Health Care Complaints Commission v Youssef

Issues

1. The issues for the Tribunal to determine are: 1. whether and if so in what manner the Tribunal should exercise its disciplinary powers under Part 8, Division 3, Subdivision 6 of the National Law; and 2. who should bear the costs of the proceedings.

Applicable legislation and principles

1. The findings that RN Youssef is guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law, and guilty of professional misconduct under s 139E, mean that the Tribunal may exercise any power conferred under Pt 8, Div 3, Subdiv 6 in relation to her: National Law, s 149(a).
2. The Tribunal may, under s 149A(1) of the National Law: 149A General powers to caution, reprimand, counsel etc [NSW] (1) … (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. …
3. As a consequence of the finding that RN Youssef is guilty of professional misconduct, the Tribunal may suspend her registration for a specified period, or cancel her registration: National Law, s 149C(1)(b). If the Tribunal cancels her registration, it may specify the period before which she can seek review of the order and apply for a reinstatement order under s 163B: National Law, s 149C(7).
4. The power to make any of these orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
5. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(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. The protection of the health and safety of the public must be the paramount consideration: s 3A.
6. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: [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.
7. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 (Prakash), Basten JA commented at [101] that "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order."
8. While the Tribunal has found that RN Youssef is guilty of professional misconduct, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 (Karalasingham). Whether or not the misconduct is sufficiently serious to warrant cancellation or suspension depends on the circumstances of the individual case.
9. The principles to be applied were summarised in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 in the following terms: [88] In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83].

The hearing

1. The evidence on which RN Youssef relied in the Stage 1 hearing included a statement dated 30 June 2020, a curriculum vitae, records of continuing professional development in 2018-2019 and a performance development plan for 2020, and references from CNC Renier Lagunday and Dr Paul Hamor. RN Youssef gave oral evidence at the Stage 1 hearing, and in the Stage 2 hearing on 18 May 2021.
2. At the time of the Stage 1 hearing RN Youssef had been working as an RN on the respiratory and infectious diseases ward at the Hospital since shortly after registration in 2013. In December 2019, she completed a Graduate Diploma in Acute Care Nursing at the University of Tasmania. For the Stage 2 hearing RN Youssef provided an updated continuing professional development record, including completion of an Advanced Life Support course, references from the Nurse Unit Manager (NUM) of the respiratory and infectious diseases ward, and a reflection dated 13 May 2021.
3. In oral evidence at the Stage 2 hearing, RN Youssef said that she is still working full-time in the respiratory and infectious diseases ward. She is upset about what happened to the patient and their family, and since the incident in 2017 she has done everything to improve her skills. She has disclosed what happened with Patient A to nursing students, because they need to be cautious. She does not want anyone else to be in that position and she does not want a family member to lose a loved one.
4. RN Youssef was asked about the Tribunal findings in the Stage 1 decision that she had not been truthful in her evidence. RN Youssef said that at the time she was anxious; at the time she believed what she said, but she accepts the Tribunal finding. At handover she reminds her colleagues to read the documents, and tells them to ask questions. The Director of Nursing is aware of the incident. After the incident she contacted the NUM and said there needed to be a policy to inform staff on care of patients with a laryngectomy, and a policy was uploaded onto the system in 2018. She participates in the training on the ward every six weeks, and reads. There is a safety huddle before each shift, including casual staff. RN Youssef said that she prefers to be on the ward than to be in charge, so she can work with the patients and their families.
5. In her written reflection RN Youssef stated that she accepts that the Tribunal found her to be untruthful when she said that the dressing was not on Patient A when she found him unresponsive in the bathroom. She is ashamed and remorseful that she said that, and she understands the importance of truthfulness. She has worked very hard since the incident and particularly after the Tribunal decision to restore her colleagues' faith and confidence in her.
6. In cross-examination RN Youssef was taken to her evidence as recorded in the statement of 27 February 2017 and the letter of 15 June 2017, and the Tribunal's finding that that was false. RN Youssef said that she had been anxious and upset and believed that she did not see the dressing. She accepts the decision, but at the time she did not see it, and does not recall the stoma being covered. She has a positive recollection of seeing the stoma. The dressing could have been there but she did not see it. Her recollection remains that she did not see the dressing, and she accepts that she may not see things as others see them. While that is her recollection, she is ashamed and remorseful, as she stated in the reflection, because of the effect on the nursing profession and her responsibility for what happened. She is remorseful because the Tribunal found her to be not truthful, and because the patient is no longer here.

Submissions

1. The HCCC submits that the appropriate protective orders are for cancellation of RN Youssef's registration, with a non-review period of one year.
2. The HCCC submits that cancellation of registration will provide a deterrent to RN Youssef should she regain registration, to preclude her from engaging in misconduct of this kind in the future. Cancellation of her registration will also have the effect of deterring other health practitioners from engaging in misconduct of this kind, will protect the public by reinforcing high professional standards and denouncing transgressions, and will maintain public confidence in the nursing profession.
3. The HCCC relies on the Court of Appeal decision in Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) in which Basten JA said: [20] There 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. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). [21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. …
4. The HCCC submits that the Tribunal's findings in relation to RN Youssef establish a need for both general and specific deterrence: her conduct in 2017 with the vulnerable patient, and then in communicating with the HCCC in February and June 2017, is required to be met with strong deterrence. The level of carelessness shown is unbecoming of her status as a nurse and a signal needs to be sent to other practitioners and the public that nurses are required to take initiative where their knowledge may be deficient; should not provide advice to junior colleagues where they have limited experience without seeking advice from more senior colleagues; are required to be honest and frank with regulators of the profession; and may as a normal part of their profession be placed in emergency or difficult situations. RN Youssef's decision to agree to the proposed course of action, where more senior colleagues and time were available, was unnecessarily careless, lazy or unprofessional; her concealment of the truth during an investigation into the death of a patient was unbecoming of the profession; and she failed to have regard to available and necessary material, namely the sign above the patient's bed and his clinical notes.
5. The HCCC accepts that RN Youssef has no other disciplinary history of which it is aware, and made early admissions to some of the conduct in the complaint. The HCCC submits, however, that cancellation remains necessary and RN Youssef should, once she has reflected on the Tribunal's decision, show to the Tribunal in an application for a reinstatement order that she has gained the insight into her conduct that she denied in response to Complaints One and Two. A suspension would not be appropriate as it would permit her to practise without putting the onus on her to gain insight and reflect. A non-review period of one year would appropriately denounce the conduct and provide her with appropriate time and impetus to reflect on her conduct and take the necessary steps to reform.
6. The HCCC accepts that RN Youssef has undertaken a number of courses and made efforts to improve her knowledge, and has assisted in the creation of a policy in the Hospital for patient care. The HCCC accepts, based on the references provided, that RN Youssef's work is satisfactory and all indications are that she escalates and manages concerns properly. The primary concern is with the conduct found in Complaint Two: while RN Youssef has been addressing her knowledge deficit, there are remaining concerns about her dishonesty and her maintaining her position as to whether she saw the dressing, which the Tribunal has found to be false. That may have been understandable in the immediate aftermath, but there is now the evidence of CNC Rollason, and the Tribunal findings. The Tribunal can take comfort from RN Youssef's steps to improve her knowledge, however cannot be satisfied that RN Youssef fully appreciates her responsibility as a practitioner to co-operate fully with any inquiry.
7. RN Youssef submits that it has now been four years since the tragic incident of 9 February 2017, and she has spent many hours reflecting on the decisions she made in relation to the care she provided to Patient A. Her reflection and insight since February 2017 have developed and matured as she has improved her knowledge not only through formal continuing professional development but through seeking advice of her colleagues and through mentoring more junior practitioners. RN Youssef has been proactive in speaking to her NUM about the absence of a policy or guideline at the Hospital concerning the care of laryngectomy patients. The Tribunal should be reassured by the comment of her manager, NUM Kate Frampton that she is transparent in her care, as that demonstrates that RN Youssef's ethical decision-making has evolved since 2017.
8. RN Youssef submits that an order for cancellation of registration with a non-review period of 12 months may be appropriate in circumstances where a practitioner has shown no insight, reflection or acceptance that their practice was below standard. It would not take into account the evidence of reform which is relevant to the protection of the public in this case. RN Youssef submits that, given the level of commitment that she has shown by true reflection and improvement in her practice, the Tribunal should be satisfied that the protection of the health and safety of the public is maintained, and that she has addressed the public's interest in the confidence it should have in the high standards of the profession and also the ethical and professional standards required to be a practising member of the nursing profession. RN Youssef has worked continuously since February 2017 without further incident. The finding of professional misconduct and the publication of that finding have had a deterrent effect.
9. RN Youssef submits that a reprimand would be appropriate in the circumstances, and that if the Tribunal considers it appropriate to remove her from the nursing workforce, this could be by way of suspension for a period of 6 to 12 months.

Discussion and findings on protective orders

1. It is to RN Youssef's credit that she has continued to work as a nurse, and in the respiratory and infectious diseases ward in the Hospital, since the tragic incident in February 2017 and the death of Patient A. It is also to her credit that she has been engaged in the development of a Hospital policy to assist other practitioners to provide safe and appropriate care for patients with a laryngectomy, and that she shares her insight from the experience in mentoring more junior colleagues.
2. NUM Frampton states in her reference dated 10 May 2021 that she has found RN Youssef to be a very kind, honest, generous and considered person, who is very professional with her patients and their families; that she provides care that is patient-focussed; and that she has great rapport among her nursing peers and the medical and allied health teams. NUM Frampton comments that RN Youssef does escalate the care of her patients in line with guidelines. NUM Frampton has known RN Youssef for the past eight years while she has been working on the respiratory and infectious diseases ward, and has read the Stage 1 decision; and accordingly the Tribunal gives significant weight to those comments.
3. The record of continuing professional development in evidence confirms that RN Youssef takes seriously her professional obligation to maintain and improve her knowledge and skills. The HCCC has confirmed that there are no other disciplinary matters known to it.
4. The Tribunal concludes that RN Youssef is a competent practitioner, and that there are no concerns that she is fit to practise as a registered nurse. Having regard to NUM Frampton's confirmation that RN Youssef escalates care of her patients appropriately, and her evidence that she has learnt to discuss incidents with colleagues and to be vigilant and escalate when she is unsure, the Tribunal considers it unlikely that there is a risk that RN Youssef would in future act in a similar way to the way she responded to RN McArthur's approach in February 2017, when she failed to recognise the deficit in her knowledge and did not seek advice or guidance from more experienced colleagues on the ward.
5. A health practitioner is expected to demonstrate integrity and trustworthiness and high moral and ethical values, and a central element of that is the requirement that a practitioner be honest and frank with regulators. As discussed in the Stage 1 reasons at [125]-[133], the Tribunal was satisfied that the information provided by RN Youssef in her statement of 27 February 2017 and the letter of 15 June 2017 was false, that the information was significant to the investigation into the death of Patient A, and that that was not consistent with her duty to be candid and honest. The Tribunal did not accept RN Youssef's evidence that the dressing was not on Patient A's stoma when she found him in the bathroom, preferring the evidence of CNC Rollason which was supported by that of RN Stokes that he removed the dressing in order for resuscitation to be commenced. As noted at [132] of the Stage 1 reasons, it was not put to RN Youssef that she knew the statement to be false or that in making it she intended to mislead, however the Tribunal found that in providing the information in the statement and letter RN Youssef was concealing a critical detail. The Tribunal found that RN Youssef's conduct in providing that false and misleading information was both improper and unethical.
6. In oral evidence in the Stage 2 hearing RN Youssef confirmed that her recollection remains that she did not see the dressing on Patient A's stoma when she found him in the bathroom. The Tribunal has concerns that while RN Youssef accepts that the Tribunal found her to be untruthful, she maintains that at the time she did not see the dressing covering Patient A's stoma when she located him in the bathroom. While acknowledging the inconsistency apparent in that position, on balance, while the Tribunal did not accept RN Youssef's evidence in response to the allegation in particular 6 of Complaint One or to Complaint Two, the Tribunal does accept that RN Youssef maintains an honest belief that she saw Patient A's stoma uncovered when she found him in the bathroom.
7. The issue is whether RN Youssef can be trusted in future to be honest and frank and to demonstrate integrity and trustworthiness. In her reflection RN Youssef expressed shame and remorse that she had said that the dressing was not on Patient A when she found him. In oral evidence she clarified that her shame and remorse related to her responsibility that the incident occurred, and that the patient is no longer here, and she is embarrassed that it happened in the nursing profession. The question is whether the Tribunal can be confident that, if a similar situation arose, RN Youssef would be truthful and frank with the regulatory authorities. RN Youssef stated that she understands the importance of truthfulness. Having heard her oral evidence, the Tribunal considers that RN Youssef is sincere in her expressions of shame and remorse, and that she has demonstrated insight into her shortcomings. The Tribunal is satisfied that RN Youssef has shown that she understands the importance of being honest and frank with regulatory authorities.
8. As the Court of Appeal made clear in Karalasingham, whether or not misconduct found to be professional misconduct is sufficiently serious to warrant cancellation or suspension of a practitioner's registration depends on the circumstances of the individual case. Having regard to her efforts to improve her practice, the high regard in which she is held by colleagues as a competent and caring practitioner, the absence of any other disciplinary issues in the four years since the incident involving the death of Patient A, her acknowledgment of the Tribunal's findings, and her reflection on and remorse for what occurred, the Tribunal concludes that cancellation of RN Youssef's registration would have more serious consequences than is reasonably necessary to promote the protective purpose of these disciplinary proceedings. The Tribunal is of the view that the public interests in maintaining proper ethical and professional standards for the protection of the public, the maintenance of public confidence in the high standards of health practitioners, and the provision of an element of deterrence, can be protected by the imposition of an order that would not take RN Youssef out of the nursing workforce for the period contemplated by cancellation and a non-review period pressed by the HCCC.
9. In considering what form an appropriate protective order should take, the Tribunal takes the view that a reprimand, which is an official rebuke for past wrongful conduct, should be imposed. Such an order does not minimise the serious lapse in professional standards, but has potential for serious adverse implications for a health professional: see Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 at [14].
10. The Tribunal acknowledges the importance of the deterrent effect served by any protective order: both in deterring a repetition of the conduct by the practitioner concerned, and, as expressed in Prakash at [91], in encouraging other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. In the present circumstances, the Tribunal considers that a short period of suspension would serve that effect. As discussed in Chen, renewal of RN Youssef's registration will occur automatically on completion of the period of suspension, whereas an order of cancellation would require her to justify re-registration. The Tribunal is satisfied that there is not, on the present evidence, any uncertainty as to the future which might properly lead the Tribunal to cancel RN Youssef's registration rather than suspend it. In determining an appropriate period of suspension, the Tribunal is of the view that a period of three months is sufficiently long to have a deterrent effect, but not so long as to be in effect punitive rather than protective.

Costs

1. The HCCC is seeking an order for payment of its costs of the proceedings. RN Youssef agrees that a costs order is appropriate.
2. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282: [85] In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)
3. While RN Youssef admitted most of the particulars in Complaint One, she contested particular 6, and Complaint Two, and the Tribunal found her guilty of unsatisfactory professional conduct and professional conduct as alleged by the HCCC. The Tribunal agrees that an order that RN Youssef pay the HCCC's costs of the proceedings against her should be made.

Orders

1. The Tribunal orders: 1. The respondent is reprimanded; 2. The registration of the respondent is suspended for a period of three months from the date of these orders; 3. The respondent is to pay the Health Care Complaints Commission's costs of the proceedings against her, as agreed or assessed.

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 June 2021