner documentation of the name of the medical practitioner and the date and time that the change was reported to him/her
(e)documentation of medication orders received verbally, by telephone/electronic communication including the prescriber's name, designation and date/time.
2.5. Frequency of documentation
The frequency of documentation entries should conform to the following as minimum requirements.
…
2.5.3 Non-Admitted Patients/Clients
An entry must be made in the health care record for each patient/client attendance (including video conference sessions) and for failures to attend.
Entries should reflect the level of assessment and intervention. The results of significant diagnostic investigations and significant changes to the patient/client's condition and/or treatment should be documented.
…
1. JH&FMHN policies:
1. JH&FMHN Clinical Handover (Policy number 1.075) (ex A1, tab 117) provides a standard set of principles for all types of clinical handover. Relevant provisions are:
Section 2.1 Mandatory Requirements
The importance of implementing "safe clinical handover" has been recognised and mandated under NSW Ministry of Health (MoH) policy directive PD2009 060 Clinical Handover - Standard Key Principles. JH&FMHN has developed and implemented the following standard key principles for clinical handover:
1.Leadership - nominate a leader at each clinical handover
2.Valuing Handover -set an expectation that this is an essential part of daily work
3.Handover Participants - identify participants, and involve participants in the handover process
4.Handover Time - set an agreed time, duration and frequency of handover, expect punctuality
5.Handover Place - set a specified location, preferably face to face
6.Handover Process - standardised process, JH&FMHN will utilise the Introduction, Situation, Background, and Assessment and Recommendation (ISBAR) framework.
The standard key principles for clinical handover apply to all clinical staff employed by JH&FMHN and offer direction for the shift-to-shift clinical handover of patients, and the handover of patients to other clinicians or facilities. All clinical handover events must meet these requirements.
Section 2.2 Implementation - Roles and Responsibilities
…
Nursing Unit Manager (NUM), Line Manager or delegate is responsible for:
● Implementing the standard key principles of clinical handover, establishing agreed times, durations, processes and frequencies for clinical handovers to occur
● Monitoring and evaluating local clinical handover on a regular basis through an audit process (at least every six months), with feedback of results, risks and any action required to all stakeholders
● Escalating results of auditing including any identified risks and planned actions to the Nurse Manager
● Capturing audits and results of audits in TRIM (TRIM containers to be identified locally)
● Ensuring any handover tools used within the workplace adhere to the ISBAR framework
● Ensuring the standard key principles for clinical handover are included in the local orientation and in service programs for all new and current clinical staff
● Ensuring the After Hours Nurse Manager and Cluster Nurse Managers are provided with a clinical handover of any patients of concern
…
Nurses are responsible for:
● Ensuring work practices are consistent with standard key principles for clinical handover
● Ensuring any tools used follow the ISBAR framework
● Attending and participating in the handover of all patients that are relevant to them
● Ensuring that they understand the information they are receiving during handover and if not seek clarification from the person who is handing over
● Ensuring any information handed over is documented in the patient's health record
● Escalating any concerns regarding a patient to the NUM and relevant medical officer
● Participating in the monitoring and evaluation of clinical handover.
…
Section 3.1 Clinical Handover - Standardised Format
Clinical handover communication and documentation is improved by a standardised format for communication such as the ISBAR framework. ISBAR provides a framework to outline how a conversation is conveyed between people in a consistent and reliable way.
ISBAR is the format that JH&FMHN utilises for clinical handover and is an acronym which stands for:
I:Introduction
● Introduce yourself and your role in the patient's care
● State the unit you are calling from when speaking over the phone
S:Situation
● Specify the patient's name, diagnosis and current condition or situation
● Explain what has happened to trigger the conversation
B:Background
● State the admission date of the patient, his or her diagnosis, and pertinent medical history
● Give a brief synopsis of what has been done so far (e.g lab tests)
● Advise of any safety alerts that staff need to be aware of e.g work health and safety risks, aggression, manual handling risk
A:Assessment
● Give a summary of the patient's condition or situation
● Note clearly the trend in patient observations
● Explain what you think the problem is or say "I'm not sure what the problem is, but the patient's condition is deteriorating"
● Expand upon your statement with specific signs and symptoms
R:Recommendation
● Explain what you would like to see done (e.g lab tests, treatments, or "I need you to see the patient now")
● State any new treatments or changes ordered (e.g monitoring and frequency or when to re-notify the medical officer if there is no improvement in the patient)
…
3.2 Situations where Clinical Handover is Required
There are numerous occasions where clinical handover is required as part of everyday work; this may be face to face (preferred), written or via telephone. It is the responsibility of all staff to handover clinical information in a timely and accurate manner that will ensure the best outcome for the patient and staff. It is the responsibility of all staff to ensure they understand what is being handed over to them; this may require staff to repeat back and /or ask questions. Occasions where handover is required include:
● Shift to shift (changeover of staff)
● Patient transfers for a test or appointment
● Patient transfer/discharge to another hospital/facility/unit
● Patient transfer from one unit to another within a hospital
● Multidisciplinary team handover
● Patient transfer to and from and within the community (where appropriate)
● Deteriorating patient
All clinical handovers must use the standard key principles and the ISBAR framework as outlined in this policy.
3.2.1 Shift-to-shift Clinical Handover
Clinical handover must take place at the end/commencement of each shift in all JH&FMHN clinical sites; this will ensure continuity of information and is vital to the safety of patients and staff. In sites where staff are not rostered on duty 24 hours a day other clinical handover methods must be in place. This could include a written handover, which is easily accessible to the next shift of staff.
…
1. JH&FMHN Accommodation - Clinical Recommendation (Adults) (Policy number 1.340) (ex A1, tab 116) provides:
It is Justice Health & Forensic Mental Health Network (JH&FMHN) policy to provide clinically based recommendations regarding a patient's cell placement within the NSW correctional system. This must be based on an assessment of the patient's risk of causing harm to self or others, in light of the information available to JH&FMHN at the time of making the health recommendation and the patient's physical and mental health requirements. It is ultimately the responsibility of Corrective Services NSW (CSNSW) staff and the Commissioner to consider the clinical recommendation regarding cell placement made by the JH&FMHN staff and make a determination for cell placement based on this and the security and safety requirements of the inmate as per s 232 of the Crimes (Administration of Sentences) Act 1999.
…
3.1 Placement Options
…
3.1.7 Detoxification Placement
Patients experiencing acute substance withdrawal, or who are expected to develop substance use withdrawal symptoms or who are intoxicated should be considered for placement either in an Assessment Cell or a Clinical Observation bed, depending on the resources at the Centre. Placement facilitates increased access by health staff where there is a need to monitor the overall health status of the patient. Clinical need and judgment will determine how often a patient will require reviewing. However, twice daily must be the minimum. These reviews must be documented in the patient's Health Record….
Clinical staff must specify on the JH&FMHN Health Problem Notification form (Adults)…whether the patient needs an Assessment cell or a Clinical Observation Bed and what observations are needed.
1. JH&FMHN Medication Guidelines (2017) (ex A1, tab 118) includes provisions for Medication Administration. Section 6.2 provides Principles for Safe Medication Administration, which relevantly includes:
The objective of safe medication administration is that the correct patient receives the correct dose of the correct medication at the correct time and by the correct route of administration. JH&FMHN promotes the quality and safe use of medication and all persons responsible for administering medications must:
…
● Ensure all prescribed and non-prescribed medications are taken in the presence of the administering nurse. The nurse must observe the patient swallowing the medication, with a cup of water, unless the patient is authorised to possess the medication for self-administration
…
● Record the administration transaction on the medication chart and/or other appropriate parts of the medical record, including signature and date: records of medication administration must be accurate and include all required details
…
● Not administer medications that have been prepared for delayed or advanced administration by another nurse.
● Prepare, administer, and record medication administration: a nurse must never administer a medication prepared by another person (except those prepared by the Pharmacy Department)
…
● In circumstances where a medication cannot be administered, record all details on the medication chart and in the patient's medical notes as to why the medication was not given
…
6.2.2 Delayed Administration Provision
Delayed administration may be defined as the advance preparation of a patient's dose or doses of medication, which are intended for administration to the patient at the next immediate treatment time.
Under this provision, medication prepared by a nurse for delayed administration must be administered by the same nurse to the patient within the same shift at the next immediate treatment time. This apply on one dose only (next dose).
JH&FMH nurses may package medications for delayed administration to patients in ambulatory settings only. Preparation of medication(s) for delayed administration must not occur in the in-patient setting.
Medications prepared for administration under this provision:
1.must be supplied in clear, sealable and hygienic plastic bags.
2.must be clearly labelled with the patient's name and MIN/CIM number
3.must be packed to a maximum of 3 different medications per plastic bag
4.must be prepared and supplied by the same nurse to the patient, and
5.must be issued to the patient with clear dosing instructions.
…
6.2.9 When Medication is not Administered
In circumstances where a medication is not, or cannot be administered, the details as to why the medication was not administered must be indicated on the medication chart and in the patient's medical notes. In the majority of cases it is the responsibility of the patient to collect his or her medication. If the patient fails to collect their medication, then the nurse should contact the medical officer/nurse practitioner for advice.
…
1. JH&FMHN Clinical Observation Beds in Health Centres (Adults) (policy number 1.025) (ex A1, tab 115) applies to Health Centres (Adult Correctional Centres or Police Cells). It states that Clinical Observation beds are non admitted beds located in Adult Health Centres that are used to accommodate patients who require a higher level of observation for Primary Health, Drug & Alcohol, Population Health and Mental Health issues. The policy identifies JH&FMHN Clinical Observation Bed Locations, including 16 Observation beds at PKA, with 24 hour nursing cover. The policy provides:
2.2 Implementation - Roles & Responsibilities
Placement on the Advice of a Medical Officer
Once a decision has been made by the MO of the respective clinical stream to place a patient in a Clinical Observation bed, the MO must advise nursing staff of:
● the required level of observation
● regularity of clinical measurements
● any further investigations or follow up, and
● any symptoms that may indicate that the patient's condition is deteriorating and any action that may need to be taken in this event.
For all other Clinical Observation bed placements, the purpose for placement and level of monitoring required must be documented in the patient's Health Record by the NUM or delegate.
NUM or Delegate
The NUM or delegate is responsible for the shift by shift overall co-ordination and management of patients placed in Clinical Observation beds and is the initial point of contact for staff with clinical concerns. They must review the treatment plan and co-ordinate any treatment ordered by the treating MO. They are responsible for ensuring the treating MO is informed of any changes in the patient's health condition.
3. Procedure Content
3.1 Placement
If placement occurs out of hours, the Remote Offsite Afterhours Medical Services Protocol (ROAMS) must be followed to contact the appropriate on call MO. The MO must provide the appropriate Clinical Director with a handover of the case as per the clinical stream handover protocol to enable continuity of care to be transferred to the appropriate Chief Medical Officer (CMO), Visiting Medical Officers VMO or Staff Specialist covering that Health Centre.
All patients placed in Clinical Observation Beds must be reviewed by nursing staff each shift and an entry regarding their clinical condition made in the Health Record. Clinical measurements must also be recorded in the frequency requested by the MO on the appropriate NSW Health Standard Adult General Observation chart (SAGO observation chart).
Any discussion of a patient's initial or ongoing care with the on call MO whilst the patient is placed in the Clinical Observation bed must be recorded in the patient's Health Record.
If a patient's clinical condition deteriorates while placed in the Clinical Observation bed, the appropriate MO must be contacted by the NUM or delegate and the patient transferred to the local Emergency Department if indicated.
[4]
The Complaint
There are two complaints against RN Stratten. Complaint One of the Amended Complaint is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that she has engaged in conduct that demonstrates the judgment possessed or care exercised by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The particulars of Complaint One are:
1. The Practitioner failed to implement the treatment plan ordered by the treating medical officer (MO), in that she failed to complete, or ensure that another RN complete, clinical observations, at a minimum of fourth hourly intervals, of Patient A as instructed, in accordance with:
1. JH&FMHN Policy 1.340 Section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement;
2. JH&FMHN Policy 1.025 Clinical Observations, point 2.2 (Implementation - Roles and Responsibilities of NUM or Delegate);
3. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles and Responsibilities - Nurses/delegate);
1. The Practitioner failed to ensure that the 'Afternoon Shift' Nurse Unit Manager, namely NUM Balagtas, and nursing staff, namely RN Nguyen, RN Nuevo and EN Day, were provided with a clinical handover of Patient A, being a patient of concern, in accordance with:
1. JH&FMHN Policy 1.075 Clinical Handover, point 3.2 (Situation where Clinical Handover is required);
2. JH&FMHN Policy 1.075 Clinical Handover, point 2.1 (Mandatory Requirements);
3. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles and Responsibilities - Nurses/delegate);
1. The Practitioner failed to ensure that clinical information regarding Patient A's clinical management details were recorded in the written handover, and/or in the 'treatment plan' section/patient notes, in accordance with:
1. NSW Health Policy Directive, Health Care Records - Documentation and Management, point 2.4 (Documentation by nurses);
2. NSW Health Policy Directive, Health Care Records - Documentation and Management, point 2.5.3 (Non-Admitted Patients/Clients);
3. JH&FMHN Policy 1.075 Clinical Handover, point 3.2 (Situation where Clinical Handover is required);
4. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles & Responsibilities - Nurses/delegate);
5. JH&FMHN Policy 1.340 Section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement;
6. JH&FMHN Medication Guidelines, point 6.2 (Principles of Safe Medication Administration);
1. The Practitioner failed to ensure that Clinic medication was prepared by the same practitioner who was responsible for administering the medication in accordance with the JH&FMHN Medication Guidelines, point 6.2 (Principles of Safe Medication Administration), in that she delegated the task of packing Clinic medication that she was responsible for administering to RN Nguyen.
Complaint Two is that RN Stratten is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or engaged in more than one instance of unsatisfactory professional conduct that when the instances are considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
The HCCC alleges that each particular of Complaint One justifies a finding of professional misconduct; or in the alternative, when two or more of the particulars of Complaint 1 are taken together, a finding of professional misconduct is justified.
In her Reply dated 28 August 2020 to the original Complaint RN Stratten stated that she accepted particular 1, partially accepted particular 2, and denied particulars 3 and 4 of Complaint One. The complaint of professional misconduct was a matter for the Tribunal to determine.
In opening submissions responding to the Amended Complaint RN Stratten stated that throughout the course of the JH&FMHN investigation and through the Council s 150 processes and in the documents tendered in these proceedings, she has admitted that she:
1. Did not insist on being given an appropriately conducted handover by the CNS D&A;
2. Did not implement the treatment plan for Patient A, including undertaking observations when due at approximately 6.30pm;
3. Did not check Patient A's progress notes after speaking with RN Nguyen to ensure information regarding the refusal of Epilim was documented;
4. Did not update the handover sheet; and
5. Did not provide a comprehensive handover to RN Nuevo and EN Day regarding Patient A that included aspects of his treatment plan handed over by the CNS D&A.
RN Stratten submitted that the choice of words and how the particulars in the Complaint had been drafted had impacted on her ability to provide frank and open admissions. She did not want the Tribunal to take any denials or partial admissions as a sign that she does not appreciate the gravity of the situation and the circumstances.
RN Stratten's detailed response in opening submissions to the particulars of the Amended Complaint is as follows:
1. Particular 1: RN Stratten admits that she failed to implement the treatment plan ordered by the treating MO, in that she failed to complete, or ensure that another RN completed, clinical observations at a minimum of fourth hourly intervals, of Patient A as instructed. That admission was made on the basis that she understood on the shift that she was the nurse responsible for the care of Patient A and therefore was required to ensure that care was provided in accordance with the care plan. In response to particular 1(a), (b), (c), she states:
1. JH&FMHN Policy 1.340 section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement is not applicable, as it does not require fourth hourly clinical observations;
2. JH&FMHN Policy 1.025 Clinical Observations, point 2.2 (Implementation - Roles and Responsibilities of NUM or Delegate) is not applicable, as RN Stratten was neither NUM nor delegate;
3. JH&FMHN Policy 1.075 Clinical Handover section 2.2 (Implementation - Roles and Responsibilities - Nurses/delegate) is not applicable: the policy relates to provision of handover rather than the implementation of a treatment plan; there is no reference in the "nurses" section to observations or implementation of a treatment plan; and the reference in the Amended Complaint to "delegate" does not apply to RN Stratten as she was not a delegate, there was a NUM on shift and she did not have any supervisory or NUM-like responsibilities delegated to her on that shift;
1. Particular 2 is partially admitted. RN Stratten accepts that the handover she provided to EN Day and RN Nuevo regarding Patient A was not a comprehensive ISBAR structured handover as required in section 2.2 of policy 1.075, and she accepts she should have provided this to them. She does not admit that Patient A was a "patient of concern" in the sense in which that terminology was used at JH&FMHN, however accepts that he was unwell and that is why he was kept in the Clinic on that day. She does not admit that she failed to provide a handover to NUM Balagtas: the situations outlined in JH&FMHN policy 1.075 Clinical Handover point 3.2 did not arise in the course of her shift with regard to her NUM. In response to particular 2 (a), (b) and (c), RN Stratten states:
1. JH&FMHN policy 1.075 Clinical Handover point 3.2 is applicable with regard to the handover to EN Day and RN Nuevo, and not applicable with regard to NUM Balagtas or RN Nguyen; while none of those circumstances arose in the course of her discussions with RN Nguyen she has reflected that she should have taken the opportunity to handover the information regarding Patient A before RN Nguyen attended the medication round in the Clinic;
2. JH&FMHN policy 1.075 Clinical Handover point 2.1 is applicable with regard to the handover to EN Day and RN Nuevo;
3. JH&FMHN policy 1.075 Clinical Handover point 2.2 is applicable to the extent of the requirements set out for "nurses"; the Amended Complaint added the reference to "delegate", and RN Stratten was not a "delegate", there was a NUM on shift and she did not have any supervisory or NUM-like responsibilities delegated to her on that shift;
1. Particular 3 is partially admitted. Clinical information regarding Patient A's clinical management details was included in the handover sheet, and RN Stratten was aware of that. RN Stratten does not know who updated the handover sheet to include information about the patient, however she was aware that it had been updated as she used this information to hand over to RN Nuevo and EN Day. RN Stratten accepts that the information contained in the handover sheet did not include the treatment plan. RN Stratten was aware that the CNS D&A had documented in Patient A's notes and as she had not interacted with Patient A she would have had no further information to include in a "treatment plan" section or patient notes, as referred to in the Amended Complaint. RN Stratten stated that:
1. NSW Health Policy Directive Health Care Records point 2.4 was applicable;
2. NSW Health Policy Directive Health Care Records point 2.5.3 was not applicable, as she did not attend Patient A;
3. JH&FMHN policy 1.075 Clinical Handover point 3.2 was not applicable, as it refers to situations where clinical handover is required and how handovers may be conducted, but not specific content to be included in a written handover or documenting in a "treatment plan/patient notes";
4. JH&FMHN policy 1.075 Clinical Handover point 2.2 is partially applicable: RN Stratten accepts that she should have documented the handover she received from the CNS D&A in accordance with point 2.2 under the heading "Nurses are responsible for"; the section regarding "delegate" does not apply;
5. JH&FMHN policy 1.340 section 3.1.7 Accommodation -Clinical Recommendation (Adult) is not applicable, as there is no reference to clinical handover;
6. JH&FMHN Medication Guidelines point 6.2 is not applicable, as it makes no reference to documentation; additionally RN Stratten did not administer any medications to Patient A;
1. Particular 4: RN Stratten does not admit this particular: the requirement in point 6.2 of the Medication Guidelines is that the nurse who packs the medication must be the same nurse who administers the medication. The evidence of RN Stratten, RN Nguyen and the medical records show that RN Nguyen packed and administered the medications for the Clinic patients on 6 December 2017. There is no reference in the policy regarding the nurse "responsible for" administering medications in a particular area, nursing duties are regularly shared between staff within facilities.
RN Stratten stated that she has undertaken a significant amount of education and reflection regarding the events of 6 December 2017. She accepts her oversights on that day, relating to the care of Patient A, meant she provided care below the standard expected of her. RN Stratten submits that ultimately it is a matter for the Tribunal to determine whether the admitted or proven particulars amount to unsatisfactory professional conduct. RN Stratten does not admit professional misconduct.
[5]
Tribunal hearing
The HCCC relied on a bundle of documents in four volumes, 133 tabs (ex A1), and tendered the Agreed Statement of Facts (ex A2). Exhibit A1 includes:
1. The Complaint and certificates of registration status for RN Stratten (tab 3);
2. Expert report provided by Ms Christine Muller (tab 13);
3. Correspondence between the HCCC and RN Stratten, including notifications under s 28 and s 40 of the Health Care Complaints Act 1993 (tabs 34, 38);
4. Annotated Clinic floor plan, photograph of whiteboard, and staff rosters for 6 and 7 December 2017 (tabs 59-62);
5. JH&FMHN investigation interviews with the practitioner on 6 March 2018 and 4 April 2018 (tabs 69, 75);
6. Other JH&FMHN investigation interviews including interviews with the CNS D&A on 2 March 2018, and EN Steele on 6 March 2018 (tabs 68, 71);
7. Reasons for decision and transcript of s 150 and s 150A proceedings (tabs 95, 96, 96A);
8. Corrective Services NSW Death in Custody Investigation Report (tab 109), including:
1. Statements by CO Sarin, CO Foisa and other correctional officers;
2. CCTV and summary;
3. Transcript of interviews with inmates in cells adjoining and close to cell 34;
1. Autopsy report;
2. JH&FMHN and NSW Health Codes of Conduct, Guidelines and Policies; and
3. Patient A clinical records.
RN Stratten relied on (ex RS1):
1. A Reply to the Application dated 28 August 2020;
2. Statement dated 28 August 2020;
3. Updated CV;
4. CPD records;
5. References.
RN Stratten gave oral evidence.
The HCCC provided written opening and closing submissions. RN Stratten provided written opening submissions, and submissions in reply.
[6]
RN Stratten's evidence
In her statement dated 28 August 2020 RN Stratten summarised the events on 6 December 2017. After clinical handover from the morning to afternoon shift was completed at about 2.30pm, and she was allocated the main Clinic and Areas 3 and 5, there were staff still in the immediate area. She recalled that RN Gallagher (NUM on the morning shift), some morning shift nurses, RN Balagtas (NUM on the afternoon shift) and RN Nguyen were in the lunchroom. The CNS D&A approached the room and informed everybody that there was an inmate being brought up from Reception unwell and she needed someone to come and do an assessment. She, RN Gallagher, and RN Nguyen walked to the Reception/treatment area of the main Clinic. That area also housed the medication room where inmate medications were packed. RN Gallagher attended to Patient A, who had been wheeled into the Clinic from Reception, and she proceeded to the medication/packing room. From that room she observed RN Gallagher talking with Patient A in the treatment area. She commenced the packing of medications. That is time consuming work that requires attention to check and double check medication and could take up to an hour without interruptions. It involves reading medication charts, placing medications into a small zip lock bag with a Master Index Number (MIN) and name written on a white strip. After the medications are packed the MIN numbers are searched on the computer to locate a cell number and location for the inmate.
At about 2.45pm NUM Gallagher asked her to witness and check a medication order for Stemetil 12.5mg that he was about to administer to Patient A; she verified the dose and details and countersigned the order on the medication chart and returned to packing medication. She continued to pack the afternoon medications for Areas 3 and 5. RN Nguyen, with the assistance of the student nurse she was supervising, packed medications for Areas 1 and 2. At approximately 4.20pm she was approached by the CNS D&A in the medication area and was given a brief oral handover of Patient A. She recalled that the CNS D&A had a sheet of paper with her but could not recall what it was. RN Nguyen and the student nurse were present in the medication room although the oral handover was not directed to them. RN Stratten was unsure what RN Nguyen heard in relation to the handover by the CNS D&A so cannot determine if she was aware that observations were required for Patient A. She did not recall NUM Gallagher being present for the handover. The area was noisy and she was busy.
RN Stratten recalled that RN Nguyen approached her and offered to complete the task of packing the Clinic pills; she advised her of a telephone order and short term order for Patient A. During one of her return trips to get all the medications and insulin administered to the wings, RN Nguyen offered to administer the Clinic pills. RN Nguyen later informed her of the refusal of medication by Patient A and she told her to document it on the medication chart, and also to make an entry into his progress notes with detail as to why he had refused, if any reason was given.
RN Stratten stated that handover to RN Nuevo and EN Day on the night shift started late. The handover sheet used between shifts carried information on all patients in the Clinic. All patients in the Clinic are considered to be patients of concern. The "patients of concern" box in the handover sheet is for inmates who are not in the Clinic and in the wings who may also be patients of concern. The handover sheet is generally updated by the Clinic nurse but anyone had access to the computer and could update the information. As it was updated it would be printed off and placed in the folder in the Nurses' Station. She recalled the handover sheet contained information for Patient A and she would have used this information in the handover.
The transcript of the JH&FMHN investigation interview on 6 March 2018 records that on that occasion RN Stratten provided details as to what she was told by the CNS D&A: "We've seen this person. We believe he may be in some type of sort of detox situation, He's not well. Doctor wants observations done fourth hourly. I've just done a set. He's due a set rightfully 7 o'clock." RN Stratten told the interviewers that she did not ask RN Nguyen later after she had given out the Clinic pills whether she had done a set of observations for Patient A, stating that it was not until some time after the event, even when she was at home and she thought the observations did not get done. RN Stratten went on to say: "It was not written down anywhere. I know it wasn't written down anywhere that I can recall. It may have been written in his progress notes by [the CNS D&A] or the doctor but on our clinic handover sheet that we actually have I don't recall it being written down there and it was in my head." Had she done the pills it would have triggered it in her head that this is what she needed to do, but RN Nguyen certainly would not have known that they needed to be done.
RN Stratten's oral evidence to the Tribunal was consistent with that evidence. RN Stratten accepted that she failed to implement the treatment plan and failed to complete observations; she read Patient A's notes and saw entries by the MO and the CNS D&A, but did not spend a lot of time reading the notes. It occurred to her while she was driving home that the observations needed to be done but was not certain whose observations it was. She did not make a call to staff when she got home.
RN Stratten's evidence as to what she was told by the CNS D&A is consistent with the evidence of the CNS D&A, who stated that she gave RN Stratten a verbal handover, gave her the medication chart, let her know that Patient A had had some Stemetil, and that the most presenting problem was opiate withdrawal. In the JH&FMHN investigation interview on 2 March 2018 the CNS D&A said that she had asked RN Stratten to do two sets of observations on Patient A; that hers had been the base line set of observations; and that she talked about the Panadeine. The last thing she did before leaving at 4.15-4.20pm was see RN Stratten. She put as much as together as she could, and as she was putting the notes in the Nurses' Station RN Gallagher was in that room, so she gave him a quick brief of what they were doing. She made a point of handing RN Stratten the medication chart when she found her. Her handover was directly to the Clinic nurse and it was discussed to do two sets of observations in that 8 hour shift because hers were the base line observations. They discussed getting Panadeine into Patient A and trying to get his vomiting stopped.
The oral evidence of the CNS D&A was consistent with that evidence, namely that she handed Patient A's medication chart to RN Stratten as part of the handover and went through what Patient A presented with and what had been ordered, what had been given, and proposed management, and RN Stratten had a conversation with her about that; and that she had done baseline observations and they would be able to do two more sets of observations. She informed RN Stratten that four hourly observations were required.
In her oral evidence to the Tribunal RN Stratten confirmed that the CNS D&A's handover to her included that information that Patient A was in a detox situation, the doctor wanted fourth hourly observations, she had just done a set, and he was due a set at 7.00pm.
In the JH&FMHN interview on 4 April 2018 RN Stratten could not explain why she did not perform any observations of Patient A after RN Nguyen told her that he had refused his medication. She could not explain why, having read Patient A's notes and seeing the MO entry and that of the CNS D&A, with the plan of fourth hourly observations, she did not put that in her handover, or do any observations, or hand that over to the night staff.
Particular 2 of Complaint One relates to RN Stratten's handover to the afternoon staff, RN Balagtas and RN Nguyen, and night shift staff, RN Nuevo and EN Day. RN Stratten accepted that the handover she provided to EN Day and RN Nuevo was not a comprehensive ISBAR structured handover, and failed to include the treatment plan ordered by the MO. In her statement of 28 August 2020 RN Stratten stated that she recalled that the handover sheet had information about Patient A and she would have used that information in the handover. She would have handed over that he was in opiate withdrawal, had received Stemetil, and had PRN medications charted. In oral evidence RN Stratten did not recall if RN Balagtas was present for the handover, however it was possible he was present. Her only recollection of interacting with RN Balagtas during that shift was ordering food for dinner.
At the JH&FMHN investigation interview on 6 March 2018 RN Stratten had little recollection of what she had said in the handover to the night shift; she could not recall telling the night shift that Patient A needed to have a set of observations done. At that interview she stated that she could not recall talking to anybody else on the afternoon shift about what she was told about Patient A's treatment plan. She may not have spoken to RN Balagtas about it because she probably assumed it had already been done as RN Gallagher was aware of the patient, and the CNS D&A and MO and the NUM were all dealing with him. At the subsequent interview on 4 April 2018 RN Stratten could not recall discussing the verbal handover and status of Patient A with RN Balagtas, or with any other staff on the afternoon shift. She could not explain why the handover notes were not updated to reflect Patient A's status for the handover to the night shift.
In oral evidence to the Tribunal RN Stratten acknowledged that she missed an opportunity to relay information to RN Nuevo and EN Day, and stated that the handover to them was based on the information she had to hand. RN Stratten said that her usual practice in handover would have been to print the handover sheet and use that. She did not recall preparing the handover sheet, however reflected that it should record all relevant clinical information regarding the clinical management details of a patient to aid as a tool in handover. RN Stratten could not recall if she had entered the details of Patient A into the electronic system. While she did not recall specifically, she assumed that she would have been the person who printed the handover sheet at 9.22 pm. In the JH&FMH interview on 4 April 2018 RN Stratten was asked why she did not update the written handover folder once she had been given a verbal handover about Patient A by the CNS D&A: she responded that immediately at the time she probably did not have time to do it, and after that she could not recall.
In her Reply to particular 4 RN Stratten stated that the practitioner who prepared the medication also administered the medication to Patient A. In the first investigation interview on 6 March 2018 RN Stratten said she had had to go back to Area 3 because something was missed there, and she came back to the Clinic to organise with the officers to do the Clinic medications but they had already been done. She thought it was RN Nguyen who had done the Clinic pills; and at that point RN Nguyen said that Patient A had refused his medication. RN Stratten could not recall packing the pills for Patient A, however she could remember packing the pills for the Clinic. In the subsequent interview on 4 April 2018 RN Stratten stated that she then believed that she had not packed the Clinic pills because the treatment chart for Patient A did not have her signature on it; she believed it was RN Nguyen who had actually packed the pills because she was busy; and RN Nguyen administered them, while she was back in Area 3.
That latter recollection was confirmed in oral evidence to the Tribunal, and was consistent with the evidence of RN Nguyen. In her statement of 28 August 2020 RN Stratten stated that although areas are allocated, the nurses also work together and assist one another when they can. She recalled that when RN Nguyen returned from distributing the Clinic medication she told her that one of the patients had refused his Epilim. She believed that at the time she had said to RN Nguyen that it was his right to do so, but they needed to have that documented in his notes and also on the medication chart. RN Stratten agreed that having been told that the patient had refused Epilim that should have prompted her to read his notes and go and see him; and that she did not.
[7]
Expert evidence
The HCCC relied on expert evidence provided by Ms Christine Muller. Ms Muller has been a registered nurse since 1982 specialising in adult mental health. She has a Masters degree in Nursing and was endorsed as a Nurse Practitioner (Adult Mental Health) in 2003. Ms Muller has worked as a mental health nurse, since 2008 with JH&FMHN in NSW adult correctional centres. Ms Muller prepared a report relating to each of the respondents. Ms Muller gave oral evidence addressing thematic issues, including clinical handover, and packing and distribution of medications. She was cross examined by or on behalf of each of the respondent practitioners.
[8]
Report 13 September 2019
In her report dated 13 September 2019 Ms Muller stated that Patient A required observations to be completed at fourth hourly intervals to monitor his withdrawal status, and that after the baseline observations at 2.30pm, the scheduled observations were due at 6.30pm and 10.30pm. The observations should have been documented on the Substance Withdrawal Monitoring Chart, the SAGO chart and a clinical entry summarising the patient's withdrawal status and any interventions should have been made in the health record. Ms Muller was of the opinion that RN Stratten's failure to complete the observations or ensure that another RN completed them fell significantly below the expected standard.
Ms Muller considered that RN Stratten's practice of not reading the clinical notes of patients accommodated in the health centre for clinical reasons unless alerted to something unusual in handover was poor practice. Ms Muller considered that if on reading the clinical notes RN Stratten questioned to herself why Patient A was not transferred to hospital, she should have raised her concerns with RN Balagtas as NUM regarding the suitability of Patient A to remain in the health centre. In her opinion RN Stratten's decision not to provide RN Balagtas with a clinical handover of Patient A was significantly below the expected standard. Ms Muller considered that RN Stratten should have provided a clinical handover to RN Nguyen, as RN Nguyen was assuming care of Patient A when administering his medications, including that he required physical observations due at approximately 7.00pm.
Ms Muller was of the opinion that RN Stratten should have updated the clinical handover sheet regarding Patient A or ensure that RN Nguyen updated it, as she was allocated the role of managing the patients housed in the health centre that shift. Her failure to do so was significantly below the expected standard. Based on the evidence of RN Nuevo and EN Day in the JH&FMHN interviews as to the information they were given about Patient A and that they were not informed that he had a withdrawal management plan, Ms Muller was of the opinion that the handover provided by RN Stratten to them was significantly below the expected standard. RN Stratten should have updated the clinical handover sheet with information consistent with the principles of the ISBAR framework.
Ms Muller noted from the information provided, and her own knowledge of working with JH&FMHN, a culture whereby nurses administer medication that has been prepared by another nurse, and commented that that reflects poor practice and is a breach of the JH&FMHN Medication Guidelines. She also noted that RN Stratten was aware (in her interview on 4 April 2018) that this was against JH&FMHN policy. In her opinion RN Stratten's conduct in allowing RN Nguyen to pack the Clinic medication that RN Stratten intended to administer to Clinic patients was significantly below the expected standard.
Ms Muller noted the conflict in the evidence as to whether RN Stratten told RN Nguyen to document that Patient A had refused his epilepsy medication, and considered that as RN Stratten was the senior clinician and RN Nguyen a new graduate, RN Stratten was required to remind her of the need to document the refusal in the clinical record and it was her responsibility to ensure this had been done, by checking the health record and treatment sheets. RN Stratten had been provided with a clinical handover and his refusal would have been an opportunity for her to review Patient A clinically, to explain the reasons why the medication had been charted, and to potentially administer PRN medication as required. Her failure to take any action was extremely poor nursing practice that did not reflect a clear understanding of the substance withdrawal procedures or the increased risk of seizures in a patient known to have epilepsy. Her failure to do so was significantly below the expected standard.
In summary Ms Muller considered that RN Stratten's overall adherence with JH&FMHN policies was well below an acceptable level and her actions or failure to act reflected poor basic nursing care. She did not provide verbal or written handover in keeping with the clinical handover policy and did not follow the ISBAR framework; she did not take action to inform the oncoming staff of Patient A's clinical need and management plan; she did not ensure that Patient A had a minimum of twice daily physical observations and did not adhere to his detoxification management plan as handed over to her, or ensure that a clinical entry was made in his health record despite his placement in the health centre for medical observation in a detox cell; she offered RN Nguyen little handover or advice regarding the management of Patient A; and she did not demonstrate a level of nursing knowledge or care that was in keeping with her position as a nurse with over 2 years experience as a registered nurse and 25 years experience as an enrolled nurse by failing to provide adequate care, clinical handover or escalating concerns regarding Patient A. Considering all issues collectively Ms Muller was of the opinion that RN Stratten did not demonstrate sound clinical practice that could reasonably be expected of a nurse and that was significantly below the standard expected of a registered nurse with equivalent experience and qualification.
[9]
Oral evidence
In oral evidence on 18 May 2022 Ms Muller maintained her criticism of RN Stratten's failure to clarify if RN Gallagher and the CNS D&A had provided a handover to RN Balagtas, instead assuming that had been done. Ms Muller's evidence was that custodial health is a complex environment and it is not fair to assume anything. The list in JH&FMHN policy 1.075 Clinical Handover at 3.2 of occasions where handover is required is inclusive. It is good practice to hand over to the person who is in charge, the NUM 1, because they are the person responsible for directing and ensuring care is provided. Ms Muller stated that if RN Nguyen was preparing and administering the medication she needed to be aware of what medication was included in the short term order and be aware of what was happening with this patient. Ms Muller agreed that it was common practice for aspects of the care of a patient to be delegated to other staff members in order to meet the timely needs of that patient. Ms Muller agreed that the Clinic pills had been packed by RN Nguyen and administered by her, however was critical that it was not specified to RN Nguyen that the patient had short term medication orders, and she was critical of RN Stratten not reminding RN Nguyen to have a look at those short term orders. Ms Muller acknowledged that RN Stratten was a second year RN who had worked at JH for 13 months, however maintained that RN Stratten had 25 years' experience as an enrolled nurse, a background which should not be discredited.
In her oral evidence Ms Muller was asked about her experience working in custodial settings, and stated she started work with JH&FMHN in 1998, employed as a reception nurse for three years before accepting a role as a nurse consultant. She worked as a patient safety and clinical risk manager for two years, and since 2008 has worked as a nurse practitioner in mental health, all in a custodial setting. She has worked in PKA on and off over the years, and has experience working in reception prisons. Ms Muller acknowledged that her qualifications are focussed on mental health, and commented that she had worked exclusively in reception because of her skills in drug and alcohol and mental health. She acknowledged that since 2000 her role had focussed on mental health, however in custodial mental health there is a need to look at the whole patient; and she would always do observations and check co-morbidities, and consider physical health as well as mental health and drug and alcohol status, and how medications interact with each other. In custodial mental health managing drug and alcohol problems is core business.
Ms Muller commented on expected practice for handover, which she said should be at the beginning and end of a shift, away from distraction, and using the ISBAR process (see [61(2)(a)] above). The nurse in charge or nurse unit manager, as well as all staff on duty in the oncoming and the leaving shifts, should participate. The role of the NUM would be to ensure that the area is free of distractions and that the ISBAR process is followed. The written handover sheet in evidence (ex A1, tab 108) is a tool to prompt the person giving the handover and the person receiving handover that has been used in many organisations. Clinical notes of what needs to happen during the oncoming shift can be made. It should be updated at the end of each shift or as the situation changes. That sheet is not currently used in JH&FMHN, rather a printed handover book is used.
Ms Muller was asked about reviewing patient notes, and commented that during clinical handover, particularly for patients who are housed in the Clinic itself, it is a reasonable expectation to open up the file and get more information about what has happened than the few lines written on a handover sheet. That may be recommended treatment plans, what medication had been administered, and a patient's physical observations; or if in fact there is a patient housed in the Clinic by the security service provider for management reasons.
Ms Muller stated that a minimum expectation for patients who are in the medical cells is that they are seen at least twice on the shift; for a patient who has just started detox and actively started to withdraw, the minimum would be fourth hourly observations. Depending on their detox score that might increase to second hourly or hourly. The detox score is a set of observations including blood pressure, pulse, respiration, whether there is any piloerection or abdominal pain, whether they have watery eyes or runny nose, nausea, vomiting, diarrhoea, their level of anxiety, or if they are hallucinating. There are withdrawal scale tools routinely used, such as the D&A Substance Withdrawal Monitoring Chart (ex A1, tab 132). While those observations would be recorded there, they would also be recorded on the SAGO chart. Ms Muller stated that the reason a patient is in a medical observations cell is to allow for better access, and the policy says that a patient in a medical observation cell needs to be assessed twice daily at a minimum, for physical observations and a verbal interaction as well as observing.
Ms Muller was asked about packing and administration of medication. She noted that it is against the law for a nurse to administer medications that they had not prepared themselves. The reason is that medications frequently are not in their original package, but are actually put into a bag, and there is no capacity to check what is being administered. The person administering the medication should know what it is because they packed it. The exception would be if a pharmacist has packaged the medication.
Ms Muller was asked about the roles of the NUM 1 and NUM 2. She stated that the NUM 1 has a clinical role, where they may need to comment on policy and do some administrative tasks while leading the clinical team, whereas a NUM 2 being more senior would have some clinical responsibilities but more strategy involvement. The NUM 1 could help out in reception depending on the workload, whereas the NUM 2 has more of a focus on operational issues but still retains responsibility for the care of the patients and to report to the afterhours nurse manager if there are patients of concern who need to be monitored. The nurse in charge (NIC), generally on night duty or weekends or public holidays, assumes overview of everything happening in the Clinic on that day. The NUMs and the NIC have the responsibility to escalate and direct care.
Ms Muller was asked about the significance of a patient asking to see a nurse. She stated that her understanding was that patients need to be seen whether or not they are abusing an officer, as it is a health issue. A lot of patients do not like disclosing to the security service provider what is going on with their health, and the security providers are not health professionals. Ms Muller agreed that such a request would be a prompt to review the patient's notes. Ms Muller commented that it was consistent throughout each of the shifts on 6 December 2017 that there was an overall failure to open up a hardcopy file to see what had happened in relation to patient care. Some of the patients would have been in the Clinic the night before, in which case the staff would be well aware of them, but she would expect, at a minimum, a review of the notes of the new patients who had come into the Clinic.
Ms Muller was asked about what the term "patient of concern" means in Justice Health, and said that a patient of concern may mean somebody who has a complex health issue, for example as recorded on the handover sheet, a patient who was terminally ill but was being managed in the mainstream population, or patients with an acute mental health issue or at risk of harm to self or others, or who are detoxing. Ms Muller agreed that by that definition all patients within the Clinic are patients of concern, and that patients in the Clinic would not need to be included in the patients of concern section of the handover sheet. Ms Muller clarified that sometimes the security service provider would house people in the health centre for management or non-health issues, which would be specified.
Ms Muller commented that in her opinion only three of the Clinic patients listed on the handover sheet in evidence (ex A1, tab 108) were acutely unwell. The rest of the patients were being managed under the Risk Intervention Team (RIT) protocol and it was unlikely they would need anything more than some supervised medications. The "RIT stepdown" patients had been acutely unwell, and were then managed through the day on a RIT management plan, and were there for safety, not medical or detox reasons.
Ms Muller commented on the context of custodial health, stating that it is a hybrid between a hospital and a community health setting. Access is limited, as in some instances people are only out of their cell for one hour a day; and by and large security takes priority over health, which is why patients who are unwell are housed in the health centre (clinic) where there is better access. It is a challenging environment, with a need to negotiate with the security service provider to be able to access the patients. Access is less difficult because they are in the health centre, but the doors are locked and the health staff do not have keys and need the security provider to allow access. Ms Muller agreed that that would make reading the files more important. By and large the population is reasonably healthy, and there may be acute health issues such as chest pain. In reception gaols detox is a core business: people are coming in off the street or from police cells, and it is usually 24 hours since they had any unprescribed substances, so the onset of substance withdrawal was expected. In custodial health, syringes and needles are counted and have to be booked out, so it is quite unusual for someone to receive an injection. For someone to require an injection would indicate that they are really quite unwell. Asked whether it is usual for a patient that unwell to stay in the custodial setting, Ms Muller said that Patient A had been assessed by a medical officer and a CNS and they were happy that the patient could be managed, but specified that if not, to call the on call nurse practitioner or medical officer again.
[10]
Ms Muller's evidence
The Tribunal is satisfied that Ms Muller's evidence is based on extensive experience in nursing in a custodial setting, informed by her qualifications and expertise in mental health nursing. Her individual reports on each of the respondent practitioners, and responses in oral evidence on 18 May 2022, reflect her consideration of the admitted and disputed issues of fact, and take into account both the context of the custodial setting and the relative experience and qualifications of each of those practitioners. In making its findings as to whether any of the respondent practitioners is guilty of unsatisfactory professional conduct or professional misconduct the Tribunal is entitled to take into account any admissions made by a practitioner, and to act on the specialist expertise of its professional members in considering whether there has been a departure from the relevant standard of conduct. That task is assisted by relevant and soundly based expert evidence, and in that regard, the Tribunal gives weight to the evidence of Ms Muller.
[11]
HCCC submissions
The HCCC submits that the Tribunal would be comfortably satisfied that RN Stratten's conduct constitutes unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law, and also professional misconduct. RN Stratten was the nurse with primary responsibility for Patient A on the afternoon shift, but failed to have any interaction with him, despite his management plan requiring four-hourly observations. RN Stratten also failed to draw the management plan, including the need for four-hourly observations, to the attention of RN Nuevo and EN Day. Although she had been in practice as a registered nurse for a relatively short period, she had extensive prior experience as an enrolled nurse. Those aspects of practice - implementing treatment plans including regular observations and providing comprehensive handover, especially for patients of concern - are basic aspects of practice for both ENs and RNs.
In relation to particular 1 of Complaint One, the HCCC notes that RN Stratten admits that she failed to implement the treatment plan ordered by the treating MO in that she failed to complete or ensure that another RN completed clinical observations of Patient A at a minimum of fourth hourly intervals, as instructed. The HCCC submits that JH&FMH policy 1.340 section 3.1.7 was clearly applicable, and was contravened in this case. The HCCC disagrees with RN Stratten's response to particular 1(b) that she was not a "delegate", submitting that that word is used in the policy in its ordinary sense, and that there is no dispute that RN Stratten was the nurse responsible for the patients in the Clinic during her shift (under the supervision of RN Balagtas); she should have adhered to this policy including para 2.2. The provision in point 2.2 of JH&FMHN policy 1.075 (referred to in particular 1(c)) was applicable: the requirement that nurses are responsible for ensuring that they understand the information they are receiving during handover and if not seek clarification was clearly relevant to RN Stratten's obligation to implement the treatment plan for Patient A which was handed over to her by the CNS D&A, and to the extent that RN Stratten did not implement the treatment plan for Patient A because she did not fully understand the handover from the CNS D&A she contravened this policy. The HCCC submits that the Tribunal should accept Ms Muller's opinion that RN Stratten's overall adherence with JH&FMHN policies, especially policy 1.075, policy 1.340 and policy 1.025, to be below an acceptable level and that her actions or failure to act reflected poor basic nursing care.
In addressing particular 2, the HCCC acknowledged that Patient A was not a "patient of concern" in the sense that terminology was used at JH&FMHN. In particular, on the Clinical Handover sheet the "Patients of Concern" listed at the bottom of the sheet are patients held in other wings of PKA and not in the Clinic. However, as RN Stratten's written submissions recognise, Patient A was a "patient of concern" in the general sense. The HCCC submits that RN Stratten should have satisfied herself that RN Balagtas was aware of Patient A and all of the information that the CNS D&A had provided to her regarding Patient A. Her failure to do so remains part of the complaint against RN Stratten, while not detracting from RN Gallagher's separate obligation as the NUM to ensure that RN Balagtas received a handover of Patient A.
In relation to particular 3, the HCCC submits that RN Stratten should have reviewed Patient A during her shift and recorded her clinical observations and other relevant information in his progress/clinical notes. She should also have ensured that information entered into the written handover sheet was up to date and complete rather than relying solely on the information already entered there. RN Stratten's denial that NSW Health Policy Directive Health Care Records - Documentation and Management point 2.5.3 is applicable because she did not attend on Patient A is not to the point, because she had admitted that she should have attended on Patient A, at least to complete the observations required by Patient A's treatment plan. JH&FMHN Policy 1.075 Clinical Handover point 3.2 is applicable, because it requires a shift to shift handover; in the Clinic the practice was to use a handover sheet for shift to shift handover and RN Stratten failed to ensure that the information regarding Patient A on the handover sheet was up to date and complete before she used it to handover to RN Nuevo and EN Day.
The HCCC submits that Ms Muller's criticism of RN Stratten's conduct in failing to ensure that the Clinic medication was prepared by the same practitioner who was responsible for administering it reflected a correct understanding of the events, namely that RN Nguyen prepared the medication for the Clinic for RN Stratten to administer but actually administered the medication herself as RN Stratten was busy elsewhere. Both RN Nguyen and RN Stratten confirmed that they initially agreed only that RN Nguyen would pack the medications, and it was only after RN Nguyen returned from the medication rounds in Areas 1 and 2 that they subsequently agreed that RN Nguyen would also administer the Clinic medications; RN Stratten was assigned to the Clinic and the initial intention was for RN Stratten to administer the Clinic medications that RN Nguyen packed for her.
[12]
RN Stratten's submissions
In her written submissions in reply RN Stratten maintained her position as stated in her Reply, admitting particular 1 and denying particular 4, and partially admitting particulars 2 and 3 of Complaint One. RN Stratten maintained her objections to the reference to and inclusion in the particulars of various NSW Health and JH&FMHN policies that she submits were not relevant to whether she had admitted, partially admitted or denied the particulars.
RN Stratten maintained that none of the references in particular 1 to specific policy provisions apply:
1. JH&FMHN policy 1.340 section 3.1.7 does not require clinical observations to be completed at four hourly intervals;
2. JH&FMHN policy 1.025 section 2.2 does not apply to RN Stratten as she was neither a NUM nor delegate;
3. JH&FMHN policy 1.075 section 2.2 does not apply: this policy relates to provision of handover not implementation of the treatment plan; there was a NUM on shift and RN Stratten did not have any supervisory or NUM-like responsibilities delegated to her on that shift.
RN Stratten submitted that a "NUM or delegate" in JH&FMHN policy 1.025 should be interpreted as someone who is a NUM or who has been delegated the shift responsibilities of a NUM, such as an RN in charge of a shift. The policy described the NUM or delegate as "responsible for the shift by shift overall co-ordination and management of patients placed in Clinical Observation beds and is the initial point of contact for staff with clinical concerns". That description is not consistent with RN Stratten's role, especially where the NUM was on-site during her shift.
RN Stratten accepted that she should have provided a comprehensive ISBAR structured handover to EN Day and RN Nuevo, in accordance with JH&FMHN policy 1.075 Clinical Handover section 3.1 and 3.2. While she does not admit that Patient A was a "patient of concern" in the sense in which that term was used at JH&FMHN, she accepts he was unwell and that was why he was kept in the Clinic. She submits that it was reasonable to assume that RN Balagtas was aware of Patient A. JH&FMHN policy 1.075 Clinical Handover section 3.2 does not apply to require a handover to a NUM on the same shift.
RN Stratten has partially admitted particular 3, on the basis that clinical information regarding Patient A's clinical management details was included in the handover sheet, however it did not include the treatment plan. In relation to the reference in the Amended Complaint to "and/or in the 'treatment plan' section/patient notes", RN Stratten submitted that while she was aware that the CNS D&A had documented in Patient A's notes, as she had not interacted with Patient A she would have had no further information to include in a "treatment plan" section of patient notes. She accepted that she should have documented in the patient notes the information that was handed over to her by the CNS D&A, in accordance with JH&FMHN policy 1.075 Clinical Handover point 2.2. RN Stratten submitted that point 2.5.3 of NSW Health Directive Health Care Records - Documentation and Management did not apply to her as she did not attend Patient A; and JH&FMHN policy 1.075 Clinical Handover point 3.2 is not applicable, as it does not refer to the content of a written handover or documenting in patient notes.
RN Stratten submitted that her admitted failure to perform observations as outlined in particular 1 had a flow on effect in relation to handover and documentation; any documentation that would have been completed as a result of an observation is intrinsically linked to completion of those observations and is not a discrete or separate responsibility that exists independently of the observation.
RN Stratten submitted that particular 4 is plainly inconsistent with the evidence available to the Tribunal that RN Nguyen packed and also administered the medication for patients in the Clinic, which is the relevant requirement of the JH&FMHN Medication Guidelines. Particulars pleaded by the HCCC should be those that relate to the conduct of the practitioner, and no conduct occurred by RN Stratten that was in breach of the policy. Delegation of activities of nursing care is common and accepted practice. While there was a lack of clear discussion at the outset of the delegation about who would do what and when, that lack of communication did not ultimately lead to a lack of adherence to the policy as alleged.
RN Stratten submitted that having been an RN for only two years and having been in the employ of JH&FMHN for only 13 months as at 6 December 2017, with no prior experience working in a custodial setting nor any experience providing care to patients who were detoxing, is relevant to any finding of unsatisfactory professional conduct, which requires the Tribunal to take into account the level of training and experience of the respondent. Her workload was significant, being responsible for providing care to all patients housed in the Clinic as well as packing and administering medications for those patients and the patients in Areas 3 and 5.
RN Stratten submitted that while much of the subject matter of the complaint has been admitted, the HCCC has not met the evidentiary burden to establish the complaint of professional misconduct. The admitted failure with regard to the care of Patient A was a single instance, occurring on one shift, and an isolated event, and fundamentally was a result of RN Stratten not remembering to undertake Patient A's observations during the shift in accordance with the care plan handed over to her. The parts of particulars 2 and 3 that are admitted are significantly connected and flow logically from that error. The failing of her memory and her inability to complete all tasks required of her on the shift, given the mitigating factors including the context of her practice, cannot be held to be conduct that is sufficiently serious to justify suspension or cancellation of her registration.
[13]
Consideration
The Tribunal is required to determine whether it is satisfied, to the requisite standard, that the "subject matter" of the complaint is proven, if not admitted in writing. In Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 Wilson J held:
36. It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint.
37. The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.
As Wilson J held at [43], procedural fairness requires that the practitioner be put on notice if a finding of unsatisfactory professional conduct might be made on a basis other than that advanced by the HCCC. The HCCC's position as stated in opening submissions is that particulars of various NSW Health and JH&FMHN policies that are said to be contravened have been given for each of the particulars, acknowledging that it would open for the Tribunal to find that the factual matter alleged in the opening part of the particular has been proven and that some of the specified policies have been contravened, but not others.
RN Stratten has admitted that she did not insist on being given an appropriately conducted handover of Patient A by the CNS D&A; did not implement the treatment plan for Patient A, including undertaking the observations that were due at 6.30pm; did not check Patient A's progress notes after speaking with RN Nguyen to ensure information regarding the refusal of Epilim was documented; did not update the handover sheet; and did not provide a comprehensive handover to RN Nuevo and EN Day in the oncoming night shift regarding Patient A that included aspects of his treatment plan handed over to her by the CNS D&A.
In issue is the extent to which in engaging in that admitted conduct RN Stratten failed to comply with the requirements of the NSW Health or JH&FMHN policies referred to in particulars 1, 2 and 3 of Complaint One. While she has admitted to the conduct, RN Stratten disputes the relevance and application of the specified policy documents and provisions.
Particular 1(a) refers to JH&FMHN policy 1.340 Accommodation - Clinical Recommendation (Adults). That policy provides for clinically based recommendations regarding a patient's cell placement, acknowledging it is ultimately the responsibility of CSNSW staff to make the determination for cell placement. Detoxification Placement (at section 3.1.7) is one of eight placement options provided. The reference in that section to twice daily review of a patient in such accommodation as the minimum reflects the stated purpose of that placement, intended to facilitate increased access by health staff to monitor the health status of the patient. The Tribunal does not agree with the submission that that does not impose an obligation to do clinical observations. In the Tribunal's view, observations are a component of monitoring and review, and must be completed; and are, in any event, part of the specified Statement of Duties for the RN/EN "Areas 3, 4 and Clinic medications and primary health nurse" (ex A1, tab 36).
JH&FMHN policy 1.025 Clinical Observation Beds in Health Centres (Adults) section 2.2, referred to in particular 1(b), imposes obligations on "the NUM or delegate". There is no definition of "delegate". The intent of the policy is to provide a framework to ensure consistent management of patients requiring placement in a clinical observation bed by identifying patients suitable for such placement, and establishing guidelines for clinical management of patients in clinical observation beds. In that context, the policy specifies the role of the nurse responsible for the shift by shift overall co-ordination and management of patients placed in clinical observation beds. That indicates that the "delegate" is a nurse other than the NUM on whom that responsibility has been conferred. In the Tribunal's view that would include a NIC on a shift where there is no NUM rostered, or otherwise present on shift - and would not otherwise include a nurse to whom direct patient care has been allocated, unless so specified in the allocation of duties.
Particular 2 refers to JH&FMHN policy 1.075 Clinical Handover. That policy specifies in point 2.2 the roles and responsibilities of all clinical staff, from the Chief Executive to Allied Health Staff, and distinguishes between the responsibilities of the "NUM, Line Manager or delegate" and "Nurses". As considered above, the Tribunal is not persuaded that RN Stratten was a "delegate"; however her responsibilities under section 2.2 as a nurse included ensuring that she understood the information she was receiving during handover, and if not, seek clarification. To the extent that RN Stratten's failure to implement the treatment plan was attributable to any inability to retain or recall the information she was given verbally by the CNS D&A in the circumstances in which it was given while she was packing medication, on the evidence before the Tribunal she did not seek clarification.
RN Stratten agrees that points 2.1 and 3.2 of that policy apply to her obligation to provide clinical handover to RN Nuevo and EN Day, as part of the shift to shift handover, but disagrees that she was required to provide a clinical handover to RN Balagtas, who was the NUM on the same shift. The Tribunal disagrees. While not inconsistent with the obligation imposed on others, including RN Gallagher as the NUM on the morning shift, RN Stratten had a responsibility as nurse on the same shift to provide at least an update to the NUM on that shift, and alert him to any issues arising relating to Patient A who was under her care. The Tribunal agrees with RN Stratten's reflection in her Reply that a structured handover, with no distractions and using a handover sheet and the patient notes should have occurred including other nurses on shift, including RN Nguyen and RN Balagtas, and that there was another opportunity to hand over in more detail to RN Nguyen when she offered to prepare the Clinic medications and offered to administer them; and that she could have followed up with RN Balagtas regarding Patient A.
Particular 3 refers to "…the written handover, and/or in the 'treatment plan' section/patient notes". The Tribunal understands that to be a reference to both the written handover sheet used in shift to shift handover (discussed above at paras [56]-[59]), and to Patient A's progress/clinical notes and related documents in his file including the SAGO chart, the Substance Withdrawal Monitoring Chart, the HPNF and the medication charts (discussed above at paras [28]-[32]).
RN Stratten contests the application of point 2.5.3 of the NSW Health Policy Directive Health Care Records policy, as she did not attend Patient A; point 3.2 of JH&FMHN policy 1.075 Clinical Handover, which she submits says nothing about handover content or documentation; point 3.1.7 of JH&FMHN policy 1.340 Accommodation, which she submits makes no reference to handover; and point 6.2 of the JH&FMHN Medication Guidelines policy, as she did not administer medications to Patient A. She accepts that point 2.4 of the Health Care Records policy, and point 2.2 of policy 1.075, on the role and responsibility of "Nurses", apply.
NSW Health Directive Health Care Records - Documentation and Management provides the requirements for "the documentation and management of health care records across public health organisations in the NSW public health system". RN Stratten acknowledges that section 2.4 of that policy applies, and that she should have documented in Patient A's clinical notes what information was handed over to her from the CNS D&A. The submission that section 2.5.3 does not apply as she did not attend Patient A, and accordingly was not required to make an entry in his health care record, does not take into account the reference in the policy to "failures to attend". In the Tribunal's view that, in any event, does not mitigate RN Stratten's failure to provide clinical care including the required monitoring and review of Patient A and consequential documentation of that care.
RN Stratten's response to particular 4 is simply that there was no breach of section 6.2 of the Medication Guidelines because the same nurse packed and then administered the medication. Ms Muller did not dispute that the task of packing and administering medication could be passed on to another nurse on shift. The JH&FMHN Medication Guidelines specify that a nurse must never administer a medication prepared by another person, except those prepared by the Pharmacy Department, and medication prepared by a nurse for delayed administration must be administered by the same nurse to the patient within the same shift at the next immediate treatment time.
[14]
Findings
RN Stratten has admitted that she did not implement the treatment plan ordered by the treating MO, in that she did not complete, or ensure that another RN completed, the clinical observations required at a minimum of four hourly intervals. As primary health nurse for Clinic patients her duties included attending to clinical observations; and as discussed above, monitoring and review of a patient in detoxification placement as required by JH&FMHN policy 1.340 includes completion of observations.
The Tribunal is satisfied that the handover of Patient A provided to RN Stratten by the CNS D&A included the information that Patient A was detoxing and was unwell, and that four hourly observations were required, and that the next set was due at approximately 7.00pm. It is not in dispute that RN Stratten was packing pills when the CNS D&A started the clinical handover. The Tribunal accepts that that task, as described by RN Stratten, requires attention to ensure that the correct medications are dispensed for the specified patient. The Tribunal accepts the evidence of the CNS D&A that when she was giving the handover RN Stratten stopped what she was doing and engaged in a conversation with her. The CNS D&A acknowledged that she did interrupt the task, however stated that that task ceased during the handover. In the Tribunal's view, while accepting that the area may have been noisy and that she was interrupted in a complex and busy task, on RN Stratten's evidence at the interview on 6 March 2018, she was aware through the handover that Patient A was in detox and needed four hourly observations. And as discussed above, under JH&FMHN policy 1.075 if she did not understand the information she was receiving, she had an obligation to seek clarification from the person providing the handover.
It not being in dispute that the CNS D&A completed the baseline set of observations at approximately 2.30pm, the next set was due at about 6.30pm. It was not in dispute that while RN Stratten was allocated the primary care of the Clinic patients, including Patient A, she did not attend him; and that RN Nguyen administered the medication to the Clinic patients, including Patient A, at approximately 7.00pm. RN Stratten neither completed the required observations herself, nor asked RN Nguyen to complete them as part of the medication round which she undertook on behalf of RN Stratten.
The Tribunal is satisfied that the evidence supports the finding that particular 1 of Complaint One is established.
RN Stratten has admitted that she failed to ensure that the oncoming night shift staff, namely RN Nuevo and EN Day, were provided with a clinical handover of Patient A that was consistent with the ISBAR framework (see above at [61(2)(a)]), or that provided the information handed over to her by the CNS D&A, including that Patient A required four hourly observations. At its highest, her evidence was that she would have used the information in the printed handover sheet, namely that Patient A was in opiate withdrawal, had received Stemetil, and had PRN medications charted. The Tribunal agrees with Ms Muller that RN Stratten was required during the afternoon shift to provide some form of handover or update to RN Balagtas, at the least to express any concerns she may have had as to why Patient A had not been transferred to hospital; and to RN Nguyen when she assumed care of Patient A in administering his medication. That it was RN Stratten's obligation to alert RN Nguyen to the need for clinical observations was acknowledged by RN Stratten in her evidence at the interview on 6 March 2018 that that requirement was not written down, and that RN Nguyen would not have known that the observations needed to be done. The list in point 3.2 of JH&FMHN policy 1.075 of situations in which clinical handover is required is not exhaustive, and in the Tribunal's view includes the situation where RN Stratten was handing over direct care of Patient A to RN Nguyen in administering his medication. As Ms Muller recognised, RN Nguyen was at the time a new graduate registered nurse, and RN Stratten should have taken the time to explain Patient A's detoxification status and to ensure that RN Nguyen was aware of the need to complete observations, which were due at around the time of the medication round, and ensure that RN Nguyen felt confident in completing those observations independently. The Tribunal agrees with Ms Muller that on RN Nguyen reporting back that Patient A had refused Epilim, that should have prompted RN Stratten to ask if the observations had been attended.
Particular 2 is established.
RN Stratten has admitted that she failed to update the handover sheet; and that she failed to check Patient A's clinical notes to ensure that RN Nguyen had recorded his refusal of Epilim. The clinical notes contain no record of that refusal, required under NSW Health Policy Directive Health Care Records - Documentation and Management at 2.5.3. The handover sheet was a tool used in clinical handover, and under JH&FMHN policy 1.075 RN Stratten had a responsibility to ensure that the tool followed the ISBAR framework. Particular 3 is established.
As to particular 4, the roster for 6 December 2017 showed that while RN Stratten was responsible for Clinic medications, RN Nguyen was allocated to care of the main Clinic patients. That changed on the day, and RN Stratten was allocated primary care of the Clinic patients. The changed allocation meant that in contrast to the split envisaged in the formal roster, RN Stratten was responsible on the afternoon shift for care of all the Clinic patients including Patient A, which included packing and administration of medication.
The Tribunal accepts that it was not uncommon, or inappropriate, for nurses to assist each other during the course of a shift, including taking on certain aspects of patient care that would otherwise be undertaken by the primary health nurse for that patient. The Tribunal accepts the evidence of Ms Muller, which is consistent with the Medication Guidelines, that that cannot include administration to a patient of medication packed by another nurse. The Tribunal accepts that RN Nguyen's offer to pack the medications for the Clinic patients was made in the interests of assisting a busy colleague, and was accepted by RN Stratten on the same basis. While RN Stratten later agreed to RN Nguyen administering those medications on her behalf, the evidence does not support a finding that at the time she agreed that RN Nguyen should pack the medication the intention was other than that RN Stratten would be the nurse who administered it. In the end, the same nurse packed and administered the medication for Patient A, as required by the JH&FMHN Medication Guidelines; however, that was by chance. The Tribunal is satisfied that as expressed in particular 4, RN Stratten delegated the task of packing the Clinic medication that she was responsible for administering to RN Nguyen. The Tribunal is satisfied that particular 4 is established.
[15]
Whether unsatisfactory professional conduct or professional misconduct
Complaint One alleges that the conduct in the particulars constitutes unsatisfactory professional conduct under s 139B(1)(a) of the National Law:
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following -
(a) Conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
…
The word "conduct" is defined in s 138(1) of the National Law to mean "any act or omission". As discussed above, RN Stratten has admitted the conduct as described in the chapeau to each of particulars 1, 2 and 3; and the Tribunal has found that that conduct was contrary to some, if not all, of the NSW Health or JH&FMHN policies specified in those particulars. The Tribunal has found that particular 4 is established, and involved conduct contrary to the JH&FMHN Medication Guidelines.
In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 the Tribunal described the evaluative task required by s 139B(1)(a) in the following terms:
25. Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such.
Having found that the particulars to Complaint One are established, that conduct must be evaluated against the criteria in s 139B(1)(a) of the National Law. Ms Muller considered that on each of the particulars, RN Stratten's conduct fell significantly below the standard that could reasonably be expected of a registered nurse with equivalent qualification and experience. In making that assessment Ms Muller took into account that while RN Stratten was relatively junior as an RN, she had 25 years experience as an EN.
The Tribunal also takes that into account, noting that RN Stratten's experience as an EN was primarily in aged care and hospital based nursing (ex RS 1, tab 3), and that her area of expertise was forensic mental health. As RN Stratten acknowledged in oral evidence, she had not had experience in a custodial setting outside of doing a mental health assessment. However, by December 2017 RN Stratten had had just over 12 months' experience in a clinical role as RN at PKA. While accepting it was a new environment for RN Stratten, in the Tribunal's view that experience, against her background of clinical nursing experience, was sufficient for her to understand the implications of the care plan handed over to her by the CNS D&A. Her failure to implement the treatment plan including regular observations, and her failure to provide an adequate handover, demonstrated a failure to implement basic aspects of nursing practice.
The Tribunal agrees with Ms Muller that in respect of the conduct particularised in each of the particulars of Complaint One, the knowledge, skill or judgement possessed and care exercised by RN Stratten was significantly below the standard reasonably expected of a registered nurse of an equivalent level of training or experience. That means that RN Stratten is guilty of unsatisfactory professional conduct under s 139B(1)(a) as alleged in Complaint One.
Complaint Two is that RN Stratten is guilty of professional misconduct as defined under s 139E of the National Law:
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconduct of a registered health practitioner means -
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The HCCC alleges that each particular of Complaint One justifies a finding of professional misconduct, or in the alternative, when two or more of the particulars are taken together, a finding of professional misconduct is justified.
The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [19], Basten JA. The characterisation exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20]. As Basten JA explained:
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. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances". The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264. And as noted in Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35], the seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred.
The HCCC submits that RN Stratten was the nurse with primary responsibility for Patient A on the afternoon shift. She failed to have any interaction with him, despite his management plan requiring four hourly observations, and failed to draw the attention of RN Nuevo and EN Day to the management plan. The HCCC submits that the implementation of treatment plans including regular observations and providing comprehensive handover are basic aspects of practice for both ENs and RNs, and that combined with other deficiencies in her practice on 6 December 2017, those matters are of particular concern and justify a finding of professional misconduct.
In response, RN Stratten submits that her admitted failure with regard to the care of Patient A was a single instance, and fundamentally was a result of her not remembering to undertake observations during her shift. RN Stratten points to her short experience working as a RN and in a custodial setting, and her lack of experience in providing care to patients in substance withdrawal, and to her significant workload on the shift and the challenges of working in a custodial setting.
The Tribunal acknowledges the challenges of providing comprehensive nursing care for patients in a custodial environment, as stated in the evidence of Ms Muller (see [106] above). Those challenges include the difficulty in accessing patients to carry out review and monitoring whether as directed in the patient's treatment and management plan, or in response to any issues arising during the shift. The Tribunal accepts that the workload was significant.
The Tribunal does not agree that RN Stratten's failures can be regarded as a single instance. The handover by the CNS D&A occurred early in the shift. RN Stratten had an opportunity to ask questions if she was not sure about any aspect of the handover received from the CNS D&A, and to read Patient A's notes. She had the opportunity to provide a handover to staff on the afternoon shift and later to the night shift staff; and to ensure that if it was RN Nguyen who was to administer the medications, she was aware of the requirement for observations at that time. RN Stratten was aware from early in her shift that Patient A was in opiate withdrawal and that four hourly observations were needed, yet she failed to implement the treatment plan, or seek assistance if that was required, and failed to alert other staff to the requirements of the comprehensive management plan, or that the required observations had not been attended to. She failed to attend Patient A or read his notes when informed by RN Nguyen that he had refused Epilim, towards the end of her shift.
The Tribunal regards RN Stratten's conduct as extremely serious. She had primary responsibility for the care of Patient A on the afternoon shift. She was aware that he was detoxing and that regular observations were required, yet she allowed another nurse to prepare and administer medication to Patient A without ensuring that that nurse knew his clinical history. Her conduct as established in respect of each of the particulars of Complaint One and found to constitute unsatisfactory professional conduct was a sequence of failures to provide the care required throughout her shift. The Tribunal finds that when those instances of unsatisfactory professional conduct are considered together that amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of RN Stratten's registration. RN Stratten is guilty of professional misconduct as defined under s 139E of the National Law.
[16]
Conclusion
The finding of unsatisfactory professional conduct as alleged in Complaint One means that it is open to the Tribunal to consider making any of the protective orders specified in s 149A or s 149B of the National Law. As noted above, the finding of professional misconduct as alleged in Complaint Two does not mandate an order of suspension or cancellation under s 149C. The Tribunal is required to consider what, if any, of the protective orders provided in Part 8 of the National Law should be made.
Given the Tribunal constitution requirements for that hearing and the Stage 2 hearings in the related matters, the parties are urged to confer on suitable dates and to collaborate to enable the hearings to be listed consecutively, if practicable.
The Tribunal orders:
1. The Respondent is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) and professional misconduct as defined in s 139E of the Health Practitioner Regulation National Law (NSW);
2. The matter is to be listed for hearing as to what, if any, protective orders should be made as a consequence of the Tribunal's findings, on a date to be fixed having regard to the availability of the parties and their representatives;
3. The following directions are made:
1. The HCCC is to provide to the Tribunal and the Respondent notice of any protective orders sought as a consequence of the Tribunal's findings, and any further evidence and submissions, on or before 10 November 2022;
2. The Respondent is to provide to the Tribunal and the HCCC any further evidence and submissions in response, on or before 24 November 2022;
3. The HCCC is to provide to the Tribunal and the respondent any further material in reply, on or before 1 December 2022;
4. The matter is listed on 24 November 2022 at 9.15am by AVL to fix a hearing date for the Stage 2 hearing, and to make any further necessary directions;
5. The proceeding will be listed for a stage 2 hearing on a date after 1 December 2022.
[17]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 October 2022
The Health Care Complaints Commission (HCCC) has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Rhondda Lee Stratten, a Registered Nurse (the practitioner).
The proceedings arise from a mandatory notification to AHPRA by the Regional Nurse Manager Metropolitan West reporting that five Registered Nurses and one Enrolled Nurse employed by Justice Health and Forensic Mental Health Network (JH&FMHN) at Parklea Correctional Centre (PKA) were involved in the care of an inmate, Patient A, who was found deceased on 7 December 2017.
The HCCC has brought a complaint against each of the nurses. At the first listing of Tribunal proceedings 2020/112544 HCCC v Sara Day, 2020/113574 HCCC v Jeremy Nuevo, 2020/113588 HCCC v John Gallagher, 2020/113622 HCCC v Francis Balagtas, 2020/113637 HCCC v Rhondda Stratten and 2020/113651 HCCC v Tania Nguyen, orders were made by consent of all parties that the six matters be joined and heard together, and evidence in each matter be evidence in all of the matters. An order was made prohibiting disclosure of the name of Patient A. The directions included a direction that an Agreed Statement of Facts be provided to the Tribunal.
At a subsequent directions hearing the Tribunal noted that pursuant to s 165B(3) of the National Law the panel members to hear the matters involving the five RNs (the registered nurse matters) were to be two RNs; and that transcript of the evidence of the nurses in the registered nurse matters and that of EN Day may be used in the HCCC v Day proceedings. The Tribunal panel constituted for the hearing of 2020/112544 HCCC v Day includes two Enrolled Nurses.
Two case conferences were held. The HCCC was represented by counsel and instructing solicitor. Two of the RNs and EN Day were represented by NSW Nurses and Midwives Association (NSWNMA) legal officers, and three of the RNs were self represented. An Agreed Statement of Facts and Issues to be determined by the Tribunal was filed on 30 June 2021.
The Complaint against RN Stratten was amended in February 2021 to delete a reference to s 139B(1)(l) of the National Law, and to amend references to various NSW Health and JH&FMHN policies in the particulars to Complaint One.
The Stage 1 hearing of the registered nurse matters and the evidence of EN Day was approved for listing as an in-person hearing in 2021. That listing was vacated when COVID-19 restrictions meant that the hearing could not proceed as an in-person hearing, and the hearing was re-listed for May 2022. At the hearing the HCCC representatives and the RNs and their representatives appeared in person. The HCCC's expert witness and witnesses Correctional Officer (CO) Ravinder Sarin and CO Florence Foisa appeared in person; the other HCCC witnesses, EN Lynda Steele and the CNS D&A, appeared by telephone. EN Day gave evidence by AVL. The two professional members of the Tribunal panel participated in the hearing by AVL.
The Tribunal may exercise the disciplinary powers conferred by Subd 6, Div 6 of Part 8 of the National Law if (a) it finds the subject-matter of a complaint to have been proved, or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149.
The HCCC bears the onus of proving the complaints against the practitioner, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings: National Law, cl 2, Sch 5D. The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 in the following terms:
52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]).
53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.
The Stage 1 hearing and these reasons relate only to the issue of whether the allegations in the application have been proven to the requisite standard, and whether any conduct found to have occurred constitutes unsatisfactory professional conduct or professional misconduct. A further hearing will be required for consideration and determination of what, if any, protective orders are appropriate, if the allegations are proven.
As noted above, an order was made pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A. A further order was made during the hearing, by consent, prohibiting the disclosure of the name of the Drug & Alcohol Clinical Nurse Specialist on duty at PKA on 6 December 2017, identified in these reasons as "the CNS D&A", on the basis that it was desirable to do so by reason of information before the Tribunal of a confidential nature regarding her personal relationships.