Health Care Complaints Commission v Williamson - [2023] NSWCATOD 117 - NSWCATOD 2023 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Williamson

[2023] NSWCATOD 117

NCAT Occupational|2023-03-27

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Source facts

Court

NCAT Occupational

Decision date

2023-03-27

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Caroline Anne Williamson (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (no appearance) File Number(s): 2022/00203044 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the patients set out in the Schedule to the Complaint is prohibited

[2]

Introduction

This is an application to the Tribunal by the Health Care Complaints Commission (HCCC) for disciplinary findings and orders against the Respondent, Caroline Anne Williamson, following a determination by the Director of Proceedings of the HCCC to prosecute Complaints against the Respondent. Ms Williamson ceased to be registered under the Health Practitioner Regulation National Law (National Law) as a registered nurse on 1 July 2023, following the expiry of her registration. Prior to 1 July 2023 Ms Williamson was registered with a condition that she not work as a registered nurse until reviewed by the Nursing and Midwifery Council of NSW (the Council).
In these reasons, the Applicant is referred to as the Applicant or the HCCC, and the Respondent is referred to as the Respondent or Ms Williamson.
The Complaints against the Respondent are that she is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law, that she is guilty of professional misconduct under s 139E of the National Law, and that she is not competent within the meaning of s 139(a) of the National Law.

[4]

National Law

It is convenient to set out below those provisions of the National Law relevant to this application.
Section 3 of the National Law provides, relevantly: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; … … (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …
Section 3A of the National Law, which is an additional provision for NSW, relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3B of the National Law, which is also an additional provision for NSW, relevantly provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
A "NSW provision" is defined in s 5 of the National Law as: 5 Definitions (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation.
Section 139(a) of the National Law, which is an additional provision for NSW, provides: 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person - (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language.
Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law, which is an additional provision for NSW, provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Section 144, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - … (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession.
Section 145E, which is an additional provision for NSW, provides that the Council may, by written notice given to a health practitioner against whom a complaint has been made, direct the practitioner to undergo an examination by a specified health practitioner at a specified reasonable time and place.
Section 145F which is an additional provision for NSW, provides: 145F Result of failure to attend counselling or examination [NSW] A failure by a registered health practitioner or student, without reasonable excuse, to comply with a direction under section 145B to attend counselling or under section 145E to undergo an examination is, for the purposes of this Law and any inquiry or appeal under this Law, evidence that the practitioner or student - (a) for a registered health practitioner, does not have sufficient physical or mental capacity to practise the health profession in which the practitioner is registered; …
Section 149, which is an additional provision for NSW, 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 or student if - (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal.
Section 149C, which is an additional provision for NSW, (which is in the same Subdivision as s 149) 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 - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; … (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.

[5]

PTGA, s 16 and related provisions - prescribed restricted substances

Section 16 of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA) provides, relevantly: 16 Offences relating to prescribed restricted substances (1) A person shall not have in his or her possession or attempt to obtain possession of a prescribed restricted substance unless: … (a1) the person is a nurse practitioner who is authorised under section 17A to possess the substance and the person obtains possession or attempts to obtain possession of it in the lawful practice of his or her profession, …
Section 17A of the PTGA provides: 17A Authorisation of possession, use, supply or prescription of substances by nurses and midwives (1) A nurse is authorised to possess, use, supply or prescribe a poison, restricted substance or drug of addiction for the purposes of the practice of nursing, if: (a) the nurse's registration has an endorsement of a kind referred to in section 94 of the Health Practitioner Regulation National Law (NSW) that qualifies the nurse to possess, use, supply or prescribe that poison, restricted substance or drug of addiction, or (b) the nurse is a nurse practitioner who is authorised in writing by the Secretary to possess, use, supply or prescribe that poison, restricted substance or drug of addiction.
"Prescribed restricted substances" are not defined in the PTGA. However, "restricted substances" are defined in s 4 of the PTGA as any substance specified in Schedule Four of the Poisons List.
Section 8(6) of the PTGA provides that the Poisons List may be amended or replaced by proclamation made on the recommendation of the Minister and published on the NSW legislation website.
Section 3(2) of the Poisons and Therapeutic Goods (Poisons List) Proclamation 2016 (NSW) provides that Schedules 1 to 9 of the current Poisons Standard (within the meaning of Part 6-3 of the Therapeutic Goods Act 1989 (Cth)), as in force from time to time, are adopted as the Poisons List.
Schedule 4 of the Therapeutic Goods (Poisons Standard - February 2023) Instrument 2023 (Cth) (Poisons Standard) contains a list of prescription only medicines. Schedule 8 contains a list of controlled drugs, including oxycodone.
Clause 61 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR) also provides that for the purposes of section 16 of the PTGA, the substances specified in Appendix D to the PTGR are prescribed restricted substances.

[8]

26 January 2019 incident

On 26 January 2019, the Respondent was rostered on at the Emergency Department at the Hospital.
On that date, Patient A attended the Hospital with a blue plastic bag of medications including a box of 20 5mg Endone tablets. At approximately 6pm, the Respondent took the medications bag from Patient A and returned it to her approximately one hour later without the Endone tablets. She did not place the Endone tablets in the Schedule 8 drug cupboard or record the tablets in the Schedule 8 drug register. At approximately 9pm, Patient A's family noticed that the Endone tablets were missing and Ms Williamson was advised of this by the nurse who had taken over for the night shift.
The Nursing Unit Manager (NUM) called Ms Williamson that evening. He says that Ms Williamson told him in that conversation that she knew she had to follow protocols for securing Schedule 8 drugs and that she had not done so. As a result, the NUM submitted an AIMs Incident Detail, as did the nurse who had taken over the night shift. Police were contacted and statements were given to the police by the nurse and the NUM.
An investigation was then commenced by WSLHD and, by letter dated 13 February 2019, the following allegations were put to Ms Williamson: 1. That she misplaced or failed to secure a box containing Schedule 8 medications, specifically a box of 20 5mg Endone (oxycodone) tablets in accordance with the relevant medication administration procedures; 2. That she failed to follow the policies relevant to the management of Schedule 8 medications; and 3. That when approached by the family and notified of missing Schedule 8 medications, specifically a box of 20 5mg Endone tablets, she failed to notify and/or escalate the missing Endone tablets appropriately.
Ms Williamson provided an undated response in writing addressing those allegations as follows. She said that at approximately 6pm on 26 January 2019 in the Emergency Department at the Hospital, she attended Patient A in bed space 20, who presented to hospital with severe pain. Patient A's daughter informed her that Patient A was on numerous types of opioid analgesia. Due to concerns she had regarding providing the patient with more opioid analgesia, Ms Williamson asked to take Patient A's medications to the doctor so that the doctor could look at the medications and prescribe analgesia without compromising Patient A's health. On walking into the corridor, she noticed a patient in bed space 22 placing a number of tablets into his mouth. She put Patient A's medications on the bench on the other side of the corridor and attended to the patient in bed space 22. This patient became aggressive towards her and it was necessary to call security. This event took approximately 15 minutes to sort out and in this time, she forgot that she had left Patient A's medication on the bench and she moved away to attend to other tasks. Approximately an hour later, she walked past and saw the medication bag sitting there so she picked it up and took it to Patient A's bedside where she placed it on Patient A's walker and informed Patient A that is where she had put her medications. She says that at approximately 7pm, the night staff attended and handover was given. At approximately 9pm, she was informed by the night nurse that she had been informed by the family that they were unable to locate the medications. She did not realise the medications had been lost and just assumed that they had not looked in the bag she had placed on the walker. She said the family had not informed her the medication was missing, which is why she did not report it to the Nursing Unit Manager, and, as she was not informed by staff after she was informed of the incident, she assumed the medication had been found until she received a call from the NUM informing her of the situation. She said she did not attend to help look for the medication as she was caring for a patient who had been brought in with sepsis. She did not want to leave that patient and assumed that the medication had been found by the staff now caring for Patient A. She said that she was sorry the incident occurred and realised that she should never have taken the medications with the intent to show the doctor and should have brought the doctor to the bedside to view the medications and either asked the family to take the medications home or call a registered nurse to the bedside to take them to the safe and lock them away.
Ms Williamson was also required to attend an interview which she did on 7 March 2019. The answers she gave in that interview were in line with her written response.
Ms Williamson was provided with a preliminary outcome letter by the WSLHD informing her that the Hospital was satisfied that the allegations against her had been substantiated. The decision-maker's preliminary recommendations were that there be verbal counselling, a Reminder of Obligations Declaration including Read and Re-Sign Code of Conduct and that Ms Williamson also be required to Read and Resign the Medication Administration Procedure. By email dated 1 April 2019 Ms Williamson indicated that she was happy with the outcome of the investigation.

[9]

28 August 2019 incident

On 28 August 2019, the Respondent was working as a nurse in the Renal Urology Ward at the Hospital. The HCCC was unable to confirm whether she was working in the capacity of a registered nurse at this time. However, in a letter dated 10 September 2019 from the Director of Nursing and Midwifery at the Hospital to the Council reporting concerns regarding Ms Williamson's conduct, the Director refers to Ms Williamson as a registered nurse. Accordingly, and on the basis that she had commenced her Transition to Practice Program, we understand that she was working as a registered nurse at this time.
On 28 August 2019, the Respondent's Team Leader, Nurse Limbu, wrote an email to the NUM and submitted an AIMS Incident Detail recording that she believed Ms Williamson had that afternoon swapped Patient B's medication (two 5mg Endone tablets) for vitamin D tablets. She also later made a statement dated 20 September 2021, having refreshed her memory from her 28 August 2019 email, in similar terms. Nurse Limbu's evidence is as follows: 1. On 28 August 2019, she was the Team Leader on the Urinary Ward. Ms Williamson asked her to check a Schedule 8 drug, Endone, for Patient B. Patient B was due to be discharged soon and was not Ms Williamson's patient. Ms Williamson was looking after beds one to eight, and Patient B was in bed nine and being looked after by another nurse. Ms Williamson told Nurse Limbu that she was helping that nurse with Patient B's medications. 2. Nurse Limbu asked Ms Williamson to check with the other nurse that she was happy for Patient B to have Endone at that time. Ms Williamson insisted that she check with the other nurse herself and came back and told Nurse Limbu that the other nurse was happy for Patient B to take the Endone before the patient was discharged. 3. Two nurses have to check out a Schedule 8 drug. One nurse takes the medication out of the cupboard, checks the medication box and correct dosage, then takes the medication out of the packet and dispenses it into a medication cup. The second nurse records it in the Schedule 8 DD book (a drugs of addiction registry). The date, time and patient's name are recorded, followed by how many tablets were dispensed and the balance of tablets left in the box. After one of the nurses administers the medication, both nurses need to sign the DD book. 4. Nurse Limbu took out two 5mg Endone tablets and put them in a medication cup. Ms Williamson checked the label with her. Ms Williamson then took the cup and put it on a computer on wheels (COW). Nurse Limbu held the DD book and followed her with the COW. During that time, Nurse Limbu had to look away. When she looked back at Ms Williamson, she noticed Ms Williamson was not pushing the COW and was leaning on it, her right hand in her front pocket of her shirt, fidgeting with something, her left hand still holding the medication cup. Nurse Limbu did not see the medication at that time, but believes she saw Ms Williamson fiddling with the drugs and believed that Ms Williamson had changed the tablets. Nurse Limbu asked Ms Williamson to give her the cup before taking it and flicking the tablets. Nurse Limbu clearly believes she saw two vitamin D tablets instead of two 5mg Endone tablets. There is normally a marking in the tablet line across an Endone tablet which is not present on a vitamin D tablet. This triggered Nurse Limbu to check the marking on the back of the tablets. Vitamin D tablets are significantly smaller than Endone tablets and have two markings on their back which are different to the markings on Endone tablets. Nurse Limbu saw the Vitamin D markings and that the tablets in the cup were significantly smaller than Endone tablets. Ms Limbu was shocked at this stage and checked the patient's name and date of birth in the Medical Record Number to make sure it was the correct patient. Ms Williamson then took the cup from Nurse Limbu's hand at which point Nurse Limbu was too shocked to react. Nurse Limbu did check it was the right patient by which time Ms Williamson had already given the tablets to the patient who swallowed them with water. Nurse Limbu did not feel like she could confront Ms Williamson in front of the patient. Ms Williamson insisted Nurse Limbu should sign the DD book, but Nurse Limbu did not sign it and went and informed the NUM. Shortly afterwards, the nurse responsible for Patient B was asked if she knew Ms Williamson was doing the medication for her patient. Nurse Limbu says that nurse told her Ms Williamson had never asked her if she could give Patient B the Endone.
Ms Williamson was questioned on the day of the alleged incident and tendered her resignation effective immediately.
Ms Williamson sent the NUM an email that afternoon which read: "I am writing to inform you I will be resigning as of today. I am not able to physically and mentally sustain work at the moment with everything that is going on and feel it is in my best interest and my families [sic] best interest to resign. …"
Other nurses who were on duty with Ms Williamson and had administered medication with her that day gave statements in September 2019 that they had not been aware of any wrongdoing on Ms Williamson's part on that day. The nurse who had been responsible for Patient B on 28 August 2019 also gave a statement in 2021 in which she said that she could not recall being told by Ms Williamson on 28 August 2019 that she was going to give medication to her patient, and she also could not recall telling Nurse Limbu that Ms Williamson did not ask her if she could administer medication to her patient.
The Ward Register of Drugs of Addiction in evidence indicates that on 28 August 2019, before the incident in question, Patient B was administered 5mg of Endone at 12:55am, 10mg of Endone at 7:45am, and 5mg of Endone at 10:30am. Ms Williamson was one of the administering nurses on the last two of those occasions.

[10]

Events since Ms Williamson's resignation

WSLHD attempted to contact Ms Williamson by phone and text message after her resignation but did not receive any response.
According to its written reasons for decision dated 13 October 2019, on 12 September 2019 the Council issued Ms Williamson with a request for information under s 164G of the National Law and did not receive any response. The Council also attempted to contact Ms Williamson by email, phone call and text message. On 20 September 2019, a process server attempted unsuccessfully to contact her.
An urgent hearing under s 150 of the National Law was held on 23 September 2019 which Ms Williamson did not attend. On that day, the Council imposed the condition on Ms Williamson's registration that she was not to work as a registered nurse until reviewed by the Council.
On 20 December 2019, the Council resolved that Ms Williamson be required to attend a Health Assessment (Psychiatrist) pursuant to s 145E of the National Law.
By email dated 10 January 2020, the Council sent Ms Williamson a letter dated 10 January 2019 (sic) requesting that she attend a health assessment with a psychiatrist on 19 February 2020. That letter attached a Fact Sheet which stated, amongst other things: "If you do not reschedule your appointment and fail to attend without a reasonable excuse: - Your non-attendance can be evidence of an impairment under the National Law (NSW) - We will also consider taking further action, including urgent action, if necessary to protect the public"
Multiple, unsuccessful attempts were made to contact Ms Williamson by phone and text message on 31 January 2020, 12 February 2020, and 18 February 2020 to remind her to check her email or to remind her of her appointment.
Ms Williamson did not attend the appointment with the psychiatrist scheduled for 19 February 2020.
On 27 February, 28 February and 2 March 2020, a process server unsuccessfully attempted to serve Ms Williamson with a request to provide an explanation for her non-attendance at the appointment with the psychiatrist.
Ms Williamson has not offered any reason explaining her non-attendance.
It is relevant to note that the HCCC also had difficulty effecting service of the materials for these proceedings on Ms Williamson. It appears that Ms Williamson has changed her address more than once since she resigned from the Hospital.

[16]

Application to Amend Complaint One after the Hearing

After the hearing of the proceedings, on 12 May 2023, the Tribunal made the following orders: 1. The HCCC is to provide to the Tribunal and the Respondent submissions as to why s 16 of the PTGA applies in respect of oxycodone or Endone tablets by 19 May 2023. 2. The Respondent is to provide to the Tribunal and the HCCC any submissions in reply by 26 May 2023.
The HCCC filed Supplementary Submissions on 17 May 2023. In those submissions, the HCCC identified that Complaint One, Particular Three contained an error because on 28 August 2019 oxycodone was not a prescribed restricted substance as it was not listed in Schedule Four of the Poisons List or Appendix D to the PTGR. The HCCC sought leave to amend Complaint One, Particular Three to replace the reference to s 16 of the PTGA with a reference to cl 101 of the PTGR which deals with drugs of addiction.
The HCCC's application for leave to amend was listed for hearing on 22 June 2023. That hearing date was vacated and the application for leave to amend was relisted for hearing on 6 July 2023. This was because the HCCC's Supplementary Submissions were not served on the Respondent until 21 June 2023 and so as to allow the Respondent time to file and serve any submissions in reply if she wished to do so.
The Respondent did not file any reply submissions and did not attend the hearing of the application for leave to amend. Being satisfied that the Respondent had been served with the submissions and had notice of the hearing, that application was heard in her absence.
On 6 July 2023, the Tribunal made orders granting leave to the HCCC to amend Particular Three of Complaint One by replacing the words "section 16 of the PTGA" with the words "clause 101 of the Poisons and Therapeutic Goods Regulation 2008 (NSW)". As a result, Particular Three of Complaint One as amended is that on 28 August 2019, the practitioner possessed a Schedule 8 drug, namely two Endone 5mg tablets, outside the lawful practice of her profession in contravention of cl 101 of the PTGR.
The Tribunal also made an order that the Respondent file and serve any evidence and submissions in relation to the Complaint as amended by 20 July 2023 and that such submissions should address whether the issues for determination in relation to the Complaint as amended could be adequately determined in the absence of the parties such that the Tribunal may make an order under s 50 of the CAT Act dispensing with a further hearing.
The HCCC indicated at the hearing on 6 July 2023 that it considered that the issues for determination in relation to the Complaint as amended could be adequately determined in the absence of the parties.
The Respondent has not filed any further evidence or submissions in accordance with those orders.
Being satisfied that the matters relevant to the Complaint as amended could be adequately determined in the absence of the parties, on 24 July 2023 the Tribunal made an order under s 50(2) of the CAT Act dispensing with a further hearing in relation to a consideration of Complaint One, Particular Three as amended.

[17]

Complaint One

We will first deal with the Particulars to Complaint One.
As to Particular One of Complaint One, namely that on 26 January 2019 Ms Williamson misappropriated a box of Schedule 8 medication, we do not consider that this Particular has been proved to the Briginshaw standard.
It is not in dispute that on that date Ms Williamson took Patient A's bag of medications, which included a box of 20 5mg Endone tablets, and returned it approximately one hour later without the Endone tablets. However, we do not think the HCCC has established on the evidence that Ms Williamson took the Endone tablets herself.
Ms Williamson provided a response to the allegations that were made against her as part of the investigation undertaken by the Hospital/WSLHD in relation to her conduct on 26 January 2019. It was not put to her at that time that she had misappropriated the medication. It was put to her that she had failed to secure the medication, failed to follow relevant policies in relation to the medication, and failed to notify or escalate the matter of the missing medication appropriately. Those allegations were found to be substantiated and Ms Williamson accepted that outcome.
The statements made by the nurse who took over on night shift and by the NUM, which were provided as part of the investigation, establish that Ms Williamson was avoiding speaking with Patient A or her family about the missing medication. The statements also establish that the police were contacted and that they interviewed the night nurse, the NUM, Patient A and Patient A's daughter. However, on the evidence before us, we do not know whether the police interviewed Ms Williamson, or anything further about the police investigation. Neither the night nurse nor the NUM says that they saw Ms Williamson take the medication. Nor does anybody else. A suspicion that Ms Williamson may have taken the medication is not proof that she did. There is no evidence that Ms Williamson misappropriated the medication and no proper basis for inferring that she did.
Given that a range of possible explanations exist for how the Endone tablets went missing, which would be consistent with Ms Williamson's innocence, while it is possible Ms Williamson may have taken the medication on that occasion, we do not consider the evidence put forward by the HCCC proves that she did so on the balance of probabilities, with a sufficient degree of certainty, having regard to the seriousness of the allegation. We do not find this Particular to be proved.
Particular Two of Complaint One is that on 28 August 2019 Ms Williamson inappropriately removed two Endone 5mg tablets from the Hospital which had been prescribed to Patient B in circumstances where: 1. Ms Williamson had provided false and/or misleading information to the Team Leader that the nurse responsible for Patient B had approved her giving Endone to Patient B prior to discharge; 2. Ms Williamson inappropriately administered tablets to Patient B knowing they were not Endone 5mg tablets as prescribed.
We consider that Particular 2(a) is proved, on the balance of probabilities, with a sufficient degree of certainty.
It is clear from the Ward Register of Drugs of Addiction in evidence that Ms Williamson had on two previous occasions on that date administered Endone to Patient B. However, Nurse Limbu's contemporaneous and unchallenged evidence is that the nurse in charge of Patient B told her that Ms Williamson had never asked her if she could give Patient B Endone prior to her discharge. While that nurse was not able to recall having told Nurse Limbu that, she cannot be expected to recall a routine interaction of this nature years after the event. Nurse Limbu's evidence was not challenged in this regard, and we accept it.
We also consider that the evidence put forward by the HCCC proves the allegations in Complaint One, Particular 2(b), namely that Ms Williamson inappropriately administered tablets to Patient B knowing that they were not Endone 5mg tablets as prescribed.
It is clear from Nurse Limbu's evidence that she (Nurse Limbu) had put two 5mg Endone tablets in Patient B's medication cup, that Ms Williamson then took that cup, and that when Nurse Limbu took the cup back from Ms Williamson she saw it contained two vitamin D tablets instead of the two 5mg Endone tablets she had placed in the cup. Nurse Limbu was able to identify this by the different markings on the tablets and was certain the tablets were not Endone tablets as she refused to sign the DD book. We accept that the only possible explanation is that Ms Williamson had switched the tablets. She then gave the vitamin D tablets to the patient who swallowed them. Ms Williamson was interviewed that day and resigned immediately. She has not sought to deny the allegation in these proceedings.
We are also satisfied that Complaint One, Particular 3 as amended is proved. It must follow that, having switched the tablets, Ms Williamson then possessed the two 5mg Endone tablets which were not administered to Patient B.
Clause 101 of the PTGR provides that a nurse is authorised to have possession of drugs of addiction only for the purpose of administering doses of such drugs to patients in hospital. Section 4 of the PTGA defines "drugs of addiction" to mean any substance specified in Schedule 8 of the Poisons List. As at 28 August 2019, oxycodone was specified in Schedule 8 of the Poisons List.
It follows, and we find, that on 28 August 2019 the Respondent did possess Schedule 8 drugs, namely two Endone 5mg tablets outside the lawful practice of her profession in contravention of cl 101 of the PTGR.
We find Complaint One, Particular 3 as amended is proved.
Having found Particulars 2 and 3 of Complaint One proved, we must consider whether the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) because she has engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
"Improper" and "unethical" and not defined in the National Law. The Tribunal considered the meaning of those terms in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[55] stating as follows: "51. The words 'improper' and 'unethical' are not defined in the National Law. The Macquarie Dictionary defines improper as follows: '1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular.' 52. Unethical is defined as follows '1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct.' 53. The word improper was the subject of discussion by. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7. The Chief Justice said: '… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".' 54. Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term 'impropriety' in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. 55. The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: 'Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. …'"
We are satisfied that the Respondent's conduct which we have found proved, was improper or unethical as those expressions are understood. Her conduct was clearly inappropriate. If the nurse responsible for Patient B would have approved Endone being given to her, had she been asked, Patient B would have needed pain relief and Ms Williamson denied her of that relief. If she wouldn't have approved Endone being given to Patient B at that time, administering vitamin D tablets but recording them as having been Endone tablets, would have had the consequence that the patient could not have had Endone for a further period of some hours which would mean that she would be deprived of pain relief for no good reason. It is conduct that would clearly be regarded by a reasonable person as falling significantly below the standard to be expected of a nurse. A patient in hospital would expect to be given their prescribed medications and that a nurse responsible for their care would not take those medications for themselves.
The Respondent's conduct clearly breached the standards of conduct that would be expected of a person in her position and was contrary to: 1. The Nursing and Midwifery Board of Australia's Code of Conduct which provides, amongst other things, that nurses must: "1.2 …practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practise and/or damage the reputation of the profession … comply with relevant poisons legislation … including to safely use, administer, obtain, possess, … medications … not participate in unlawful behaviour …" 1. NSW Health's Code of Conduct which provides, amongst other things that nurses must: "4.3.1 At all times act in a way which is consistent with NSW Health's duties of care to its patients …" 1. WSLHD's Medication administration Compliance Procedure which provides amongst other things that: "6.1.2 Nursing … staff administering medications must ensure the following '5 rights' of safe medication administration are maintained at all times: i.e. Right patient; Right drug; Right route; Right does; Right time and frequency." 1. NSW Health's Medication handling in NSW Public Facilities which provides amongst other things that all Schedule 8 medications must be stored in the Schedule 8 medication storage unit.
Accordingly, we find that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) by reason of her conduct.

[19]

Complaint Three

Complaint Three is that the Respondent is not competent within the meaning of s 139(a) of the National Law in that she failed to attend an examination pursuant to s 145E of the National Law.
Section 139(a) provides that a person is competent to practise a health profession only if, as well as having sufficient communication skills, the person has "sufficient physical capacity, mental capacity, knowledge and skill to practise the profession".
Given Ms Williamson has moved address more than once, we are not satisfied on the evidence that the request for information under s 164G of the National Law or the letters to her requesting an explanation for her non-attendance were served, or attempted to be served, on her at the correct address. However, we are satisfied that Ms Williamson was made aware by email dated 10 January 2020 of the direction that she attend the assessment with Dr Samuels on 19 February 2020. That email was sent to the email address Ms Williamson used in advising the HCCC that she did not propose to attend the hearing of these proceedings. The letter attached to that email also made it clear that failure to attend without a reasonable excuse may result in the Council taking action to protect the public.
It is clear on the evidence that Ms Williamson did not attend the assessment and has not provided an excuse for not doing so.
Section 145F of the National Law provides that a failure without reasonable excuse to undergo an examination under s 145E is evidence that the practitioner does not have sufficient physical or mental capacity to practise the health profession in which they are registered.
Ms Williamson has not sought to file any evidence to counter such a finding.
Accordingly, we are satisfied that the HCCC has proved Complaint Three, Particular One. We are also satisfied that, by this conduct, and her conduct in administering the wrong medication, Ms Williamson has demonstrated diminished insight into her professional obligations to regulatory authorities and diminished insight into and/or capacity to respond to her professional obligations. Accordingly, we are also satisfied that the HCCC has proved Complaint Three, Particular Two.

[21]

Disciplinary orders - principles

Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield. However, that is not to deny that such orders may be punitive in effect: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], [31].
In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA gave the following explanation at [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 the exercise of its protective jurisdiction, the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153.
As we have found the Respondent guilty of professional misconduct, if the Respondent were still registered it would have been open to us to cancel her registration under s 149C(1)(b) of the National Law. However that outcome is not automatic: Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 at [4].
There may be circumstances where, although a practitioner has been found guilty of professional misconduct, the practitioner has demonstrated to the Tribunal that they have gained insight into their behaviour, have shown remorse, and have taken sufficient steps to address their behaviour such that the Tribunal may have comfort that the practitioner would not be likely to engage in conduct of a similar nature again.
This is not such a case. In this case, when interviewed on the day of the incident, the Respondent immediately tendered her resignation, without offering any explanation for her conduct. The Respondent was directed to attend a psychiatric assessment and failed to do so. The Respondent has also failed to engage in these proceedings. She has put nothing before the Tribunal by way of an explanation for her conduct or for why she failed to attend her assessment, and nothing which would indicate to the Tribunal she has gained insight into her behaviour. She has expressed no remorse and has put nothing before the Tribunal which could give us any comfort that she would be unlikely to misconduct herself in a similar manner in future. In the circumstances, we cannot be satisfied that the Respondent would not pose a risk to public health and safety if she were allowed to continue to practise.
In Chen v Health Care Complaints Commission, Basten JA stated at [21]-[22]: "21. … [I]n 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. ..."

[23]

Costs

The HCCC seeks an order that the Respondent pay its costs as agreed or assessed.
This is a costs jurisdiction, and ordinarily costs should follow the event. While there is a discretion not to award costs to the successful party it must be exercised judicially "according to proper fixed principles and rules of reason and justice": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]-[44].
The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [9].
In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, the Court of Appeal identified factors that might militate against the HCCC recovering all its costs as including a lack of success in obtaining findings against the practitioner or the HCCC's failure to establish the particulars pleaded, or some oppressive conduct on the part of the HCCC 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.
At the hearing the HCCC submitted that there had been no disentitling conduct on its part in this case. However, in its Supplementary Submissions it accepted that it had made an error in respect of Complaint One, Particular Three and would not seek the costs of preparing the Supplementary Submissions.
In this case, although we have decided to make the orders sought by the HCCC: 1. the proceedings first came before the Tribunal for hearing on 12 December 2022. On that occasion, the HCCC sought an order that the proceedings be heard in the absence of the Respondent. As the HCCC could not satisfy the Tribunal the Respondent had been served with the materials, that order was not made, and the hearing was adjourned; 2. we have found one of the particulars to Complaint One has not been established by the HCCC on the evidence; and 3. one of the particulars of Complaint One was amended as a result of the Tribunal seeking further submissions from the parties. This required the preparation of further submissions and a hearing in respect of the application for leave to amend (which was also required to be adjourned because the HCCC had only served its submissions on the Respondent the day prior to the date the application was originally listed for hearing.)
In those circumstances, we consider that the HCCC should not be entitled to its full costs in respect of the original hearing and should not be entitled to any costs in respect of any steps taken in the proceedings after the original hearing, including in respect of its application for leave to amend. We would propose to make an order that the Respondent pay 85% of the HCCC's costs other than its costs in respect of any steps taken after 27 March 2023, such costs to be agreed or assessed.

Health Care Complaints Commission v Williamson

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (24)