On 25 October 2022 the Tribunal published reasons for its findings that the respondent Registered Nurse, Ms Rhondda Stratten, is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), and professional misconduct as defined in s 139E of the National Law: Health Care Complaints Commission v Stratten [2022] NSWCATOD 127 (Stratten Stage 1).
The HCCC submitted that the appropriate protective order to make is to cancel RN Stratten's registration, with a non-review period of 1-2 years. RN Stratten submitted that in all the circumstances the most appropriate protective order would be a reprimand. The HCCC sought an order that RN Stratten pay its costs; RN Stratten accepted that costs should follow the event.
The Tribunal decided to reprimand RN Stratten and suspend her registration for a period of three months, and to order that she pay the HCCC's costs as agreed or assessed. Our reasons follow.
[2]
Background
The proceedings against RN Stratten were commenced in the Tribunal in April 2020 by the Health Care Complaints Commission (the HCCC) in relation to a mandatory notification made on 4 March 2018 that she and four other RNs 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 background to the proceedings against RN Stratten and the other five nurses is set out in Stratten Stage 1. That decision includes discussion of the agreed and disputed facts, the evidence of RN Stratten and each of the other nurses, and expert evidence provided on behalf of the HCCC, and identifies the various NSW Health and JH&FMHN policies relevant to the complaints. The detail is not repeated in these reasons, and these reasons assume familiarity with those earlier reasons.
In summary, 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 on 6 December 2017, arriving at about 11.38am. In December 2017 PKA was privately managed by The GEO Group Australia Pty Ltd (GEO) on behalf of Corrective Services NSW (CSNSW). PKA houses approximately 800-900 remand, minimum and maximum security inmates. Health services at PKA were operated by JH&FMHN.
At about 2.07pm Patient A was taken from a holding cell to the Processing Area at Reception. Patient A was too unwell for reception screening assessment to be undertaken, and he was taken to the Main Clinic where he was assessed by the Drug & Alcohol Medical Officer (MO) and the Clinical Nurse Specialist D&A (CNS D&A).
The CNS D&A recorded baseline clinical observations, noting in Patient A's clinical/progress notes that he was "extremely unwell - in opiate withdrawal". The treatment plan recorded by the MO and the CNS D&A in the progress notes was that Patient A was to remain in detox, with four hourly observations, with Panadeine and Stemetil for opiate withdrawal, and to be reviewed in the morning.
RN Stratten was rostered on the afternoon shift (1.30pm-10.00pm), allocated to Areas 3, 5 and Clinic pills. RN Balagtas was Nurse Unit Manager (NUM) on the afternoon shift, rostered 1.30pm-10.00pm. RN Nguyen was allocated Main Clinic and Area 4 supervised on the afternoon shift.
The clinical handover from the morning shift JH&FMHN staff to the afternoon shift took place in the Clinic tearoom between 2.00pm to 2.30pm, when Patient A was in Reception, and he was not included in that handover. Just after the shift handover concluded the CNS D&A asked for someone to come and give an intramuscular (IM) injection. RN Gallagher, NUM on the morning shift, administered IM Stemetil to Patient A at approximately 2.45pm, recording that in Patient A's medication notes. At approximately 2.46pm Patient A was placed in Cell 34, one of 14 observation cells in the Main Clinic. Cells 34-39 are "Detox" cells.
At approximately 4.20pm as she was leaving for the day, the CNS D&A provided a verbal handover of Patient A to RN Stratten, who was in the medication room packing medications. The handover provided to RN Stratten included the information that Patient A was detoxing and was unwell, that four hourly observations were required, and that the next set was due at approximately 7.00pm: Stratten Stage 1 at [135].
In the circumstances discussed in Stratten Stage 1 and Health Care Complaints Commission v Nguyen [2022] NSWCATOD 127, RN Nguyen packed the Clinic medications, and then administered those medications including to Patient A at approximately 7.00pm. As discussed in Stratten No 1 at [138], the Tribunal was satisfied that at the time she administered the medications RN Nguyen was not aware of the need for observations due at that time, nor asked to complete them as part of the medication round that she undertook on behalf of RN Stratten.
The clinical handover from the afternoon shift to RN Nuevo and EN Day, the night shift staff rostered on from 9.30pm to 7.30am the following morning, took place between 9.30pm and about 10.00pm. RN Stratten provided the handover, which did not include the treatment plan ordered by the MO. RN Stratten's evidence was that it occurred to her while she was driving home after her shift that observations had not been completed for one of the patients. She did not recall who it was. She intended to, but did not, call the night shift at the Clinic to say somebody needed observations.
It was not in dispute that neither RN Nuevo nor EN Day had any interaction with Patient A during the night shift. After his assessment by the MO and CNS D&A on being brought to the Clinic, the last recorded interaction by nursing staff with Patient A was the administration of medication by RN Nguyen at approximately 7.00pm on 6 December 2017.
Patient A was found deceased in his cell at approximately 7.11am on 7 December 2017. It was not in dispute that none of the nursing staff on duty on the afternoon or night shifts on 6 December 2017 had read Patient A's progress notes in which the treatment plan, which included the requirement for four hourly clinical observations, was recorded. It was not in dispute that no clinical observations were taken after the baseline observations by the CNS D&A at approximately 2.30pm on 6 December 2017.
The HCCC commenced proceedings against the five RNs (RN Stratten, RN Nuevo, RN Balagtas, RN Gallagher and RN Nguyen) and EN Day on 7 April 2020. An order was made by consent on 8 May 2020 that the six matters would be heard together with evidence in each evidence in the others. At a subsequent directions hearing the Tribunal noted that transcript of the evidence of the RNs and EN Day in the five RN matters may be used in the proceedings concerning EN Day, which, pursuant to s 165B(3) of the National Law required a differently constituted Tribunal panel. The HCCC was represented by counsel and solicitor; three of the respondents, including RN Stratten, were represented by NSW Nurses and Midwives Association (NSWNMA) legal officers; and three were self represented. The six proceedings were the subject of case management, and by consent an Agreed Statement of Facts and Issues to be determined by the Tribunal was provided.
The Stage 1 hearing of the five RN matters including the evidence of EN Day relevant to those matters was initially listed for two weeks in September 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. Transcript was provided in July 2022.
Following on the Stage 1 findings, a further hearing was held for each of the six respondent practitioners in relation to the appropriate protective orders. The HCCC did not tender any further evidence in relation to protective orders proposed for RN Stratten, and provided written and oral submissions on protective orders and costs. RN Stratten provided further evidence, being a statement dated 23 December 2022, a curriculum vitae, a CPD record for the period 1 June 2020- 25 November 2022, a reference from the Director of Nursing South Pacific Private, and a copy of the reasons for the decision under s 150A of the National Law on 22 November 2019 to remove the conditions on RN Stratten's registration (ex RS2). At the hearing RN Stratten gave further oral evidence and responded to questions from the Tribunal, and made oral submissions.
[3]
Summary of Stage 1 Decision
Complaint One against RN Stratten was that she was guilty of unsatisfactory professional conduct in that she had engaged in conduct that demonstrates that the judgment possessed or care exercised by her was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. There were four particulars:
1. that she failed to implement the treatment plan ordered by the MO in that she failed to complete, or ensure that another RN completed, clinical observations of Patient A at a minimum of four hourly intervals, in accordance with specified NSW Health and JH&FMHN policies;
2. that she failed to ensure that the afternoon shift NUM, RN Balagtas, and nursing staff RN Nguyen, RN Nuevo and EN Day, were provided with a clinical handover of Patient A, in accordance with specified NSW Health and JH&FMHN policies;
3. that she failed to ensure that clinical information regarding Patient A's clinical management details was recorded in the written handover and/or in patient notes, in accordance with specified NSW Health and JH&FMHN policies; and
4. that she failed to ensure that Clinic medication was prepared by the same practitioner who was responsible for administering the medication in accordance with JH&FMHN Medication Guidelines in that she delegated the task of packing Clinic medication that she was responsible for administering to RN Nguyen.
Complaint Two was that each of those particulars, or when two or more were taken together, justified a finding of professional misconduct.
In her Reply RN Stratten stated that she accepted particular 1, partially accepted particular 2, and denied particulars 3 and 4 of Complaint One. She 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 in her Reply 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.
The Tribunal found all four particulars proven: Stratten Stage 1 [134]-[142]. The Tribunal concluded that the conduct as found was unsatisfactory professional conduct. In making that finding the Tribunal took into account that while RN Stratten was relatively junior as an RN, having been registered as such in August 2015, she had 25 years prior experience as an EN:
[147]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's conclusions in finding RN Stratten guilty of professional misconduct were as follows:
[155]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.
[156]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.
[157]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.
[4]
Protective Orders: legislation and principles
The Tribunal's powers on finding "the subject matter of a complaint against a practitioner" to have been proven are set out in Part 8, Division 3, Subdivision 6 of the National Law. Having found the complaint of unsatisfactory professional conduct proven, the Tribunal may, under s 149A(1) of the National Law:
149A General powers to caution, reprimand, counsel etc [NSW]
(1) …
(a) caution or reprimand the practitioner;
(b) impose the conditions it considers appropriate on the practitioner's registration;
(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);
(d) order the practitioner to complete an educational course specified by the Tribunal;
(e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal;
(f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
As a consequence of the finding of professional misconduct, the Tribunal's powers include, under s 149C(1)(b) of the National Law, the power to suspend or cancel RN Stratten's registration, and if registration is cancelled, to specify under s 149C(7) a period before an application for review may be made.
The principles to be applied in determining appropriate protective orders were not in dispute. The power to make any of these orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held:
[20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:
1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.
2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.
3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
[21] The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a): to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A.
In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said:
[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".
[5]
Protective orders sought
The HCCC sought an order that RN Stratten's registration be cancelled with a non-review period of 1-2 years, having regard to the finding that her conduct fell short of the standard to be expected in several respects and was found to be "extremely serious"; and that taken as a whole, her failures suggest clinical incompetence to practise as an RN even under supervision or subject to conditions. The HCCC submitted that merely reprimanding a practitioner, as urged by RN Stratten, will rarely if ever be consistent with a finding of professional misconduct, which is a finding that the conduct is sufficiently serious to justify suspension or cancellation. RN Stratten's failings were failings of clinical judgment and care. In light of those findings, the Tribunal cannot be satisfied that RN Stratten is presently fit to practise and in light of the seriousness of her conduct, the need to mark it out as unacceptable and serve as a deterrent, the appropriate order is cancellation of her registration with a non review period. If at the end of that period RN Stratten applies for her registration to be reinstated, the focus of that hearing will be on her fitness to practise at that time, taking into account the Tribunal's findings in this matter as well as her subsequent study and experience.
In oral submissions the HCCC submitted that in considering alternatives to cancellation of registration, a reprimand alone is manifestly inadequate, and if RN Stratten's registration is suspended there would be no hearing of fitness to practise. Denunciation of her conduct and specific and general deterrence are still relevant. The HCCC acknowledged that RN Stratten had always been forthright in her evidence in the proceedings, and had not hesitated in taking responsibility for her actions. The HCCC acknowledged that RN Strattten had not contested the underlying facts, and that her non admissions were based on a more legalistic approach to the particulars.
RN Stratten submitted that in determining the least serious outcome that is reasonably necessary to protect public health and safety through specific and general deterrence, denunciation and promoting public confidence in the profession, regard should be had to the significant period of time that has elapsed between the conduct the subject of the complaint and the date at which protective orders will be made, in excess of five years; RN Stratten's practice history and education undertaken since December 2017; and the fact that the findings of unsatisfactory professional conduct and professional misconduct as well as the process of the Tribunal proceedings serve as specific and general deterrence, denounce the conduct, and promote public confidence in the profession.
In oral submissions RN Stratten submitted that she has spent the last 5 years improving her practice. Cancellation of her registration should be considered only if it is proven she is presently unfit to practise, and there is no evidence of that.
[6]
Consideration
In applying the principles relevant to determination of an appropriate protective order, the Tribunal takes into account the following matters:
1. Seriousness of the misconduct:
As reflected in the Tribunal's earlier reasons, RN Stratten's misconduct was extremely serious, representing a failure to implement basic aspects of nursing care. While she was relatively inexperienced as an RN and in working in a custodial setting, her 12 months experience working as RN at PKA against a background of nursing experience as an EN was, in the Tribunal's view, sufficient for her to understand the implications of the care plan handed over to her by the CNS D&A. She was the nurse with primary responsibility for Patient A on the afternoon shift, and she failed to implement the management plan requiring four hourly observations or provide an adequate handover to the night shift staff. As discussed at [156] -[157] in Stratten Stage 1, it was the sequence of failures to provide the care required for Patient A throughout her shift which, when considered together, amounted to professional misconduct as defined in s 139E of the National Law.
1. What has occurred since December 2017:
Conditions were imposed on RN Stratten's registration under s 150 of the National Law in March 2018, including that she practise under direct supervision of an RN and not be the nurse in charge of any shift, ward or unit and not have supervisory responsibilities. Those conditions were varied under s 150A of the National Law in November 2018, to provide for indirect rather than direct supervision. Following a further s 150A application, on 22 November 2019 the conditions were removed. In the reasons for decision (ex RS2 tab 8) the Nursing and Midwifery Council of NSW delegates noted that by the time of that hearing RN Stratten had been working at South Pacific Private Hospital since March 2019, and had consistently sound supervisor reports. The delegates noted that RN Stratten appeared to have reflected at length and taken steps to remediate the areas of concern in her practice, and concluded that she had demonstrated that she was safe and competent to work unsupervised subject to a final supervision report outlining achievement of the transition from restrictions to full practice.
RN Stratten's evidence to the Tribunal was that she had been unable to find employment as a nurse while subject to the condition requiring direct supervision. When interviewed in February 2019 for the position at South Pacific she disclosed to the Director of Nursing and the NUM the conditions attached to her registration and the reasons why. She worked within the scope of the conditions imposed on her registration including the requirement for indirect supervision and her NUM provided the required performance reports. After the conditions were removed in November 2019 she was able to start working weekends and night shifts and to be nurse in charge of shift, a scenario that her NUM supported and encouraged. South Pacific is a small facility, with 54 beds, providing care for patients with addiction issues; that work includes managing withdrawals and associated mental health issues. The nursing staff are supportive, and education is provided. At the time she started working at South Pacific the Director of Nursing and the hospital Board asked her not to publicly discuss the circumstances, however over the years some staff have become aware. She has engaged in continuing education, working to improve herself as a nurse and to make sure she is up to date with documentation including handover. She is currently completing a Graduate Certificate in Nursing - Leadership and Management through Charles Sturt University.
1. Insight and remorse:
In her statement of 23 December 2022 RN Stratten described 6 December 2017 as her career defining shift. She stated that she is not proud of her inaction and decisions on that day and there is not a day that goes by that she does not think about what she could have done differently on that shift. While she cannot go back and change that, and would not know with certainty whether there would have been a different outcome for Patient A, by not taking his observations or handing over information potential opportunities for escalation of care were lost. Had she acted differently on that day she would be able to say Patient A received the best possible care she could have provided and that he was entitled to. She failed her patient, who was entitled to the best possible care, and her colleagues, who relied on her to hand over critical information.
In oral evidence to the Tribunal RN Stratten stated that she accepted the decision of the Tribunal. It has been an emotionally challenging experience, and she has had periods of self doubt, but she has done her level best to ensure that this does not happen again. She acknowledges that she should have had much clearer handover and discussion, including the need for observations.
1. Character:
In her reference dated 21 December 2022 the Director of Nursing states that during her time at South Pacific RN Stratten has been a safe and reliable clinician, always working within her scope of practice and nursing code of conduct. In her previous role as NUM she directly supervised RN Stratten, and was impressed by her ability to clinically assess and manage deteriorating patients; and her communication and documentation were always of a high standard and her ability to de-escalate clients in crisis was commendable. RN Stratten is highly regarded among her peers and management. RN Stratten has updated her on the progress of this matter, and in her opinion has clearly reflected on the incident.
Those comments are consistent with references provided by colleagues in 2020 (ex RS1, tabs 12, 18), which included comments that RN Stratten "can be trusted to make moral and ethical decisions", and "is an enormous asset to our multidisciplinary health team". The then Director of Nursing described her as "professional and responsible" (ex RS1, tab 22).
The Tribunal acknowledges the objective seriousness of RN Stratten's failures in providing the nursing care to which Patient A was entitled. As she readily acknowledged in her evidence to the Tribunal, she failed her patient, and she failed her colleagues. Her failures represented a failure to implement basic aspects of nursing practice. However, the Tribunal does not agree with the HCCC that it cannot be said that RN Stratten is presently unfit to practice. That she is a safe and competent practitioner is confirmed by the supportive references from her employer of nearly four years. That evidence, and the evidence as to her reflection on the events and insight into her responsibility, was not disputed by the HCCC. RN Stratten has engaged in continuing education including on documentation and medications (RS2 tabs 4,5 and 6), and further formal study, the Graduate Certificate course requiring 160 hours of online learning.
The Tribunal is satisfied that there is minimal risk that the conduct the subject of the complaint will be repeated. RN Stratten has demonstrated genuine insight and remorse for that conduct. She admitted to the conduct on which the particulars of the complaint were based, taking issue primarily with the way in which those particulars were pleaded, and disputing the relevance and application of some of the specified policy documents. The Tribunal shared some of her concerns: Stratten Stage 1 at [127], [130]. There was no element of wilfulness or dishonesty in her misconduct. The Tribunal accepts that the experience of these disciplinary proceedings, together with the previous restrictions on her practice and the present possibility of loss of her livelihood, has weighed heavily on RN Stratten and has contributed to her efforts to improve her practice so as to diminish the likelihood of a repetition of the conduct.
The finding of professional misconduct means that it is open to the Tribunal to suspend, or cancel, RN Stratten's registration. Such an order may be appropriate in cases of serious misconduct, as well as cases where a practitioner is considered not fit to practice: Health Care Complaints Commission v Do [2014] NSWCA 307. However that finding does not mandate the making of such an order: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. Any protective order made by the Tribunal must reflect the protective purpose, including denunciation of the conduct and the maintenance of proper professional standards. As held by Basten JA in Prakash, no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order.
In exercising the power to make disciplinary orders, the protection of the health and safety of the public must be the paramount consideration; and any orders must be proportionate, taking into account the public interest, and individualised, taking into account the actual person on whom disciplinary orders are imposed: Health Care Complaints Commission v Lord [2019] NSWCATOD 182 at [51].
RN Stratten was not alone in failing to provide the nursing care to which Patient A was entitled. It is the task of the coronial process which is yet to occur to determine responsibility for his death, not that of the Tribunal. The task of the Tribunal is to determine what protective order adequately denounces RN Stratten's conduct, signals to the profession that it was unacceptable, and promotes public confidence in the maintenance of professional standards.
In the significant period of time which has passed since 6 December 2017 RN Stratten has taken steps to ensure that her misconduct is not repeated. She has the strong support of her employer of the past four years, and is considered to be a safe and competent practitioner and valued employee. In the Tribunal's view there is no need for any specific deterrence. The public nature of disciplinary proceedings over an extended period has itself had a denunciatory effect. The Tribunal considers that while her misconduct was extremely serious, to cancel RN Stratten's registration and take her out of the profession for a significant period would not serve the protective purpose. While not diminishing the objective seriousness of the misconduct, the Tribunal is satisfied that to reprimand RN Stratten and impose a short period of suspension of three months would sufficiently denounce her conduct and signal to the profession, and the public, its unacceptability.
[7]
Costs
The HCCC seeks an order that RN Stratten pay its costs, acknowledging that the costs of preparing for and attending the five day hearing in May 2022 will be apportioned between the five RN matters. The HCCC submits that all four particulars of Complaint One were found proven in substance, and both complaints of unsatisfactory professional conduct and professional misconduct were proven.
RN Stratten accepted that costs should follow the event.
The Tribunal's power to make an order for costs is conferred by cl13 Sch 5D of the National Law. As a general rule, costs of the proceedings should follow the event unless there is a justifiable reason for departing from that rule: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. The particulars of the complaint were proven, and findings of unsatisfactory professional conduct and professional misconduct were made. There was no disentitling conduct in the way in which the HCCC pursued the proceedings. An order for costs should be made.
[8]
Orders
1. The respondent is reprimanded, pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW).
2. The respondent's registration is suspended for a period of three months from the date of these orders, pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW).
3. The respondent is to pay the costs of the Health Care Complaints Commission, as agreed or assessed.
[9]
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: 14 March 2023