Health Care Complaints Commission v Wardman

Health Care Complaints Commission v Wardman - [2021] NSWCATOD 67 - NSWCATOD 2021 case summary — Zoe

[6]

The applicable provisions of the National Law

Part 1 (ss 1-10) of the National Law contains provisions dealing with preliminary matters. Section 5 contains definitions, and relevantly provides: 5 Definitions In this Law - … health service includes the following services, whether provided as public or private services - (a) services provided by registered health practitioners; (b) hospital services; … (f) community health services; …
Part 7 Division 11 Subdivision 2 (ss 125-127AA) contains provisions relevantly dealing with the review of conditions imposed on a practitioner's registration.
Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner … if - (a) it finds the subject-matter of a complaint against the practitioner … to have been proved; or …
Section 149A specifies the general disciplinary powers of the Tribunal, and relevantly provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; … (d) order the practitioner to complete an educational course specified by the Tribunal; …
Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (b) the practitioner is guilty of professional misconduct; or … (5) If the Tribunal suspends or cancels a registered health practitioner's … registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … concerned, or … to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

[7]

The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law

In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [19]-[21], the Court of Appeal set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Court of Appeal emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [21]-[22], the majority of the Court of Appeal considered the operation of s 149C of the National Law: "[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. …"
The imposition of a reprimand pursuant to s 149A(1)(a) of the National Law, which will appear on the National Register maintained by the Australian Health Practitioner Regulation Agency (AHPRA), is a serious matter. It is a public record that a practitioner's conduct has fallen below the standard expected of such a professional. It sends a message of deterrence to other practitioners and upholds the reputation of the profession. A reprimand can only be removed from the National Register on application by the practitioner to the National Board: Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178 (Hanna (No 2)) at [52].
No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88].
In Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) at [72]-[74] the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. The Court of Appeal at [74] relevantly held: "[74] The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. … In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. …"
The meaning of "substantial risk" in s 149C(5) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [19]: "[19] Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services."

[8]

The exercise of the power of the Tribunal to award costs including the making of a fixed sum costs order under Sch 5D cl 13 of the National Law

In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46] the Court of Appeal set out the principles relevant to the exercise of the power of the Tribunal to award costs under Sch 5D cl 13 of the National Law, and then proceeded to make a fixed sum costs order: "[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied. [43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). [44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. [45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. [46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. …"
In 203 Castlereagh Street Pty Ltd v Skybloo Holdings Pty Ltd [2017] NSWCATAP 29 (203 Castlereagh Street) at [39]-[40] and [45] the Appeal Panel set out the following principles concerning when the Tribunal might make a fixed sum costs order: "[39] The principles concerning when a Court might make a gross sum costs order are set out in a number of recent Court of Appeal decisions, including: Hamod v State of New South Wales [2011] NSWCA 375 at [813]ff; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [8]ff and [30]; and Kostov v Zhang (No 2) [2016] NSWCA 279 at [19]ff. [40] These principles, relevantly adapted to the circumstances of the Tribunal, include: (1) A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with "ordered costs") and the Legal Profession Uniform Law (NSW), eInduct Systems at [8]; (2) A fixed sum costs order may be appropriate where: (a) the sum of costs in question is relatively modest, eInduct Systems at [30]; (b) a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment, Hamod at [813], [816] and [817], eInduct Systems at [30]; (c) the assessment of costs would be protracted and expensive, Hamod at [813] and [817]; and/or (d) the case was complex, Hamod at [815]-[817]; (3) Sections 36(1) and (4) of the NCAT Act (which can be seen as equivalent to those in ss 56(1), 57(1)(d) and 60 of the CP Act) suggest that the following factors merit particular consideration: (a) the relative responsibility of the parties for the costs incurred; (b) the degree of any disproportion between the issue litigated and the costs claimed; (c) the complexity of the proceedings in relation to their cost; and (d) the capacity of the unsuccessful party to satisfy any costs [liability], Hamod at [816], Kostov at [22]. (4) An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal. Furthermore, the approach taken to estimate the costs must be logical, fair and reasonable. This may involve an impressionistic discount of the costs actually incurred in order to take into account the contingencies that would be relevant in any formal costs assessment, Hamod at [820]; (5) The power to make a fixed sum costs order should only be exercised when the Tribunal considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available, Hamod at [813], Kostov at [23]; … [45] … Tribunal Members should not generally be encouraged to carry out the work of costs assessors by making fixed sum costs orders. The circumstances most likely to arise in the Tribunal where it might be appropriate for the Tribunal itself to assess costs will usually be where the costs are very modest and the assessment is simple. This might be the case, for example, where the parties are self-represented and not entitled to recover work done in preparing their case, and the only recoverable costs are the filing fee and other small, non-contentious out of pocket expenses, see generally: Gino Dal Pont, Law of Costs (3rd ed, 2013) at 171-174."
In Anderson v The Owners - Strata Plan No. 61034 (No 2) [2019] NSWCATAP 108 (Anderson) at [28] the Appeal Panel approved the following principles concerning when the Tribunal might make a fixed sum costs order: "[28] Appeal Panels have recently considered lump sum costs orders in Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116 and in Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 13. Reference was made to the principles referred to by the NSW Court of Appeal in Bechara trading as Bechara and Company v Bates [2016] NSWCA 294, which stated, at [12] to [15]: '12. The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123. 13. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing). 14. A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. 15. The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814].'"
Courts have applied discounts when making a fixed sum costs order of between 15% and 30%: Ritchie's Uniform Civil Procedure NSW, [s 98.65].

[9]

The evidence of the respondent

The bundle of documents of the applicant which was admitted into evidence in the stage 1 hearing relevantly includes the following two character references which were relied on by the respondent to the extent possible in circumstances where they were not available to give evidence when they had been required for cross-examination by the applicant: 1. the letter of Valerie Hutchinson dated 21 March 2019 (the Hutchinson reference); 2. the undated letter of Dave Leek (the Leek reference).
In his evidence in chief, the respondent relevantly gave the following evidence: 1. he accepts that his actions were reckless and negligent, that he did not undertake full observations of Patient A on the night shift of 15 and 16 July 2018, that given the condition of Patient A he should have taken a full set of observations, that he should have spoken to his in-charge nurse and/or medical staff and had a conversation about whether the appropriate course of action was to leave the telemetry leads off Patient A, and that his actions demonstrate a lack of understanding and education as to the correct procedures; 2. he had gained insight and learned from his past conduct: "To keep - maintaining observation skills and maintaining telemetry skills and also comforts of the patients regarding support for the patients to get the patient reviewed, any risk - any risk of changes to the patient." 1. he had not had any full-time employment since he was suspended on 25 March 2019, and would like to return to nursing and to work in healthcare. He is willing to undertake any further training determined to be necessary; 2. he had had the assistance of a psychologist to help manage severe depression; 3. he had undertaken training and administrative tasks in his volunteer role with St John Ambulance, but has been unable to volunteer for event health duties as a first responder due to the suspension of his registration; 4. he was sorry for his actions and inactions, and would take all steps to ensure it never happens again.
In cross-examination, the respondent gave the following evidence: 1. since the incident he had done private online training through e-Nurse; 2. he was not quite sure why his conduct happened; 3. he did not now stand by the statement in the Wardman affidavit at [6]: "6 I do not admit that the care I provided to the Patient was below what was expected of me with regards to my level of experience and training." 1. he did not now stand by the clinical decision to leave the telemetry leads of Patient A disconnected; 2. he had read the stage 1 decision and the most important part for him was: "Well, unable to provide clinical care to provide administering medications, administering clinical skills in provision of hospital clinical care area."

[10]

The submissions of the applicant

In the applicant's stage 2 submissions, the applicant makes the following submissions: 1. it is seeking the following orders: "a. An order under section 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law") cancelling the practitioner's registration. b. An order under section 149C(7) of the National Law that an application for review of the cancellation order may not be made until after 12 months from the date of the Tribunal's Stage 2 decision; c. A prohibition order under section 149C(5) of the National Law prohibiting the practitioner from providing the following health services on a public, private or volunteer basis until he is re-registered as a nurse: i. nursing services; ii. hospital services; iii. community health services. d. An order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs." 1. cancellation of the respondent's registration is appropriate because: 1. the proven conduct is serious; and 2. the respondent lacks insight; 1. when considered together, the failure to take observations and the failure to reconnect the telemetry leads are of a sufficiently serious nature to justify cancellation because: 1. the proven conduct had catastrophic consequences for Patient A; 2. the failure to take observations regarding Patient A's condition was a fundamental obligation which was breached, and a departure from the usual practice of the ward for a patient in Patient A's condition for which there was no satisfactory explanation; 3. his decision not to reconnect Patient A's telemetry leads was a departure from the 2016 Clinical Guideline for which there was no satisfactory explanation, and was reckless; 1. the respondent showed limited insight in his response to his employer by attempting to shift blame to each of Nurse 1 and Nurse 3; 2. the Tribunal should give limited weight to the Hutchinson reference and the Leek reference because neither mention the respondent's conduct; 3. a 12 month non-review period is appropriate because the respondent will need a lengthy period to gain genuine insight and engage in meaningful rehabilitation for reasons including: 1. there is no evidence from his counsellor/psychologist regarding the nature, duration, content and future plan for his treatment; 2. if he chooses to return to cardiac nursing in the future, he will need significant time to undertake relevant comprehensive training to fully understand his role and responsibilities; 1. it seeks a prohibition order for the following reasons: 1. the respondent failed to take observations, which is fundamental to the practice of nursing; 2. the respondent made a dangerous decision to fail to reconnect the telemetry leads, without seeking advice, which put Patient A at risk; 3. the section 150 delegates were concerned that the respondent posed a risk to public health and safety due to risk factors including that he identified that there was a clinical risk to Patient A but did not act on the matter, failed to adequately monitor Patient A, did not communicate his concerns with his colleagues or supervisor, and did not document contemporaneously; 4. the respondent has continued to display limited insight; 5. the respondent is aged 57, his registration has been suspended since 2019, he is no longer employed at the hospital, he has no trade or tertiary qualification outside nursing and he has been relying on some (unspecified) part-time work and government assistance to survive financially so he may be motivated to seek a paid role related to nursing; 6. the respondent has worked as a volunteer health care professional with St John Ambulance since 1982 so he may seek to continue to provide first aid services or other voluntary employment in nursing-related roles; 7. once the Tribunal cancels the respondent's registration, he could seek paid or unpaid nursing related roles which do not require registration and may expose him to vulnerable clients (such as assistant in nursing, care worker, social worker, case worker, support worker, first aid worker etc); 8. although the respondent's name has been placed on the service check register, he could seek employment in the private or volunteer sector; 1. it seeks an order that the respondent pay costs in the fixed amount of $32,129.82 as calculated in the costs schedule or, in lieu of a fixed costs order, an order that the respondent pay the applicant's costs as agreed or assessed, and costs should not be reduced on any of the following grounds: 1. the respondent has been working part-time and relying on government assistance; 2. the respondent cooperated with the applicant, complied with Tribunal directions and made an effort to narrow the issues; 3. the applicant was not wholly successful.
In her oral submissions, Ms Bayley made the following submissions: 1. as to the oral evidence of the respondent: 1. he had the opportunity but chose not to put on a written statement demonstrating his insight and understanding of the stage 1 decision; 2. his evidence about his understanding of the stage 1 decision, which he acknowledged having read, when asked about the most important aspect of that decision to him, was very vague and difficult to follow. The stage 1 decision contains some quite critical comments of him and his credibility, including findings that he gave evidence of differing versions and that he gave evidence which was implausible, and including two serious aspects of his conduct which were proven, but his evidence did not engage with those aspects of the decision - instead the most important aspect of the decision for him was, in his words, "unable to provide clinical care to any patients"; 3. other aspects of his evidence were unsatisfactory. His evidence in chief was largely in response to a sequence of leading questions which he answered in the affirmative. However, when asked the open questions in examination-in-chief: 1. "What have you learned?" which was relevant to his insight, his answer "Maintaining observation skills. Maintaining telemetry skills. Support to the patients. Get the patient reviewed" did not fully engage with the question of what he had learned since the incident involving Patient A; 2. about the training he should undertake, he started by being somewhat critical of the training that was unavailable, or that certain training was one-off, and that he would rather be doing a course every 12 months instead of every three years; 3. about his future plans, his answers "Health - provide healthcare management liaison with hotel management" and "healthcare management liaison with hospitality care" were vague and a little unclear. He has not apparently given detailed consideration to what type of nursing role he would like to return to and in what capacity; 1. as to the prohibition order: 1. people who have training as a nurse often find themselves or occasionally find themselves working in areas which are related to nursing, including as care coordinators, social workers, support workers, assistant in nursing, and in other types of care where they come into contact with patients or where they come into contact with vulnerable members of the community or where they are providing care of that kind; 2. he does first aid work with St John Ambulance, which appears to involve coming into contact with members of the community who are competing in events who may have a range of physical ailments. It is up to the respondent to identify, firstly, whether there's a minor issue like a Band-Aid or paracetamol that falls within the scope of what he can do in that role, or whether there is something more serious like some cardiac issue or some heat stroke or some issue that needs to be immediately and promptly escalated to someone who's able to attend to that quickly and appropriately; 1. as to the costs of the proceedings: 1. a costs order should be made in favour of the applicant because it is the successful party to the proceedings; 2. a fixed costs order should be made because the cost schedule has been served and the amount sought is reasonable; 3. probable inability to pay a costs order is not a basis on which to refuse a costs order but supports the making of a fixed costs order rather than an order requiring assessment of costs.

[11]

The submissions of the respondent

In the respondent's stage 2 submissions, the respondent makes the following submissions: 1. the appropriate course of action would be for the Tribunal to reprimand him and impose various conditions on his registration, including conditions relating to mentoring, reporting and education; 2. he accepts the matters as set out in his evidence in chief as put in [29(1)] above; 3. he has reflected on this incident for a considerable time and with the benefit of hindsight he has gained insight and learnt from his past conduct; 4. he asks the Tribunal to give him the opportunity to improve his practice especially in regard to observations of patients in his care, and he assures the Tribunal that he will continue to improve and encourage others to not fall into entrenched culture and practice that is in breach of policy and procedure; 5. it is not a risk to public safety if he was to continue practising as a nurse. Any cancellation of registration would not only impact him professionally and personally, his departure would result in the loss of considerable nursing expertise to the profession; 6. a costs order should not be made against him for the following reasons: 1. he was fully cooperative with the applicant at every stage, complied with all directions of the Tribunal and made a genuine effort to narrow the issues in dispute; 2. the applicant has not been wholly successful in prosecuting all the particulars of the complaints; 3. he has not been employed as a nurse since early 2019 and has been relying on part-time work and government assistance to survive financially.
In his oral submissions, Mr Li made the following submissions: 1. the respondent is amenable to completing whatever courses the Tribunal decides are necessary for him to complete; 2. when assessing the respondent's oral evidence, the Tribunal should take into account he is not an articulate or eloquent speaker, and in fact has some degree of speech impediment; 3. the respondent is obviously extremely remorseful and extremely contrite and extremely apologetic for what has transpired; 4. the protective purpose would not be addressed by cancellation of the respondent's registration and the making of a prohibition order, but would be addressed by the imposition of conditions under s 149A(1)(b) of the National Law. He still wishes to serve the people of New South Wales and to do his community work; 5. the mere fact that the respondent raises that there were other contributing factors does not necessarily and unequivocally equate to blaming others or not fully accepting responsibility for his conduct; 6. there should be no costs order, or alternatively there should be an order that the respondent pay a portion of the applicant's costs; 7. there should be no fixed costs order because the sum claimed is exorbitant.

[12]

Whether and if so in what manner the Tribunal should exercise its disciplinary powers under Part 8 Division 3 Subdivision 6 of the National Law

We are satisfied that it is appropriate to reprimand the respondent pursuant to ss 149(a) and 149A(1)(a) of the National Law. As set out by the Tribunal in Hanna (No 2) at [52] a reprimand of a practitioner is a serious matter. The reprimand will appear on the National Register maintained by AHPRA. It is a public record that the respondent's conduct has fallen below the standard expected of such a professional. It sends a message of deterrence to other practitioners and upholds the reputation of the profession. A reprimand can only be removed from the National Register on application by the respondent to the Nursing and Midwifery Council of New South Wales.
We are not satisfied that it is appropriate to cancel the registration of the respondent pursuant to ss 149(a) and 149C(1)(b) of the National Law, as submitted by the applicant, for the following reasons: 1. while it may be accepted that the proved conduct of the respondent was serious as recognised by our finding that the respondent is guilty of professional misconduct, this alone does not warrant cancellation of the respondent's registration; 2. while we accept that the respondent lacked insight up to the stage 1 decision, characterised by his refusal to admit the conduct in paragraphs 1 and 3 of the particulars of Complaint One and attempting to blame each of Nurse 1 and Nurse 3, we are satisfied that the respondent now has insight into his conduct; 3. the respondent's proven conduct is not of a nature that any significant further insight would be gained through treatment from his counsellor/psychologist. This is not a case where the nature of the respondent's proven conduct is such that there is uncertainty as to the future; 4. it would deprive the community of the services of an experienced nurse.
The respondent's oral evidence, which has been criticised by the applicant, needs to be evaluated having regard to the following circumstances: 1. the respondent was unprepared when giving his evidence. He had provided no written evidence for the hearing. It was only at the suggestion of the presiding member that he decided to give oral evidence without any preparation other than a short adjournment. The respondent was clearly overwhelmed in giving his evidence without any real preparation; 2. as submitted by Mr Li, the respondent is not an articulate or eloquent speaker. Further, when giving evidence he appeared to be affected by a speech impediment; 3. in his evidence in chief, the respondent accepted full responsibility for the proven conduct; 4. while the respondent did not answer clearly the open questions he was asked, his answer "Maintaining observation skills. Maintaining telemetry skills. Support to the patients. Get the patient reviewed" to the question "What have you learned?" succinctly expressed what conduct was required to avoid a repetition of the proven conduct: 1. "Maintaining observation skills ... Support to the patients…" was a clear recognition of the need to take complete observations of patients in his care; 2. "… Maintaining telemetry skills … Get the patient reviewed" was a clear recognition of the necessity to make a decision not to reconnect telemetry leads of any patient in his care after a medical review; 1. it is not surprising that the respondent did not have a clear idea about future training in view of the uncertainty as to whether he would be able to resume a career in nursing; 2. his answers "Health - provide healthcare management liaison with hotel management" and "healthcare management liaison with hospitality care" to questions about his future plans similarly were not surprising in view of the uncertainty as to whether he would be able to resume a career in nursing and his current precarious financial position.
We did not receive any real assistance from the parties as to whether, and if so what, conditions should be imposed on the respondent's registration in the event that we decide not to suspend or cancel his registration. The applicant made no submissions, whereas the respondent's submissions lacked specificity.
In Health Care Complaints Commission v Cooper; Health Care Complaints Commission v Higgins [2018] NSWCATOD 17 (Cooper and Higgins) which included proved misconduct by a nurse Lucas Higgins with direct clinical responsibility for a patient, the Tribunal imposed the following conditions on the registration of the nurse: "(4) The following conditions are placed on Lucas Higgins' registration: (a) Lucas Higgins must complete an education course on record keeping and ethics that has been approved by the Nursing and Midwifery Council of NSW within 12 months of the date of this decision. (b) Lucas Higgins is to provide to the Nursing and Midwifery Council of NSW evidence of successful completion of the courses signed by an individual authorised by the education institution within 14 days of completion of the course. (5) The Nursing and Midwifery Council of NSW is the appropriate review body of these conditions when Lucas Higgins has a principal place of practice in NSW. (6) Sections 125 to 127 of the National Law are to apply should Lucas Higgins' 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."
We are satisfied pursuant to ss 149(a) and 149A(1)(b) of the National Law that similar conditions should be imposed on the respondent's registration as were placed on nurse Lucas Higgins in Cooper and Higgins.
We are also satisfied pursuant to ss 149(a) and 149A(1)(b) of the National Law that a condition should be imposed on the respondent's registration that he must complete an education course on cardiac care of patients including the operation of telemetry.
As we have decided not to suspend or cancel the respondent's registration, the question of whether we should make a protective order pursuant to ss 149(a) and 149C(5) of the National Law does not arise.

At a glance

Court

Decision date

Before

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Judgment (15 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (29)