Health Care Complaints Commission v Tripodis [2018] NSWCATOD 12 | Case summary

NCAT Occupational|2017-11-23

Introduction

These proceedings arise after complaints brought by the Complainant/Applicant, the Health Care Complaints Commission (HCCC) against the Respondent, Vicky Tripodis alleging unsatisfactory professional conduct and professional misconduct as defined in the Health Practitioner Regulation National Law (NSW) ("The National Law"). The allegations arise out of the death in custody of Patient A and allege inter alia misconduct on the part of the Respondent in the treatment of Patient A while in custody.
The proceedings are constituted by a complaint which is set out below. We have appended within the document the response of the Respondent as a means of clarifying the areas of controversy to be determined by the Tribunal.

BACKGROUND TO COMPLAINT ONE At all times relevant to the complaint the practitioner was employed as a Registered Nurse at Justice Health and Forensic Mental Health Network at Long Bay Correctional Complex in NSW. The practitioner was rostered to work the night shift between 7pm on 5 February 2015 and 7am on 6 February 2015 in the Medical Subacute Unit (MSU) in Long Bay Hospital. Patient A was 61 years of age. He had tracheal cancer and had undergone a laryngectomy on 4 December 2014 at Prince of Wales Hospital. He required a stoma and tracheostomy tube.

PARTICULARS OF COMPLAINT ONE 1. Between 8:40pm on 5 February 2015 and 6:35am on 6 February 2015 the practitioner failed to provide appropriate care for Patient A in that she did not perform a full set of observations including: 1. Monitoring temperature; 2. Blood pressure; 3. Respiration; and 4. Oxygen concentration. This is not admitted by the Respondent 1. Between 8:40pm on 5 February 2015 and 6:35am on 6 February 2015 the practitioner failed to undertake two hourly visual observations of Patient A including assessment of airway and breathing status. This is not admitted by the Respondent on the basis that two hourly visual observations of patient A were not a requirement 1. At approximately 8:40pm on 5 February 2017 the practitioner failed to provide appropriate care to Patient A in that she advised him to "knock up" if he needed assistance during the night in circumstances where she failed to perform any observations during her shift. This is not admitted on the basis that Patient A was assessed by the treating team to be suitable to use the "knock up system" during the night shift 1. At approximately 12:00am and 4:00am on 6 February 2015 the practitioner failed to provide adequate care to Patient A in that she did not supervise or confirm Patient A's self-administration of nebulised saline in circumstances where she should have visually and verbally checked with Patient A to determine if he required assistance. This is not admitted on the basis that the Respondent was self-administering his saline nebulisers 1. On 6 February 2015 the practitioner failed to make appropriate records in Patient A's clinical notes and medication chart including 1. The reason for not administering the nebulised saline at approximately 12:00am and 4:00am; and 2. The reason for administering 10mg of diazepam at 8:00pm. The Respondent admits that in respect of 5a she failed to note on the medication chart that Patient A was self-administering the saline nebulisers during the night shift and in respect of 5b the Respondent stated that the patient was administered Diazepam as a regular medication at night. 1. By her conduct set out in particulars one to five above failed to comply with the NSW policy directive "recognition and management of patients who are clinically deteriorating" This is not admitted by the Respondent

BACKGROUND TO COMPLAINT TWO

The Respondent is guilty of professional misconduct under Section 139E of the National law in that the practitioner has 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration, or 2. engaged in more than one instance of unsatisfactory professional conduct that when the instances are considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.

PARTICULARS OF COMPLAINT TWO Complaint one and the particulars to Complaint One are repeated and relied upon both individually and cumulatively. The respondent denies this complaint in its entirety

The issue in the proceedings concerns what occurred in the prison hospital on 5 February or 6 February 2015. The patient known as Patient A was a vulnerable patient. He was aged 61 at the time of his death. At the time of Patient A's death he was a patient in the Medical Subacute Unit (MSU) at the prison complex. As early as 7 October 2014 Patient A was admitted to the MSU with a background of laryngeal cancer, a left knee amputation undertaken in 1990 after a gunshot wound, chronic lower back pain, gastroesophageal reflux disease, hypertension and he had a minor cardiac infarction in 2014. Patient A had a history of being abusive to staff and noncompliance with medical treatment. Patient A was wheelchair bound. On 3 December 2014 Patient A underwent a total laryngectomy where it was common ground in the proceedings that Patient A was unable to verbally express himself as a result of his stoma and tracheostomy tube and refused to communicate with staff in writing. Patient A's bed had been removed from his cell in the MSU as he would hide behind it, and would move his mattress into a corner of his cell so that often he could not be seen from the glass panel in the cell door. He also often covered his night light.
Shortly prior to Patient A's death he had been admitted to the emergency department at Prince of Wales Hospital on 4 separate occasions. On 3 February 2015, Chief Medical Officer Dr Spasojevic in the MSU observed that Patient A had difficulty breathing, stoma obstruction and cellulitis and at 8:50am was referred to the emergency department at Prince of Wales Hospital by ambulance with her noting that Patient A had agreed to go. At hospital Patient A refused oxygen therapy.
On 4 February 2015, the records of Dr Spasojevic record that Patient A was complaining of some bleeding from the stoma site. It was noted that Patient A had queried if there has been further growth of the tumour. The plan then for Patient A was to continue four hourly nebulisers, emergency department review if there was an increase in shortness of breath and ear, nose and throat review booked for 20 February 2015.
At the time of Patient A's death the Respondent was working the night shift from 7:00pm on 5 February 2015 to 7:00am on 6 February 2015 in the MSU together with an assistant nurse. Seventeen patients were in the MSU at the time. During the course of the Respondent's shift on the night of Patient A's death she gave Patient A his medication at 8:40pm and did not attend to him further including failing to observe him visually until a Corrective Services Officer notified her at around 6:30am the following day that she needed to look at Patient A as he was not responding. The Respondent attended to Patient A and found him sitting by the door in a slumped position not answering, cold to the touch, not breathing, no pulse and rigor mortis had set in.
The Respondent's note at 6:00am on 6 February 2015 advised that Patient A had been given his medications at 8:40pm and was also given his nebules including additional nebules for him to use during the course of the night.

THE STATUTORY MATRIX

Relevantly, Sections 139B (part only) and 139E of the National Law are in the following terms Meaning of "unsatisfactory professional conduct" of Registered Health Practitioner generally [NSW]: 139B meaning of "unsatisfactory conduct of Registered Practitioner" is: 1. Unsatisfactory professional conduct of a Registered Health Practitioner includes each of the following: 1. Conduct that demonstrates that the knowledge, skill or judgment possessed or care exercised by the practitioner in the practice of the practitioners profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and 2. Any other improper or unethical conduct relating to the practice or purported practice of the practitioners profession. 139 meaning of "professional misconduct" (NSW) For the purposes of this law "professional misconduct" of a Registered Health Practitioner means: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration; or 2. 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 practitioners registration.

THE STANDARD OF PROOF

Before commencing our examination of the evidence given in the proceedings it is appropriate to set out the relevant principles which will govern our determination of the factual issues.
It is generally accepted that we are required to be "comfortably satisfied" that the matters in the complaints have been established on the balance of probabilities. A well-known principle established in Briginshaw v Briginshaw [1938] HCA34; 1983] 60 CLR 336.
Briginshaw involved a consideration of the proof of adultery in family law proceedings. We find the following observation of Dickson J at [368]-[369] of assistance albeit that it applied to considerations of adultery: "Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survives a careful scrutiny and appear precise and not loose and inexact. Further circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests satisfy the tribunal of fact that the adultery alleged was committed it should so find.
We shall approach the determination of whether the respondent is guilty of unsatisfactory professional conduct or professional misconduct in the manner which she conducted herself on the night of the 5th/6th February 2015 and the attention she provided to Patient A.

Preliminary Issue

A preliminary issue was raised in that the Applicant had decided that it would not be relying on the evidence of the Expert Ms Roumieh despite having provided to the Tribunal and the Respondent an Expert Report dated 3 March 2016 and a supplementary report dated 6 April 2016, on the grounds that there was a conflict of interest which had emerged between the Expert and the Respondent. The Applicant informed the Tribunal that the Expert had worked in the same environment as the Respondent, had supervised her and had been involved in various assessments of her. The Tribunal heard from the Respondent that she had never met or had any contact with the Expert and that she had never worked in the Long Bay Prison Clinics. Both the Expert and the Respondent gave evidence. In the course of the evidence given by the Expert, the Expert stated that she had made a mistake and had confused the Respondent with another nurse.
The Applicant submitted, with which the Tribunal agreed, that there was no obligation on the Applicant to call the Expert but the Tribunal took the view that it was important for it to hear the evidence of the expert and required the calling of the Expert Witness so that her evidence was before the Tribunal and to enable her to be cross-examined.
In support of the Tribunal's position, the Tribunal was referred to the matter of Smith v Fraser [2014] NSWCATOD 29 at [237]-[238] and s 38 of the Civil and Administrative Tribunal Act 2013.

Issues for determination

The issues for determination therefore are whether the Respondent failed to provide appropriate care for Patient A between 8:40pm on 5 February 2015 and 6:35am on 6 February 2015, in that she: 1. failed to undertake two hourly visual observations of Patient A including assessment of airways and breathing status; 2. advised Patient A to "knock up" if he needed assistance; 3. did no supervise or confirm Patient A's self-administration of nebulised saline; and 4. failed to comply with the NSW Policy Direction of "recognition and management of patients who are clinically deteriorating".
The Respondent admitted that she did not make appropriate records of the reason for not administering the nebulised saline at 12:00am and 4:00am (particular 5a) and stated that the patient was administered diazepam as a regular medication at night (particular 5b).

Evidence of the Applicant

The Tribunal had available to it the documents filed by the Applicant being Volumes 1 and 2 of the documents served by the HCCC, the documents served by the Respondent, and the documents in reply served by the HCCC. The Tribunal heard the evidence of the Expert witness Ms Roumieh. At the commencement of the Expert's evidence, various questions were raised with the Expert in regard to her report and her supplementary report. The questions went to the finding by the Expert that the conduct of the Respondent was significantly below the standard reasonably expected of a Registered Nurse of the Respondent's level and experience but at the same time determined that she was not strongly critical of the departure of the standard. This was contained in a general statement in her first Expert Report (tab 7) and stated specifically in respect of various issues in the matter in her Supplementary Report (tab 10).
In essence in explaining the position which she adopted in her Expert Reports she stated that having worked in the prison, not hospital but in the clinics, she knows that the patients can be very aggressive and difficult and therefore knowing the environment she is not very critical. She was asked whether there is a different standard to be applied for a prison hospital to any other hospital. She responded that a hospital is a hospital but you do need to take into account the culture and the patients. She stated that it takes a very individual nurse to cope.
She did say however, that in her view Patient A should have been observed every four hours and had vital signs done every four hours and that he should have been observed through the window on an hourly basis which would have enabled the Respondent to determine if there was any deterioration in the patient's condition.
When questioned by the Applicant, she was asked whether having said that it fell significantly below the standard expected she should have determined that it invited her strong criticism. After some questioning, the Expert stated that she thinks that in the circumstances she should have been critical. Ultimately the Expert was asked whether she resiled from the statement she had made in her reports. She responded that as an Expert Witness she would have to stand by what she had written but she does believe that she fell significantly below the standard.
As to whether that was influenced by the culture, she responded that it was influenced not only by the culture but by the patient himself and how difficult he was.
Ultimately she stated that in all the circumstances she is strongly critical.
That concluded the evidence of Ms Roumieh.
The Tribunal then heard evidence from Ms Rebecca Middleton whose Expert Report was contained at tab 4 of volume 1 of 2 of the Applicant's documents. The Applicant asked her to confirm her Expert Report provided to the Tribunal which she did and was then cross-examined.
In her Expert Report she had concluded that based on the patient file for Patient A the condition of his health and the relevant policy he should have been observed or checked during the night shift from 5 to 6 February 2015, that he should have been observed to determine his airway status and the management required, initially at the start of the shift and then at regular intervals throughout the shift. Based on the policy and clinical responsibility outlined in the code of professional conduct for nurses to monitor and observe patient's within one's care, the conduct by the Respondent fell significantly below the standard and she was strongly critical of the conduct.
In respect of the adequacy of the observations that the Respondent performed on Patient A with reference to the frequency of those observations and the fact that no observations were done between 8:40pm on the night of the 5th February 2015 and 6:30am on the morning of the 6th February 2015 fell significantly below the standard expected and invites her strong criticism.
In respect of the Respondent's conduct in providing Patient A at 8:40pm on the 5th February 2015 with his normal saline for his nebulisers which he would usually self-administer during the night, the Expert stated that she expected more clear and accurate recording of the nebulisers being administered.
In respect of the other medication which should have been provided to Patient A, if any, after seeing the patient at around 8:40pm on the 5th February 2015 the Expert indicated that she should have ensured that the Chlorsig ointment was applied four hourly to his stoma. The failure to do so fell significantly below what is expected and invited her strong criticism.
In respect of the Respondent's admitted failure to attend rounds during a night shift on the 5th/6th February the Expert opined that the failure to attend rounds during the night shift on 5th/6th February remains unchanged in that it was significantly below the standard expected and invited her strong criticism.
In respect of her advising Patient A that he should "knock up" if he needed any assistance during the night in circumstances where Patient A had difficulty communicating due to his laryngectomy, the Expert opined that that advice was significantly below the expected minimum standard of care and was strongly criticised by her.
In general the Expert was asked to opine on whether the level of care provided by the Respondent to Patient A was clinically appropriate given the known difficulties Patient A experienced in maintaining his airway the Expert opined that she would have expected the Respondent to perform second hourly visual observations and a minimum of one set of full observations within her shift. She would expect her to be cognisant of Patient A's potential for airway obstruction or difficulty and ensure that she checked him at regular intervals. She stated that the level of care provided by the Respondent to Patient A fell significantly below the standard and she was strongly critical of the conduct.
On cross-examination the thrust of the cross-examination centred on the fact that there was a document signed by a doctor - a discharge document - indicating that he was medically discharged on the 6th January 2015 and that the doctor had not changed that situation in the interim and prior to the death of Patient A. She was asked whether that would change her view. She indicated that would not change her view as the patient was supposed to be on four hourly observations or at least visual observations in between but not to be left unseen for 10 hours.
She was asked whether she would agree that the doctor was entitled to discharge Patient A to which she stated that she agreed but that did not detract from the obligation to conduct observations while Patient A was under the care of the MSU. She was asked whether she accepted that Patient A was only on daily observations, and although she agreed with that she stated that that would be dependent on Patient A's condition.
The Expert was referred to the fact that there was no order for a midnight and 4:00am administration by the nurse of the medication and that there was an indication that it was to be self-administered. It was also put to the Expert that the doctor did not provide four hourly administrations of medication or observations. The Expert stated that that may well have been the case one month earlier but Patient A had had several later admissions to the Prince of Wales Hospital which would clinically have necessitated four hourly observations.
That concluded the evidence of the Expert Ms Middleton and the Applicant closed its case.

EVIDENCE OF THE RESPONDENT

The Respondent called the witness Fiona Wright, the acting nursing manager at the MSU when Patient A was there. She was asked what "sub-acute" means to her. She indicated that there is no actual acute care provided at the Long Bay Prison Hospital. They provide antibiotics but the patient is locked up for large periods of time. If the patient becomes acute the patient will be transferred to the Prince of Wales Hospital and then when they return to being sub-acute they are returned to the MSU until transfer to their prison. She indicated that there is no annex for the prison patients at the Prince of Wales Hospital but if necessary they can be in the wards.
She was asked whether she was aware that Patient A was sent to Prince of Wales Hospital on four occasions in the period before Patient A's death. She indicated that she was aware but on two occasions he had refused treatment. She also indicated that Patient A had been medically discharged and it then became up to Corrective Services to move Patient A in their own time. If a patient was critical they would put the patient into an observation cell. Otherwise the patient self-administers their medication as they would have to do when they return to the prison.
In respect of observations, she stated that procedures have changed since Patient A's death. Prior thereto, unless the doctor had said hourly timed observations, they would have daily observations. Now the patients' are having hourly observations, unless the doctor stipulates otherwise.
In respect of Patient A's condition, she indicated that in spite of his four visits to the Prince of Wales Hospital, his position had not deteriorated, that the "knock up" system had been used by him before, and if he used it, they would have gone to him immediately.
In response to a question regarding the Respondent's performance as a nurse, the Witness stated that her work ethic could not be faulted. She had had a complaint about performance some time before, and was moved away, but was returned to MSU ward a year before Patient A's death.
On cross-examination, the Witness was questioned on the fact that Patient A had on occasions used a torch to bang on the wall. She indicated that he did have a button, but that sometimes he would bang on the wall with a torch.
Questions were put to the Witness as to whether, despite his medical discharge, Patient A was a patient on the ward. The Witness confirmed that he was a patient on the ward, that he was a vulnerable patient, that he was requiring medical treatment at the time of his death, and that he was getting treatment. She also confirmed that he had a history of not dealing with his self-treatment. It was put to the Witness that with the whole history and the patient's condition, the nursing staff should have provided necessary care. The Witness agreed with that proposition, but stated that Patient A had been discharged, and the nursing staff cannot be expected to go in all the time.
The question turned to the psychiatric report of Dr Simonelli in which he stated that he couldn't determine Patient A's psychiatric position, as there was such a problem with communication.
That concluded the evidence of Ms Wright.
The Respondent called Ms Dimity Bannon.
The Witness stated that she was aware that Patient A had been medically discharged. That meant that his condition was stable, and he was able to deal with his own needs.
The Witness was asked to confirm the evidence contained in tab 5 of the Respondent's documents, which she did. She confirmed that access to patients by nurses is only for essential services, and then they are required to be done with two Corrective Services officers being present.
She stated that there was no policy for hourly rounds at that time and in fact, rounds were realistically "cursory looks", that it was more in the nature of a head check to see if the patients are in bed, on the toilet etc. She also stated that it can be difficult to get a second officer on a regular basis at night.
That ended the evidence of the Witness, and the Witness was released.
The Respondent called Dr Spesojovic.
She stated that medical policy at Long Bay is to discharge patients when they no longer require medical treatment. Then it is up to Corrective Services as to when they collect them. Patient A was medically discharged on the 6th January 2015. The doctor confirmed that the patients are still in the MSU after discharge and that they are sent to the Prince of Wales Hospital if they require serious attention or if it is not serious but requires attention they can be moved to an observation cell closer to the nurse. The doctor was asked whether on the day on which Patient A died the doctor regarded Patient A as "ok".
The doctor stated that he was ok. He was difficult and noncompliant with his stoma care. He was smoking through his stoma and was scratching his stoma. He was even given a mirror to assist with him keeping his stoma clean, which is unusual. The doctor confirmed that he was charted to receive the nebulised saline six times per day and that he was self-medicating.
The doctor was asked whether she would have expected the Respondent to wake Patient A at 12am and 4am to ensure that application of the nebulizer had been used. The doctor indicated that she would not expect him to be woken if he was asleep. She stated that in her view Patient A did not need anything more than the daily observations and that he was well able to use the knock-up system. She indicated that he could have been moved back to the prison at any time.
On cross-examination the doctor was questioned about the infection and cellulitis to his stoma. The doctor indicated that it was not an infection but she did confirm that she had increased his antibiotic medication. She also confirmed that there was an email from the Prince of Wales Hospital regarding a treatment plan on the 22nd of December 2014 for four hourly cleaning. In respect of his discharge from the Prince of Wales Hospital on the 21st December 2014 it was recorded that he was not able to eat for four weeks which would have taken him to around the 11th January 2015. It was put to the doctor that she discharged Patient A on the 6th January 2015, despite the fact that the Prince of Wales discharge said he should not be eating until 11th January 2015. The doctor stated that in fact, they had found food in his cell, he was smoking through his stoma and on the 6th January 2015 he had been eating for a week. His stoma was improving.
Cross-examination centred on the fact that despite the patient being difficult and noncompliant he still needed medical care on the 6th January 2015. The doctor did not agree and stated that a community nurse could have provided him with the assistance he needed despite the fact that he was on multiple medications for pain including OxyContin. The doctor maintained the position that he was medically discharged and was waiting for a bed in the prison. Despite the fact that he was getting medical treatment from the MSU he did not have a chronic infection but he was smoking and scratching his stoma. The doctor did however concede that that was irrelevant as the fact was that he had a serious infection. The doctor confirmed that there was a risk of airway obstruction and was asked whether that indicated that he should have been regularly (two hourly observed for that risk). The doctor did not agree with that, she stated that he had a mild cellulitis and even patients with that risk can be at home.
She stated that even in the event of a significant airway obstruction he would have been able to "knock up" but conceded that if he had passed out that would not have been possible.
She was asked whether she was aware of the cause of death and confirmed that the cause of death was pulmonary embolus which is an unexpected higher risk in cancer patients.
That concluded the evidence of the doctor and the doctor was released.
The Respondent was sworn and gave evidence. She confirmed her statement contained in her documents at Tab 1 and on cross-examination confirmed that Patient A was one of her patients. She confirmed that Patient A was a vulnerable patient but was not critical. He was a difficult patient and had his bed removed because he used to hide and smoke behind the bed. He had a mattress on the floor but often hid behind that mattress. He was a large person but couldn't always be seen.
The Respondent was asked to confirm that she did not see him after 8:40pm on the night before he died. She indicated that she had not seen him, that she should have and that she was sorry. In the documents at page 1-6 of the hospital notes the Respondent confirmed that she saw him nonresponsive and slumped and confirmed that that was only when she had been called to look at Patient A. She explained that she had a dying patient and that they were busy with the dying patient. However it was pointed out to her that there was nowhere an indication that she was too busy or understaffed with which she agreed. When asked whether she relies on the discharge form to change her obligations of treatment for Patient A, she stated that she did not rely on the discharge and that her decision not to observe him through the night was that his vital signs were ok at 8:40pm and that he looked ok. She said that she did see him at 8:40pm that he seemed ok and in her clinical judgment he didn't need to be observed throughout the night. In retrospect she stated that she should have observed him through the door but in response to a question as to whether she should have gone in hourly if she couldn't see him she stated that she could not have gotten a security officer every hour.
It was put to her that because he was so difficult she just gave up on him. She denied that she gave up on him and that had she gone in every couple of hours Patient A would have gotten very irate and difficult.
The Respondent confirmed that she was aware that Patient A was noncompliant but that did not absolve her duty of care. Clinically she stated that it was not indicated for her to go in regularly. In regard to the fact that she failed to go in at 12:00am and 4:00am to check that he was using the nebuliser she indicated that she would not have woken him but it was put to her that she did not even check to see if he was sleeping or awake and she agreed.
In regard to what the Respondent has learned from what has occurred with Patient A she stated that she is aware that she had made mistakes. She thought at the time that what she did was ok. She did not document the medical notes as well as she should have and looking back on that she however did not think that she did anything wrong. She stated that she would have done everything differently, that she's not a bad nurse, that this has affected her very badly mentally and financially and that she would have done observations. She denied that she was guilty of unsatisfactory professional conduct or that her actions on that night put Patient A at risk. She stated that she no longer does night shifts, that she would do visual observations and that she would do everything by the book not because she has had a problem but as a nurse she believes that she should.
The Tribunal referred to the fact that the doctor's notes speak of shortage of breath and the Respondent was asked whether that indicated that he had a problem. The Respondent agreed that that was so.
That concluded the evidence of the Respondent and the Respondent closed its case.

Applicant's Submissions

As referred to earlier the Applicant did not wish to call the evidence of the Expert Ms Roumieh on the grounds of a perceived conflict. The Tribunal determined that it wished to hear the evidence of Ms Roumieh and accordingly the witness was called. The Applicant submitted that in the circumstances the witness was the Tribunal's witness and submitted that Ms Roumieh was not an impartial witness and was not objective in relation to her evidence. Further, there was foundation to the Commission's application not to rely on Ms Roumieh as an Expert as evidenced by conflicting evidence both in relation to her prior relationship with the Respondent as well as conclusions contained in her reports. Accordingly, the Commission submitted that the Tribunal should place no weight on Ms Roumieh's evidence in the proceedings as originally sought by the Commission at the outset of the hearing.
The Applicant submitted that the evidence and opinion of the Expert Witness Ms Middleton was to the following effect: 1. Based on the patient file for Patient A the condition of his health and relevant policy, the Expert concluded that a full set of observations at least every 8 hours according to policy with arguably 2 sets of full observations during her 12 hour shift should have been done. It was noted that Patient A had been admitted to POWH 4 times within the 10 days prior to his death on 27 January 2015, 30 January 2015, 31 January 2015 and 3 February 2015 due to shortness of breath, partial airway obstruction and cellulitis to the stoma site. The Expert concluded that Patient A was not someone who could be left without any observation. Accordingly the conduct by the Respondent was held by the Expert to fall significantly below the standard and she was strongly critical of the conduct. 2. In relation to the adequacy of the observations that the Respondent performed on Patient A with reference to the frequency of those observations the expert concluded that the Respondent did not perform any observations on Patient A and that this was inadequate and poor practice. She concluded that the absence of observations falls significantly below the standard expected and invited her strong criticism. 3. In relation to Patient A requiring 4 hourly nebulised saline with the medication chart recording that he was last administered this at 20:00 on 5 February 201 5 and there was no record that he was administered it at 00:00 or 04:00 on 6 February 2015, the Expert found that the Respondent's conduct in relation to the nebulised saline for Patient A was "unacceptable". Patient A had recurrent partial airway obstruction due to mucus plugs and scabbing. He had cellulitis around the stoma that was being treated with antibiotics. At a minimum the Respondent should have visually and verbally checked with Patient A to determine if he was actually self-administering his nebuliser at those times and asked if he needed assistance. She could then have assessed his airway, breathing, and comfort level. It was noted by the expert that when medicine is not administered the reason for not administering must be recorded. The Expert found the Respondent's conduct fell significantly below the required minimum standard and she was strongly critical of the conduct. 4. In relation to the Respondent's conduct in providing Patient A at 8:40pm on 5 February 2015 "with his normal saline for his nebulisers which he would usually self-administer during the night", the Expert concluded She would expect more clear and accurate recording of how the nebulisers were administered and recorded that Patient A was self-administering. 5. In relation to the last medications recorded as being given to Patient at 8:00pm on 5 February 2015, and the medications other than saline that should have been given to Patient A prior to him being checked at 06:40am, the Expert observed that Chlorsig, an antibiotic ointment, should have been continued at 00:00 and 04:00 hours as prescribed. It was observed by the Expert that this was not done by the Respondent. It was also observed that Patient A had been prescribed PRN Oxycontin 5mg, Panadeine X 2 and Diazepam 5-10mg. He was administered 10mg Diazepam at 8:00pm but there was no documentation in his progress notes to state why he was given it at this time as required by PRN administration. There is no documentation in the notes regarding Patient A's pain level, or need for Oxycontin. In recent days, it was noted in the progress notes that Patient A had pain and required Oxycontin. In relation to the Respondent's failure to administer the medications to Patient A and expressly in relation to Chlorsig the Expert concluded that the conduct fell significantly below what is expected and this invited her strong criticism. 6. In relation to the Respondent's admitted failure to attend rounds during the night shift on 5 to 6 February 2015, the Expert concluded that this was very poor and dangerous practice'. Further during a night shift, rounds every 2 hours are appropriate so that less disturbance to patients occurs. The Expert concluded that the Respondent not performing any rounds at all after 20:40 hours (or soon after) to be very poor practice and significantly below the standard expected of a RN of her experience and she was strongly critical of this conduct. 7. In relation to the Respondent's failure to attend rounds during the night shift and whether the Expert's opinion was altered in any way by the fact that Patient A was not in a safe or observation cell, was essentially self-caring, would regularly refuse treatment and would exhibit aggressive behaviour, the Expert concluded that her opinion was unchanged. 8. In relation to the Respondent's conduct in advising Patient A to "Knock up" if he needed any assistance during the night in circumstances where Patient A had difficulty communicating due to his laryngectomy. she concluded ''Advising a patient with the challenges Patient A faced with his laryngectomy. cellulitis and reoccurring partial obstructions due to mucus plugs to "Knock up" is inappropriate when that is the only process for contacting the RN. lf this process was one that was commonly used and Patient A knew it could be appropriate to advise him to do it if there was anything he was concerned about in between RN rounds. However, telling him to do this and then leaving him all night is unsafe practice. In the progress notes dated 5 February 2015, Dr Simonelli reports "Tremendous communication difficulties" ... her care needed to be proactive, not reactive if and when Patient A "knocked up''. The Expert was of the view that this was significantly below the expected minimum standard of care and was strongly critical of the conduct. 9. In relation to whether the level of care provided by the Respondent to Patient A was clinically appropriate given the known difficulties Patient A experienced in maintaining his airways, the Expert observed that Patient A had had significant airway compromise 4 times requiring transfer to the emergency department within the past 10 days. He had cellulitis to his stoma and surrounding regions and was on oral antibiotics. He required 4 hourly nebulisers to ensure the stoma did not plug with mucus causing airway compromise Patient A was at risk of airway compromise and this required frequent monitoring and assessment to ensure his airway was patent and his breathing was not impaired in any way. The Expert concluded that the level of care provided by the Respondent to Patient A fell significantly below the standard she would expect and was strongly critical of the conduct.
The Commission submitted that Ms Middleton was an impressive witness. She made appropriate concessions but remained focused on a nurse's obligations to provide ··'safe and quality' treatment to patients.
It was apparent from Ms Middleton's evidence that she was significantly critical of the Respondent's conduct.
It was also apparent from Ms Middleton's evidence that, even as asserted by the Respondent that Patient A was to self-administer his saline nebules and Chlorsig ointment, this did not absolve the Respondent's duty to observe and ensure that Patient A did so at the relevant time of administration. The requirement for such observations shortly prior to Patient A's death were more prudent in circumstances where he had had a number of hospital admissions and a significant infection at his stoma site. There was also a significant risk of airway obstruction.
The Commission submitted that where the Respondent and Ms Middleton's evidence are in conflict, the Tribunal should prefer Ms Middleton's evidence.
The Applicant then turned to the Respondent's evidence and addressed the evidence as follows: 1. The Respondent made a number of significant concessions with the benefit of hindsight in relation to her conduct as the nurse-in-charge at the time of Patient A's death. 2. It was apparent from her evidence that she has had an opportunity to reflect on her prior conduct, including contemplating how she would do things differently now. 3. Although at times her concessions appeared to be more motivated by trying to say the right thing as opposed to a genuine belief that her care and treatment of Patient A should have been different and would be different in the future.
Further, like Dr Spasojevic, Ms Wright and Ms Brannon, the Respondent appeared more focussed on the limitations of the prison clinical environment and the nature of the patients being treated as opposed to being genuinely confident that her prior conduct would not happen again.
The Applicant submitted that the Respondent appeared in her evidence to significantly dislike Patient A, an opinion which appeared to be shared by Dr Spasojevic, Ms Wright and Ms Brannon. It was apparent from the Respondent's evidence that she viewed Patient A's treatment and care as a nuisance causing her to lose sight of Patient A's needs as a vulnerable, disabled and ill patient within the prison environment.
Relevantly, the Respondent conceded under cross-examination that the discharge of Patient A in and of itself did not change the standard of care that should be and was provided to him. She gave evidence that had Patient A been readmitted to the MSU this would have delayed his transfer to Junee Correctional Centre, as he would have effectively lost his place in the queue. The discharge appeared to be a procedural matter and bureaucratic requirement as opposed to having any genuine relevance to the level of care that was to be received by Patient A within the MSU at the time of his death. The Commission submitted that the Tribunal should place no weight on Patient A's discharge in such circumstances.
The Respondent conceded under cross-examination that her medical notes for Patient A at times were dismissive and at times reflected her frustrations with Patient A, including his limitation with communication and refusal to comply with medical treatment. With the benefit of hindsight, the Respondent gave medical evidence that she would have taken a more caring approach to Patient A's care generally and shown genuine concern for his medical treatment.
In respect of the evidence of Dr Spasojevic, whilst there was no formal witness statement provided by Dr Spasojevic in the proceedings, it was apparent from the medical notes for Patient A that Dr Spasojevic played a central role in his treatment as the Chief Medical Officer.
Dr Spasojevic gave evidence that she had discharged Patient A from the MSU and that he was awaiting transfer to Junee Correctional Centre, notwithstanding the deterioration in Patient A's health subsequent to his discharge on 6 January 2015.
It is apparent from the medical notes for Patient A that, notwithstanding such discharge, he continued to receive ongoing and significant medical treatment and care in the MSU, including, but not limited to, daily observations, the prescribing of medication, including in relation to his cellulitis shortly prior to his death, and the MSU arranging for Patient A to be transferred to the Emergency Department at Prince of Wales Hospital on 4 separate occasions in the lead up to his death.
Dr Spasojevic emphasised Patient A's need to self-administer his saline nebules. However, she conceded in response to a question by the Legal Member of the Tribunal, that she intended that nursing staff would observe the administration of the saline nebules but not wake Patient A from his sleep.
Dr Spasojevic did not deem it necessary to readmit Patient A to the MSU as a result of his 4 transfers by ambulance to the Emergency Department of the Prince of Wales Hospital and his infection at his stoma site.
It was apparent from Dr Spasojevic's evidence that, notwithstanding Patient A being discharged from the MSU and continuing to be a patient there, there was a real risk of airway obstruction.
In respect of the evidence of Ms Wright, the Commission relied in its evidence on a transcript of interview provided by Justice Health dated 14 May 2015 of Ms Wright.
Justice Health had undertaken its own investigation in relation to Patient A's death including interviewing Ms Wright and the Respondent prior to coming to its conclusions.
The Commission also relied in its evidence on the investigation report of Justice Health, which concluded as follows: 1. On the night of 5 February 2015 and the morning of 6 February 2015 the Respondent did not provide clinically appropriate care of Patient A; 2. The Respondent abandoned her duties as an RN as she did not observe Patient A from the hours of approximately 20.30 until 06.30 when she was alerted by a CSNSW officer that the patient was non-responsive; 3. In the Respondent's interview she stated that Patient A had been medically discharged from MSU. There is no documentation in the health records to support this statement. Patient A was being actively treated in MSU in collaboration with the ENT and Palliative Care Team from Prince of Wales Hospital.
The Commission submitted that the Tribunal should place no reliance on Ms Wright's evidence about Patient A being discharged from the MSU and, accordingly, there being no requirement to undertake observations more than once a day as Patient A was asserted to be responsible for his own care.
Even had Patient A been discharged on 6 January 2015, it is apparent from the evidence that shortly prior to his death he was transferred to the emergency department at Prince of Wales Hospital on 4 occasions, he had ongoing issues with pain management, was non-compliant with his medication, there were questions as to his capacity, with the Psychiatrist being unable to conduct a proper assessment in this regard, and Patient A had a significant infection at his stoma site requiring hospitalisation 2 days prior to his death and the increase of antibiotics prescribed for him.
Patient A's clinical records in this regard should prevail and the Respondent should not be permitted to absolve her responsibilities as a nurse in caring for Patient A at the time of his death as a result of a piece of paper which was not clinically appropriate at the time of his death.
The Respondent does not seek to assert in these proceedings that she was too busy due to the care of other patients or otherwise not to attend to Patient A during the course of the evening, nor does she seek to argue in these proceedings that there was not the availability of 2 Corrective Services' Officers to accompany her to observe and care for Patient A in accordance with prison policy.
In respect of the evidence of Ms Brannon, Ms Brannon provided a character reference in support of the Respondent in the proceedings. She works with the Respondent in the MSU. She emphasised in her evidence the limitations of the MSU in the prison environment and having to treat difficult patients.
It was apparent from Ms Brannon's evidence that she holds the Respondent in high regard as a nurse.
She too sought to absolve the Respondent's responsibilities in caring for Patient A at the time of his death as a result of the discharge dated 6 January 2015.
The Commission repeated its submissions above in relation to the discharge as outlined in relation to the evidence of Ms Wright.
The Applicant then submitted that the Tribunal can be reasonably satisfied that the particulars of the first and second Complaints have been established in light of the evidence and in accordance with the admissions made by the Respondent.
Section 139B(1)(I) of the National Law requires a determination by the Tribunal of whether the Respondent's conduct demonstrates improper of unethical conduct relating to the practice or purported practice of nursing and is therefore unsatisfactory professional conduct.
The National Law does not define the words "improper" and "unethical".
The Complainant relies on the expert evidence of Ms Middleton in relation to a finding that the Respondent is guilty of unsatisfactory professional conduct pursuant to section 139C(1)(a) and (I) as well as the evidence in the proceedings generally.
In determining whether a finding can be made of professional misconduct the Tribunal must determine whether, as outlined in HCCC v Perroux [2011] NSWDC 99 at [18], "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration".
The Respondent's conduct was of such a nature that the unsatisfactory professional conduct displayed by her is of a sufficient nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law.
Accordingly, on the above facts and in accordance with the Respondent's admissions in relation to her conduct generally, the Tribunal should find that the Respondent is guilty of professional misconduct pursuant to s139E of the National Law.
The Applicant sought orders as follows: 1. The Respondent be reprimanded; 2. The Respondent's registration be suspended for a period of 3 months; 3. The Respondent be subject to the following conditions: 1. The Respondent is to practice under the indirect or direct supervision of a registered nurse (Division 1) who does not have any conditions on his/her registration. The supervisor must be: 1. On-site and working in close proximity within a ward or unit with the registrant; and 2. Able to oversee and provide advice about the Respondent's practice when necessary. 1. The Respondent must: 1. Inform all current nursing employers of the conditions; and 2. Inform all future nursing employers of the conditions and provide the Nursing and Midwifery Council of New South Wales with the name and contact of each employer before commencing work as a registered nurse. 1. The Respondent must only be employed as a nurse in circumstances where the employer has agreed to notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice, and exchange information with the Council related to compliance with the conditions. 2. The Respondent must not: 1. Be the nurse in charge of any shift, ward or unit; 2. Have supervisory responsibilities for any other nurse; 3. Work as the sole practitioner on any shift, ward or unit. 1. The names and identified details of Patient A named in the schedule to the complaint be subject to a nonpublication order. 2. The review body be the NCAT. 3. The Respondent be ordered to pay the costs of the hearing.

The Submissions on Behalf of the Respondent

The Respondent made submissions in respect of the National Law and legal principles which matters are well known to the Tribunal.
In respect of the evidence of Dr Spasojevic, Dr Spasojevic gave evidence under a summons issued by the Tribunal at the request of the Respondent. Her evidence was that she signed a discharge form [Exhibit 3/Tab:6] on 6 January 2015 and Patient A remained discharged as at 5 February 2015 awaiting transfer to his gaol of origin. She also explained that the transfer process is conducted by Corrective Services (NSW) and it is not unusual for discharged patients to remain within the MSU while awaiting transfer.
Dr Spasojevic stated Patient A's condition was not acute, he had mild cellulitis for which he was ordered antibiotics, his cellulitis was caused by him picking at the stoma site and he was ordered saline nebulisers to be self-administered to moisten his stoma. He was mobile in his wheelchair, he would smoke cigarettes through his stoma [Exhibit 4/page107 and 109] and he was often non-compliant with his treatment.
During cross-examination, despite Counsel for the HCCC repeatedly suggesting Patient A's condition was acute and required naso-gastric feeding for up to three weeks after his admission back into the MSU in late December 2014, Dr Spasojevic was quite clear in her evidence that Patient A had not deteriorated. She told the Tribunal he had removed his naso-gastric tube on 24 December 2015 [Exhibit 4/page 94],he was observed eating on 23 December 2015 [Exhibit 4/page 93] and smoking by 30 December 2014 [Exhibit 4/page 107 and 109]. She also said if Patient A had not been in custody, he would have been discharged to his home with support from community nurses.
She explained that if the treating team was of a view that Patient A required more acute care he would have been admitted to Prince of Wales Hospital and then could have been readmitted back into the MSU. The Tribunal will note Patient A was transferred to the Emergency Department at Prince of Wales Hospital on four occasions for assessment, he was not admitted as submitted by Counsel for HCCC [Exhibit 4/page 224] but sent back to the MSU by the specialist treating team at Prince of Wales Hospital on the same day.
The general thrust of the HCCC's submissions are in stark conflict with the evidence of Dr Spasojevic who was Patient A's treating Doctor and was in the best position to provide the Tribunal with independent evidence of Patient A's condition prior to his death. Dr Spasojevic told the Tribunal that Patient A had not deteriorated and his death was sudden and unexpected. The autopsy report confirmed that he died from a pulmonary embolus. The HCCC's submissions clearly disregard the expert medical knowledge, professional opinion and independent evidence of Dr Spasojevic along with Professor Smee and his treating team at Prince of Wales Hospital.
Regarding the HCCC submission that Dr Spasojevic disliked Patient A, apart from there being no evidence to support this submission, it is highly offensive to suggest that Dr Spasojevic appeared to significantly dislike Patient A. The Tribunal will find that Dr Spasojevic was a truthful and informative witness.
In addressing the submissions of the Applicant, the Respondent submitted that, the HCCC submissions seek to misinterpret the evidence on several occasions, in particular the following paragraphs:
In response to paragraph 4. There is no evidence that Patient A had a tracheostomy tube while in the MSU. Dr Spasojevic's evidence was that he had a stoma.
In response to paragraphs 6 and 41. Patient A was transferred to the Emergency Department at Prince of Wales Hospital for assessment on 3 February 2015 at 0850, he was not admitted but returned to the MSU on the same day by 1200 [Exhibit 4/page 122]. It is incorrect to say that Patient A had a number of hospital admissions shortly prior to his death. On the four occasions Patient A was transferred to the Emergency Department at Prince of Wales Hospital, he was not admitted, he was medically assessed and returned to the MSU the same day [Exhibit 4/page 117 ,119, 120, 121 and 122] .
In response to paragraph 8. Dr Spasojevic's entry on 3 February 2015 states the ENT Registrar scoped Patient A [Exhibit 4/page 122]. The Tribunal will note Nurse Brannon's entry on 3 February 2015 at 1430 where she documented that she spoke with Paula Gunnar, CNC for Head and Neck regarding Patient A's stoma and confirms that Patient A had an endoscopy that showed the inner aspect of the trachea was clear and quite large but there was concern regarding further growth of the tumour.
In response to paragraph 39 and 84. The Tribunal will not accept the submission that the respondent sought to rely on a Patient Discharge signed by Dr Spasojevic on 6 January 2015 to justify her failings in providing adequate care to Patient A prior to his death. When Counsel for HCCC suggested this to the respondent during cross-examination, she denied it. The respondent made admissions to the HCCC [Exhibit 2/Vol 1/Tab 14/page 2] and this Tribunal regarding her failure to attend rounds during the night shift. At no time has the respondent tried to justify or absolve her responsibilities to care for Patient A or conduct rounds.
The respondent was entitled to rely on the discharge document in these proceedings given the HCCC's failure to make any inquiries regarding the discharge process within the MSU despite the respondent informing the internal investigators from Justice Health [Exhibit 2/Vol 1/Tab 21/page 5 at 5] and the Nursing and Midwifery Council and HCCC in 2015 about Patient A's discharge, providing the HCCC in 2016 with further information about the discharge form [Exhibit 2/Vol 1/tab 14/page 1] and serving the HCCC with a copy of the discharge form with her statement in 2017 [Exhibit 3 /Tab 6].
In response to paragraph 41 and 83. It is incorrect to say Patient A had significant infection. This submission ignores Dr Spasojevic's evidence that Patient A had mild cellulitis for which he was ordered antibiotics. The Tribunal will not accept the HCCC's interpretation of Patient A's condition based on Ms Middleton's assumption that Patient A had a significant infection over the independent expert medical opinion of Dr Spasojevic who was Patient A's treating Doctor.
In response to paragraph 42. The respondent submits that where Ms Middleton and Dr Spasojevic's evidence are in conflict, the Tribunal will prefer Dr Spasojevic's expert medical knowledge and her oral evidence as she was Patient A's treating Doctor.
In response to paragraph 59. The Tribunal will not accept the HCCC's highly offensive submissions that the respondent, Dr Spasojevic, Ms Wright and Ms Brannon appeared to significantly dislike Patient A. The Tribunal will not entertain this submission as it cannot be substantiated. At no time during cross-examination of these witnesses did the HCCC put to them that they disliked Patient A. The respondent's evidence was that she found Patient A to be challenging but had light banter with him at times. Ms Brannon's evidence was that she got on well with Patient A.
The Tribunal will note numerous entries throughout the clinical notes documenting the difficulties experienced by nursing and medical staff from the MSU and Prince of Wales Hospital in dealing with Patient A. He was often noncompliant with his treatment, at times aggressive and his overall behaviour is best summarised by Professor Smee in his letter to Justice Health on 5 February 2015, in particular when he stated: This patient does have a curable disease however the patient himself is not curable.
In response to paragraph 61.Whilst the respondent may have agreed in principle to this question that had Patient A been readmitted to the MSU this would have delayed his transfer to Junee, as he would have effectively lost his place in the queue, it cannot be inferred from the respondent's response to the above question that this is evidence that the discharge appeared to be a procedural matter and bureaucratic requirement as opposed to having any genuine relevance to the level of care that was to be received by Patient A within the MSU at the time of his death. There is no evidence to support such a submission and the submission disregards Dr Spasojevic's independent expert knowledge as Patient A's treating Doctor.
In response to Paragraph 39, 66, 82 and 104.There is no evidence to support the submission that Patient A's health had significantly deteriorated shortly prior to his death. Dr Spasojevic clearly stated under cross-examination by Counsel for the HCCC that Patient A had not deteriorated prior to his death. There is no evidence to support such a submission and the submission disregards Dr Spasojevic's independent expert knowledge as Patient A's treating Doctor.
In response to paragraph 67, the evidence of Dr Spasojevic and Fiona Wright was that daily observations were conducted on patients who were discharged from the MSU. It is submitted that prisoners do not have access to their medications, all medications are administered by nursing staff and all prisoners are entitled to access medical attention regardless of where they are located within the prison system.
In response to paragraph 79, in particular, paragraph [79] (iii). It is submitted that the HCCC made a serious error in relying on the investigation report of Justice Health, as follows: [I]n the respondent's interview she stated that Patient A had been medically discharged from the MSU. There is no documentation in the health records to support this statement.
The Tribunal will also note Ms Brannon's letter dated 13 March 2016 which was provided to the HCCC on 30 May 2016 [Exhibit 2/Vol 1/Tab 14B]. The MSU (medical sub-acute ward) is also a prison environment whereby security plays a very important role. In fact, the nursing staff have no access to the patients without two Corrective Services Officers being present. A key is required to open the patient's rooms and nursing staff are not provided with the key. The staffing establishment on night shift in the medical surgical unit for Corrective Services is 1(one) officer. Thus, anytime access to patients is required another officer from a different area is required.
In response to paragraph 89 and 90. Ms Brannon's evidence regarding the MSU was supported by the evidence of Dr Spasojevic and Fiona Wright. At no time during her evidence did she suggest the discharge of patient A absolved the respondent from her responsibilities.
The Respondent addressed the evidence of Fiona Wright and stated that: Fiona Wright, Nursing Unit Manager of the MSU, gave evidence before this Tribunal under a summons issued by the Tribunal at the request of the respondent. She stated the MSU operates quite differently to other NSW hospitals. There is no acute care delivered in the MSU as patients are locked behind doors over a 24 hour period. If a patient becomes acutely unwell they are transferred to Prince of Wales Hospital for assessment and either admitted or transferred back to MSU. Long Bay Hospital has an annex at Prince of Wales Hospital.
Ms Wright also said Patient A was a patient within a gaol environment, when he was discharged from the MSU. He remained in the MSU awaiting the Corrective Services (NSW) to arrange the transfer back to his gaol of origin. Patient A could have been transferred back to Junee at any time after he was discharged on 6 January 2015.Once Patient A was discharged, it was routine for him to be self-caring and his observations were conducted daily. He was mobile in his wheelchair and would smoke cigarettes through his stoma.
In her evidence-in-chief, Ms Wright stated that Patient A had the capacity to use the knock-up system which is like the call bell system used within a general hospital. She then explained when a prisoner presses the knock-up button a CSNSW Officer is alerted and if the prisoner requires a nurse the Officer will then inform the nurse in the MSU. If the CSNSW Officer does not respond the main security gate is alerted and they will follow up with the MSU.
Regarding the submission by the HCCC at paragraph 76. Ms Wright confirmed she is the respondent's appointed supervisor under the conditions imposed on the respondent's registration by the Nursing and Midwifery Council. As the respondent's supervisor, she was asked for her opinion regarding the respondent's clinical practice. Ms Wright stated she has no concerns regarding the respondent's work performance or her work ethic. The respondent agrees with the submission that in her role as the respondent's supervisor it was apparent from her evidence that she holds the respondent in high regard.
The Tribunal will disregard the HCCC's submission at paragraph 81. The Tribunal will find Ms Wright was a truthful witness, she was the Acting Nursing Unit Manager of the MSU in 2015 and she is currently the Nursing Unit Manager.
In respect of the evidence of Ms Brannon; Ms Brannon gave evidence under a summons issued by the Tribunal at the request of the respondent. Ms Brannon has worked in the MSU for the past 15 years. The Tribunal will find she was a truthful witness and her evidence regarding the MSU is supported by the evidence of Fiona Wright and Dr Spasojevic. In her oral evidence she stated Patient A had been discharged from the MSU awaiting transfer to Junee, his observations were attended daily and he was self-caring with his nebulisers. The Tribunal will note Ms Brannon's entry in the progress notes on 26 January 2015 at 14:30 [Exhibit 4/page 117].
In respect of the evidence of Ms Roumieh, the Respondent submitted that during cross-examination, Ms Roumieh stated that at the time she prepared her expert report for the HCCC and signed the undertaking on 3 March 2016 [Exhibit 1] she did so without bias. She then conceded under cross-examination that the disclosure she made to Counsel for the HCCC regarding her personal and professional relationship with the respondent between 2007-2010 was incorrect as she was referring to someone else and not the respondent.
During cross-examination by Counsel for the HCCC, Ms Roumieh was asked at least six times why she maintained her opinion that she was not critical of the respondent's conduct. Despite maintaining her opinion, she eventually agreed with Counsel for the HCCC and changed her opinion that she was strongly critical of the respondent's conduct.
The Tribunal should not accept the evidence given by Ms Roumieh under cross-examination by the HCCC as she appeared confused by the persistent repetitive questioning by Counsel for the HCCC. The Tribunal will note Ms Roumieh's report was prepared without bias and she has three years' experience working at Long Bay Health Clinic. It is a matter for the Tribunal as to the weight the Tribunal places on the written report.
In late submissions on the findings the Respondent's submitted that the issue to be considered by the Tribunal is firstly whether the conduct particularised in the complaint has been made out in point of fact. Then the Tribunal must evaluate whether, if established, the conduct amounts to unsatisfactory professional conduct within the meaning of the Act. HCCC v Waddell No2 [2013] NSWNMT 2 (27 March 2013) at 38.
In determining whether the admitted and proven conduct amounts to professional misconduct, the conduct must be of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration within the meaning of section 139E(a) or 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 (S139E(b).
In respect of protective orders the Respondent submitted that: 1. The Tribunal has a wide discretion and general powers under sections 149 and 149A (1) of the National Law to make any one or a range of protective orders upon finding the subject matter of a complaint has been proved: 1. caution or reprimand the practitioner; 2. impose the conditions it considers appropriate on the practitioner's registration; 3. order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); 4. order the practitioner to complete an educational course specified by the Tribunal; 5. order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; 6. order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. The Tribunal may also impose a fine under s 149B but only in the limited circumstances referred to in s 149B(2)(b). In addition, the Tribunal may suspend or cancel the practitioner's registration under s 149C (1).
The decision of the Medical Tribunal in HCCC v Dr Della Bruna [2014] NSWCATOD 31 at [88]-[91] sets out the applicable principles in determining protective orders: [88] In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006) NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission (2006) NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]. [89] Although the Tribunal has concluded that Dr Della Bruna's conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Health Care Complaints Commission v Karalasingham (2007) NSWCA 267 was a decision under· the Medical Practice Act 1992 (NSW) but the relevant provisions of that Act are substantially the same as the applicable provisions of the National Law and the Court of Appeal's reasoning is equally applicable to the present case. At [67] it was held: ...However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [which are substantially the same as ss 149 to 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C (1) of the National Law is to a similar effect]. Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2) [see s 1498 (2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case: see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ). [90] In Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3, the Medical Tribunal said at [200]: The authorities also clearly establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice: see Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 - 425 (Latham CJ, Dixon and Williams JJ (Rich and Starke JA dissenting)); The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported), (Kirby P, Mahoney and McHugh JJA). [91] This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practise - see Health Care Complaints Commission v King [2013] NSWMT 9 at [25]). The expression used by the High Court in Ex parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlies an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practise at the time of making the order and is likely to remain so for a significant period.
The HCCC submissions at paragraph 95 refer the Tribunal to a small extract from HCCC v Perroux [2011] NSWDC 99 at [18]. In my respectful submission, this extract refers specifically to the conduct of the respondent Perroux. and does not assist the Tribunal.
In HCCC v Perroux [2011] NSWDC 99 at [18]: [18] The issue is whether, when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration: s 37 Medical Practice Act 1992, s 139E Health Practitioner Regulation National Law (NSW). Characterisation is not to be determined by backward reasoning, first determining the appropriate outcome and then characterising the conduct based on the outcome. The definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in a particular case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at (67]. Whereas the characterisation of conduct depends upon the "seriousness" of the conduct, additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public: s 2A (3) of the Act.
As Basten JA observed in NSW Bar Association v Meakes [2006] NSWCA 340 at [113]: [113] Thus, No order should be made which has more serious consequences for the practitioner than is reasonably necessary to promote the protective purpose.
Regarding the protective orders proposed by the HCCC. The respondent agrees a reprimand will provide a deterrent, however, it is submitted that the proposed order that the respondent's registration be suspended for a period of 3 months would have more serious consequences for the respondent than is reasonably necessary to promote the protective purpose for the following reasons.
The respondent has remained employed by Justice Health since the incident on 6 February 2015.
The respondent has had conditions imposed on her registration by the Nursing and Midwifery Council, NSW (the Council) since August 2015, approximately two and a half years, and she has been compliant with those conditions.
Ms Fiona Wright, Nursing Unit Manager of the MSU, is the respondent's current appointed supervisor responsible for monitoring the conditions imposed by the Council. Ms Wright gave oral evidence regarding the respondent's current clinical practice; she told the Tribunal she has no concerns regarding the respondent's work performance or her work ethic.
The respondent has gained valuable insight from this incident and this is supported by Ms Wright's oral evidence in these proceedings. It is submitted the respondent does not pose a risk to public safety and it is not necessary to continue the current conditions imposed on her registration.
The Respondent submitted that appropriate protective orders would be: 1. The Respondent is reprimanded; 2. The Respondent is to have the following conditions placed on her registration. 1. The respondent is to provide the Nursing and Midwifery Council with the name and contact details of her current Nursing Unit Manager who will provide reports to Council on the respondent's clinical practice for a period of six months; and 1. The respondent to provide the Nursing Unit Manager with a copy of the conditions imposed on her registration; and 2. The respondent to provide the Council with a copy of the conditions signed by the respondent and the Nursing Unit Manager. 3. The Nursing Unit Manager to provide the Council with a report on the respondent's clinical practice for a period of six months, at three monthly intervals. 4. The Council is the appropriate review body of the conditions imposed when the respondent has a principal place of practice in NSW. 5. Sections 125 to 127 of the National Law are to apply should the respondent's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board.
In respect of costs the Respondent submitted that the Tribunal will consider the following matters in determining costs orders. 1. The respondent had previously made admissions to the HCCC regarding Particulars 2 and other concessions relating to the complaints before this Tribunal [Exhibit 2/Vol 1/Tab 16/page 1-3] 2. The respondent was not afforded procedural fairness by the HCCC in failing to make any inquiries in 2015 or at any other time leading up to these proceedings regarding the Discharge Form. The HCCC should have obtained statements from relevant witnesses, in particular Dr Spasojevic and Fiona Wright, the Nursing Unit Manager of the MSU, regarding the information provided by the respondent that Patient A had been discharged from the MSU on 6 January 2015 3. The respondent was placed in a position of accessing the Discharge Form from Patient A's electronic medical records to provide evidence to this Tribunal that Patient A had been discharged. 4. The respondent requested the Tribunal to issue a summons for Dr Spasojevic and Fiona Wright to give evidence in these proceedings following a request by the respondent to the HCCC to make these witnesses available for cross-examination. The HCCC declined to do so. 5. Despite the respondent's efforts to inform the HCCC of the probative evidence of Dr Spasojevic, the HCCC refused to acknowledge such evidence. 6. It is submitted that this matter may not have proceeded to the Tribunal or alternatively the proceedings may have been shortened had the HCCC made the relevant inquiries in 2015.
Based on the statutory provisions and legal principles to be applied in respect of costs applications in disciplinary proceedings, the respondent submits that an order be made that each party pay its own costs.

Applicant's submission in reply

In respect of the Respondent's submissions, the Applicant submitted that: 1. The Complainant relies on these submissions in reply to the submissions filed and served by the Respondent on 4 December 2017. 2. The Complainant relies on the written submissions filed by the Complainant on Wednesday, 29 November 2017, and served on the Respondent at that time and does not seek to repeat the submissions outlined therein, other than to address the further issues raised in the Respondent's written submissions in response. 3. In relation to the Respondent's submissions generally, the Complainant denies improperly cross-examining witnesses during the course of the proceedings, misconstruing the evidence, making submissions without the support of evidence to substantiate such submissions, not conducting the matter in an appropriate and timely manner, including by not calling witnesses in support of the Complainant's case, such as Dr Spasojevic and Ms Wright, not making proper investigations and making "highly offensive submissions" [Paragraph 24 of the Respondent's submissions] as submitted by the Respondent. 4. The Complainant submits that there is no foundation to the Respondent's criticisms of the Complainant. Further, there is no evidence to support the Respondent's proposition that the Complainant did not conduct the matter in an expeditious, just and reasonable manner. 5. Where the Respondent in her submissions seeks to draw a distinction between the MSU in the prison system and a hospital environment, the Complainant submits that the Respondent's reliance on there being different standards between a Medical Subacute Unit in a prison environment and that of a hospital is contrary to Marks J's decision in Health Care Complaints Commission v Simonson [2017] NSWCATOD 87 at [14] as follows: "Furthermore, the same general standards of conduct apply to practitioners in regional and rural areas as apply to practitioners in metropolitan areas. Obviously, inability to have ready access to sophisticated diagnostic equipment or specialist assistance will impact upon the way in which they practice medicine, but the underlying general standard remains the same. Indeed, it is sometimes said that practitioners in regional and rural areas are expected to be able to provide a greater range of medical knowledge and services because of limitations in ready access to specialist services and tertiary hospitals." 1. The Complainant submits that the distinction drawn in the matter of Simonson above in relation to regional versus city hospitals is similar to that in the current proceedings where the Respondent seeks to draw a distinction between a hospital environment within the prison system and that of hospitals generally. 2. In relation to the Respondent's reflection on her prior poor conduct the subject of the current proceedings, this should not influence the Tribunal's findings of unsatisfactory professional conduct and professional misconduct, in circumstances where the conduct must be assessed at the relevant time of such conduct. 3. In relation to paragraph 10 of the Respondent's submissions and the Respondent's reliance on Dr Spasojevic's evidence that "Patient A had not deteriorated", the Complainant submits that such evidence is contrary to Patient A's medical notes and the medical notes speak for themselves. 4. The Tribunal should not place any weight on Dr Spasojevic's evidence as relied upon by the Respondent that had Patient A not been in custody he would have been discharged to his home with support from community nurses. Patient A was in custody and admitted as a patient to the MSU at the relevant time and there was no prospect of him being released from gaol. Further, such evidence should be balanced against the correspondence sent to Dr Spasojevic from Patient A's Radiation Oncologist, Professor Smee, dated 5 February 201 5, advising as follows [Exhibit 4 page 225]: "I am certain as to [Patient A's] future, and which facility would accept him, given his absolute requirements for care and a predominantly non-participatory role in that care progamme."
ln relation to paragraph 11 of the Respondent's submissions, the Respondent seeks to place significant emphasis on the fact that Patient A was transferred to the Emergency Department at Prince of Wales Hospital on some 4 separate occasions shortly prior to his death and was not formally admitted as a patient to such hospital. Whether or not Patient A was admitted to Prince of Wales Hospital, the MSU deemed it appropriate on 4 separate occasions shortly prior to his death to transfer him by ambulance to the Emergency Department. The need for Patient A to be transferred to hospital by ambulance on 4 separate occasions is of relevance, not the nature of such admissions as relied upon the Respondent. The Complainant relies on such evidence in support of its submissions that it is apparent from the evidence that there was a deterioration in Patient A's medical condition prior to his death, contrary to the evidence of Dr Spasojevic.
Ms Middleton in her report dated 2 March 2017 [exhibit 4, page 225] notes that Patient A had been admitted to Prince of Wales Hospital 4 times within the 10 day prior to his death on 27 January 2015, 30 January 2015, 31 January 2015 and 3 February 2015. It is apparent from her evidence that she does not seek to draw a distinction between Patient A's admission to the Emergency Department at Prince of Wales Hospital as opposed to admission as a patient as sought by the Respondent in her submissions. Ms Middleton observes in her report that each presentation to the Emergency Department was due to shortness of breath, partial airway obstruction and cellulitis to the stoma site. Patient A was not someone who could be left without any observation. His potential for airway obstruction required regular checking of his ongoing airway maintenance.
The Complainant submits that Patient A's transfer to the Emergency Department at Prince of Wales Hospital from the MSU on 4 separate occasions in and of itself is relevant and that the Tribunal should place no weight on the Respondent's submission that "he was not admitted" as set out at paragraph 11 of the Respondent's submissions.
In relation to paragraph 13 of the Respondent's submissions, the Complainant submits that the Respondent's significant reliance on Dr Spasojevic's evidence that Patient A's health and medical conditions "had not deteriorated" and that his cause of death was "sudden and unexpected" and from a pulmonary embolism, needs to be balanced against the expert evidence of Ms Middleton and the extensive medical notes provided in the proceedings for Patient A. The Complainant takes issue with the Respondent's submission that the Complaint's submissions "clearly disregard the expert medical knowledge, professional opinion and independent evidence of Dr Spasojevic along with Professor Smee and his treating team at Prince of Wales Hospital". The Complainant relies on its prior submissions in the proceedings in relation to the limitations of such evidence and the weight that should be given to such evidence in the circumstances, particularly when the extensive medical notes of Patient A were admitted into evidence in the proceedings.
In relation to the Respondent's criticisms of the Complainant for raising the issue of the apparent dislike of Dr Spasojevic, the Respondent and the other witnesses of Patient A, the Complainant submits that such submission was made in the context of the difficulties of treating Patient A, who was an aggressive, non-cooperative patient who was non-compliant with treatment. Such issue was relied upon by the Respondent in relation to the limitations that she faced in treating Patient A. The Complainant did not seek to offend, as alleged by the Respondent, in observing the general dislike for Patient A and sought to raise such issue in the limited context of the Respondent's overall attitude in Patient A's medical notes towards Patient A, as conceded by her in crossexamination, and also the need for Patient A to remain a discharged patient to enable him to be transferred to another facility.
In relation to paragraphs 21 and 27 of the Respondent's submissions, the Complainant submits that the evidence of Patient A's infection and deterioration of his infection is reflected in the medical notes, with Dr Spasojevic herself on 3 February 2015 increasing Patient A's antibiotics and Patient A being transferred on the same day to the Emergency Department al Prince of Wales Hospital. There is no foundation to the Respondent's submission that Patient A "had mild cellulitis". Contrary to the Respondent's submissions and her criticisms of the Complainant's reliance on Ms Middleton's expert report and evidence, it was quite proper for the Complainant in the proceedings to rely on Ms Middleton's evidence in this regard and Patient A's medical notes.
The Complainant submitted that the Tribunal should place no weight on the Respondent's reliance on Ms Wright's evidence that Prince of Wales Hospital did not observe the Respondent to be acutely unwell. Such evidence needs to be balanced against Patient A's medical notes at the MSU which showed a deterioration in his infection. At the last admission to the Emergency Department of Prince of Wales Hospital Patient A was prescribed antibiotics, including Chlorsig ointment.
In respect of the Expert Evidence of Ms Roumieh, the Complainant submits that any delay in the proceedings was as a result of the Respondent's insistence on relying on Ms Roumieh's evidence, notwithstanding the availability of a second expert report from Ms Middleton. Further, the approach taken by the Respondent to Ms Roumieh's evidence resulted in Ms Roumieh's evidence proceeding until lunchtime on the first day of hearing. The Respondent should have consented to Ms Roumieh's evidence being excluded from the proceedings as sought by the Complainant.
In respect of costs, the Complainant relies on its submissions above in relation to the relevance of the discharge form and once again submits that it was quite proper and not inappropriate of the Complainant to not make any further enquiries about the discharge form, particularly in circumstances where the Complainant issued two Summonses for Patient A's medical notes at the MSU and in the medical notes produced in relation to both Summonses the discharge form was not provided. The discharge form in and of itself has no bearing on the conduct of the Respondent the subject of the Complaints and should not in any way change the outcome of the proceedings.
In relation to the Respondent's submissions and criticisms of the Complainant for failing to call Dr Spasojevic and Ms Wright to give evidence, the Complainant submits that it was open to the Respondent to Summons both witnesses as she did to give evidence in the proceedings and that it was not improper of the Complainant as asserted by the Respondent to choose not to call such witnesses for the reasons outlined above.
In relation to paragraph 104 of the Respondent's submissions, the Complainant takes issue with the Respondent's submission that the matter would not have proceeded before the Tribunal or the proceedings may have been shortened had the Complainant made the relevant enquiries in 2015 about the discharge form and sought evidence from Dr Spasojevic and Ms Wright. Once again, the Complainant stresses that the existence of the discharge form in and of itself does not in any way change the nature of the complaints before this Tribunal nor the seriousness of the Respondent's conduct alleged in the proceedings. This is not a matter where the Complainant did not have an arguable case and where the evidence does not arguably support the Complaints made against the Respondent. Given the seriousness of the conduct alleged against the Respondent in the proceedings, this was always a matter that would have proceeded before the Tribunal and it is not proper for the Respondent to assert otherwise.
The Complainant accordingly submits that the Tribunal should order that the Respondent pay the Complainants costs in the proceedings.

Consideration of the Complaints and Particulars

The Tribunal was provided with information as to the limitations on nursing staff performing their duties which are not clinical in nature in the specific gaol environment and the additional issue of the specific vulnerabilities and behaviours of these patients. As the expert has stated in her report the Respondent still maintains the responsibility to ensure the standards and codes of conduct of a registered nurse are satisfied in all settings. The culture of an environment cannot impede that duty to a patient.

Paticular 1

The Complaint states that the Respondent did not provide appropriate care for Patient A in that she did not perform a full set of observations, including monitoring temperature, blood pressure, respiration and oxygen concentration which is not admitted by the Respondent.
The Tribunal considered all of the evidence provided both by the Applicant and by the Respondent and is comfortably satisfied that the evidence of the Expert Witness Ms Middleton is the evidence which should be preferred having regard to Patient A's overall medical condition and the risks associated with the infected stoma and cellulitis, the fact that Patient A had been in a condition sufficiently serious to have been taken to the Prince of Wales Hospital on at least 4 occasions in the period from the date on which Patient A was medically discharged by Dr Spasojevic and the date of his death and is therefore comfortably satisfied that this particular is made out.

Particular 2

Particular 2, alleges that between 8:40pm on the 5 February and 6:35am on the 6 February the practitioner failed to take 2 hourly visual observations of the patient including assessment of airway and breathing status. This is not admitted by the Respondent on the basis that 2 hourly visual observations of Patient A were not a requirement. The Tribunal had regard to all of the evidence provided by the various witnesses and the documents before the Tribunal and determined that it preferred the evidence of the Expert Witness Ms Middleton and her view that having regard to the overall medical condition of Patient A and the series of hospital attendances by Patient A at the Prince of Wales Hospital in the period leading up to his death, that 2 hourly visual observations were clinically required and that the judgement of the Respondent in failing to consider the need for such observations, fell significantly below the standard expected of a registered nurse of the level and experience of the Respondent. The Tribunal also had regard to the fact that irrespective of whether the Respondent thought it appropriate or not appropriate to conduct 2 hourly visual observations, in Patient A's condition and history to not conduct any observations of Patient A for a period of 10 hours falls significantly below the standard expected of a registered nurse of the level and experience of the Respondent and the Tribunal is comfortably satisfied that this Particular is made out.

Particular 3

Particular 3, in respect of the allegation that the practitioner failed to provide appropriate care to Patient A in that she advised him to "knock up" if he needed assistance during a night in circumstances where she failed to perform any observations during her shift, for the same reasons as set out above the Tribunal is comfortably satisfied that the conduct of the Respondent fell significantly below the standard expected of a registered nurse of the level and experience of the Respondent.

Particular 4

Particular 4 alleges that at approximately 12am and 4am on the 6 February the Respondent failed to provide adequate care to Patient A in that she did not supervise or confirm Patient A's self-administration of nebulised saline in circumstances where she should have visually and verbally checked with Patient A to determine if he had self-administered the saline or required assistance. The Tribunal had regard to the evidence of all the witnesses and in particular the evidence of the Expert Ms Middleton. Despite the Respondent's witnesses stating that it would be difficult for the Respondent to have conducted those observations due to the requirement that two security guards be available to enter the cell of Patient A on a regular basis there could be no suggestion that it would have been impossible for the Respondent to have arranged for two security guards to have been available at least at 12am and 4am. She knew that Patient A had often refused treatment and not carried out the self-treatment, it was therefore important that she should be checking that a patient, who was obliged to self-administer a saline nebuliser six times a day, was doing that. Accordingly the Tribunal is comfortably satisfied that this Particular is made out.

Particular 5

In respect of Particular 5 where it is alleged that the Respondent failed to make appropriate records in Patient A's clinical notes and medication chart including the reason for not administering the nebulised saline at approximately 12am and 4am and the reasons for administering 10mg of diazepam at 8pm the Respondent had admitted that she failed to note on the medication chart that Patient A was self-administering the saline nebulisers during the night shift and in respect of the failure to record the reason for administering the diazepam the Respondent stated that the patient was administered diazepam as a regular medication at night.
In the circumstances the Tribunal accepts that the Respondent failed to make appropriate records.

Particular 6

It was alleged that by her conduct set out in Particulars 1 to 5 above that the Respondent failed to comply with the NSW Policy Directive "recognition and management of patients who are clinically deteriorating". This was not admitted by the Respondent. However in all the circumstances, including the condition of Patient A the Tribunal is comfortably satisfied that the Respondent failed to comply with the above NSW Policy Directive.

Complaint 1

Accordingly the Tribunal is comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct pursuant to Section 139 of the National Law.

Complaint 2

Complaint 2 is to the effect that the Respondent is guilty of professional misconduct under section 139E of the National Law in that the Respondent 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 the conduct is of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. In this regard the Applicant submits that Complaint One and the Particulars to Complaint One are repeated and are relied upon individually and cumulatively. The Respondent denied this in its entirety.
However, having regard to all of the evidence available to the Tribunal, the Tribunal is comfortably satisfied that the Respondent is guilty of professional misconduct.
Accordingly, the Tribunal finds the Respondent guilty of professional misconduct and makes the following orders:

Orders 1. The Respondent is guilty of professional misconduct. 2. The Respondent severely reprimanded for behaviour which reflects acceptance of a culture in the particular environment which falls significantly below the standard expected of a registered nurse. 3. The Respondent's registration is suspended for a period of 6 months or until completion of the requirement set out in 4 below. 4. The Respondent is to complete a course in ethics of professional practice approved by the Nursing and Midwifery Council, such course to address duty of care, accountability, standards of practice and working in challenging environments. 5. On expiry of the period of suspension the Respondent is subject to the following conditions: 1. The Respondent is to practice under the indirect or direct supervision of a registered nurse (Division 1) who does not have any conditions on his/her registration. The supervisor must be: 1. On-site and working in close proximity within a ward or unit with the registrant; and 2. Able to oversee and provide advice about the Respondent's practice when necessary. 1. The Respondent must: 1. Inform all current nursing employers of the conditions; and 2. Inform all future nursing employers of the conditions and provide the Nursing and Midwifery Council of New South Wales with the name and contact of each employer before commencing work as a registered nurse. 1. The Respondent must only be employed as a nurse in circumstances where the employer has agreed to notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice, and exchange information with the Council related to compliance with the conditions. 2. The Respondent must not: 1. Be the nurse in charge of any shift, ward or unit; 2. Have supervisory responsibilities for any other nurse; 3. Work as the sole practitioner on any shift, ward or unit. 1. The names and identified details of Patient A named in the schedule to the complaint be subject to a nonpublication order. 2. The review body be the Nursing and Midwifery Council. 3. The Respondent be ordered to pay the costs of the hearing.

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: 30 January 2018

("The National Law") Medical Practice Act 1992(NSW)

Medical Practice Act 1992(NSW)

77 CLR 403 at 424-425 HCCC v Dr Della Bruna [2014] NSWCATOD 31 at [88] HCCC v Gorondy-Novak [2011] NSWMT 3 HCCC v Karalasingham (2007) NSWCA 267 HCCC v Litchfield (1997) 41 NSWLR 630 at 637 HCCC v Perroux [2011] NSWDC99 at [18] HCCC v Simonson [2017] NSWCATOD 87 at [14] HCCC v Waddell No2 [2013] NSWNMT 2 (27 March 2013) at 38 Health Care Complaints Commission v King [2013] NSWMT 9 at [25] Lee v HCCC [2012] NSWCA 80 at [20] New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported) NSW Bar Association v Meakes [2006] NSWCA 340 at [113] Prakash v HCCC [2006] NSWCA 153 at [91] Smith and Fraser 2014 NSWCATOD at 237/238 Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] Category: Principal judgment Parties: Health Care Complaints Commission (HCCC) (Applicant)

Health Care Complaints Commission v Tripodis

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Judgment (26 paragraphs)

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Cases Cited (14)