Health Care Complaints Commission v Willis

NCAT Occupational|2018-05-18

riate protective orders Legislation Cited: Health Practitioner Regulation National Law Health Practitioner Regulation (New South Wales) Regulation 2010 Legal Profession Uniform Law Application Act 2014 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at 67 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Perroux [2011] NSWDC 99 Health Care Complaints Commission v Phung (No. 1) [2012] 1 NSWDT Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Office of Local Government v Toma [2015] NSWCATOD 21 R. v Byrne [1995] 193 CLR 501 Sabag v HCCC [2001] NSWCA 411 Heath Care Complaints Commission v Quan [2018] NSWCATOD 111 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Imogen Willis (Respondent) Representation: Applicant: Mr Bhalla (Counsel) Respondent Mr Byrne (Solicitor)

Solicitors: Health Care Complaints Commission (Applicant) New South Wales Nurses and Midwives Association (Respondent) File Number(s): 2017/00364683 Publication restriction: Under cl 7 of Schedule 5D of the Health Practitioner Regulation National Law an order is made prohibiting the publication of the names of the patients A to I as set out in the schedule to the complaint.

Background

Ms Willis (the Practitioner) was first registered as a Nurse on 6 March 2012 after completing a Bachelor of Nursing at the University of Tasmania. She is currently employed as a casual registered nurse at Kingborough Medical Centre and as a casual in the medical imaging department of the Royal Hobart Hospital. She has held each of these positions for several years since completing her studies.
In addition to her current casual work the Practitioner's nursing experience consists of casual employment at a medical centre for about 2 months in 2016, seasonal work as an immuniser in 2014 and as a part time night shift manager at an aged care facility in 2012. The Practitioner indicated to the Tribunal that since graduation she had found it difficult to secure full-time employment.
In 2016 the Practitioner moved to Sydney from Tasmania to be with her partner. Between 27 January 2016 and 17 February 2016 the Practitioner worked as a registered nurse with iv.me Hydration Clinic ("the Clinic"). It is the Practitioner's conduct whilst working at this Clinic for a period of three weeks consisting of 10 shifts which is the subject of this application to the Tribunal.
The Clinic was located in rooms at Holdsworth House Medical Practice (Holdsworth House) in Sydney. The Clinic provided a range of "rehydration" services by way of intravenous infusions and intramuscular injections of vitamins, minerals antioxidants and other similar products. It included the injection or infusing of Methylcobalamim (Vitamin B12), Sodium Ascorbate (Vitamin C) and a substance known as a "Myers Cocktail" which is a combination of magnesium, calcium, various vitamin B vitamins and vitamin C.
The Clinic, which is now closed, was owned and operated by a registered pharmacist. The pharmacist worked at the Clinic alongside the Practitioner. It was the Practitioner who was responsible for administering the products to clients.
On 13 February 2016 a patient of the Clinic became unwell after receiving a "Myers Cocktail" vitamin infusion and glutathione injection administered by the Practitioner. The patient was transferred to hospital by ambulance. On presentation at the hospital she was admitted with fever, myalgia, abdominal pain and hypertension. The onset of these symptoms was reported as occurring 30 mins after the treatment at the Clinic. The patient was admitted for six days due to suspected endotoxaemia (the presence of toxic substances secreted by bacteria in the blood).
The Hospital notified the Public Health Unit of the Ministry of Health. On 17 February 2016 an investigation into possible breaches by the Clinic of the Poisons and Therapeutic Goods Act 1966 was conducted by officers of the Public Health Unit and the Pharmaceutical Regulatory Unit (PRU) of NSW. The Clinic did not trade after this date. A report was subsequently prepared by the PRU and a complaint was made by it to the Health Care Complaints Commission ("the Commission").
Consequently on 8 June 2017 proceedings were held by the Nursing and Midwifery Council of New South Wales (the Council) under section 150 of the Health Practitioner Regulation National Law (NSW) into the Practitioner's conduct. At the conclusion of those proceedings the Council placed a range of conditions on the Practitioner's registration. In essence the conditions required the Practitioner to only practice under direct or indirect supervision of an on-site registered nurse, not engage with an agency and be supervised by a Nurse Manager as approved by the Council. The conditions also provided for the provision of written reports by the supervisor about the Practitioner's performance.
These conditions remain in place. The practitioner is currently supervised by Mr Peyton (Royal Hobart Hospital) and Mr Warren (Kingborough Medical Centre). There is no evidence that the Practitioner has breached these conditions or has been the subject of any adverse report.

The Application before the Tribunal

The Commission has initiated an application for disciplinary findings and orders against the Practitioner under the Health Practitioners National Law NSW (Nursing). The application attaches a Complaint dated 1 December 2017 ("the Complaint"). It comprises two individual Complaints against the Practitioner.
Complaint One is that the Practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that she has: 1. engaged in conduct that demonstrates that the judgment possessed, or care exercised, by the Practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
Complaint Two is that Practitioner is guilty of professional misconduct under section 139E of the National Law in that she 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.
Complaint One is supported by a set of particulars. Complaint Two relies on the same set of particulars as set out in Complaint One.
The particulars are summarised as follows: In the course of her work at the Clinic between 27 January 2016 and 17 February 2016 the Practitioner: 1. Failed to follow safe medication handling practice in her handling of parenteral glutathione, methylcobalamin B12, sodium ascorbate (vitamin C) by drawing from single-use vials multiple times for the treatment of multiple patients 2. Failed to follow safe medication handling practice by preparing infusion bags of sodium ascorbate prior to immediate use 3. Failed to seek clarification of her duties to ensure she was working within the scope of practice as a registered nurse where the role included administering medication to patients who had not first consulted with a medical practitioner and where the therapeutic benefit of the medication was unclear 4. Failed to undertake an adequate assessment of nine patients (Patients A to I) prior to administering parenteral medications to them 5. In respect of these nine patients, she acted outside the scope of her practice and failed to provide adequate care when she: 1. provided a treatment that was not indicated for their presenting complaints 2. provided a treatment that was not appropriate given their medical history 3. administered a treatment in circumstances where she knew that the patients had not been assessed by a medical practitioner 4. administered a treatment in circumstances where she knew that the patients did not hold a valid prescription for the medication, and that the prescription was in another person's name 1. Failed to complete adequate health care records for the nine patients when she failed to document any care or treatment plan, including risk assessments and associated interventions, and failed to document any medication orders for those patients, and the details of the prescriber 2. In respect of four of the patients provided a treatment that was not appropriate given their noted medications (patients A, C, H and I) 3. In respect of three of the patients provided a treatment that was not appropriate given the patients' noted allergies (patients D, G and H) 4. In respect of five of the patients (patients B, D, E, H and I) administered parenteral glutathione, a schedule 4 drug as outlined in the NSW Poisons List, proclaimed under Section 8 of the Poisons and Therapeutic Goods Act 1966, in circumstances where: 1. it was not for the purposes of medical treatment prescribed by a medical practitioner in breach of reg. 59 of the Poisons and Therapeutic Goods Regulations 2008. 2. she made no attempt to verify a valid prescription for each patient and where it had in fact been prescribed for patients other than those to whom it was administered.
Material before the Tribunal in the form of an Australian Register of Therapeutic Goods (ARTG) Public Summary as at 5 February 2017 indicates that Glutathione is a key antioxidant and plays a role in normal healthy cellular immune activity. It is available in tablet form and can be purchased over the counter. It is not in dispute that it is only when Glutathione is to be administered by infusion or injection (parenteral administration) that it is a restricted substance for the purposes of the Poisons and Therapeutic Goods Act, and that the Act and corresponding Regulations are then applicable.

Evidence

Evidence in support of the factual allegations made in the particulars is contained in, but not limited to the following documents: 1. A letter dated 18 July 2016 from the NSW Nurses and Midwives' Association (who represent the Practitioner) to the Commission which details the preparation of multiple IV bags at the beginning of each shift 2. A Statement of the Practitioner dated 18 April 2018 in reply to the Application and Complaint in which she admitted most of the particulars. 3. A response to the Commission from the pharmacist owner and operator of the Clinic dated 23 June 2016, to questions put to her by the Commission, where she describes the preparation, in anticipation of a certain number of patients for the day, of multiple IV infusion bags for the day ahead. 4. A report from a Senior Pharmaceutical Officer dated 3 March 2016 where she records the pharmacist owner and operator admitting having directed the administration of a proprietary product designed for single use to multiple patients. 5. A statement made by the Principal Pharmaceutical Officer where she details a conversation with the pharmacist owner and operator on 17 February 2016, where it was admitted that the Clinic administered sodium ascorbate from the partially used bottle (marked "SINGLE USE") found during the inspection to multiple patients.
Both the Practitioners supervisors, Mr Peyton and Mr Warren, provided written references in support of the Practitioner. Both commenced supervision of the Practitioner following the imposition of conditions on her registration at the section 150 Proceedings held on 8 June 2017.
Mr Peyton is a registered nurse at Royal Hobart Hospital. He has known the Practitioner since 2013. In his statement of 18 April 2018 he stated that during this time he has known her to be a conscientious, honest and hardworking member of staff. Professionally he had found her to be consistent, quick to learn and followed direction. In the context of the hospital he had never felt that she was practicing in an unsafe manner, as she has always practiced within the protocols and guidelines provided as well as the direction provided by her peers.
In the context of the complaints against the Practitioner Mr Peyton believed that she had developed a greater understanding of the legalities that inform her nursing practice. She had worked very hard to develop this understanding and was keen to undertake formal continuing education. He stated that the Practitioner satisfactorily fulfils all the duties expected of registered nurse and no patient complaints had been raised. He believed her to be a fit and proper person to be held out to patients and the whole community as a person worthy of their confidence. He was confident that the last six months of supervision and education have aided her practice and that she will continue to develop over the course of her career.
Mr Warren is a Nurse supervisor at the Kingborough Medical Centre. He has known the Practitioner for two years. In his statement, which was undated but completed in April 2018, he said that the Practitioner had always shown a professional, ethical and conscientious approach towards patients and their care. He observed that she practices within the medical centre's policies and procedures and he had no concerns of a professional nature while working with her over the past two years. He considered the Practitioner to be a fit and proper person to be held out to patients and the whole community as a person worthy of their confidence. He indicated that he took on the responsibility of supervising the Practitioner because of the confidence he had in how she practices as a registered nurse.
Both Supervisors had been required to report monthly to the Council regarding the Practitioner's Clinical practice. Since supervision commenced, there have been no concerns raised with the Council by either supervisor regarding the Practitioner's clinical practice. Following a review of her conditions in 2018, the Council amended its monthly reporting requirement and now requires supervision reports to be submitted every three (3) months
The Practitioner provided a statement dated 18 April 2018 which she verified at the commencement of her oral evidence to the Tribunal. She was cross examined by counsel for the Commission and responded candidly to questions posed to her by the Tribunal panel.

The hearing

In summary the Practitioner acknowledged that she did not make sufficient enquiries about her position prior to commencing employment. She took direction from her new employer, a registered pharmacist. When she commenced employment at the Clinic her understanding was that clients would consult with her employer about the type of treatment they would be given and her role was to administer that treatment. She understood that clients sent to her by her employer for administration of their treatment did not have any medical history or condition that would preclude them from receiving their treatment. She conceded that this was an error of judgment. Prior to commencing at the Clinic she had not worked in a nursing position where she was required to reconcile local policies and procedures with state health policies, codes, guidelines and standards. She made an error of judgment in assuming that the policies and protocols developed and used at the Clinic were legitimate. Further she conceded she was naïve to rely on the policies and protocols of the Clinic without making her own independent assessment of them and their legitimacy.
In her oral evidence the Practitioner explained that prior to starting her work at the Clinic she thought she would be working for the Holdsworth House Medical Practice which she believed to be a reliable, credible and established practice. The Clinic was located in the same premises as Holdsworth House. Indeed the job description she was given which specified her duties contained the following statement: "DUTIES: The role of registered nurse manager at iv.me Sydney-Holdsworth House Medical Practice, requires…"
The evidence discloses a number of other practical aspects where there appeared to be some overlay between the Clinic and Holdsworth House. Patients attending their appointments at the iv.me Clinic would be greeted on arrival by the reception area of Holdsworth House who would then in turn advise the Practitioner of their arrival. In addition the practice software that was run by Holdsworth House could be accessed by the Practitioner so she could see the allocated patient appointments and associated treatment for that day. Further, individual Patient Questionnaire Forms which were given to the Clinic patients which included contact details and a range of questions about existing medical conditions carried the Holdsworth House letter head. It is important to note that there is no evidence or suggestion that any of the directors of Holdsworth House were involved in the operation, ownership or management of the iv.me hydration Clinic. Nor is there any evidence or suggestion that they were aware of the use of the name of their clinic on documentation used by the iv.me hydration Clinic.
The Practitioner explained that she was told by her employer that Glutathione was not a scheduled medication which she now knows to be incorrect. She described the checks, including consulting MIMS that she undertook about Glutathione. She observed that it was hard to get information about its use parentally and she had no reason to distrust what her employer had told her. However, she accepted without hesitation that she should have done her own independent assessment.
In respect of other medication which required a prescription she was told by her employer that there were standing orders. Again she had learned from this experience and her practice now would be to require a prescription.
The Practitioner described the process at the Clinic. She conceded that vials were accessed multiple times, that this was improper and her practice now is to discard the vial after single use. She also acknowledged that she injected Vitamin C into IV infusion bags and stored them until the patient's treatment, and therefore prior to immediate use. She also acknowledged that this was unsafe.
Notwithstanding her compliance with the Clinic's documentation requirements, the Practitioner acknowledged that the absence of a valid medical prescription for Glutathione, not having undertaken a risk assessment for each client and the absence of any Clinical indication for the initiation of treatment, was inadequate documentation on her part.
Since her experience at the Clinic the Practitioner has undertaken a number of educational courses to improve her skills and knowledge around medication administration. She has completed a course specifically targeting the Clinical uses of Glutathione.
It was clear from the Practitioner's oral evidence that she appreciated the gravity of the complaints and the potential for harm that may have been caused. She has acknowledged errors in judgment and clinical treatment. She has admitted most of the particulars in this matter and has consistently made admissions throughout her correspondence with the Commission and the Council acknowledging her failings regarding her care and treatment of patients presenting to the Clinic. She has acknowledged that during her period of employment at the Clinic she was unaware that Glutathione was a Schedule 4 drug.
Both the Practitioners supervisors, Mr Peyton and Mr Warren, gave oral evidence which was consistent with their references. Both were aware of the Complaint before the Tribunal.
In Mr Peyton's oral evidence, he offered some insight into the differences between working in a Hospital setting and the private sector. He referred to the governance framework that existed in a hospital setting. He regarded the Practitioner "to be a very good nurse".
In cross examination and in oral submissions to the Tribunal counsel for the Commission attempted to suggest that the Practitioner had not been candid with her supervisors as to the full nature and extent of the allegations against her. The Tribunal is satisfied that both the supervisors were sufficiently aware of the Complaint. The Tribunal was not persuaded that the evidence before it demonstrated that the Practitioner had not been candid with her supervisors about the Complaint.

Expert Peer Review Report

The Tribunal had the benefit of an Experts Report dated 7 March 2017 prepared by RN Kelly which examined the Practitioner's conduct. RN Kelly has been a registered nurse for some 28 years. She has taught extensively in the area nurse training.
The evidence of the expert indicates that she was of the view that much of the Practitioner's conduct, was significantly below what is reasonably expected of a practitioner with the same training or experience. The Practitioner's conduct in respect of administering Glutathione also invited her strong criticism. The same strong criticism was made by the expert in respect of the Practitioner's failure to work within her scope of practice, and also in respect of many of the specific allegations made in respect of patients A to I.
Specifically, the expert identified that the Practitioner's conduct in relation to the handling of medication by drawing from single use vials multiple times was in breach of the NSW Policy Directive for Medication Handling dated 27 November 2013. Similarly the administration of schedule 4 Glutathione without sighting and checking a script specific to the patient it was intended for was also not in accordance with the NSW Policy Directive for Medication Handling. In line with the Code of Professional Conduct for Nurses in Australia, August 2008 it was the Practitioner's responsibility to know if medication is scheduled and that a prescription is required. The expert analysed individual patient records and was critical of the Practitioner's lack of assessment of patient needs or plans of care. The expert did not believe that the Practitioner had maintained adequate documentation. She referred to an absence of prescriptions, commented that the Practitioner's assessments were not thorough and did not assess clients for contraindications to procedures.

Nursing Standards

The Nursing and Midwifery Board of Australia has developed a number of documents which set out standards and gives Nurses guidance as to the conduct expected of them. In addition other documents produced by NSW Health, The Australian Commission on Safety and Quality in Health Care and other entities set out policies, standards and guidelines. All these documents were available to the Tribunal.

The issues

In her statement dated 18 April 2018 the Practitioner admitted or partially admitted all but three of the particulars. At the hearing the Commission did not press one of its particulars and amended another particular. In response the Practitioner made a further admission and a partial admission. In effect this meant that none of the particulars were denied, two were partially admitted and the remainder were fully admitted.
The two matters that were partially admitted related to the allegation concerning the preparation of infusion bags of sodium ascorbate prior to immediate use (particular 2a) and the allegation that the Practitioner failed to complete adequate health care records for the specified nine patients when she failed to document any care or treatment plan, including risk assessments and associated interventions (particular 15a).
As the Tribunal understands the basis to the Practitioner's partial admissions she says that the infusion bags of sodium ascorbate were not prepared until a patient arrived at the Clinic, and although she did not undertake a risk assessment associated with each patient and there was an absence of any Clinical indication for the initiation of treatment she did record what infusions were provided to patients and recorded any relevant observations.
In the Tribunal's view the nature and extent of the partial admissions, the way in which the specific particulars are framed and the evidence before the Tribunal, including the Practitioner's oral evidence support a finding that each of these two particulars are proved.
Even if the infusion bags of sodium ascorbate were prepared when a patient arrived at the Clinic there was still a delay in administering the infusion and it was not immediate. Further the Practitioner acknowledged in her evidence that the absence of a valid medical prescription for Glutathione, not having undertaken an assessment associated with each patient and the absence of any clinical indication for the initiation of treatment was inadequate documentation on her part. The Tribunal is satisfied that the factual matters with which these two particulars (2a and 15a) are concerned are proved.
Given the admissions made by the Practitioner and the Tribunal's finding that all particulars are proved, the Tribunal's primary focus was whether the Practitioner's conduct constituted unsatisfactory professional conduct and professional misconduct as defined in the National Law and the appropriate protective orders to be made.
If the Complaints of unsatisfactory professional conduct and professional misconduct are found proven by the Tribunal the Commission requests the Tribunal to exercise its power to make disciplinary orders against the Practitioner. Specifically, that the Practitioner's registration be cancelled with a non-review period of 12 months. It also seeks an order for costs.
In seeking cancellation of the Practitioner's registration the Commission pointed to the seriousness of the conduct, including repeated instances of including, but not limited to, administering a Schedule 4 drug to those not prescribed to receive it in contravention of the Poisons Act. It was submitted that given that the protection of the health and safety of the public is the paramount consideration of the Tribunal, it is only by the imposition of such an order that the health and safety of the public will be properly protected. This included reminding other members of the profession that practising as a nurse outside of a familiar medical or hospital environment must not lead to any lessening of professional standards and that the highest standards of care, professionalism and diligence are required in any environment, including in "so-called wellness Clinics". It was submitted that one of the hallmarks of a professional is the requirement to exercise independent judgement in accordance with their professional responsibilities and that the Practitioner did not do this in her work at the Clinic.
In contrast the Practitioner proposed orders dealing with reprimand, mentoring and the completion of targeted educational courses. It was submitted on behalf of the Practitioner that cancellation of registration with a non-review period of 12 months as sought by the Commission would have a more serious consequence for the Practitioner than is reasonably necessary to promote the protective purpose. Cancellation of her registration would end her nursing career. The Practitioner has had no previous complaints apart from the current proceedings. She has never been the subject of a workplace investigation or disciplinary process. Both her supervisors provided references in support. Both Supervisors had been required to report monthly to the Council regarding the Practitioner's Clinical practice. Since supervision commenced, there have been no concerns raised by either supervisor regarding her Clinical practice with the Council. Following a review of her conditions in 2018, the Council amended its monthly reporting requirement and now requires supervision reports to be submitted every three months. After some 11 months of supervision overseen by the Council and without any complaint or concern raised by either of the Practitioner's supervisors concerning her Clinical practice and professional conduct.
It was submitted on behalf of the Practitioner that it would not be reasonably necessary to make an order for cancellation of registration. The Practitioner poses no risk to public safety as she has continued to conduct her nursing practice without incident following the complaint, she has made changes to her practice and she has shown insight regarding her failings.
The Commission opposed the orders proposed by the Practitioner because they would not have the effect of protecting the public and would minimise the gravity of the conduct. It was said that unless a strong signal was sent, the profession would not appreciate how serious the conduct was seen. A "slap on the wrist" would not send such a signal.

Conclusions

Complaint One alleges "unsatisfactory professional conduct" within the meaning of section 139B, via the two pathways contained in sections 139B(a) and (l) of the National Law. Complaint Two alleges "professional misconduct" by the Practitioner under section 139E of the National Law, relying individually and/or in combination on the particulars of Complaints One.
For the reasons that follow the Tribunal is satisfied that Complaints One and Two are proved.

Complaint One

Section 139B(1)(a) of the National Law requires the determination by the Tribunal as to whether the Practitioner has been guilty of unsatisfactory professional conduct. It involves an objective assessment of the Practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner.
Section 139B(1)(l) of the National Law also requires a determination by the Tribunal as to whether the Practitioner has been guilty of unsatisfactory professional conduct. It involves an assessment as to whether her conduct was improper or unethical relating to the practice of nursing.
The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not 1. "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrne [1995] 193 CLR 501 at 514-515: see HCCC v Phung (No. 1) [2012] 1 NSWDT at 68. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
The words improper and unethical were considered by the 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. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical.
This test was adopted in HCCC v Liu [2016] NSWCATOD 133 at 56.
The expert's evidence makes it clear that the Practitioner's conduct fell significantly below the standard reasonably expected of a practitioner of equivalent training and experience.
As referenced by the expert, the Practitioner's conduct in relation to the handling of medication by drawing from single use vials multiple times was in breach of the NSW Policy Directive for Medication Handling at paragraph 7.6. Similarly the administration of Schedule 4 Glutathione without sighting and checking a script specific to the patient it was intended for was also not in accordance with the NSW Policy Directive for Medication Handling. In line with the Code of Professional Conduct for Nurses, Nursing and Midwifery Board of Australia, it was the Practitioner's responsibility to know if medication is scheduled and that a prescription is required.
The expert was critical of the Practitioner's lack of assessment of patient needs or plans of care. The expert formed the view that the Practitioner's assessments were not thorough nor did she assess clients for contraindications to procedures. In line with the National competency standards for the registered nurse, Nursing and Midwifery Board of Australia at paragraph 5, it was the Practitioner's responsibility to conduct a comprehensive and systematic nursing assessment of all her patients.
In the Tribunal's view the Practitioner's conduct in not following nursing policies and guidelines in relation to medication safety, acting outside the scope of her practice, failing to undertake patient assessments prior to administration of treatment to patients and failings in health care records and documentation had the potential to expose multiple patients to risk. It fell significantly below the standard reasonably expected of a practitioner of equivalent training and experience. We are also satisfied that the Practitioner's conduct was improper. This is because without checking the regulations she administered a Schedule 4 medication and failed to verify the existence of valid prescriptions.
The Tribunal finds that the Practitioner's conduct amounts to unsatisfactory conduct pursuant to section139B(1)(a) and (l) of the National Law.
The Tribunal finds Complaints One is established.

Complaint Two: Professional Misconduct section 139E of the National Law

The Commission submits that the conduct of the Practitioner, which has been shown to constitute unsatisfactory professional conduct, is sufficiently serious to amount to professional misconduct. Alternatively when the instances of unsatisfactory professional conduct are considered together they amount to sufficient seriousness for Complaint Two to be made out.
In determining whether a finding can be made of professional misconduct the Tribunal must determine whether as outlined in HCCC v Perroux [2011] NSWDC 99 at 18 "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration".
It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards": see Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638.
There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the Practitioner, and other practitioners from repeating the same misconduct: HCCC v Saedlounia [2013] NSWMT 13 at 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at 35.
As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation". His Honour further notes: "[t]here is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal".
The Tribunal accepts the Commission's submission that the Practitioner's conduct is of a serious nature and includes a breach of Poisons and Therapeutic Goods Regulations 2008.
The Tribunal concludes that when considered as a whole the unsatisfactory professional conduct displayed by the Practitioner is of a sufficiently serious nature to fall within the definition of "professional misconduct" under section 139E of the National Law. It constitutes conduct which is sufficiently serious to justify suspension or cancellation. The Tribunal is satisfied that Complaint Two is established.

Principles regarding protective orders

While a finding of professional misconduct is a prerequisite for the making of a protective order that cancels or suspends a health professional's registration, not all findings of professional misconduct warrant cancellation or suspension. That is, cancellation or suspension does not automatically follow a finding of professional misconduct: see HCCC v Karalasingham [2007] NSWCA 267 at 67.
The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see sections 149A, 149B and 149C. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law.
As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective: see s 3A National Law. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at 34.
In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.
In Health Care Complaints Commission v Do, [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred at 35 to the importance of denunciation of misconduct, in the context of s. 3 and s. 3A of the National Law as follows: 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.
As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.
Whether offence(s) are sufficiently serious to warrant suspension or cancellation is a matter of degree and judgment: Sabag v HCCC [2001] NSWCA 411 at 82.
The Practitioner has consistently made admissions throughout her correspondence with the Commission and the Council. She is remorseful. She has demonstrated insight. In acknowledging her failures and errors of judgement, the Practitioner has not sought to minimise the seriousness of her involvement in this matter. She has undertaken remedial educational courses to address shortcomings.
Both of the Practitioner's supervisors, provided references in support. Since supervision commenced some 11 months ago, there have been no concerns raised by either supervisor regarding the Practitioner's clinical practice and professional conduct. Following a review of her conditions in 2018, the Council amended its monthly reporting requirement and now requires supervision reports to be submitted every three months.
Both supervisors attested to the Practitioner's professional, ethical and conscientious approach to patients in her care. Both supervisors made mention of her following policies and guidelines. Both referenced that she was a fit and proper person to be held out to patients and the whole community as a person worthy of their confidence. One of the Practitioner's workplace supervisors gave oral evidence that he believes her "to be a very good nurse".
In the Tribunal's view significant weight should be attached to evidence of the Practitioner's supervisors. This is because the supervisors are well placed to give an accurate, thorough and longitudinal assessment of the Practitioner's practice in a public health and safety context.
The conduct the subject of this complaint was limited to a discrete period of three weeks comprising ten work shifts. Furthermore given the location of the iv.me Clinic within Holdsworth House and the references to Holdsworth House used by the iv.me Clinic in its documentation, it is understandable that the Practitioner may have genuinely believed that there was some connection between Holdsworth House, a reputable medical Clinic, and the Clinic at which she was employed. The Tribunal can see how this might have erroneously given the Practitioner a sense that what she was being told by her employer, a registered health professional, about the procedures and practices used by the Clinic, had some veracity and legitimacy.
The Tribunal accepts the Practitioner's explanation that she was naïve and misplaced her trust in her employer. She acknowledges that these matters impacted on the clinical rigour she should have applied towards the tasks she was required to undertake.
The Tribunal accepts that the Practitioner has been chastened by this experience. In the Tribunal's view given her experience and insight now she is unlikely to repeat her errors if faced with a similar set of circumstances in the future. In our view the Practitioner will not present a risk to patients in the future by like conduct.
The Practitioner is clearly remorseful and insightful. She has undertaken a number of courses and is performing well under the guidance of her two supervisors who have a high regard for her abilities. At the hearing she presented as a person who has matured professionally and personally during this process. It would be a pity if she was lost to nursing.
Taking into account all these matters in our view cancellation of the Practitioner's registration amounts to a more serious consequence for the Practitioner than is reasonably necessary to promote the protective purpose. In the Tribunal's view cancellation is too severe and as such would amount to punishment of the Practitioner. The Tribunal finds that the protection of the public can be achieved by other mechanisms.
We have considered the range of orders open to us and consider those under section 149A of the National Law to be the most relevant. We are conscious of the submission made by the Commission in this matter that the Tribunal should send a strong message to practitioners and the public that the seriousness of the conduct in this case including administering a Schedule 4 drug to those not prescribed to receive it and failing to comply with established standards of medication handling, is unacceptable practice. Moreover, that the high standards of care, professionalism and diligence which practitioners should bring to their task is just as critical when involved in the provision of services offered by allied health professionals.
The Tribunal is satisfied that a reprimand issued to the Practitioner represents an appropriate signal of denouncement of the misconduct which we have found existed in this case and operates both as a deterrent to the Practitioner, as well as to the general body of practitioners. As discussed in Health Care Complaints Commission v Quan [2018] NSWCATOD 111, the reprimand, the fact that the Practitioner was the subject of these disciplinary proceedings and our reasons, which are publicly available on NSW Caselaw, will serve as a deterrent to like conduct and uphold the standards of the profession: see Health Care Complaints Commission v Quan [2018] NSWCATOD 111 at 80-81.
In our view the Practitioner would benefit from additional professional training as it relates to accountability, clinical documentation and legal obligations. This would ensure that her future behaviour is informed in such a way which reflects the paramount consideration of the protection of the public.
Looking at the Practitioner's work history and its casual nature, as well as the difficulties she has met in gaining full-time employment; leads the Tribunal to the view that she has not had an opportunity to consolidate her clinical experience as a new graduate. In the Tribunal's view the Practitioner has not received adequate mentoring. All these factors can create difficulties in developing critical thinking and solid reasoning processes. The Practitioner's seeking out of opportunities and relocation to NSW only made her vulnerabilities in this regard more open. For these reasons the Tribunal concludes that mentoring would also be beneficial.

Costs

The power to award costs in health profession cases is contained in Schedule 5D, Clause 13 of the National Law.
The Commission seeks its costs. It was submitted on behalf of the Practitioner that in the light of the Practitioner's admission to almost all of the particulars prior to the hearing each party should bear their own costs.
The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36.
These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42-45, with Emmett JA (Meagher JA and Beech-Jones J agreeing) stating: "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. 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). 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. 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..
The Commission has proved the particulars of the Complaint. Furthermore it was successful in proving both unsatisfactory professional conduct and professional misconduct.
Notwithstanding the admissions made by the Practitioner in relation to specific particulars, the Tribunal is not satisfied that any disentitling conduct has been established on the part of the Commission. Nor is the Tribunal is satisfied that this is an appropriate case to exercise the discretion to depart from the general "rule".
Accordingly for these reasons, the Tribunal has decided to exercise the power to order the Practitioner to pay the Commission's costs, as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

Orders

The Practitioner is reprimanded.
The conditions appearing in "Attachment A" to these reasons are to be placed on the Practitioner's registration for a period of 12 months from the date of this decision. These conditions are as follows: 1. Within 28 days of the date of this decision, the Practitioner is to nominate a registered experienced Nurse to act as her professional mentor for approval by the Nursing and Midwifery Council of New South Wales ('the Council') in accordance with any policies on Mentoring (as varied from time to time) that may exist. The Practitioner is: 1. To be mentored for a minimum period of 12 months, and as subsequently determined by the Council. 2. To participate in meetings with the mentor on a monthly basis for the first 6 months, and afterwards at a frequency to be determined by the mentor. 3. To authorise the Council to provide the mentor with a copy of this decision. 4. To authorise the mentor to report to the Council on a quarterly basis. 5. To authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the Practitioner, or her compliance with any conditions on her registration. 1. The Practitioner shall within 12 months of the date of this decision undertake and complete the following on line courses offered by Health Education and Training (HETI) My Health Learning and provide evidence in writing to the Council of her successful completion of the courses: 1. Nursing, Midwifery and the Law 2. Clinical Documentation - Getting it Right 3. Accountability - Improving the way we work 1. If any of the courses specified in Condition (2) are unavailable then the Practitioner is to complete equivalent courses as approved by the Council. 2. All costs associated with completing the courses are to be met by the Practitioner.
The Nursing and Midwifery Council of NSW is the appropriate review body of these conditions for the purposes of Part 8 of the National Law, or if the practitioner resides in a State other than NSW then sections 125 to 127 of the Health Practitioner Regulation National Law shall apply.
The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 - 3 above as soon as practicable.
The Practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW)

ATTACHMENT A - CONDITIONS

Within 28 days of the date of this decision, the Practitioner is to nominate a registered experienced Nurse to act as her professional mentor for approval by the Nursing and Midwifery Council of New South Wales ('the Council') in accordance with any policies on Mentoring (as varied from time to time) that may exist. The Practitioner is: 1.1 To be mentored for a minimum period of 12 months, and as subsequently determined by the Council. 1.2 To participate in meetings with the mentor on a monthly basis for the first 6 months, and afterwards at a frequency to be determined by the mentor. 1.3 To authorise the Council to provide the mentor with a copy of this decision. 1.4 To authorise the mentor to report to the Council on a quarterly basis. 1.5 To authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the Practitioner, or her compliance with any conditions on her registration.
The Practitioner shall within 12 months of the date of this decision undertake and complete the following on line courses offered by Health Education and Training (HETI) My Health Learning and provide evidence in writing to the Council of her successful completion of the courses. Nursing, Midwifery and the Law Clinical Documentation - Getting it Right Accountability - Improving the way we work
If any of the courses specified in Condition 2 are unavailable then the Practitioner is to complete equivalent courses as approved by the Council.
All costs associated with completing the courses are to be met by the Practitioner. 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: 21 August 2018

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (17)

Cited By (1)