Health Care Complaints Commission v Youssef; Health Care Complaints Commission v McArthur

2020/00081523: Counsel: I Chatterjee (Applicant)

Solicitors: F Shah, Health Care Complaints Commission (Applicant) L Alexander, NSW Nurses and Midwives' Association (Respondent) File Number(s): 2020/00081521 2020/00081523 Publication restriction: Under cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW) disclosure to any person or entity of the name of the patient set out in the schedule to the complaints is prohibited.

REASONS FOR DECISION

1. On 13 March 2020 the Health Care Complaints Commission (the HCCC) applied to the Tribunal under the Health Practitioner Regulation National Law (the National Law) for orders against Registered Nurses Nelley Youssef (proceeding 2020/00081521) and Seamus McArthur (proceeding 2020/00081523).
2. At a directions hearing on 24 July 2020 an order was made that both proceedings be heard together, with evidence in one to be evidence in the other.
3. The complaints against each practitioner are brought in relation to their conduct on 9 February 2017, when they were rostered to work on Ward DB4, the respiratory and infectious diseases ward at Prince of Wales Hospital, Randwick (the Hospital).
4. Patient A was an 80 year old man who had been admitted to Ward DB4 the afternoon before after spending several days in the Intensive Care Unit (ICU) for hypotension with a background of infective exacerbation of chronic obstructive pulmonary disease (COPD). Patient A had an established laryngectomy stoma following surgery for laryngeal cancer in 2002. Patient A had a total laryngectomy, which meant that his larynx had been surgically removed and a permanent neck stoma created. That stoma was his sole airway.
5. Patient A sought RN McArthur's assistance in preparing for a shower. RN McArthur at that time, with the consent of Patient A, applied a Mepilex occlusive dressing that covered the whole of Patient A's stoma. Prior to applying the dressing, RN McArthur checked with RN Youssef to see if the application of the dressing would be appropriate, which course of action RN Youssef agreed to. RN McArthur then left Patient A to shower.
6. Some time later RN Youssef entered the bathroom and observed that Patient A was non-responsive. Attempts were made to resuscitate Patient A which were unsuccessful.
7. NSW Police attended, and an autopsy report was prepared for the Coroner and witness statements were taken from a number of Hospital staff. The autopsy report concluded that the disease or condition directly leading to death was "occlusion of the external airway in the context of a permanent tracheostomy after the treatment of laryngeal carcinoma". The Tribunal was informed at the hearing that the matter is still being considered by the Coroner; there are no pending criminal proceedings.

The Complaints

1. The complaints against each practitioner were amended by consent at the hearing. Particular 1 of Complaint One against RN Youssef originally was that RN Youssef had "advised a nursing colleague" to apply the dressing, and was amended to be that she "responded to a request for advice from a junior colleague by agreeing that it was okay" to apply the dressing. Particular 1 of Complaint Two against RN Youssef and RN McArthur originally was that each had provided false and misleading information "to the Hospital" in their statements of 27 February 2017 and 9 March 2017 respectively; the reference to "the Hospital" was deleted from particular 1 of Complaint Two against each of RN Youssef and RN McArthur.

RN Youssef

1. There are three complaints against RN Youssef. Complaint One is that she is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that her conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, in that she: 1. Inappropriately responded to a request for advice from a junior nursing colleague by agreeing that it was okay to apply a Mepilex occlusive dressing to cover Patient A's stoma (particular 1); 2. Inappropriately provided a Mepilex dressing to her colleague to be used to cover the stoma before Patient A commenced his shower (particular 2); 3. Demonstrated a lack of knowledge of the underlying anatomy and clinical history of Patient A (particular 3); 4. Demonstrated a lack of knowledge that the laryngectomy stoma was Patient A's sole airway (particular 4); 5. Failed to seek advice from a more senior colleague regarding the appropriate management of Patient A's laryngectomy with respect to the appropriate dressing to cover his stoma while he showered (particular 5); and 6. Failed to remove the dressing from Patient A's stoma when she found him unresponsive in the shower, thereby failing to ensure he had a clear airway when resuscitation efforts were commenced (particular 6).
2. Complaint Two is that she is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice or purported practice of nursing, in providing false and misleading information: 1. In a statement dated 27 February 2017 when she stated that at the time she found Patient A unresponsive, "I noticed that the Mepilex Border dressing was no longer in situ. The stoma was not covered and I did not see the dressing in the surrounding area", in circumstances where the dressing was in situ at the time (particular 1); and 2. In her letter to the HCCC dated 15 June 2017 when she stated that when she found Patient A unresponsive "the Mepilex dressing was no longer in situ, the stoma was not covered", contrary to s 99 of the Health Care Complaints Act 1993 in circumstances where the dressing was in situ at the time (particular 2).
3. Complaint Three is that she is guilty of professional misconduct, relying on the particulars of Complaints One and Two both individually and cumulatively.
4. RN Youssef admits in response to Complaint One that she agreed a Mepilex dressing would be suitable, and that she provided a Mepilex dressing. She admits that she had a lack of knowledge of the underlying anatomy of Patient A's altered anatomical state after his laryngectomy in 2002, and denies that she did not have knowledge of Patient A's clinical history. She admits she had a lack of knowledge that the laryngeal stoma was Patient A's sole airway, and that she failed to seek advice from a more senior colleague. She denies that she failed to remove the Mepilex dressing when she found Patient A unresponsive in the shower.
5. In response to Complaint Two RN Youssef denies that she provided false and misleading information. In response to Complaint Three she relies on her responses to Complaints One and Two.

RN McArthur

1. There are three complaints against RN McArthur. Complaint One is that he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, in that he: 1. Inappropriately applied a Mepilex occlusive dressing to cover Patient A's laryngeal stoma before he commenced his shower (particular 1); 2. Demonstrated a lack of knowledge of the underlying anatomy and clinical history of Patient A (particular 2); and 3. Demonstrated a lack of knowledge that the laryngectomy stoma was Patient A's sole airway (particular 3).
2. Complaint Two is that he is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of nursing, in providing false and misleading information: 1. In his statement dated 9 March 2017 when he stated that after covering Patient A's entire stoma site with a Mepilex occlusive dressing he waited with Patient A for "at least 5 minutes or longer after I had applied the dressing to Patient A's stoma site", in circumstances where he did not remain with Patient A for a period of 5 minutes or longer after he applied the dressing (particular 1); 2. In a letter sent to the HCCC by his legal representative dated 15 June 2017 in which he stated that when he "applied the dressing prior to entering the bathroom and it was at least 5 minutes or longer after applying the dressing that RN McArthur left Patient A in the bathroom", in circumstances where he did not remain with Patient A for a period of 5 minutes or longer after he applied the dressing (particular 2); and 3. In the letter sent to the HCCC by his legal representative dated 15 June 2017 which stated that "when Patient A was responding to RN McArthur's questions about the dressing he was speaking without difficulty and in full sentences, and did not show any signs of respiratory distress", contrary to s 99 of the Health Care Complaints Act 1993, in circumstances where the practitioner did not remain with Patient A to observe him speaking without difficulty nor showing signs of respiratory distress (particular 3).
3. Complaint Three is that he is guilty of professional misconduct, relying on the particulars of Complaints One and Two both individually and cumulatively.
4. RN McArthur admits that he inappropriately applied the Mepilex dressing to cover Patient A's stoma, and that at the time he had a lack of knowledge of the underlying anatomy and clinical history of Patient A, and demonstrated a lack of knowledge that the laryngectomy stoma was Patient A's sole airway. He denies providing false and misleading information in the statement of 9 March 2017 or the letter dated 15 June 2017. He denies that he is guilty of professional misconduct.

Evidence

1. The HCCC bears the onus of proving the Complaints against each practitioner on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 in the following terms: 52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]). 53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.
2. In considering whether a practitioner's conduct meets the expected standard, the Tribunal is entitled to take into account the professional expertise and experience of the professionals sitting on the Tribunal, providing reasons if it considers it appropriate to depart from the expert evidence: Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111.
3. The HCCC relies on a bundle of documents (ex A1) which includes: 1. Witness statements obtained in the NSW Police investigation, including statements provided by RN McArthur (9 March 2017); RN Youssef (27 February 2017); Mark Rollason, Clinical Nurse Consultant (9 February 2017); and Kama Stokes, Nurse Unit Manager (10 February 2017); 2. Crime scene photographs; 3. Autopsy report; 4. Medical records for Patient A; 5. Expert report by Dr Robert Payten (21 May 2020); and 6. Expert reports by Ms Jessica Butler (18 July 2019).
4. Dr Payten, RN Stokes and Mr Rollason gave oral evidence. Ms Butler was not required for cross examination.
5. RN McArthur relies on a statement dated 29 June 2020, and character references (ex R2). RN McArthur gave oral evidence.
6. RN Youssef relies on a statement dated 30 June 2020, and character references (ex R1). RN Youssef gave oral evidence.

Mr Rollason's evidence

1. In his statement of 9 February 2017 Mr Rollason described his role as a Respiratory Clinical Nurse Consultant (CNC) at the Hospital. His office is located in the Respiratory and Infectious Diseases Unit, Ward DB4. His role does not involve a daily patient load, but is broad and includes patient education, management of patients requiring underwater seal drains and non-invasive ventilation as well as management of complex patients with respiratory problems. He is also involved in review of patients with respiratory issues in the ICU and other wards of the Hospital. He is involved in development of policies and procedures, and staff education and Hospital education courses. He is a member of the Tracheostomy team which involves a weekly round of the Hospital and review of each patient with a recent tracheostomy. Part of his role is to attend in a first response capacity to any cardiac or respiratory arrest on ward DB4.
2. On Monday 6 February 2017 Mr Rollason reviewed Patient A who was then in ICU being treated for pneumonia. He reviewed him again on 8 February 2017. After the decision to transfer him to Ward DB4 was made he organised for a number of things to be prepared, including a paediatric resuscitation mask to be placed at the foot of his bed. He placed a sign on the wall above Patient A's bed giving directions in the event of an emergency with resuscitation of patients post laryngectomy with an airway stoma.
3. At 10.20am on 9 February 2017 he heard the arrest call. He saw a number of nurses heading from the Nursing station up the corridor, and followed towards the bathroom. He saw nurses dragging a naked male from the bathroom, and he recognised him as Patient A. He knew the required resuscitation mask specific for Patient A's stoma was stored at the end of his bed for ease of access and he decided to collect the mask while others attended to Patient A. As he was walking to collect the mask Patient A appeared unconscious and unresponsive on the ground and the nurses were beginning to commence CPR. He observed a brown square dressing over the top of Patient A's stoma, and he immediately removed the dressing that was covering the stoma. He did not recall how well the dressing stuck. The dressing was approximately 5cm by 5cm, and appeared to be a common wound dressing used for management of wounds on the ward. He did not recall what he did with the dressing.
4. Mr Rollason returned to Patient A with the mask and gave it to a nurse who was assembling the resuscitation bag. He assisted in resuscitation tasks. He spoke to RN McArthur who was standing nearby, saying words to the effect of that he noticed there was a dressing on his neck. RN McArthur replied in words to the effect that he and RN Youssef had discussed it, and then asked whether he thought that caused the problem. There was a subsequent conversation later at the Nurses station when RN McArthur said he was concerned about what happened with the arrest.
5. Subsequently he and another staff member went to the bathroom, and did not locate the dressing.
6. In oral evidence Mr Rollason confirmed that he took the dressing off on his way to get the mask. He was asked if it was possible that the dressing may have been partially stuck down, and stated that he could not recall how well it was stuck down, it was possible but he could not confirm from his memory. In response to a question whether it was possible the dressing was not on the stoma, Mr Rollason replied that he remembered seeing the dressing on Patient A's stoma.
7. Mr Rollason was asked about whether it was standard practice to cover a stoma before a shower, and said that some patients would cover the stoma with an open end, others would shield it, and most would clean around the site. Not all patients would use a specific product to cover the stoma. He was surprised to see the dressing was still on, it was not what he expected to see, rather an open stoma. He was asked whether his role included orientation of new graduates or ward in-service programs, and said that was usually done by the Ear, Nose and Throat (ENT) team.

RN Stokes' evidence

1. As at February 2017 RN Stokes was Nurse Unit Manager of Ward DB4 in the Hospital, having been in that position since 2011. Her role was supported by a CNC Respiratory Medicine and a Clinical Nurse Educator.
2. In her statement of 10 February 2017 RN Stokes stated that she responded to the emergency alarm which sounded at approximately 10.15am, and she took the resus trolley to the bathroom. She observed Patient A to be unconscious. She turned on the oxygen and suction. Mr Rollason was close by her and had in his hand a face mask specific for laryngeal stoma. She observed Mr Rollason removing a Mepilex occlusive dressing from Patient A's laryngeal stoma site. She and Mr Rollason continued managing the patient's airway. She placed the mask over the stoma and administered oxygen. She continued managing Patient A's airway until the responsibility was taken by a hospital anaesthetist.
3. In oral evidence RN Stokes said that she did not notice the dressing on Patient A's neck at the time she arrived in the bathroom and observed him being lowered to the floor. CPR commenced quickly. She initially said that she could not recall seeing Mr Rollason remove the dressing at the time she commenced administering oxygen, and then said yes. To her recollection she assisted with airway management. In cross examination RN Stokes agreed that it was possible that she had not seen Mr Rollason remove the dressing and was relying on a later conversation with him. In re-examination RN Stokes stated that she witnessed Mr Rollason remove the dressing.
4. RN Stokes could not recall whether Patient A was the only patient with a laryngectomy on the ward since 2016, or whether he was self caring. She could not recall whether there was a nursing plan on the ward at the time. Staff worked in teams with a senior and junior nurse.
5. In response to questions from the Tribunal RN Stokes stated that she could not recall when she saw the dressing. It was standard to use a Mepilex dressing, not necessarily on a stoma but usually on wounds. She was asked why, as recorded in her statement, she had asked RN McArthur if Patient A had raised any objection to the placement of the dressing on the stoma and he replied "no", and said that she was aware that Patient A had had a stoma for a number of years and was self managing and it would be unusual to allow someone to cover the stoma.

RN McArthur's evidence

1. RN McArthur was registered as a Registered Nurse in March 2015 after completing a Bachelor of Nursing degree. He commenced the New Graduate Program at the Hospital in May 2015 and after completing that program in May 2016 started work as a casual employee at the Hospital in late June or early July 2016.
2. In his statement of 9 March 2017 RN McArthur stated that he was allocated to work with RN Youssef on 9 February 2017. Even though he had been rostered on that ward previously he had not cared for patients with tracheostomies or laryngectomies on that ward or others in the hospital. At the commencement of the shift on 9 February 2017 he received a handover for each patient, given by two casual RNs who worked on the night shift, and at the bedside of each patient. He had a brief look at Patient A during the handover and noted that the stoma site was clean and there were no secretions visible.
3. RN McArthur stated: 10.At about 09.20 hours I was in the hallway outside bed 9 when [Patient A] approached me and asked for a towel and gown for the shower. I asked him if he wanted me to cover the stoma site and he whispered "yes" and nodded. 11.At the time, my rationale for asking [Patient A] if he wanted the stoma site covered was to prevent it from getting wet. If he aspirated this could exacerbate his pneumonia which I understood had been the reason for his recent admission to the ICU on 3 February 2017. 12.I asked RN Nelley Youssef if a Mepilex Border dressing would be appropriate to cover [Patient A]'s stoma site for the duration of the shower. Nelley agreed with me and went to get the dressing. 13. Once I had the dressing I again asked [Patient A] if he wanted me to apply it over the stoma site. He agreed and whispered "yes", so I applied the dressing leaving [Patient A] in the hallway while I went to get a towel and gown for him. 14.When I returned I walked into the bathroom with [Patient A]. I showed him the call bell and pressed it to show him what happens when it's pressed and to make sure he understood what I was saying. Before I left him I asked if he was alright and, for the third time I asked him if the dressing was "ok". I put my fingers to the dressing and he responded "yes, it's ok". 15. [Patient A] asked me to undo the tie on his gown which I did and he then took the gown off. I noticed he was wearing shorts underneath, I asked [Patient A] if he needed help with showering and if he wanted me to help him take off his shorts. I recall he was shutting the bathroom door as he replied, and said "No I'm ok to shower", so I left and he shut the door. 16. It had been at least 5 minutes or longer after I had applied the dressing to [Patient A]'s stoma site and left him as he shut the door to the bathroom. When he answered my questions he spoke in short sentences and without difficulty. 17. After I applied the dressing and while I was with him in the bathroom, [Patient A] showed no signs of any respiratory distress. Had that been the case I would have removed the dressing if [Patient A] had not done so and returned him to his bed to be reviewed. 18. It was about 09.30 hours when I left [Patient A] and he closed the bathroom door to shower. I saw Nelley Youssef in the corridor and she suggested I go for my morning break. I gave her a quick handover of the patients I had been caring for and left the ward. I recall that before I left for my break Nelley asked me to make a PACE call for the patient in bed 13. I did this and left for my morning break. 19. About 10 or 15 minutes into my break I heard the emergency alarm sound. …
4. In oral evidence RN McArthur confirmed the evidence given in his written statements of 9 March 2017 and 29 June 2020. He stated that he had not cared for patients with tracheostomies or laryngectomies on Ward DB4, or any others he had worked on throughout the Hospital. On 9 February 2017 the handover from night staff had been given at Patient A's bedside. He did not recall being told anything about the care of Patient A's stoma other than that he was self-caring and may require suctioning. He noticed the stoma site was clean and there were no visible secretions. It had not been part of his orientation on any of the wards on which he had worked at the Hospital to be made familiar with the care of patients who had undergone a tracheostomy or laryngectomy. He did not recall any sign on Patient A's bed or in his room advising staff of particular care necessary for Patient A in an emergency.
5. In questions from the Tribunal RN McArthur was asked how he was satisfied that Patient A was OK to be left in the shower, and he stated that he spent time with him, checked on several occasions, verbal and non verbal, that he was OK. He asked if he wanted him to take off the gown and shorts. The call bell was reachable at all times, and Patient A was standing when he left the bathroom. He was asked if he could see any expiration of air or fluttering after applying the dressing and said he recalled the dressing was slightly porous but he could not see any signs of respiratory distress. He could not recall witnessing any bulge or indent in the dressing. Asked if it was usual to leave a respiratory patient unattended he stated that at the time he was unsure, and that is why he checked. Patient A was self caring. He would never leave someone in the bathroom, that was why he made sure he was OK in the bathroom. He did not give any handover to say that Patient A was in the shower when he went to morning tea.
6. RN McArthur denied ever providing false and misleading information. In his statement of 29 June 2020 he stated that he gave instructions to his legal representative shortly after the tragic incident with Patient A, and the events of 9 February 2017 were very clear in his mind at the time. He was told the statement of 9 March 2017 was for the police who were preparing a report for the Coroner. He did not say in that statement that he "waited" with Patient A; what he did say was that it was at least 5 minutes or longer after he had applied the dressing to Patient A's stoma site and left him as he shut the door to the bathroom. He was not "waiting", but as Patient A was an elderly gentleman who had only been in the ward since the afternoon before he was making sure he took his time with him to ensure he was comfortable and knew where the buzzer was in the bathroom, undoing his gown and assisting him to remove it, and making sure the dressing was comfortable.
7. RN McArthur denied providing false and misleading information in the letter to the HCCC dated 15 June 2017. In oral evidence he could not recollect whether he read the letter before it was sent. He accepted that he knew the responses had to be truthful and that it was a criminal offence to provide false and misleading information.
8. That letter was a reply to a letter from the HCCC of 14 June 2017 which asked six questions: 1.What were the exact instructions given to you by RN Youssef regarding the application of the Mepilex dressing? 2.Did you discuss whether or not the entire stoma should be covered? 3.Did the Mepilex cover the entire stoma or only part of the stoma? 4.Did [Patient A] agree to his stoma being covered for his shower? 5.Exactly how long did you remain in the bathroom with [Patient A] following application of the Mepilex dressing? 6.What were you doing in the bathroom during the time you remained with [Patient A] after application of the Mepilex?
9. The responses to those questions were: 1.RN McArthur asked [Patient A] if he wanted the stoma site covered to prevent it from getting wet when he was having a shower. [Patient A] said he did want the stoma site covered. RN McArthur, being a casual employee and relatively new asked RN Youssef if this was appropriate. She agreed. 2.I did not discuss whether the entire stoma site would be covered. 3.The dressing covered the entire stoma site. 4.[Patient A] agreed to have the stoma site covered. RN McArthur initially asked [Patient A] about covering the stoma site when he was on his way to the bathroom, before he approached RN Youssef, and [Patient A] agreed. RN McArthur asked [Patient A] again prior to placing the dressing, and again [Patient A] agreed. Once in the bathroom RN McArthur showed and demonstrated the call bell making sure [Patient A] understood what he needed to do if he required assistance. He also demonstrated by touching [Patient A]'s neck, and for a third time asked if the dressing was OK and [Patient A] responded and said "Yes it's OK". 5.RN McArthur applied the dressing prior to entering the bathroom and it was at least 5 minutes or longer after applying the dressing that RN McArthur left [Patient A] in the bathroom. When [Patient A] was responding to RN McArthur's questions about the dressing he was speaking without difficulty and in full sentences, and did not show any signs of respiratory distress. 6. While RN McArthur was in the bathroom with [Patient A] he was confirming the dressing was OK, checking the call bell, showing [Patient A] where the button was in case he needed assistance and helping him undress. Once he had removed the gown RN McArthur noticed that [Patient A] was wearing shorts underneath and he asked [Patient A] is he required assistance to take them off, and if he required assistance to shower. [Patient A] answered no to both questions. [Patient A] was an elderly gentleman and these tasks took, as stated above about 5 minutes or even longer to the best of RN McArthur's recollection.w asked RN Y if this was appropriate. She agreed.id

RN Youssef's evidence

1. RN Youssef completed a Bachelor of Nursing in 2012 and was registered to practise as a nurse in 2013. She was employed at the Hospital in the New Graduate Program in May 2013, and then in a full time position, and is still working in Ward DB4. She completed a Graduate Diploma in Acute Care Nursing in December 2019.
2. RN Youssef stated that Ward DB4 specialises in Respiratory and Infectious Diseases. Patient A has been the only post laryngectomy patient admitted on the Ward during her employment there.
3. In her statement of 27 February 2017 RN Youssef stated that on 9 February 2017 her shift started at 7.00am. She was allocated patients in beds 7 to 16, with RN McArthur. There were four other nurses rostered on that morning as well as an Educator, an Admissions and Discharge nurse, a Clinical Nurse Consultant and the Nurse Unit Manager (NUM). She recognised Patient A having cared for him in 2016, when he had been admitted with pneumonia. She checked all necessary equipment for the shift and went to receive the handover at 7.00am. At the handover they received a "handover sheet" and then moved to each patient's room to receive the verbal handover. She was told Patient A had been admitted with pneumonia and was non verbal, and that he had required suction overnight. From her review of his medical records she noted that he had been admitted to ICU on 3 February 2017; and that he had undergone a tracheostomy in 2002; and that he had difficulty in speaking but could communicate by whispering.
4. RN Youssef stated that at 8.00am she checked Patient A's vital signs. She offered him a nebuliser but he clearly indicated that he did not want it. The stoma site was clear of sputum, there were no signs of respiratory distress and no audible secretion sounds. RN Youssef stated: 19.To the best of my recollection it was just before 09:30 when Seamus came and asked me if a Mepilex Border dressing would be suitable to put on [Patient A] as he was about to go and have a shower. I understood from this query that Patient A did not want to aspirate water via the stoma while in the shower. I agreed with RN Seamus and said I would go and get the dressing. I returned with the dressing and handed it to Seamus. 20. I then went to the "planner" which was kept in the Nurses' Station near beds 11 and 12, to confirm what other duties I had to carry out. I went back to the patient in bed 13. The Intern was still in attendance, and I took another set of observations. 21.It was about 09:30 hours when I left the patient in bed 13 and saw Seamus in the corridor. I suggested Seamus go for his morning tea break. 22. At about 09:45 hours a Pathology Collector came to the Ward to collect blood from [Patient A]. I had not seen [Patient A] come out of the shower so I went to check if he was still in the shower room. 23. When I opened the shower door I saw [Patient A] sitting on a shower chair. I noticed he was dry but naked. The shower area was also dry. I saw that [Patient A] was unresponsive and his top denture was hanging loose in his mouth. 24. I saw his hospital gown on the floor next to him. I did not see any other articles of clothing in the shower area. I noticed that the Mepilex Border dressing was no longer in situ. The stoma was not covered and I did not see the dressing in the surrounding area. 25. I immediately pressed the emergency call bell in the shower and called out for assistance and a Code Blue. A Code Blue is called for a medical emergency for an immediate response within 60 seconds. I also called out for the emergency trolley. 26. In the emergency that followed I recall RNs [Thompson], [Blair] and [Couttas] arrive. [RN Couttas] left to retrieve the emergency trolley and [RN Thompson], [RN Blair] and I lifted [Patient A] to the floors CPR could be commenced.. … 27. While I was performing CPR I noticed the Nurse Unit Manager, Kama Stokes arrive and was handed a resuscitation mask which she immediately placed over the stoma site to assist with the CPR. I did not see Kama or any other staff member present remove the dressing before Kama commenced placing the mask over the stoma site. …
5. In her statement of 30 June 2020 RN Youssef provided additional detail, stating that she recalled at the handover being informed Patient A had a nebuliser, which was to be administered via the stoma; and that after she and the other two nurses placed Patient A on the bathroom floor, they immediately lifted him and placed him on the floor in the corridor outside the shower room.
6. In her statement of 30 June 2020 RN Youssef admitted that she had a lack of knowledge of the underlying anatomy of Patient A's altered anatomical state after his laryngectomy in 2002. She denied that she did not have knowledge of Patient A's remaining underlying anatomy and clinical history. She stated that she reviewed Patient A's clinical record after handover report. At that time she was unaware that the stoma site was Patient A's only airway. That critical information was not recorded on the handover sheet, was not advised at the initial huddle, was not handed over by the night nurse, and when she reviewed the nursing care plan and the clinical record at the beginning of the shift there was no warning or documentation informing staff that the laryngeal stoma was Patient A's only airway. There had not been any education at a ward level on the care of a patient with a laryngectomy stoma. She deeply regretted that she did not understand that altered anatomical state post laryngectomy.
7. RN Youssef denied that she failed to remove the dressing from Patient A's stoma when she found him unresponsive in the shower. She stated that she did not see the dressing on Patient A's stoma at any time, and the stoma was not covered.
8. In oral evidence RN Youssef said she had not seen a sign above Patient A's bed, she was on the other side of the bed at the bedside handover. She did not see any breathing equipment at Patient A's bed. She understood Patient A was self-caring and stable and independent and was told nothing about his stoma. The Nursing Care Plan (ex A1, tab 20, p 60) prepared by the night nurse had no entry for Speciality specific patient care requirements.
9. RN Youssef was asked about Patient A's appearance when she opened the door to the bathroom, and she said he was sitting in the shower chair, his dentures were hanging down, she could not see any dressing, he was slumped down and the gown was on his left hand side and he was naked. She did not see the dressing and did not see anyone remove it during resuscitation attempts.
10. In cross examination RN Youssef said that she was aware that Patient A had had a laryngectomy, but did not know what it was. She did not recall making inquiries about it. She did not know it was connected to the stoma. She had had no formal education or information or instructions.
11. RN Youssef was unable to recall where she was when she had the conversation with RN McArthur about using the Mepilex dressing. She was possibly in the hallway, and she could not recall if Patient A was in the vicinity. She went to the medication room to get the dressing and took it to RN McArthur in the hallway. She did not have a conversation with anyone else about the dressing before she found Patient A unresponsive in the shower, and she raised the alarm. She never saw the dressing. RN Youssef was asked if she observed Patient A's stoma after finding him but before the resuscitation began with the paediatric mask, and responded that she was focused on doing compressions. Her main focus was on CPR, and it was a stressful situation. She never saw the dressing in place. Taken in cross examination to para [24] of her statement of 27 February 2017, she stated that she relied on her statement, and agreed she had no independent recall.
12. RN Youssef said that she provided the statement of 27 February 2017 on the advice of her lawyer, at the time she was aware it could be for an inquiry and was aware it had to be accurate. She agreed that she read the letter dated 15 June 2017 in response to the HCCC inquiry before it went out, and knew it had to be true and correct. The letter was true and correct.
13. In response to questions from the Tribunal, RN Youssef said that if she had known that the stoma was Patient A's only airway she would not have agreed to the dressing. It would have been reasonable to ask someone. RN Youssef confirmed that when she opened the door, Patient A was slumped forward.
14. The letter dated 15 June 2017 was provided through RN Youssef's lawyer, in response to questions asked as part of the assessment of the mandatory notification to AHPRA by the South Eastern Sydney Local Health District (LHD). The questions were: 1.What were the exact instructions you gave to RN Seamus McArthur when he asked you about covering [Patient A]'s stoma to prevent water from entering? 2.What is the standard nursing procedure on the Respiratory Ward regarding care of the stoma when a patient is showering? 3.Was this followed? If not, why not? 4.When you entered the bathroom and discovered [Patient A] having arrested, what did you observe regarding the placement of the Mepilex dressing and the stoma? 5.Following [Patient A]'s death, why is there no entry by you regarding the details of the conversation you had with RN Seamus and the placement of the Mepilex dressing? 6.Did you have any discussion with the NUM or DON regarding your role in the care of [Patient A]?
15. The response was: 1.To the best of RN Youssef's recollection RN McArthur came to her and said he wanted to put a dressing over [Patient A]'s stoma site while he showered because he was concerned about water entering the site. RN McArthur said he'd use a Mepilex dressing and RN Youssef said it was probably a good idea and said she would go and get the dressing. 2.To RN Youssef's knowledge there is no policy or procedure regarding the care of the stoma when a patient is showering. RN Youssef is unaware of any standard nursing procedure on the Respiratory Ward regarding this issue. Prior to this incident RN Youssef had not provided care to a patient having had a laryngectomy or stoma. 3.As RN Youssef was unaware of any standard or procedure regarding the care of a stoma she is unable to answer this question. 4.It was about 0930 hours RN Youssef had suggested to RN McArthur that he go to morning tea. Then at about 0945 hours a Pathology Collector came to collect blood from [Patient A]. Knowing that RN McArthur was at morning tea, RN Youssef went to the bathroom to get [Patient A]. She was the first to enter the bathroom and she saw [Patient A] sitting on a shower chair. She saw that he was dry but naked. He was unresponsive and his top denture was hanging loose in his mouth. She noticed the Mepilex dressing was no longer in situ, the stoma was not covered and she could not see the dressing in the surrounding area. 5.RN Youssef documented all she could regarding the incident. She was very upset at the time as a patient had been found deceased. She did not consider the conversation with RN McArthur about the dressing when she was making her entry in the medical record, and this was possibly because the dressing was not in place when she found [Patient A]. 6. RN Youssef did not have a discussion with the NUM on the day of the incident. All that was said by the NUM to RN Youssef was that the DON wanted to see her. The DON (who wasn't present on the ward when [Patient A] was found) told RN Youssef that the dressing was found on the stoma site and that the police had been called. RN Youssef replied and she did not see the dressing and she had actually looked for it because she was concerned when she found [Patient A] to be unresponsive.

Expert evidence

1. Expert evidence was provided by Dr Robert Payten, an Ear Nose and Throat (ENT) Physician, and Ms Jessica Butler, a Nurse Practitioner working at ICU Royal North Shore Hospital.

Dr Payten's evidence

1. Dr Payten practises as an ENT Physician, is a Fellow of the Royal College of Surgeons, and has over 50 years' experience since qualification. Dr Payten's expert report dated 21 May 2020 (ex A1, tab 22) provided his responses to a number of questions put by the HCCC, assuming that the stoma site was completely covered.
2. Dr Payten stated that signs of respiratory distress would have occurred within 10-15 seconds from the time the stoma site was covered. There would be frantic attempts by Patient A to remove the dressing which was preventing air entry through the stoma once he realised that there was airway obstruction; as he was not sedated and mentally alert he probably would have been successful in removing the adherent dressing or getting someone else to remove it. If the dressing was not removed progressive signs of respiratory distress would occur from 20 seconds onwards.
3. The signs of respiratory distress would be increased inspiratory effort; the accessory muscles of respiration would be used causing the clavicles and shoulders to be raised; increased respiratory rate; cessation of walking; cyanosis; confusion; and eventual loss of consciousness. Loss of consciousness would probably occur after 2-3 minutes of complete airway obstruction. Cerebral anoxia would be more likely to occur in a short time in this case because Patient A suffered from COPD, coronary arteriosclerosis, an enlarged heart and moderate to severe small vascular disease of the brain. The time taken to die following complete occlusion of the airway would probably be 3-4 minutes in this case.
4. Dr Payten stated that from the history given by RN McArthur, it was clear that airflow through the tracheal stoma was not completely obstructed by the application of the dressing. Airflow would have been completely impaired if the adhesive inner margins of the dressing on all four sides were stuck onto the skin; that would have caused an almost immediate reaction from Patient A who probably would have been able to remove the dressing himself or create such a disturbance that RN McArthur would have removed it as he would still have been in the vicinity.
5. If the dressing was applied 5 minutes before RN McArthur left Patient A in the bathroom, as stated by RN McArthur, it could not have been blocking the stoma completely. If applied in the bathroom, as the autopsy report noted, the almost immediate reaction by Patient A would have been noted by RN McArthur and the dressing removed. Dr Payten concluded, having regard to RN McArthur's statement as to his checking with Patient A that the dressing was OK, that even if the dressing was applied in the bathroom and not 5 minutes before, it was not occluding the airway.
6. Dr Payten's opinion was that the adhesive part of the dressing was only partly stuck on the skin around the stoma; it had to have been firmly fixed to the skin on the upper side of the stoma or it would have fallen off, and the sides of the dressing could have been. The inferior border was the most likely margin not to have been firmly stuck onto the skin as the skin below a laryngeal stoma is often moist as a result of a small amount of tracheal mucus overflowing when the patient is in an erect position. That would be more likely following a lower respiratory infection as in this case.
7. In oral evidence Dr Payten confirmed the opinions expressed in his written report. He commented that assuming that Patient A was unresponsive when found in the shower chair and resuscitation could not start until Mr Rollason provided the paediatric mask to put over the stoma, it would not have made a difference whether the dressing was on or off, as oxygen could not have been applied without the correct apparatus. Dr Payten considered that it would have been possible to do cardiac compressions, and that if Patient A had been slumped over the stoma could have been occluded from view.

Ms Jessica Butler

1. Ms Butler is a Nurse Practitioner working at ICU Royal North Shore Hospital (RNSH), with postgraduate qualifications in Nursing (Nurse Practitioner), Advanced Nursing (Education) and Critical Care Nursing. She has been an intensive care nurse since 2009. Her portfolios include clinical nurse lead for the RNSH Tracheostomy Team including management of patients with tracheostomies and laryngectomies, particularly in the intensive care patient population.
2. Ms Butler provided two expert reports, one for RN Youssef (ex A1, tab 27) and the other for RN McArthur (ex A1, tab 43). Ms Butler's report in relation to RN Youssef was prepared before the amendment of the complaint against her, when particular 1 of Complaint One was in terms that RN Youssef advised RN McArthur to apply a Mepilex dressing.
3. Ms Butler was of the opinion that the use of an occlusive dressing such as a Mepilex border is not appropriate for protection of the laryngectomy stoma during bathing. She would expect the stoma not be covered, or, if covered, a specialised laryngectomy foam cover/dressing would be used. The patient would wash in a forward leaning position in the chair.
4. Ms Butler was of the opinion that the conduct to apply the Mepilex occlusive dressing fell significantly below the expected standard of a practitioner of an equivalent level of training or experience and that peers of good standing would hold the same opinion. That opinion was expressed for both RN Youssef and RN McArthur.
5. Ms Butler considered that it was appropriate for RN McArthur, as a casual staff member, to seek advice from RN Youssef regarding covering Patient A's stoma for the shower. However, consideration should have been given to the appropriateness of using an occlusive dressing as suggested by RN Youssef. Ms Butler considered that RN McArthur did not comply with the National Competency Standards for Registered Nurses under the Professional Practice domain, and the Critical Thinking and Analysis and Provision of Care domains. While he escalated to an appropriate member of staff regarding the use of a dressing to cover the stoma, the potential consequences of covering the airway stoma with an occlusive dressing did not appear to have been considered. That was significantly below the standard, and invited strong criticism.
6. Ms Butler was of the opinion that RN Youssef should have sought specialist advice from more senior staff regarding the protection of Patient A's stoma from water aspiration if she had not previously cared for a patient with a laryngectomy. Not seeking specialist advice is conduct significantly below the standard expected if the RN is not familiar with the management of a patient with a laryngectomy. That departure in practice is significantly below the standard and invites strong criticism.
7. Ms Butler considered the appropriateness of RN Youssef's conduct during the initial stages of resuscitation before Mr Rollason's involvement. In her opinion, if as stated by RN Youssef, the dressing was not in place, RN Youssef commenced the appropriate emergency procedures required for an unconscious patient, that is call for help and commence CPR, and is at the standard expected of her. If, as stated by Mr Rollason, the dressing was in place when he arrived, her conduct was not appropriate as the presence of the dressing would impede oxygenation efforts. The dressing should have been removed in the first instance in an effort to ensure a patent and open airway. That is significantly below the standard expected of a practitioner of her experience and training and invites strong criticism. In Ms Butler's opinion, RN Youssef did not comply with the National Competency Standards for Registered Nurses under the Professional Practice domain, the Critical Thinking and Analysis and Provision of Care domains. She did not consult appropriate senior staff regarding the application of a dressing to the stoma site, and that is significantly below the standard and invites strong criticism.
8. Ms Butler expressed concerns regarding the understanding of both RN McArthur and RN Youssef of what a laryngectomy is and management of the patient regarding covering the stoma with an occlusive dressing.
9. Ms Butler stated that she had reviewed the South Eastern Sydney LHD Tracheostomy Clinical Management Procedures and there is no specific recommendations regarding showering and covering the stoma for a laryngectomy patient.

RN McArthur

1. The HCCC submits that the Tribunal should find Complaint One proven. Ms Butler's evidence, on which she was not cross examined, should be given significant weight. While Ms Butler did not rely on there being a sign above Patient A's bed and a face mask at the bed in expressing her opinion that RN McArthur's conduct fell significantly below expected standard, RN McArthur should have known the stoma was Patient A's sole airway and should have known not to use the dressing. The Tribunal should find that the sign was there, and was visible, and that RN McArthur's failure to concede in cross examination that it made it clear that the stoma was Patient A's sole airway does not reflect well on him.
2. As to Complaint Two, the HCCC challenges RN McArthur's timing as to when the dressing was applied and the time he spent with Patient A thereafter before leaving him in the bathroom, and his evidence as to what he observed of Patient A in that time. The HCCC submits that the medical records identify that Patient A was non-verbal and mouthing words, and the Tribunal should not accept RN McArthur's evidence that he was able to communicate the words attributed to him by RN McArthur. RN McArthur's evidence that Patient A could speak in short sentences is inconsistent with the medical records. RN McArthur maintained that evidence when given an opportunity to resile from it. The HCCC submits that that is significant, as RN McArthur relies on that evidence to establish that there was a period of at least 5 minutes after he applied the dressing and RN McArthur was not in respiratory distress.
3. Other relevant matters are the very short time between when RN Youssef said she gave RN McArthur the dressing and when she saw him and advised him to have his morning tea break, and that it could not have taken more than a minute for RN McArthur to get the towel for Patient A. Further, Patient A was dry when found in the shower, and so whatever happened, happened quickly.
4. Particular 3 of Complaint Two refers to s 99 of the Health Care Complaints Act 1993, under which it is an offence to furnish the HCCC with information for the purposes of that Act knowing that is it false or misleading in a material particular. The HCCC clarified that it is not pleading that RN McArthur is guilty of a criminal offence, rather that he was in breach of his general obligation in responding to the HCCC's questions. Particular 2 goes to the passage of time between applying the dressing and leaving Patient A, and particular 3 is directed at RN McArthur's statement that Patient A was speaking.
5. The HCCC submits that if Complaint Two is proven, then given that RN McArthur has so strongly maintained his version of events, his conduct should be characterised as professional misconduct. The conduct alleged in Complaint Two is sufficiently serious as to justify suspension of registration.
6. RN McArthur submits that the Tribunal should accept his evidence as to the time after he applied the dressing to Patient A's stoma, and his evidence as to Patient A's ability to communicate. While the clinical notes record that during his time in ICU Patient A was non verbal, he was able to let staff know while in ICU that he wanted to go home, and that he was not hungry, that he had some plastic down his tracheostomy, and that he was expecting some shopping to be delivered at home: and that would not have been possible if he could only mouth words. The Tribunal should find that Patient A was able to communicate with speech, which supports RN McArthur's evidence.

RN Youssef

1. The HCCC submits that while RN Youssef has denied a lack of knowledge of Patient A's clinical history, she has admitted that she did not understand what Patient A's laryngectomy was. Patient A's medical records recorded that he had had a laryngectomy, and if she did not know what that was, she could not have been aware of his clinical history. If the sign above the bed was part of Patient A's clinical history, and RN Youssef was unaware of it, she was unaware of Patient A's clinical history. In agreeing that the dressing was appropriate, RN Youssef had not demonstrated insight into appropriate practice, and there were a number of sources from which she could have obtained advice. The matter was not of such urgency that it needed immediate action.
2. The HCCC submits that the Tribunal should accept the evidence of Mr Rollason and find that the dressing was on Patient A's stoma when he was found. In that regard there is a conflict between the evidence of RN Youssef, which was that she saw the stoma and it was not covered, and the evidence of Mr Rollason and Ms Stokes, both of whom said that it was removed at the start of the resuscitation efforts. Mr Rollason could only have known of the dressing if he had seen it. A finding that RN Youssef failed to remove the dressing leads inevitably to a finding that RN Youssef provided false and misleading information, and that Complaint Two is proven.
3. The HCCC submits that on the admitted conduct in Complaint One, RN Youssef is guilty of professional misconduct, because of the different place she occupied in the ward: RN McArthur tried to get advice from a more senior practitioner, however RN Youssef did not attempt to get advice from a senior practitioner. Her conduct was of sufficient seriousness to warrant suspension of her registration.
4. RN Youssef submits that while she had a lack of knowledge on the underlying anatomy of Patient A's altered anatomical state after his laryngectomy in 2002, there is no evidence to indicate that she had a lack of knowledge of his remaining underlying anatomy and his clinical history. She submits that there was a lack of information in the written records, and inadequate circulation of information or discussion by staff on the ward, where Patient A's condition was not a usual condition cared for on the ward.
5. RN Youssef submits that having regard to her evidence that she did not recall seeing the dressing covering Patient A's stoma at any time, and RN Stokes' evidence that she did not see the dressing when Patient A was in the bathroom or at any time prior to commencement of airway management, the Tribunal should not find that she failed to remove the dressing when she found Patient A unresponsive in the shower. For that reason, the Tribunal should not find Complaint Two proven.

Discussion and findings

1. It is not in dispute that: 1. Patient A was an 80 year old man who had had a laryngectomy in 2002, and who lived independently and was self caring; 2. Patient A's laryngeal stoma was his sole airway; 3. Patient A was admitted to Ward DB4 on 8 February 2017 after five days in ICU; 4. RN Youssef and RN McArthur were assigned to his care on 9 February 2017; 5. RN McArthur, a casual employee, applied a Mepilex dressing to cover Patient A's stoma, having sought advice from RN Youssef as to whether that was appropriate; and 6. Patient A was later located by RN Youssef unresponsive in the bathroom sitting in the shower chair, slumped, and dry and naked.
2. There were some discrepancies in the evidence concerning the resuscitation attempts. There was a discrepancy as to whom Mr Rollason gave the face mask, and who took on and took over the role of airway management. In a situation where there were a number of staff present trying to assist, the Tribunal does not place weight on the lack of consistency as to those details.
3. Mr Rollason's evidence was that he took the dressing off the stoma when on his way to Patient A's bed to retrieve the paediatric face mask, whereas RN Stokes's evidence was that Mr Rollason was holding the face mask when she turned on the oxygen and suction and she observed him removing the dressing. The Tribunal notes that RN Stokes was unable in oral evidence to recall much detail as to the sequence of events on 9 February 2017, and places greater weight on her written statement, which was provided to NSW Police the day after the incident. What is significant is that both were certain that Mr Rollason removed the dressing from Patient A's stoma after Patient A had been carried out of the bathroom, and that neither had any reason to expect that there would be a dressing covering Patient A's stoma.
4. In issue is the length of time between when Patient A requested assistance to have a shower, to when he was left in the shower, and when he was located and the alarm raised. RN McArthur's evidence was that Patient A approached him at approximately 9.20am, and that he left him at round 9.30am. In her statement of 27 February 2017 RN Youssef stated that she was approached by RN McArthur just before 9.30am, and that it was about 9.30am that she saw him again in the hallway. In oral evidence RN Youssef could not recall the time that had elapsed, and it could have been 1 or 5 or up to 10 minutes.
5. RN Youssef's evidence was that she checked the shower room when a pathology collector came to the ward at 9.45am. That is not consistent with the evidence of Mr Rollason, whose evidence was that he heard the arrest call at 10.20am, or RN Stokes, who said it was approximately 10.15am. The Progress Notes record (ex A1, tab 20, p 54) that the Code Blue was made at 10.20am. The Tribunal accepts that it was some time after RN McArthur left Patient A that he was found; and having regard to the fact that he was still dry, and having regard to the evidence of Dr Payten, finds that whatever happened after RN McArthur left, happened quickly.

Whether the particulars not admitted by RN McArthur are established

1. RN McArthur has admitted the three particulars of Complaint One, that he inappropriately applied a Mepilex dressing to cover Patient A's stoma, and demonstrated a lack of knowledge of the underlying anatomy and clinical history of Patient A, and a lack of knowledge that the laryngectomy stoma was Patient A's sole airway.
2. The HCCC submits that the evidence of Mr Rollason that a sign was placed above Patient A's bed is relevant to acceptance of RN McArthur's evidence. While conceding that Ms Butler's opinion that his conduct fell below that reasonably expected of a practitioner of his training and experience did not depend on there having been a sign above the bed and a face mask at the bed, it was there and visible, and RN McArthur should have conceded that.
3. Photograph 60 in the series of photographs taken by NSW Police (ex A1, tab 20) shows a sign headed "This patient has a LARYNGECTOMY They CANNOT be intubated or oxygenated orally", and further "If breathing difficulties occur, oxygenate and ventilate via the tracheostomy". A diagram with a side on view of a face shows "X" at the mouth and an arrow pointing to a stoma, and further instructions as to intubation and oxygenation.
4. RN McArthur's evidence was that he did not recall seeing the sign. In cross examination he did not accept that the sign made it clear that the stoma was Patient A's sole airway. He accepted post the event that he understood it, but he did not see it at the time.
5. The Tribunal accepts based on the photograph and the oral evidence of Ms Stokes that the sign was located above Patient A's bed. The Tribunal agrees with RN McArthur that the text on the sign as shown in the photograph is small. RN McArthur's evidence was that the handover at the beginning of the shift on 9 February 2017 was at Patient A's bedside. It is possible that the focus of his attention at the handover on the morning after Patient A's admission to the ward was on Patient A's stoma, which he observed to be clean with no visible secretions, and which he was told may require suctioning, and not on the sign. There is a version of such a sign included in the medical records relating to Patient A in exhibit A1, with slightly different wording, but there is no submission that that document was included in the records available at the time. While the Tribunal is troubled by RN McArthur's evidence maintaining that the sign was confusing, it accepts RN McArthur's evidence that he did not see the sign. Whether had he done so it would have made a difference to his decision later to apply a dressing over the stoma, after having consulted a senior colleague, is a matter of speculation.
6. The Tribunal is satisfied that based on his admissions and the evidence as to his understanding of Patient A's laryngectomy and laryngeal stoma, the conduct alleged against RN McArthur in Complaint One is established.
7. RN McArthur has denied that he provided false and misleading information in his statements of 9 March 2017 and 15 June 2017 as to what occurred on 9 February 2017. The statement of 9 March 2017 was provided for the NSW Police for the report to the Coroner. The statement of 15 June 2017 was provided in a letter from his solicitor responding to a letter from the HCCC dated 14 June 2017, as part of its assessment of the mandatory notification to AHPRA.
8. The focus of the HCCC's contention that RN McArthur provided false and misleading information was on the timing between when the dressing was applied to cover Patient A's stoma to the time when RN McArthur left Patient A in the shower, and what he observed of Patient A and their interactions in that period of time.
9. In addressing the first question, the Tribunal notes that while they were unable to recollect matters of detail in their oral evidence, the evidence of RN Youssef and RN McArthur as to where they were when they discussed whether it was appropriate to use a dressing to cover Patient A's stoma was generally consistent. RN McArthur said that the bathroom was roughly opposite Patient A's room, about 5m away. He was in the hallway, and Patient A was with him, when RN Youssef went to get the dressing. RN Youssef could not recall where she was, but said she was possibly in the hallway, about 3 or 4, or possibly 5, metres from Patient A's room. RN McArthur maintained he applied the dressing in the hallway, and he was away for no more than one minute to get the towel and gown; and once in the bathroom he showed Patient A the call bell and the buttons to use, and he assisted in taking Patient A's gown off before leaving him to shower.
10. RN McArthur maintained in oral evidence that he had applied the dressing over Patient A's stoma while they were in the hallway after it was given to him by RN Youssef. RN McArthur has been consistent in that evidence, including in cross examination. It is plausible that the dressing was applied as stated by RN McArthur; it is equally plausible that it was applied later once in the bathroom while RN McArthur was helping Patient A to get undressed.
11. The Tribunal acknowledges that there may be reasons why RN McArthur's evidence may not be reliable. In his statement as part of the Tribunal proceedings he stated that after the incident he was devastated, and constantly upset and depressed knowing his actions had contributed to Patient A's death. His responses immediately after the event were consistent with him being concerned that his action may have led to Patient A's arrest and death. Mr Rollason's evidence was that after CPR was terminated, and he was with RN McArthur and RN Stokes in the NUM's office, RN McArthur expressed concern regarding the dressing and appeared distressed, and said words to the effect that he put the dressing on. Mr Rollason and RN Stokes had concern for RN McArthur. RN McArthur acknowledged in cross examination that he realised when the police came that it was a very serious situation, and that he thought it was a possibility that he was somehow responsible for Patient A's death because he was found unresponsive, and he was his patient.
12. However, RN McArthur's subsequent actions support a conclusion that he was not deliberately trying to conceal the truth. In cross examination he stated that he realised he would need to make a statement when police came to the office, and he appreciated that it would have to be accurate. He realised there would have to be an investigation, and at some point was told he would need to help and to make a police statement. While there are concerns as to the accuracy of the timing, discussed below, the Tribunal is of the view that overall RN McArthur was providing truthful evidence to the best of his recollection.
13. The Tribunal accepts RN McArthur's evidence that after he and Patient A went into the bathroom he assisted Patient A to undress for his shower, including untying the knot at the back of the gown he was wearing, that he showed Patient A how to call for assistance, and he checked whether Patient A needed assistance to shower. Those were all steps required to ensure that an elderly patient newly on the ward, having been transferred from ICU, would be able to shower safely. Ms Butler commented that it appeared that Patient A was suitable to be left unattended in the shower as he was alert, noted to be self-caring with his long-established stoma and mobilising independently post-discharge from ICU. The Tribunal accepts the evidence of RN McArthur that he wanted to make sure that Patient A was safe to be left to shower, and that in that context, the steps he took would have taken some minutes.
14. The second issue concerns the challenge to RN McArthur's evidence that he was able to check with Patient A that he wanted the stoma site covered, if he wanted the dressing applied, and if the dressing was "OK". The HCCC submits that the Tribunal should not accept RN McArthur's evidence as to what Patient A said to him, submitting that RN McArthur's evidence that Patient A was able to communicate verbally with him is inconsistent with the medical records.
15. The medical records from ICU record that Patient A was "non-verbal, only able to mouth words" (3 February 2017; p 139); "mouthing words", and "unable to write" (4 February 2017; p 40); "communicates well with mouthing words and hand gestures" (5 February 2017, p 30); "communicating by mouthing words" (6 February 2017, p 25); and "communicates by mouthing words" (7 February 2017, p 46).
16. The records also indicate that Patient A was able to communicate well. On 4 February 2017, he was "asking what is happening" (p 40); on 5 February 2017 (p 28), it was recorded that he "thinks a piece of ?plastic is down his tracheostomy"; on 7 February 2017 (p 23) he "denies pain", "wanted to go home", and "agreed to stay overnight"; and on 8 February 2017 (p 52), that he "has shopping arriving to his home today nobody is able to receive the delivery". The Occupational Therapy Progress Note from an earlier admission, on 7 July 2016 (p 129) recorded that Patient A "can communicate but is very difficult to understand and a phone call to speak with him would not be appropriate".
17. RN Youssef's evidence was that she had been informed at the handover that Patient A was non-verbal, but he could speak at a whisper. In relation to her statement that Patient A had declined her offer of a nebuliser, she stated he communicated that both with his hands and voiced "no". She agreed she had not stated in her statement that Patient A was speaking.
18. In oral evidence RN McArthur said that during the period when he and Patient A were in the hallway and he applied the dressing, Patient A had a whispery gravelly voice, and was making sounds, and used hand gestures. After he took off Patient A's gown he used verbal and non-verbal communication that he was OK to shower. To the best of RN McArthur's recollection, Patient A used the words "No I'm ok to shower". RN McArthur maintained that he could hear what Patient A was saying.
19. Dr Payten commented in his written report that in that last reply Patient A was using oesophageal speech, a difficult technique learnt after laryngectomy when air is swallowed into the upper oesophagus and then regurgitated causing vibration of the lower pharynx resulting in voice production.
20. The Tribunal accepts RN McArthur's evidence that he was able to communicate with Patient A about covering the stoma, for the following reasons. It is clear from the ICU clinical notes that Patient A could not write, and that he used a variety of methods to communicate, by mouthing words and using hand gestures. The Occupational Therapy notes from 2016 confirm that he was able to speak, and Dr Payten's evidence confirms that that was possible post laryngectomy. Patient A's laryngectomy was 15 years earlier, and not recent, and it would be expected that he would have developed a form of communication in that time. The communications recorded in para [108] above would have required verbalisation, beyond the use of hand gestures.
21. Having regard to the totality of that evidence, which confirms that Patient A had developed some form of communication, having had the stoma since 2002, the Tribunal finds that in the exchanges with RN McArthur in the bathroom Patient A was able to use some words. In oral evidence RN McArthur described Patient A's voice as gravelly and whispery. The Tribunal is not satisfied that the sound, or what was said, can appropriately be described as speaking "without difficulty and in full sentences". However, the Tribunal accepts that at least in the final exchange Patient A was able to use more than one word at a time, and was able to communicate to RN McArthur that he wished to be left alone to shower.
22. Based on those findings, the Tribunal concludes that RN McArthur was with Patient A for some time after applying the dressing and before leaving him in the bathroom. The Tribunal accepts RN McArthur's evidence that in the course of that time he checked with Patient A as to whether he wanted the dressing, and once applied, whether it was OK, and then, whether Patient A required any further assistance to shower. The Tribunal acknowledges that, having regard to the evidence of RN Youssef as to the short period of time between handing the dressing to RN McArthur and her suggesting he go for his morning tea break, the time may have been short; however is satisfied that it was a period of some minutes. Having regard to Dr Payten's evidence, any respiratory distress would have been obvious, and certainly apparent by the time Patient A closed the bathroom door even if the dressing had not been applied until the time Patient A was undressing. Given the care taken by RN McArthur to ensure Patient A's safety in the shower, the Tribunal accepts that had there been any such signs, RN McArthur would have taken steps to assist Patient A; and had that occurred, it is likely that as a junior casual employee other staff would have been alerted, well before the time that RN Youssef checked the bathroom.
23. Particulars 1 and 2 of Complaint Two allege that RN McArthur did not remain with Patient A for a period of 5 minutes or longer after he applied the dressing, and that in stating that he did, RN McArthur provided false and misleading information in his statement of 9 March 2017 and the letter of 15 June 2017. The evidence does not establish precisely how long it was after RN McArthur applied the dressing that he left Patient A. The Tribunal is satisfied that it was some minutes. While it may not have been correct to state that it was "at least 5 minutes or longer", the Tribunal is not satisfied that the evidence establishes that RN McArthur was deliberately misstating the position in either statement. That is made clear in RN McArthur's response in the letter of 15 June 2017 to the final question, referring to "the best of" his recollection. Even if the reference to "at least 5 minutes" was incorrect, it was not misleading.
24. Particular 3 of Complaint Two alleges that RN McArthur did not remain with Patient A to observe him speaking without difficulty nor showing signs of respiratory distress, and that in stating through his lawyer's letter of 15 June 2017 that Patient A "was speaking without difficulty and in full sentences and did not show any signs of respiratory distress", he provided false and misleading information to the HCCC. The Tribunal has not accepted that Patient A was able to speak in full sentences, or without difficulty. The Tribunal accepts that to state that that was the case may have been incorrect, but is not satisfied that the statement was made intending to mislead. Patient A was able to communicate with RN McArthur while he was assisting him to prepare for the shower, and the Tribunal has accepted that RN McArthur did not observe signs of respiratory distress during that time.
25. Particular 3 is framed by reference to the obligation imposed under s 99 of the Health Care Complaints Act 1993. That provision makes it an offence for a person to provide information to the Commission for the purposes of that Act "knowing that it is false or misleading in a material particular". In oral argument the HCCC submitted that this particular refers to the general obligation on a practitioner to provide information to the HCCC.
26. As discussed above, the Tribunal has misgivings about the accuracy of detail in some of the information provided by RN McArthur in his statement of 9 March 2017 and in the letter of 15 June 2017. It was not put to RN McArthur in cross examination that he was deliberately concealing the truth, or that he knew that the information was false. Having regard to the level of proof required in these proceedings, the Tribunal is not satisfied that the evidence supports a finding that in those statements RN McArthur provided information knowing it was false, or with an intention to mislead. The Tribunal does not find that the particulars of Complaint Two are established.

Whether the particulars not admitted by RN Youssef are established

1. RN Youssef has admitted that she agreed that it would be suitable to apply a Mepilex dressing to cover Patient A's stoma while showering, that she inappropriately provided a Mepilex occlusive dressing to RN McArthur, and that she had a lack of knowledge of the underlying anatomy of Patient A's altered anatomical state after his laryngectomy in 2002. She admits she did not know that the laryngeal stoma was Patient A's sole airway. She denies that she did not have knowledge of his remaining underlying anatomy and his clinical history.
2. The latter proposition is based on her evidence that after handover report she reviewed Patient A's clinical record. Her evidence was that the critical information that the stoma site was Patient A's only airway was not recorded on the handover sheet, was not advised at the initial huddle, was not handed over by the night nurse, and when she reviewed the nursing care plan and clinical record at the beginning of the shift there was no warning or documentation that the stoma was Patient A's sole airway or any direction on how to care for Patient A's stoma. RN Youssef's evidence was that she did not see the sign above Patient A's bed at handover because she was on the other side of the bed.
3. The medical records in evidence (ex A1, tab 20) include the Clinical Handover at Transfer of Care form dated 8 February 2017; the progress/clinical notes from 3-9 February 2017; the Nursing Care Plan dated 9 February 2017; and the ICU discharge summary. The Clinical Handover form records (p 19) a medical history of laryngeal cancer with tracheostomy 2002. The Nursing Care Plan of 9 February 2017, which RN Youssef stated was prepared by the night duty nurse, notes that Patient A was independent in hygiene and personal care, and does not include any detail under the heading "Specialty specific patient care requirements".
4. The HCCC submits that RN Youssef had a lack of knowledge of Patient A's clinical history, if she did not understand what a laryngectomy was. The Tribunal accepts that the documents available to RN Youssef at handover did not identify that the stoma was Patient A's sole airway. Those documents are an indication in summary of patient care, and not the sole documentation of relevant information. Based on the Tribunal's professional expertise, the sign above Patient A's bed is an indicator of a clinical history event; and so even if the sign was not part of the clinical history, so that RN Youssef may have been correct in denying that she had a lack of knowledge of Patient A's clinical history, the sign was a trigger that there was something in the patient's clinical history that was of significance in the care of that patient. That RN Youssef should have been alerted to the possibility that the stoma was Patient A's sole airway is confirmed by para [11] of her statement of 30 June 2020 in which she states she recalled being informed at the bedside handover that Patient A had a nebuliser which was to be administered via the stoma.
5. RN Youssef admits that she failed to seek advice from a more senior staff member regarding the appropriate management of Patient A's laryngeal stoma with respect to whether it was appropriate to use the dressing while he showered.
6. Based on her admissions and the findings above the Tribunal finds that the conduct as alleged in particulars 1, 2, 3, 4 and 5 of Complaint One is established.
7. RN Youssef denies particular 6 of Complaint One, that she failed to remove the Mepilex dressing when she found Patient A unresponsive in the shower. RN Youssef's evidence was that she did not see the dressing, and the stoma was not covered. That evidence was given in her statement of 27 February 2017, her response to the HCCC in the letter dated 15 June 2017, and in her statement in the Tribunal proceedings dated 30 June 2020.
8. In oral evidence RN Youssef stated in response to questions as to whether she observed Patient A's stoma after she found him but before resuscitation commenced, and whether she could now recall seeing the stoma without the dressing, that she was focussed on CPR and it was a stressful situation. She never saw the dressing in place. When pressed, RN Youssef stated that she relied on her statement of February 2017.
9. The Tribunal accepts that the situation after finding Patient A unresponsive in the shower was stressful, that the immediate task was to attempt to resuscitate the patient, and that a number of nurses and others attended quickly. The Tribunal accepts that if Patient A was slumped over in the shower chair, RN Youssef may not have observed his stoma immediately on entering the bathroom. However, RN Youssef's evidence that the stoma was not covered is not consistent with the evidence of Mr Rollason, who stated that he removed the dressing as soon as he saw it on Patient A.
10. The Tribunal prefers the evidence of Mr Rollason to that of RN Youssef on this issue, for two reasons. First, RN Youssef confirmed in her oral evidence that she did not have any conversation about the dressing with anyone other than RN McArthur before she found Patient A, and RN McArthur's evidence was that he went on his break once Patient A was in the shower. Mr Rollason had no reason to expect to see a dressing on the stoma, and, as Respiratory CNC with experience and responsibilities for review of patients with tracheostomies and respiratory issues, he knew it needed to be removed before resuscitation could commence with the paediatric mask. Secondly, while they differed as to whether it was before or after Mr Rollason retrieved the mask, that it was Mr Rollason who removed the dressing is supported by the evidence of Ms Stokes. For Mr Rollason to remove the dressing in order for resuscitation to be commenced, it had to have been in situ at the time RN Youssef found Patient A.
11. The Tribunal is satisfied that RN Youssef failed to remove the Mepilex dressing from Patient A's stoma when she found him unresponsive in the shower. Particular 6 of Complaint One is established.
12. Particulars 1 and 2 of Complaint Two allege that the dressing was in situ at the time that RN Youssef found Patient A unresponsive on 9 February 2017, and that in asserting in her statement of 27 February 2017 and in the letter through her lawyer of 15 June 2017 that "the Mepilex dressing was no longer in situ" and "the stoma was not covered", she provided false and misleading information.
13. The Tribunal has found that at the time RN Youssef found Patient A, the dressing was still in place, and it was not removed until Mr Rollason did so after Patient A had been taken from the bathroom to the hallway. RN Youssef's statements that the stoma was not covered were a positive assertion which could not have been correct. When pressed in cross examination as to whether she observed the stoma when she found Patient A, and taken to para [24] of her statement of 24 February 2017, RN Youssef stated that she relied on her statement of 24 February 2017, and that she no longer had an independent recollection.
14. The statement that the stoma was not covered was a positive statement that was not correct, and that could not have been correct given the clear evidence of Mr Rollason that he removed the dressing as soon as he saw it. It was not put to RN Youssef in cross examination that she knew that the statement was false, or that in making it she intended to mislead. However, the only inference available from the evidence is that in providing that information RN Youssef was concealing a critical detail. RN Youssef had reason to be concerned about the dressing having been placed over the stoma, having been told by the DON that the dressing had been found on the stoma site and the police had been called.
15. The level of proof required to support a finding that a practitioner has intentionally provided false and misleading information to a regulatory authority is high: Health Care Complaints Commissioner v Attia [2016] NSWCATOD 167; Health Care Complaints Commission v Kennedy [2017] NSWCATOD 72. The Tribunal is satisfied that the information provided by RN Youssef in her statement of 27 February 2017 and the letter of 15 June 2017 that the stoma was not covered and the dressing was not in place was false. It was significant to the investigation to understand the sequence of events, and in that context, the information provided by RN Youssef was misleading.
16. The Tribunal is satisfied that the conduct the subject of Complaint Two is proven.

Whether complaint of unsatisfactory professional conduct is established

1. The HCCC relies on paragraphs (a) and (l) of s 139B(1) of the National Law, which provide: 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 - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

Whether RN McArthur is guilty of unsatisfactory professional conduct

1. RN McArthur has admitted the three particulars in Complaint One. Ms Butler's opinion was that his conduct in applying an occlusive dressing to cover Patient A's stoma fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. While it was appropriate that he sought advice from the more senior RN, in her opinion he should have considered the appropriateness of using the dressing. The Tribunal notes that Ms Butler's report, with the reference to "advice", reflected the complaint in respect of RN Youssef before it was amended. However, Ms Butler was of the opinion that the potential consequences of covering the airway stoma with an occlusive dressing did not appear to have been considered by RN McArthur, and that was significantly below the standard expected.
2. While Ms Butler did not express an opinion directly as to particulars 2 and 3 of Complaint One, and whether RN McArthur's admitted lack of knowledge of the underlying anatomy and clinical history of Patient A and that the stoma was Patient A's sole airway was below the standard reasonably expected of a practitioner of equivalent training and experience, she expressed concerns regarding his understanding of what a laryngectomy is and management of the patient. Ms Butler considered that RN McArthur's failure to consider the potential consequences of covering the airway stoma with an occlusive dressing was significantly below the standard.
3. The Tribunal agrees with Ms Butler that the Professional Practice, Critical Thinking and Analysis, and Provision and Coordination of Care domains of the National Competency Standards for the Registered Nurse, which is under s 41 of the National Law evidence of what constitutes appropriate professional conduct or practice, are relevant. The Tribunal accepts that there was an absence of guiding information as to how to manage a stoma in the shower and that RN McArthur appropriately sought guidance from a senior colleague, and that he could not have known that she also did not recognise that the stoma was Patient A's sole airway. However, it is a reasonable expectation of any RN, given that airway maintenance is critical, to question whether occluding a stoma, which must have some respiratory function, is safe practice. RN McArthur failed to do that, and in doing so did not comply with cl 1.2 of the Professional practice domain, which required him to perform nursing interventions in accordance with recognised standards of practice, or cl 5.1 of the Provision and coordination of care domain which required him to conduct a comprehensive and systematic nursing assessment.
4. The Tribunal concludes that RN McArthur's conduct as alleged in Complaint One was conduct significantly below the standard reasonably expected of a practitioner of equivalent training and experience, and that he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law as alleged in Complaint One.
5. The Tribunal has not found that Complaint Two is proven.

Whether RN Youssef is guilty of unsatisfactory professional conduct

1. RN Youssef has admitted the conduct as particularised in particulars 1, 2, 4 and 5 of Complaint One, and particular 3 in part. In respect of particular 3, she has admitted that her conduct demonstrated a lack of knowledge of the underlying anatomy of Patient A. As explained previously, the Tribunal is satisfied that while the sign above Patient A's bed may not have formed part of his "clinical history", it was a significant trigger that there was something in Patient A's clinical history of significance for his care. The Tribunal has found that particular 3 is established, and that particular 6 is proven.
2. Ms Butler's expert opinion was that the conduct in applying the dressing fell significantly below the expected standard of a practitioner of an equivalent level of training or experience; and that RN Youssef's conduct in not seeking specialist advice from more senior staff was significantly below the standard expected if she was not familiar with the management of a patient with a laryngectomy. The dressing should have been removed in the first instance, and RN Youssef's failure to do so was significantly below the standard expected of a practitioner of her experience and training. RN Youssef did not comply with the National Competency Standards for Registered Nurses under the Professional Practice domain or the Critical Thinking and Analysis and Provision of Care domains, in not consulting appropriate senior staff regarding the application of the dressing. That was significantly below the expected standard.
3. The Tribunal accepts and agrees with Ms Butler's expert opinion.
4. Ms Butler expressed concerns regarding RN Youssef's understanding of what a laryngectomy is and management of a patient regarding covering the stoma with an occlusive dressing. The Tribunal agrees that for RN Youssef to agree with a junior colleague that a dressing was appropriate, without adequate knowledge of stoma care and without seeking advice from more senior colleagues on the ward such as Mr Rollason, in circumstances that were not urgent, was conduct that was significantly below the standard reasonably expected of a practitioner of equivalent training or experience.
5. RN Youssef is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law.
6. The Tribunal has found that the conduct alleged in Complaint Two is proven. The Tribunal is required to determine whether as a consequence RN Youssef is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. That requires the Tribunal to consider whether her conduct as particularised can be characterised as "improper" or "unethical".
7. In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 the Tribunal considered s 139B(1)(l), and confirmed at [31] that it applies to conduct not falling within s 139B(1)(a)-(k). The Tribunal considered the terms "improper" and "unethical": 41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]).
8. RN Youssef had a duty to be honest and candid with the regulatory authorities, as an integral part of the proper functioning of the regulatory system, and as part of the investigation into the death of a patient in her care. Her conduct in providing false information in the statements of 27 February 2017 and 15 June 2017 was both improper and unethical: Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 at [104]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [73].
9. The Tribunal is satisfied that RN Youssef is guilty of unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law.

Whether complaint of professional misconduct is established

1. Professional misconduct is defined in s 139E of the National Law: 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.
2. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: 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).
3. In deciding whether conduct found to constitute unsatisfactory professional conduct is sufficiently serious to justify suspension or cancellation of a practitioner's registration, the circumstances that bear on the objective assessment of that conduct must be taken into account. The circumstances may include the nature and duration of the conduct, the existence of any mitigating factors, and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct: Health Care Complaints Commission v Attia [2016] NSWCATOD 167. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. The definition of "professional misconduct" is focused on the nature of the conduct, which must have the capacity to justify an order to suspend or cancel a practitioner's registration, whether or not such an order should be made in the particular circumstances: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], Basten JA.
4. The Tribunal is not satisfied that the conduct of RN McArthur was of sufficient seriousness to justify suspension or cancellation of his registration. While it fell significantly short of the expected standard in terms of his knowledge of the importance of the stoma as an airway, the critical element is that he sought advice from a more senior colleague, and it was not unreasonable for him to have acted on that advice.
5. The Tribunal considers that the unsatisfactory professional conduct of RN Youssef was sufficiently serious to justify suspension or cancellation of her registration. She did not know what the anatomical changes in a total laryngectomy were, and she had a duty to find out. The shower was not urgent, and she could have taken the time to consult senior colleagues, in particular CNC Rollason. She had a duty to be honest and candid in providing information as part of the police inquiry, and to the HCCC as part of its assessment of the complaint, and failed to do so. The Tribunal is satisfied that the conduct both admitted and found in Complaint One, when considered together with the particulars of Complaint Two, was sufficiently serious to justify the suspension or cancellation of RN Youssef's registration, and was professional misconduct.

Orders

1. The Tribunal has found that RN McArthur is guilty of unsatisfactory professional conduct, and that RN Youssef is guilty of unsatisfactory professional conduct and professional misconduct. As discussed with the parties at the hearing, the Tribunal makes directions for the provision of evidence and submissions as to what if any protective orders are appropriate as a consequence of these findings in each of the proceedings.
2. The orders of the Tribunal are:

2020/00081521 Health Care Complaints Commission v Youssef: 1. Leave granted to amend the complaint; 2. The respondent is guilty of unsatisfactory professional conduct and professional misconduct; 3. The following directions are made: 1. The applicant is to provide to the Tribunal and to the respondent a statement as to the protective orders it is seeking as a consequence of the finding of unsatisfactory professional conduct and professional misconduct, together with the evidence on which it intends to rely, and submissions, on or before 5 February 2021; 2. The respondent is to provide to the Tribunal and to the applicant evidence and submissions in response, on or before 26 February 2021; 3. The applicant is to provide to the Tribunal and to the respondent any material in reply, on or before 5 March 2021; 4. The parties are to provide to the Tribunal a range of dates for the Stage 2 hearing after 10 March 2021, on or before 20 January 2021.

2020/00081523 Health Care Complaints Commission v McArthur: 1. Leave granted to amend the complaint; 2. The respondent is guilty of unsatisfactory professional conduct; 3. The following directions are made: 1. The applicant is to provide to the Tribunal and to the respondent a statement as to the protective orders it is seeking as a consequence of the finding of unsatisfactory professional conduct, together with the evidence on which it intends to rely, and submissions, on or before 5 February 2021; 2. The respondent is to provide to the Tribunal and to the applicant evidence and submissions in response, on or before 26 February 2021; 3. The applicant is to provide to the Tribunal and to the respondent any material in reply, on or before 5 March 2021; 4. The parties are to provide to the Tribunal a range of dates for the Stage 2 hearing after 10 March 2021, on or before 20 January 2021.

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: 13 January 2021