attempt to influence colleague's evidence in hospital investigation
unsatisfactory professional conduct
Source
Original judgment source is linked above.
Catchwords
Serious breach of trustinappropriate touching of elderly patientattempt to influence colleague's evidence in hospital investigationunsatisfactory professional conduct
Judgment (32 paragraphs)
[1]
Introduction
The Tribunal determined to make its findings in relation to the Complaints and Particulars before hearing evidence and submissions in relation to the Orders, if any, which should be made in relation to Mr Marcenaro Vega.
The Tribunal found the Particulars of the Complaints to be proven and found that Mr Marcenaro Vega's conduct amounted to unsatisfactory professional conduct and professional misconduct as alleged in the Complaints.
[2]
The Complaints
On 6 December 2012 the Acting Director of Nursing and Midwifery at Nepean Hospital notified the Nursing and Midwifery Council of New South Wales that an elderly female patient at Nepean Hospital had alleged she had been sexually assaulted by Mr Marcenaro Vega. The Hospital, following an investigation, considered the allegations to be sustained and terminated Mr Marcenaro Vega's employment.
The Nursing and Midwifery Council of New South Wales conducted proceedings pursuant to S150 of the National Law on 14 December 2012 and again on 7 August 2013. Conditions were placed on Mr Marcenaro Vega's registration and the matter was referred to the Health Care Complaints Commission (the Commission).
The Commission, after conducting its own investigation, made two Complaints to the Tribunal. The Complaints allege that Mr Marcenaro Vega is guilty of unsatisfactory professional conduct and professional misconduct.
It is alleged that Mr Marcenaro Vega engaged in improper and unethical conduct in that he inappropriately touched Patient A on and inside her vagina while she was a patient under his care at Nepean Hospital. It is also alleged that Mr Marcenaro Vega attempted to influence a fellow member of staff in relation to the information she would provide to Nepean Hospital concerning the investigation of this allegation.
The Complaints, their Background and Particulars are set out in Annexure A to this decision.
[3]
Legislative provisions
Unsatisfactory professional conduct is relevantly defined in S139B of the Health Practitioner Regulation National Law (NSW) (the National Law) to include:
(l) Other Improper or Unethical Conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Professional Misconduct is defined in S139 E of the National Law as:
(a) Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) More than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration
[4]
Issues
The issues for the Tribunal are:
1. whether the Tribunal is comfortably satisfied that each of the Particulars of the Complaints are proven; and
2. if so, whether Mr Marcenaro Vega's conduct amounts to unsatisfactory professional conduct and professional misconduct; and
3. if such findings are made, whether orders or directions pursuant to the National Law are appropriate. This issue will be considered at a later hearing.
[5]
Standard of proof
The Commission bears the onus of establishing that Mr Marcenaro Vega has engaged in improper or unethical conduct and, if so, that his conduct constitutes unsatisfactory professional conduct and professional misconduct.
The standard of proof required to establish the Complaints is the civil standard so the Tribunal must be reasonably satisfied on the balance of probabilities of the matters alleged against Mr Marcenaro Vega. However because of the seriousness of the allegations and the gravity of their consequences, the Tribunal needs to be comfortably satisfied that the Complaints have been established to the requisite standard. (see Briginshaw v Briginshaw (1938) 60 CLR 336).
[6]
Nature of the Jurisdiction
The jurisdiction exercised by this Tribunal is protective, not punitive (see HCCC v Litchfield (1997) 41 NSWLR 630 and HCCC v Gillett [2007] NSWNMT 7).
The Tribunal's primary purpose is the protection of the health and safety of the public. This involves protection against further misconduct by the practitioner and more general protection through the deterrence of other practitioners. It is also important that public confidence in the nursing profession is maintained and that high professional standards are fostered. (see HCCC v Howe [2010] NSWMT 12; Gayed v Walton [1997] NSWSC 279.)
[7]
Transitional Provisions
These proceedings were originally commenced in the Nursing and Midwifery Tribunal of New South Wales but had not been heard by that Tribunal as at 1 January 2014. On 1 January 2014 the Nursing and Midwifery Tribunal of New South Wales ceased to exist and the jurisdiction exercised by that Tribunal was transferred to the New South Wales Civil and Administrative Tribunal (NCAT) in its Occupational Division.
There is no dispute that NCAT is the appropriate body to now consider and determine this matter.
[8]
Documents
The Tribunal considered the following documents which were provided by the parties:
The Commission provided several folders of documents, including evidence of Mr Marcenaro Vega's registration status.
Mr Marcenaro Vega provided a Statutory Declaration dated 17 June 2014 and a report from Dr Sharon Reutens.
During the course of the hearing additional documentary material was provided by both parties, as referred to below.
Written submissions were provided, by both parties, at the conclusion of the evidence.
The Tribunal was also provided with and viewed CCTV footage of part of the short stay emergency ward at Nepean Hospital.
The Tribunal also referred the parties to the following documents: the Code of Ethics for Nurses in Australia, the Code of Professional Conduct for Nurses in Australia and A Nurse's Guide to Professional Boundaries, published through the Nursing and Midwifery Board of Australia.
[9]
Witnesses
The following people gave oral evidence to the Tribunal:
Mr Marcenaro Vega, the Respondent
Ms Helenne Levy, Acting Clinical Nurse Unit Manager, Nepean Hospital
Ms Margaret Cahill, Nurse Manager After Hours, Nepean Hospital
Ms Fiona Bryant, Human Resources Manager, Nepean Hospital
Mrs M P, Patient A's daughter
Ms Lindy Werner, Enrolled Nurse, Nepean Hospital
Dr Sharon Reutens, Psychiatrist
Dr Chandler, Patient A's General Practitioner
Mr Stephen Matthews, Security Operations Manager, Nepean Hospital
[10]
Two stage hearing
The Respondent requested that the Tribunal's hearing be conducted as a two stage process. (see King v Health Care Complaints Commission [2011] NSWCA 353.) The Commission did not object to this proposal. Given the nature of the allegations and the fact that Mr Marcenaro Vega strongly denies them, the Tribunal determined it was appropriate to conduct a two stage hearing process.
Accordingly the Tribunal directed that in the first stage of the hearing it would receive evidence and submissions concerning the Complaints and the Particulars, and make a decision concerning those issues. At the second stage, if it becomes necessary, the Tribunal will hear evidence and submissions addressing protective orders, if any, which might be made in this matter.
[11]
Non- Publication Order
The Tribunal made a non-publication order to prevent the publication of the name of the patient involved in the allegations or any information which might identify the patient. In these Reasons she is referred to as Patient A. In addition, a non-publication order was also made in relation to the patient in Bed 1, referred to as Patient B.
[12]
Mr Marcenaro Vega
Mr Marcenaro Vega migrated to Australia from El Salvador in 1989. He trained as a nurse in Australia, completing Certificate IV in Nursing (Enrolled Nurse) in 2000 and a Bachelor of Nursing at the Australian Catholic University in 2007. He was first registered as an enrolled nurse on 11 October 2000 and as a registered nurse on 15 January 2008.
At the time of these proceedings Mr Marcenaro Vega's registration was subject to a number of conditions. These conditions were imposed by the Nursing and Midwifery Council following S150 proceedings in August 2013. The conditions, amongst other things, prevent Mr Marcenaro Vega from providing nursing care to female patients in any practice setting.
Mr Marcenaro Vega began his career as an assistant in nursing, working at the Marian Nursing Home. He worked as an enrolled nurse at Braeside Hospital in the rehabilitation ward for one year and the geriatric ward for six years. He has also worked on a casual basis as an enrolled nurse at both Westmead and Fairfield Hospitals.
As a registered nurse he commenced employment at Nepean Hospital in January 2008 and has worked in the psychiatric, surgical, high dependency gastroenterology wards and the emergency department.
Mr Marcenaro Vega was the registered nurse on duty for the night shift in the short stay emergency ward (EMU ward) at Nepean Hospital on 5 and 6 July 2012. As such he was responsible for the nursing care of Patient A at that time. The night shift began at 9 pm and finished around 6 am the following morning. Ms Lindy Werner was the enrolled nurse assisting on that shift.
[13]
Patient A
Patient A was admitted to Nepean Hospital on 4 July 2012 suffering from pneumonia. At that time she was an 89 year old woman and she usually resided at an aged care facility. She had a number of physical health problems and required assistance with mobility and toileting.
Patient A was taken to the Emergency Department by ambulance. She was assessed and examined by the Medical Registrar, Dr Bhargari. She was admitted under the care of Dr Sardinha. Patient A was transferred to Bed 11 in the EMU ward, the short stay emergency ward, in the early morning of 5 July 2012.
Patient A was seen by three doctors from the geriatric team at 9.10 am on 5 July 2012 and was reviewed by a geriatrician during her stay. She was also seen by Dr Caves and Dr Mousavi from the Medical Assessment Unit (MAU) on 5 July 2012. She was reviewed on a number of occasions by the MAU team. Dr Sardinha reviewed her at 2.15 pm on 5 July 2012. After being further assessed and receiving treatment for pneumonia Patient A was discharged on 11 July 2012.
Patient A reported that she had been sexually assaulted by a male person in the ward at around 3 am on the morning of 6 July 2012. She first made this report to the Enrolled Nurse Lindy Werner at approximately 5 am on 6 July 2012.
Patient A passed away prior to these proceedings commencing in the Tribunal.
[14]
Is the Tribunal comfortably satisfied that each of the Particulars of the Complaints is proven?
[15]
Particular 1 - that Mr Marcenaro Vega inappropriately touched Patient A on and inside her vagina in the early morning of 6 July 2012.
[16]
The allegation made by Patient A
The Commission's case rests on the allegation made by Patient A shortly after the time of the alleged assault and in a subsequent interview. Patient A's account of the events was given on at least six separate occasions.
Patient A first spoke to Ms Lindy Werner EN at around 5 am on 6 July 2012. Ms Werner contacted Ms Helenne Levy who spoke to Patient A early on 6 July 2012 at approximately 5.20am. Ms Levy contacted Ms Margaret Cahill, who also spoke to Patient A and arranged for the sexual assault team to see her. Ms Fiona Bryant interviewed Patient A in the afternoon of 6 July 2012. By this time Patient A's daughter had been called and she had also spoken to her mother. One year later, on 5 July 2013, Patient A gave a written statement to the Commission.
Ms Werner states that at around 5 am on 6 July 2012, she noticed that Patient A was crying. She went to her bed and asked her what was wrong.
In an interview with Ms Fiona Bryant on 19 July 2012, Ms Werner stated,
"I went over and asked what was wrong, and she said, "I need to talk to you, it's not very good." Something along those lines, I can't remember her exact words. I said, "What's wrong?" and then she started crying, again. She said, the male person that was on did some things to her. And I said, "What do you mean, he did some things?" and she said, he woke her up when she was asleep. He said- she said that, he told her she needs to do some tests on her, and then he started touching. And I said to her, "Where did he started touching you?" and she said, "Down below, and he put his fingers inside me." And then the whole time she just kept just pausing, and crying.
And then I said to her, "Did he tell you what he was doing to you, or something along those lines?" she said, "he just said he had to do tests," she said that he - she thought it was a bit weird, but she thought because she was in hospital it was okay. She said, she asked him what that time was and he told her, "about 3 o'clock," and that is- I think that is about all."
Ms Helenne Levy spoke with Patient A at around 5.20 am. Her notes of the interview, made on 8 July 2012, state,
"The patient was awake, alert started to cry, said she couldn't sleep and then told me she had been assaulted by the male nurse at 0300. I asked her how she knew what the time was and she told me that the male nurse had come to her, woke her up and said he had to do some tests. She stated that he touched her 'private parts' and put his fingers in her vagina.
She said that she pushed him away and told him to stop and that he then left her alone. She then told me that she didn't want this to happen to anyone else and could she please go home."
Patient A next spoke to Ms Margaret Cahill and although the detail of her statement changed in that she said the male nurse also touched her on the chest, she repeated the allegation she made to Ms Werner and Ms Levy.
In her interview with Ms Fiona Bryant in the afternoon of 6 July 2012, Patient A said,
"During the night I had a rather nasty experience with the nurse, the male nurse that was on duty…… he said, "You've got to have some tests, three tests" and he said, "I will give them to you." and I said, "What time is it?" he said "3 o'clock"…..So I thought, like, I just thought it must have been something in the hospital he had to do, the, the three tests and, and then he started this, with his hands, touching me in certain- what do you call- places, that's not very nice……..He touched me in the vagina….. he had - his hands were, were on my vagina, and in - I could feel him, you know, poking around in that area - that which wasn't very nice, at all. And then I sort of, I just pushed away. And he - off he went."
[17]
Was Patient A confused?
Mr Marcenaro Vega strongly denies the allegations made against him. He asserts that it is most likely the assault didn't happen and Patient A was mistaken. He asserts that Patient A was confused at the time and may have been suffering from a delirium.
Mr Marcenaro Vega states that at the handover at around 9 pm on 5 July 2012 he was told that Patient A was "pleasantly confused". However, the nursing notes do not contain a record to this effect. Ms Werner told the Tribunal that she could not recall this comment being made at the handover.
Mr Marcenaro Vega asserts that Patient A exhibited signs of confusion. He states that she was talking to herself and that in response to his questions she indicated that she thought she was at home rather than in hospital. He wrote a nursing note to the effect that Patient A "seems confused", but acknowledged that he took no further action and did not contact a medical officer or undertake any assessment of her cognitive state.
Mr Marcenaro Vega provided a report from Dr Sharon Reutens, in support of his contention that Patient A was confused. Dr Reutens is a psychiatrist who works in the correctional health system and has training in old age psychiatry.
Dr Reuten's report, dated 16 June 2014, provides a useful summary of the information in Patient A's medical records in relation to her cognitive status. She notes, among other things, that:
The discharge letter from the Geriatric Department refers only to her physical health issues
Between 6 and 11 July 2012 the patient safety hand over checklist contains no entries in relation to the item "altered level of consciousness"
the ambulance medical record referred to Patient A as "oriented but pale"
the nursing care plan indicated she was oriented on 6 and 7 July and the item 'confused' is not ticked on any of the dates the care plan covers
the first medical examination, conducted on 4 July 2012, notes that she was alert and oriented to time and place and person
the medical entries for 5 and 6 July 2012 make no mention of Patient A's cognitive status, although an entry at 11.10 pm on 5 July indicates the nurse considered Patient A to be confused
on 6 July 2012 the RMO refers to the family's concern about discharge as Patient A is confused at hospital
the nursing entries for 6, 7 July 2012 onwards make no mention of her cognitive status until a nursing note on 8 July which refers to some confusion
Dr Reutens referred to the nursing note on 5 July 2012 at 11.10 pm which states, "patient alert, seems confused, obs stable". Dr Reutens acknowledged that at the time she prepared her report, she was unaware that that note had been written by Mr Marcenaro Vega. She also agreed that the basis for that opinion, expressed in the notes, is not recorded.
Dr Reutens' report discusses the possibility that Patient A may have suffered a delirium during her hospital stay. Dr Reutens says the most likely cause for such a condition would be pneumonia. She believes that delirium is frequently undiagnosed in clinical practice.
In her oral evidence Dr Reutens explained that delirium is more likely to affect a person with an already compromised brain, such as a very old or very young person. It can present in a wide range of ways. Some people are very active and in severe cases can even demonstrate psychotic features. Other people are 'slowed down'. Dr Reutens described delirium as causing an attentional deficit. A person is not globally impaired, but may have difficulties because of impaired attention, for example, they may not be able to read or may not be oriented to time and place.
Dr Reutens acknowledged that she had not personally seen or assessed Patient A. She did not have access to the statements of hospital and nursing staff who did speak to Patient A on the day in question and formed views about her cognitive status. She agreed that nursing and medical staff directly observing Patient A are the best people to assess her situation and that statistical information about the incidence of delirium in hospitals says nothing specifically about Patient A's condition.
Dr Reutens also commented that even if a person has a delirium they may still function in some areas, rather than being globally impaired. If an event affects them personally they are more likely to remember it. She agreed that a sexual assault is a very personal event and is more likely to be recalled when compared to an impersonal occurrence.
The Commission disputes the assertion that Patient A was confused or delirious and relies on the evidence of the medical and other staff who directly assessed and treated Patient A.
The ambulance officers noted Patient A to be "alert and oriented". The Registrar who examined her in Emergency stated she was "awake, alert and oriented to time, place person. No neurological deficit was noted." The other medical practitioners, including geriatricians, who examined Patient A on 5 and 6 July make no comment about her mental state, from which the Commission says it can be inferred that she had no cognitive problems.
Ms Werner, the enrolled nurse on duty, was the first member of staff to speak to Patient A about the assault. She stated, when interviewed on 19 July 2012, that she considered Patient A to have been rational in that conversation. Ms Werner told the Tribunal in her oral evidence that in her opinion Patient A was not confused.
Ms Levy, the Clinical Nurse Unit Manager on duty, interviewed Patient A shortly after she made the allegation. Ms Levy's evidence given to the Human Resources Investigation conducted at the Nepean Blue Mountains Local Health District was that "[t]he patient appeared orientated in time, place and person. She spoke in full sentences and was clear and concise in information. She had been awake since the incident and was alert." In her written statement Ms Levy says,
"In my view, Patient A was oriented to time, place and person. She was emotionally upset and said she didn't want this to happen to anyone else. She appeared calm and concise."
[18]
Identification
Mr Marcenaro Vega asserts that if the assault did happen, then he has been wrongly identified as the perpetrator.
Ms Werner stated in her oral evidence that Patient A told her she had been assaulted by "the male person you were with". She cannot now recall whether or not Patient A mentioned the word nurse, however Ms Werner's evidence is that the only male person she was with on that shift was Mr Marcenaro Vega. He was the only male nurse on duty in the EMU ward. When asked in oral evidence, Ms Werner said she could not recall interacting with a male doctor or cleaner on the night in question.
The Commission notes that Patient A identified her assailant at various times in the following terms, which they say accurately describe Mr Marcenaro Vega:
"A male nurse; not tall or short but around 5'6''; dark, very dark hair; looks Mediterranean; little wave in his hair; she had seen him earlier in the ward"
Mr Marcenaro Vega disputes Patient A's identification of him, particularly pointing to the fact that no mention was made of his accent. He also gave evidence that there were other people, such as cleaners and doctors, in EMU ward during the night of 5 and 6 July, presumably to assert that there were other people who could have been Patient A's assailant.
The Commission submitted that the CCTV footage demonstrates that the only male person who approached Patient A throughout the evening prior to the reporting of the sexual assault was the Respondent.
[19]
Patient A
Mr Marcenaro Vega alleges that the inconsistencies in the statements made by Patient A render her evidence unreliable. He provided a document, setting out in Table format, the inconsistencies in her evidence.
The Commission concedes that in the statements made by Patient A there are some inconsistencies. For example, she refers to her assailant touching her on the chest as well as the vagina in some, but not all statements. She also refers to possibly having underpants on in one interview but not others. However the Commission submits that in relation to the essential elements of the allegation, that she was touched on and inside her vagina, Patient A has been consistent in each of the statements she has made regarding the events of 6 July 2012.
Mr Marcenaro Vega also submits that Patient A's evidence was tainted by the involvement of her daughter in the interview with Ms Fiona Bright on 6 July 2012. However, the Respondent's submission refers to assistance provided by her daughter in relation to matters such as the date of admission to hospital, rather than the events alleged in Particular 1.
[20]
Mr Marcenaro Vega
Mr Marcenaro Vega gave his account of the events in question on several different occasions. These are detailed below. The Commission submits that Mr Marcenaro Vega's explanation cannot be believed, as his accounts are inconsistent and improbable.
Following the allegation by Patient A, Ms Helenne Levy spoke with Mr Marcenaro Vega. Ms Margaret Cahill also spoke with him on 6 July 2012. Mr Marcenaro Vega was then interviewed by Ms Fiona Bryant on 31 July 2012. He was interviewed for a second time by Ms Fiona Bryant on 16 August 2012. Prior to this interview Mr Marcenaro Vega was sent a copy of CCTV footage of the ward at the relevant time. This was also viewed by Mr Marcenaro Vega immediately prior to the latter interview. On 14 December 2012 Mr Marcenaro Vega was the subject of section 150 proceedings before the Nursing and Midwifery Council. Further section 150 proceedings were convened on 7 August 2013. Mr Marcenaro Vega also gave oral evidence to the Tribunal.
Ms Levy's account of her conversation with Mr Marcenaro Vega is contained in her statement dated 15 July 2013. She states that Mr Marcenaro Vega initially did not appear to understand the allegation. When it did become clear to him, he became distressed and strongly denied the allegation.
Ms Cahill's evidence is that she spoke to Mr Marcenaro Vega and asked him if he attended to any care for Patient A during his shift where he was alone with her. He replied,
"that he had changed her incontinence pad with the enrolled nurse. He had also attended to her cannula with the curtains opened so he could keep an eye on the patient in the next bed who was restless."
At the first interview with Ms Bryant on 31 July 2012, Mr Marcenaro Vega stated he attended to Patient A at around 10 pm to take her blood pressure. At a time before midnight he again attended Patient A to fix her cannula and change her incontinence pad. He stated that he did not approach Patient A or do anything for her after that time. He stated the curtains around her bed were left open for the remainder of the night and he did not attend to her around 3 am.
At the second interview in August 2012, Mr Marcenaro Vega's evidence changed. He indicated he had attended to Patient A on 3 occasions. First at around 10 pm to give her medication. Secondly, at around 1 am to deal with the problem with her cannula and to change her pad and thirdly he said he checked her pad after Patient A complained that she was wet. This happened at around 3.30 am.
Mr Marcenaro Vega was asked about the inconsistency between this statement on 16 August 2012 and his earlier statement on 31 July 2012 when he said he did not attend to Patient A after midnight. He stated that he "couldn't remember everything" and that he had been anxious and stressed.
On 16 August 2012 Mr Marcenaro Vega was asked about the procedures he was undertaking with Patient A at 3.30 am, as there is nothing in the clinical notes in relation to that time. He said that Patient A buzzed, said she was wet and he had checked her pad. He did not change it as she was not wet. He also said that he had left Patient A to check the patient in Bed 1. He stated that he had not remembered these events when first interviewed because "I was so scared".
Mr Marcenaro Vega was next asked to give an account of the events in question on 14 December 2012 when he was the subject of section 150 proceedings before the Nursing and Midwifery Council. He gave an account of his conversation with Patient A when he administered her medications before 10 pm. He described the issue with her cannula and the change of pad and bed linen around 1 am. In relation to his interaction with Patient A at 3.30 am, Mr Marcenaro Vega again stated that Patient A had buzzed and said she was wet. While he was with Patient A, the IV fluid machine for the patient in Bed 1 sounded and he went to check that patient. When he returned he patted Patient A's nappy and told her it was not wet. He gave an account of the conversations he had with Patient A.
Mr Marcenaro Vega was again asked about the differences between this account of his interaction with Patient A and his earlier version of the events. He stated that he was traumatised and had great difficulty speaking at the interview with Fiona Bryant on 31 July 2012.
At the section 150 proceedings on 7 August 2013, Mr Marcenaro Vega gave a different version of some events, for example, what happened in relation to Patient A's cannula, as compared to the statements he made in his interviews with Ms Bryant. Mr Marcenaro Vega also gave much more detailed accounts of events and conversations, which he indicated he now recalled, although he had not done so at earlier times.
Similarly, in his oral evidence to the Tribunal, Mr Marcenaro Vega gave very detailed evidence of his movements, conversations and activities on the evening in question. He also provided information, which had not been provided on any earlier occasion, for example, in relation to the furniture around Patient A's bed and his specific actions in attending to Patient B.
[21]
CCTV footage
The Tribunal viewed the available CCTV footage, which showed the nurses' station and the corridor in front of Patient A's bed, bed 11, during the night shift on 5 and 6 July 2012. The foot of the bed 11 is visible and the lower portion of the bedcovers, but not the headboard, nor the person in that bed. Approximately two thirds of the horizontally aligned nurse's station desk is visible at the far end of the corridor space running past beds 11 and 12.
There was general agreement about the identification of Mr Marcenaro Vega and Ms Lindy Werner on the CCTV footage. It appeared to have been a relatively quiet shift and Mr Marcenaro Vega spent considerable time at the nurses' station throughout the shift.
The CCTV footage shows that Mr Marcenaro Vega was the nurse who attended to Patient A. It confirms that he did attend to Patient A after midnight and without the assistance of the enrolled nurse. To the extent the CCTV footage shows bed 11, it shows that no male person, other than Mr Marcenaro Vega, approached Patient A during the night shift in question.
The CCTV footage shows that Mr Marcenaro Vega attended to Patient A on three separate occasions. He can be seen entering Patient A's bed space carrying, on different occasions, bed linen, a face washer and a clean pad. On each occasion Mr Marcenaro Vega is seen to enter Patient A's bed space, he does so at the bottom right hand corner of the bed, (from the perspective of Patient A) and he pulls the curtains, which were suspended on a curtain rail, closed around the bed. He is seen to leave in the same way ie through the gap in the curtains at the bottom right hand corner of the bed.
At around 3.24 am Ms Werner went on her break. The CCTV footage shows her leaving the nurses' station. At around 3.31 am Mr Marcenaro Vega left the nurses' station and walked around the ward. He returned to the nurses' station around 3.32 am and removed his jacket. Around 3.33 am he walked to bed 11 and pulled the curtains around the bed. After a short period of time he reappeared and went to the office/storeroom to obtain a face washer and a clean pad. At around 3.34 am Mr Marcenaro Vega again entered Patient A's bed space. The curtains remained closed until around 3.38 am.
The Commission draws the Tribunal's attention to the CCTV footage from 3.31.22 am until 3.38.48 am, alleging that Mr Vega remains with Patient A with the curtains closed for a period of approximately 5 minutes.
Mr Marcenaro Vega states that when he first closed the curtains, he spoke to Patient A for about a minute and a half and was then interrupted by the beeping of the IV machine connected to Patient B in bed 1. He states he left Patient A to attend to Patient B and after doing so returned to Patient A's bed and continued to speak to her. He checked her pad, which did not need to be changed.
A great deal of evidence was given in relation to Mr Marcenaro Vega's actions during the five or so minutes when the curtains around Patient A's bed were closed. The Commission noted that Mr Marcenaro Vega was not seen to open the curtains and leave Patient A's bed to attend to Patient B. Mr Marcenaro Vega says that he did not leave in the same way that he entered. While he was seen to enter the bed space at the bottom right hand corner of the bed, he says that, after walking around to the left hand side of the bed, he exited at the top left hand corner of Patient A's bed. He said this was the quickest way to get to bed 1.
The Commission submits that the CCTV footage does not reveal Mr Marcenaro Vega moving to the left hand side of the bed to facilitate such an exit, as his feet are not visible moving around the foot of the bed. The curtains did not extend to the floor, and the space below the curtain was visible on the CCTV footage. The Commission submits it would have been possible to see the feet of someone who was moving around the base of the bed, if that had occurred. Further as the head of the bed was close to the wall and between the bed and the wall were the usual items of medical equipment, including oxygen tanks, glove dispensers and various tubes, it was not feasible that Mr Marcenaro Vega could have walked around the head of the bed.
Mr Marcenaro Vega asserted that he exited and re-entered the space around Patient A's bed at the top left hand side and he submitted that the CCTV footage reveals movement of the curtains, which confirms his account.
Ms Werner told the Tribunal she when she spoke to Patient A around 5 a.m. she moved a tray table so that she could sit down to speak to Patient A. The CCTV footage shows a table being moved down the left side of the bed at around 5.04 am. Ms Werner wasn't sure if there was anything on the table, but there may have been a glass of water. She also stated that a chair was next to Patient A's bed near the top left hand corner, closest to the nurses' station.
Mr Vega denies that there was a chair at the top left hand side of Patient A's bed on the night of 5 and 6 July 2012. Mr Vega also disputed Ms Werner's evidence in relation to the tray table. He gave detailed evidence about the table. He said it was next to Patient A's bed when he did the observations around 10 pm. At this time he adjusted the height of the table and put it across Patient A's bed. After finishing the observations he placed a glass of water on the table. At 1 am he moved the table so as to be able to attend to Patient A's cannula. He gave detailed evidence of the position of the table relative to the curtain and himself and stated that the table was parallel to the bed at a distance of about 1 metre to 60 cm. Mr Vega says he moved the table back across Patient A's bed after fixing her cannula. Mr Vega stated that he moved the table again when he attended to Patient A around 3:30 am, however not until after he had returned from checking on the patient in bed 1.
The other issue discussed at some length was the amount of time it took Mr Marcenaro Vega to attend to Patient B in bed 1. Mr Marcenaro Vega gave detailed evidence about the precise amount of time it took him to travel between Patient A's bed and bed 1, to attend to Patient B and to return. The Commission asserts that not only is Mr Marcenaro Vega's proposed timeframe unrealistic, but that in any event the amount of time during which Mr Marcenaro Vega acknowledges he was present with Patient A is sufficient time for him to have assaulted her in the way alleged.
[22]
Evidentiary issues
Mr Marcenaro Vega pointed to the difficulties which arise from the fact that Patient A, being now deceased, cannot be cross examined. Her evidence remains untested. In his written submission Mr Marcenaro Vega correctly points out that the Tribunal, while not bound by the rules of evidence, must conduct itself in a way which accords with the principles of procedural fairness and natural justice. He refers to his right to test evidence in full and unfettered cross-examination and asserts that without access to such cross-examination he may be denied procedural fairness. He submits
"The Respondent is unable to test the evidence of Patient A, and as such is deprived of any opportunity to answer matters adverse to his interests if such evidence is admitted and accorded any significant weight."
In essence, Mr Marcenaro Vega asserts that the evidence of Patient A should be disregarded given the fact that cross-examination cannot be undertaken. It follows in his submission that the Commission cannot discharge the standard of proof required in these circumstances.
Mr Marcenaro Vega also referred the Tribunal the principles in Jones v Dunkel [1959] HCA 8 and asserts that the Commission has failed to produce evidence in relation to the following maters:
Evidence from the other two CCTV cameras in the EMU ward
Evidence from the Patient B in bed 1
Evidence from the nurse who provided the handover to the Respondent
Evidence from other persons who attended the ward around the time of the alleged incident
A forensic examination of the patient following the incident
His submission is that a negative inference can and should be drawn by the Tribunal as a result of the Commission's failure to produce such evidence.
The Commission's response is that these are matters for Mr Marcenaro Vega to consider as part of his defence and that the rule in Jones v Dunkel has little if any bearing on these issues.
[23]
Particular 2 - that Mr Marcenaro Vega sought to influence the information Ms Werner would provide to the hospital in its investigation of the alleged assault.
Ms Werner told the Tribunal that Mr Marcenaro Vega had called her several times following the alleged inappropriate touching. She acknowledged that she had given him her telephone number, but could not recall whether she had invited him to contact her.
In her interview with Ms Fiona Bright on 19 July 2012 Ms Werner discussed the communications she had with Mr Marcenaro Vega following the events in question,
Ms Bright: Okay. Is there anything else you want to add before we finish up?
Ms Werner: Not really, it's just that he keeps ringing me on my mobile. Just asking, "Has anything happened, can you tell them that we were together all the time," and I just say, "I'll just tell the truth, exactly what the patient said"…..… Or he keeps sending me SMSs saying, "Can we talk, now. I need to talk to you."
Ms Bright : So is he putting pressure on you to say that you were together all the time?
Ms Werner: Yeah (indistinct) me nearly every day, leaving a voicemail saying, "Can I talk to you, we need to have our stories the same, I've been speaking to another manager at another hospital and they say we have to have the same stories."
Ms Werner no longer has the mobile telephone on which Mr Marcenaro Vega called her nor does she have any written transcriptions of their telephone conversations, however in her statement dated 14 May 2013 she asserts she remembers Mr Marcenaro Vega calling or texting her the next day or soon after. He called or texted on about 2 or 3 occasions, the last being at that time of the interviews in mid July 2012.
Mr Marcenaro Vega acknowledged in his oral evidence that he did call and text Ms Werner after 6 July 2012. However, he denies that he asked her to say they were together at all times or that they "needed to have the same story".
However, in his interview with the Nursing and Midwifery Council on 7 August 2013 Mr Marcenaro Vega was asked about his conversations with Ms Werner after 6 July 2012, and although his evidence is somewhat contradictory he does acknowledge at one point that he probably spoke to Ms Werner about having "the same story",
Mr Kelly: Did you say that you needed to get your stories straight?
Mr Vega: The only thing I recall, the talk to her, I ask, "What happened? Can you tell me what happened? I didn't do nothing." This is the only thing I told her many times, even she talked to me. They say, "No worries, Ricardo. Everything going to be fine." Even she say to me, "Ricardo going on holiday," or something like that……….
Mr Kelly: So you did not say to her, "Can I talk to you? We need to have our stories the same."
Mr Vega: The only thing I- probably in this period of time, I was so stressed, I didn't - I didn't know what to do.
Mr Kelly: Yes, but I asked you a question. Do you think you said that to her?
Mr Vega: Probably did, but I not recall 100 per cent.
Mr Kelly: Do you know why you would have said, "We need to get our stories the same"?
Mr Vega: Probably I didn't say that the same. I only said, "What happened? You know me. I didn't do nothing."
Mr Marcenaro Vega also acknowledged he told the Nursing and Midwifery Council that he had sent between three and ten SMS messages but stated that he now cannot remember how many times he contacted Ms Werner.
[24]
The Tribunal's decision
In his submissions to the Tribunal, Mr Marcenaro Vega asserts that the Tribunal cannot be comfortably satisfied that the Particulars of the Complaint have been established for a number of reasons. He submits that his evidence should be preferred over the evidence of Patient A because her evidence contains significant inconsistencies; she is likely to have suffered from delirium at the time of the alleged assault and in comparison he provides a plausible account of events which is supported by corroborative evidence.
Although there are variations in Patient A's statements, the Tribunal considers that they are consistent in relation to the central allegation of inappropriate touching. The Respondent's submission that Patient A's daughter had spoken for Patient A, in an interview on the afternoon of July 6 2012, so contaminating the complaint made by her mother, is not accepted by the Tribunal.
Patient A made an initial complaint after being questioned by Ms Werner just after 5am. She then consistently repeated the complaint to two senior nurses, before her daughter was present at the hospital. Patient A spoke without prompting, and in her own words, when asked to explain what happened to her, in several interviews on the day of the assault.
The Tribunal considers there is no cogent evidence to enable it to arrive at the conclusion that Patient A was confused at the time of the alleged assault or her reporting of it. There were a considerable number of medical and nursing staff who directly examined and observed Patient A around the time in question and who did not consider that she suffered from any cognitive impairment nor did they treat her for confusion or delirium.
Dr Reutens acknowledged that while the possibility of a delirium exists for elderly patients, especially those suffering from a physical health problem, such as pneumonia, she did not personally observe or examine Patient A. Dr Reutens' evidence about the possibility of Patient A suffering delirium is speculative and is outweighed by the evidence, based on the direct observations and examinations, of medical and nursing staff who attended to Patient A in the hospital. Their lack of concern about cognitive impairment accords with the assessment of Patient A's own general practitioner, Dr Chandler.
Mr Marcenaro Vega asserts the assault did not occur and if it did contends that he has been wrongly identified. Regardless of a failure to comment on an accent, the Tribunal accepts that Patient A's description of her assailant accords with a reasonable depiction of Mr Marcenaro Vega. Mr Marcenaro Vega relies on the assertion that there were several other men who were present in EMU ward on the night in question. However, the evidence of Ms Werner and the CCTV footage does not support the inference that any other man approached Patient A during the night of 5 and 6 July 2012.
The Tribunal does not accept that Mr Marcenaro Vega gave a cogent and plausible account of the events in question. The Tribunal was troubled by the nature and content of his evidence. Since the event in question Mr Marcenaro Vega has given varying accounts of what happened and his evidence contains several significant inconsistencies. The Commission provided a lengthy description of all the inconsistencies in Mr Marcenaro Vega's evidence. Of particular note are the changes to his evidence after he viewed the CCTV footage.
In his initial interview with Ms Bright, on 31 July 2012, Mr Marcenaro Vega said he had attended to Patient A before midnight but that, between midnight and 6am the following morning he did not attend to her at all. He also stated that he had been in the company of the enrolled nurse, Ms Werner, when he attended to Patient A. After viewing the CCTV footage he admitted that he did attend to Patient A around 3:30 am and in the absence of the enrolled nurse.
The Commission also points out that it is only in Mr Marcenaro Vega's fourth account of the events (his interview with Ms Bryant on 16 August 2012, after he views the CCTV footage) that he refers to being interrupted during his attendance on Patient A at 3:30 am by the need to check the patient in bed 1. It is only at this interview that he recalls Patient A' s buzzer sounding. It is only at this interview that he relates the conversation he had with Patient A at 3.30 am and the fact that she thought she was wet.
Mr Marcenaro Vega's submission is that it is only natural that his recollection improved after he viewed the CCTV footage. When he was first asked about the inconsistencies in his account of events, he stated that he "couldn't remember everything". At the hearing Mr Marcenaro Vega asserted that viewing the CCTV footage had triggered his memory.
Certainly his evidence about the events of 5 and 6 July 2012 has, over time, become much more detailed. At the Tribunal hearing Mr Marcenaro Vega could recall the minutiae of events on the night in question, including for instance, when and how he moved the bedside tray table across Patient A's bed, placing a glass of water in a particular position, as well as the specific details of conversations between himself and Patient A and also Patient B. The Tribunal considers it inherently improbable that Mr Marcenaro Vega could in 2014 give a comprehensive account of what occurred in July 2012, when closer to that time, he was not able to recall any such details.
Mr Marcenaro Vega was an unimpressive and evasive witness. He had considerable difficulty answering questions directly. Although English is not Mr Marcenaro Vega's first language, the Tribunal did not consider that his difficulty answering questions was a result of language problems. He has studied and worked in Australia for many years. Even when questions were repeated or rephrased Mr Marcenaro Vega was not able or willing to respond in a frank and candid manner. Many of his responses were tangential and appeared to be designed to obfuscate rather than assist the Tribunal to understand the events in question. For example, in response to questions, Mr Marcenaro Vega wished to provide a great deal of information which was not pertinent and which the Tribunal considered to be an attempt to deflect attention from the matters in issue.
The CCTV was useful in assisting the Tribunal to understand the 'traffic' through the EMU ward and the way Patient A was cared for on the night of 5 July and morning of 6 July 2012. It supports the Commission's proposition that Mr Marcenaro Vega was the nurse 'caring' for Patient A on that night shift, as it shows no other nurse attending to Patient A during the shift.
The CCTV footage shows that Mr Marcenaro Vega attended Patient A around 3.30 am without the enrolled nurse and there were periods of time when he was with Patient A with the curtains closed around her bed. Mr Marcenaro Vega's account of his actions around 3.30 am is not supported by the CCTV footage which does not show him exiting Patient A's bed space to attend to Patient B, nor does it support his account of the manner in which he exited the bed space.
There are several pieces of evidence which when considered together make it unlikely that Mr Marcenaro Vega attended to Patient B in bed 1. Mr Marcenaro Vega changed his story and only mentioned attending to Patient B after seeing the CCTV footage. It was submitted by the Commission that moving around the items of furniture next to Patient A's bed and exiting at the left hand corner would be impractical and unlikely. And the CCTV footage does not support his contention that he moved around to the left hand side of the bed to make such an exit. Whether or not Mr Marcenaro Vega had time to do all he says he did for Patient A and Patient B is questionable. In any event the Commission asserts that the time he acknowledges he spent with Patient A was sufficient time for the assault to occur and the Tribunal accepts this submission and makes no specific finding about Mr Marcenaro Vega's attendance on Patient B.
Mr Marcenaro Vega also submits that the Tribunal cannot be comfortably satisfied of the allegations against him, as the Commission has been unable to discharge the burden of proof to the requisite standard. He asserts that in a situation where he is unable to test the evidence of Patient A by cross-examination, he is denied procedural fairness.
Mr Marcenaro Vega referred the Tribunal to the decision in Briginshaw v Briginshaw (1938) 60 CLR 336). Briginshaw was a case which required the High Court to make a finding of fact as to whether or not Mrs Briginshaw had committed adultery, a serious charge, particularly in 1938, but in relation to which there was general agreement that proof had to be made out to the civil standard "on the balance of probabilities." The Court noted that where serious or grave matters were to be proven, care and caution is required. In other words the more serious the issue, the more reliable must be the evidence which proves that issue.
While Dixon J is often quoted as cautioning against 'inexact proofs or indirect inferences', it is clear from his comments that the requirement for reliable evidence in the face of serious allegations, does not dislodge the civil standard of proof or change the degree of persuasion required. See also Rejfek v McElroy (1965) 112 CLR 517.
Dixon J comments at 362-363
"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences……………
This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues…………..But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."
The allegations in this case are very serious, so much so that the Respondent concedes that should they be made out, such conduct would constitute professional misconduct. The Tribunal is mindful of the need to make findings based on reliable and cogent evidence.
The Tribunal is not bound by the rules of evidence but must afford procedural fairness to the parties. This is not a situation where the Tribunal has disallowed cross-examination so that a party is prevented from testing the evidence of an available opponent. In this case Patient A passed away prior to commencement of the proceedings. The Tribunal was referred to the decisions in HCCC v Gatenby, Zhang & Horn [2011] NSWNMT 18 and Ordukaya v Hicks [2000] NSWCA 180. In line with those authorities the Tribunal considers the fact Patient A was unable to be cross-examined goes to the weight that can be attributed to her statements, but does not in itself provide a reason to reject or disregard the totality of her evidence.
Dixon J's reference, in Briginshaw, to the comments of Lopes L.J. in Allen v Allen (1894) P 252, in relation to proof of adultery by circumstantial evidence, are helpful in this matter,
"To lay down any general rule, to attempt to define what circumstances would be sufficient and what insufficient upon which to infer the fact of adultery, is impossible. Each case must depend on its own particular circumstances. It would be impracticable to enumerate the infinite variety of circumstantial evidentiary facts, which of necessity are as various as the modifications and combinations of events in actual life. A jury in a case like the present ought to exercise their judgment with caution, applying their knowledge of the world and of human nature to all the circumstances relied on in proof of adultery, and then determine whether those circumstances are capable of any other reasonable solution than that of the guilt of the party sought to be implicated."
In assessing the weight to be attributed to Patient A's evidence, the Tribunal has had regard to the nature of Patient A's account of the inappropriate touching. In relation to the essential elements of the allegation the Tribunal finds that Patient A has been consistent in each of the six statements she has made regarding the events on 6 July 2012. Five of those statements were made very close in time to the events in question.
The Tribunal has considered the totality of the evidence, including the CCTV footage. Aspects of Patient A's statements have been able to be tested by comparison with the available CCTV footage. For example, the CCTV footage confirms Patient A's statement, that she was visited at around 3am on the morning of July 6, by the male nurse on the ward. The Tribunal is not persuaded that Patient A was delirious or otherwise cognitively impaired at the relevant time. The Tribunal does not consider that the assistance provided to Patient A by her daughter had any serious consequences for the reliability of her evidence. The Tribunal regards the evidence of Patient A as coherent and believable and accepts that she was touched inappropriately during the night of 5 and 6 July 2012 while a patient in the EMU ward at Nepean Hospital.
In comparison, the Tribunal had considerable difficulty accepting the evidence of Mr Marcenaro Vega and considers him to be an unreliable witness. His evidence is marred by a number of significant inconsistencies. It is the case that after Mr Marcenaro Vega viewed the CCTV footage, his account of the night in question became more consistent, however Mr Marcenaro Vega's evidence at the Tribunal hearing was still, at times, contradictory and could generally be described as evasive and lacking candour. Further, over time Mr Marcenaro Vega has displayed an implausible revival of memory, which the Tribunal considers to be self serving and inherently unlikely. The CCTV footage does not provide support for much of Mr Marcenaro Vega's account of the events in question. Notwithstanding the lack of cross-examination of Patient A, the Tribunal prefers her evidence to that of Mr Marcenaro Vega.
Submissions were also made in relation to the rule in Jones v Dunkel [1959] HCA 8 and the Commission's failure to produce certain evidence, such as evidence from Patient B or the nurse who conducted the handover.
The rule in Jones v Dunkel relates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. However, the failure to call a witness does not necessarily give rise to such an adverse inference. In Gaskell v Denkas Building Services Pty Ltd (2008) NSWCA 35 the Court of Appeal explained that an unfavourable inference is drawn only if evidence otherwise provides a basis on which that inference can be drawn. In other words, an unfavourable inference cannot be drawn solely on the basis that the witness was not called, there must be a basis elsewhere in evidence to support that inference. The Tribunal is not assisted by the Respondent's submission in this regard.
For all the reasons stated above, the Tribunal finds Particular 1 is proven.
The evidence in relation to Particular 2 is the evidence of Mr Marcenaro Vega and that of Ms Werner. There are no other witnesses to the telephone conversations between them nor is there any documentary evidence of those calls or text messages. Ms Werner said the messages had been lost by the time the Commission interviewed her and requested the phone, as the phone had been reset in the interim period.
Both Mr Marcenaro Vega and Ms Werner were questioned about this matter before the Tribunal. Ms Werner generally had little recollection of the events in July 2012, and was frank in stating this. She relied on her contemporaneous statements at the time in question. Ms Werner's assertion that Mr Marcenaro Vega asked her to say they were together and requested that 'they get their stories straight' is supported by the unsolicited comments she made to Ms Fiona Bright shortly after the incident occurred. When asked if she wanted to add anything at the end of her interview on 19 July 2012, Ms Werner volunteered information about the difficulties she was experiencing with telephone contact from Mr Marcenaro Vega.
Mr Marcenaro Vega told the Tribunal he did not attempt to influence Ms Werner and did not tell her "we need to have our stories the same." However, his own statements about this issue are inconsistent or at least self-contradictory and, for the reasons stated, above the Tribunal regards much of Mr Marcenaro Vega's evidence as unreliable.
The Tribunal accepts that Ms Werner's recollection of her conversation with Mr Marcenaro Vega, recounted to Ms Bright shortly after that conversation took place, is reliable evidence of that conversation. The Tribunal is satisfied, on the basis of Ms Werner's evidence that Particular 2 is proven.
[25]
Does Mr Marcenaro Vega's conduct amount to unsatisfactory professional conduct and professional misconduct?
Unsatisfactory professional conduct and professional misconduct are defined in paragraphs 8 and 9 above. It is asserted that Mr Marcenaro Vega's conduct is unsatisfactory professional conduct as it is improper or unethical conduct.
The Commission referred the Tribunal to the decision of the High Court of Australia in R v Byrne (1995) 193 CLR 501 and the decision of the NSW Dental Tribunal in HCCC v Phung (No.1) [2012] 1 NSWDT 68 as authority for the proposition that conduct not in conformity with professional standards was improper conduct. Unethical conduct is asserted to refer to both immoral conduct and conduct contravening a Professional Code of Conduct.
It is also submitted that Mr Marcenaro Vega's unsatisfactory professional conduct is sufficiently serious to justify suspension or cancellation of his registration and so constitutes professional misconduct.
The common law definition of professional misconduct is found in the case of Allinson v General Council of Medical Education and Registration [1984] 1 QB 750 where it was said that professional misconduct is conduct 'which would be reasonable regarded as disgraceful or dishonourable by professional brethren of good repute and competency'.
In determining whether the conduct in question constitutes professional misconduct, the strong reprobation of professional colleagues and a deliberate departure from accepted standards of practice may be considered. See Qidwai v Brown (1984) 1 NSWLR 100; Lucire v Health Care Complaints Commission [2011] NSWCA 99.
In Pillai v Messiter [No.2] (1989)16 NSWLR 197, Kirby P stated,
"The statutory test is not met by mere professional incompetency or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner."
Mr Marcenaro Vega was registered as an enrolled nurse in October 2000 and as a registered nurse in January 2008. He has worked in New South Wales in the nursing profession for at least fourteen years and, as an experienced member of that profession, can be expected to be familiar with his ethical responsibilities.
An inherent power imbalance exists within the relationship between people receiving care and nurses providing care that may make the persons in care vulnerable and open to exploitation. The Code of Ethics for Nurses in Australia acknowledges that a 'significant vulnerability and powerlessness arises from the experience of illness and the need to engage with the health care system. The power relativities between a person and a nurse can be significant, particularly where the person has limited knowledge; experiences pain, illness and fear; needs assistance with personal care; or experiences an unfamiliar loss of self-determination. This vulnerability creates a power differential in the relationship between nurses and people in their care that must be recognised and managed' (Value Statement 2). Nurses are required by their professional codes of conduct to recognise that vulnerable people, including frail and older people must be protected from sexual exploitation and physical harm.
The Commission submitted that the matters complained of in relation to Mr Marcenaro Vega are matters of the most serious kind. It is submitted:
The maintenance of boundaries between patient and nurse is a long and well established principle of nursing practice
The breach of trust involved means that a breach of the boundaries must be viewed as a particularly serious activity
Patient A's circumstances made her particularly vulnerable
Patient A was exploited by the Respondent
Patient A was assaulted (sexual in nature) by the Respondent
Such behaviour is entirely contrary to the public's expectation of nurses and the care shown by members of the nursing profession to their patients and it is difficult to imagine a greater abuse by a nurse of a patient
The conduct of the Respondent is a monumental abuse of power and trust
The Tribunal accepts these submissions. Mr Vega has breached his ethical responsibilities and abused the trust residing in him as a member of the nursing profession. It is hard to imagine a more serious level of abuse than a sexual assault of a vulnerable 89-year-old woman who is ill in hospital and requiring nursing care.
Mr Marcenaro Vegas acknowledges this in his written submission,
"It is accepted that the Tribunal were comfortably satisfied that the respondent either touched patient A on her vagina or touched patient A inside her vagina then such conduct would satisfy the definition of professional misconduct. Such conduct would constitute a gross betrayal of patient trust and be a deliberate departure from the accepted standards of the profession."
The Tribunal is satisfied that Mr Marcenaro Vega's conduct as set out in Particular 1 constitutes unsatisfactory professional conduct of such a serious nature as to constitute professional misconduct.
In relation to Particular 2, the fact of repeated phone calls and text messages is not in itself necessarily improper or unethical conduct, however, the attempt to influence a colleague's account of events in the face of an investigation, by the Hospital and possibly by the police, does constitute such conduct. Mr Marcenaro Vega attempted to influence Ms Werner to behave unethically by making a false statement in relation to the most serious of matters.
Mr Marcenaro Vega's conduct breaches his professional code of ethics. Value statement 1 of the Code of Ethics for Nurses refers to the requirement that,
"Nurses take steps to ensure that not only they, but also their colleagues, provide quality nursing care. In keeping with approved reporting processes, this may involve reporting, to an appropriate authority, cases of unsafe, incompetent, unethical or illegal practice. Nurses also support colleagues whom they reasonably consider are complying with this expectation."
The Tribunal is satisfied that Mr Marcenaro Vega's conduct is improper and unethical. He acknowledges that it constitutes unsatisfactory professional conduct. In his written submission, he states
"Such conduct is, in our respectful submission, deserving of strong criticism, and indeed, may be categorised as improper or unethical conduct relating to the practice or purported practice of nursing (unsatisfactory professional conduct)."
However Mr Marcenaro Vega submits that such conduct falls short of professional misconduct. It does not, he asserts, represent serious negligence or an abuse of privileges, as conceptualised in other cases of professional misconduct.
Looked at in isolation, Mr Marcenaro Vega's actions may not amount to professional misconduct. But professional misconduct is defined in the National Law in S139 E to include,
(b) More than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration
Mr Marcenaro Vega was aware that serious allegations had been made against him. He sought to influence the information that Ms Lindy Werner would provide to the Hospital, presumably in an attempt to prevent a genuine investigation of those allegations, with the aim of avoiding the personal and professional consequence of his actions. Having regard to his conduct as a whole, the Tribunal considers that his actions in attempting to influence Ms Werner, can and should be regarded as professional misconduct.
[26]
Findings
The Tribunal finds
1. Particular 1 and Particular 2 proven
2. The Tribunal finds Mr Marcenaro Vega guilty of unsatisfactory professional conduct and professional misconduct as alleged in the Complaints before the Tribunal.
[27]
Order
1. Pursuant to Schedule 5D Clause 7 of the Health Practitioner Regulation National Law publication of the name of or any information which would identify the original complainant and another patient (Patient B) cared for by the Respondent is prohibited.
[28]
Appendix A
The Health Care Complaints Commission…………Hereby complains that
Ricardo Marcenaro Vega ("the practitioner")…………. being a nurse registered under the Health Practitioner Regulation National Law (the National Law)
[29]
Complaint One
is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has:
1. engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
[30]
Particulars of Complaint One
At all relevant times the practitioner was employed as a registered nurse at Nepean Hospital in Penrith NSW ("the Hospital").
1. On 6 July 2012 at around 3:30 am in the Emergency Department of the Hospital the practitioner:
1. Touched a female patient, Patient A, on her vagina
2. Touched Patient A inside her vagina.
1. Following 6 July 2012 at the practitioner contacted Ms Lindy Werner by telephone and/or sms and sought to influence the information that Ms Lindy Werner would provide the Hospital in its investigation of the practitioner in respect to Particular 1 by stating:
1. Can you tell them that we were together all the time;
2. We need to have our stories the same, I've been speaking to another manager at another hospital and they say we have to have the same stories.
[31]
Complaint Two
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 practitioner's registration, or
2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration
[32]
Particulars of Complaint Two
Particulars 1 and 2 of Complaint 1 are repeated and relied upon.
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: 29 June 2015
Ms Cahill, the After Hours Nurse Manager, considered Patient A "to be quite lucid". She states,
"the details she gave were consistent with what had already been reported to me by Ms Werner and Ms Levy………. she did appear to have normal cognition."
The Tribunal spoke by conference telephone with Dr Chandler, Patient A's general practitioner. Dr Chandler has been Patient A's GP since September 2011. He attends the aged care facility where Patient A resides about once a week, but does not see Patient A on a regular basis. He did see her in June 2012 and September 2012.
Dr Chandler stated that he had not undertaken a cognitive assessment of Patient A. He had not assessed her by way of a mini mental state examination as in his opinion this was not necessary. Dr Chandler has prescribed a number of medications for Patient A and considered that she was able to give informed consent to each of those. He did not observe a change in her cognitive state between June and September 2012.