Misoy v Health Care Complaints Commission

Consideration

1. Section 41C of the Health Care Complaints Act 1993 (NSW) provides that: 41C Administrative review by Civil and Administrative Tribunal (1) A health practitioner may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions under section 41AA or 41A - (a) a decision that the health practitioner has breached a code of conduct for non-registered health practitioners, (b) a decision to make an interim prohibition order or a prohibition order in respect of the health practitioner, (c) a decision to issue, revoke or revise a public statement about the health practitioner. (2) An application under this section is to be made within 28 days after the day on which the health practitioner is provided with the statement of the decision.
2. Ms Misoy made the administrative review application on 9 January 2023. The statement of the decision made by the HCCC is dated 20 October 2022. On 14 March 2024 the Tribunal made an order extending time the time to lodge the application to 13 January 2023.
3. On administrative review of the decision, the Tribunal must make the "correct and preferable" decision having regard to the material before it, including any relevant factual material and applicable written or unwritten law: s 63(1) of the Administrative Decisions Review Act 1997 (NSW). In undertaking that task, the Tribunal may exercise all of the functions that are conferred or imposed in the HCCC: s 63(2) of the Administrative Decisions Review Act. On review, the Tribunal may affirm, vary, or set aside the HCCC's decision: s 63(3) of the Administrative Decisions Review Act. If the decision is set aside, the Tribunal may substitute its own decision for that of the HCCC or remit the matter to the HCCC in accordance with any directions or recommendations of the Tribunal: s 63(3) of the Administrative Decisions Review Act.
4. On 27 October 2021, the HCCC received a complaint from a client's daughter in relation to the care provided to her mother by Ms Misoy. It is alleged that on the morning of 22 October 2021, Ms Misoy forced the client's left leg around the bar of the hoist she was using to transfer her. It is further alleged that this was despite the client's instructions to be careful with her left leg because it did not bend. This is said to have caused a skin tear to the client's left knee area and a fracture of her left femur just above her knee. The client has since died.

Did Ms Misoy cause injury to the client's knee?

1. Ms Misoy submits that she has consistently stated that the client had a pre-existing injury before she came to care for her on 22 October 2021. She has consistently denied causing any new injury to the client and that if there was any new injury, the injury was caused in the days following, between when Ms Misoy attended and when the client was taken to hospital. Ms Misoy submits that there is no supporting evidence from any of the witnesses or from the investigation carried out that it was her that caused the injury to the client.
2. In her statement to the Tribunal dated 27 August 2023 (exhibit 4) Ms Misoy states: "I feel I am being blamed for something I did not do. Also my mental health situation played a big role in the investigations since I couldn't defend myself properly on the allegations."
3. Ms Misoy's mental health condition is supported by a series of medical reports provided to the Tribunal. The first relates to an admission date of 27 April 2018 (exhibit 1), the second to an admission date of 31 July 2022 (exhibit 2) and the final relates to an admission date of 1 August 2022 (exhibit 3).
4. Ms Misoy was cross-examined at the hearing. The applicant, who was legally represented, did not require any of the respondent's witnesses to be made available for cross examination.
5. Having considered the evidence and for the reasons that follow, I find that Ms Misoy did cause the injury to the client's leg.
6. The HCCC provided a bundle of documents which they relied on that was marked exhibit 5.
7. The statement of reasons for the decision discloses that on 27 October 2021, the HCCC received a complaint from the client's daughter regarding the alleged injury. The HCCC then conducted an investigation into the complaint.
8. Records were obtained from Liverpool Hospital (exhibit 5, p 127 - 130) which record that the client presented to hospital on 24 October 2021, that is 2 days after Ms Misoy attended the client's home to care for her. The client presented with a fracture of her left distal femur with a peri-prosthetic fracture around the TKR femoral component. She underwent surgery for the fracture on 25 November 2021.
9. On 17 December 2021, the HCCC sought an initial response from Ms Misoy to the complaint (exhibit 5, p 62). On 20 December 2021, Ms Misoy's response (exhibit 5, p 64) was received, which read: "I was irine carier [sic] when I arrived in the morning on Friday I found [the client]with knee injury "and on Sunday she was complaining about some pains in her stomach and knee and she was taken to hospital"
10. On 23 February 2022 the HCCC sent correspondence notifying Ms Misoy that it was investigating the complaint and sought a further response (exhibit 5, p 65-67). On 25 February 2022, apparently referring to a point of the HCCC's correspondence (number 3) Ms Misoy responded by email (exhibit 5, p 68): No 3, I found her when she already had the injury, and I have been using hoist and know how to use it properly which rule's a you [sic] saying a I didn't follow
11. The HCCC also obtained witness statements from the following: 1. The complainant dated 13 April 2022 (exhibit 5, p 69). 2. A carer who was also working in the home of the client on the day of the incident, dated 31 March 2022 (exhibit 5, p 72) 3. Ms Griffiths, the carer involved in the induction of the applicant, dated 1 April 2022 (exhibit 5, p 69)
12. In her statement, the carer who was present in the client's home at the time of the incident (exhibit 5, p 72) states that she remembers that Ms Misoy was showering the client. The Carer was in another room when she heard a shout from the client and went to see what happened. On investigating, the client told her that she was hurt, and her knee was bleeding. The carer states that she saw that the client's knee was bleeding, but that was not an unusual occurrence and she helped Ms Misoy bandage it.
13. In her statement (exhibit 5, p74) Ms Griffiths states she had conducted an induction for Ms Misoy. According to Ms Griffiths, the induction included her showing Ms Misoy how to use the hoist with a demonstration, however, Ms Misoy did not operate the hoist herself at the time.
14. The HCCC also sought and obtained information and documentation from both Support Network and Community Home Care. Support Network was responsible for contracting Ms Misoy's services to Community Home Care.
15. The information provided by Community Home Care included the following: 1. A cover letter (exhibit 5, p 92-94) setting out the background to Ms Misoy's employment through Support Network. The letter also notes that Community Home Care stopped requesting services by either Ms Misoy or Support Network on 24 October 2021 and includes the following comment: "Nancy's subsequent behaviour of not responding, not keeping her promise in terms of coming to office, not giving consent to Support Network to forward her first aid course, Cert III in individual support, police clearance to send us are all matters of worry with us." 1. An incident report, completed by Ms Misoy (exhibit 5, p 119-121). The report is unsigned and undated. In response to the question of what happened, it states 'None of that happened'. In response to 'What task was being performed at the time of the incident?' it stated: "I found her with an injury in her knee on Friday 22 October 2021. Two days later (24 October 2021) she complained of pain in her knee and stomach ache" The cause of injury was marked as "Other", with a note that "I found her with the knee already. I don't know how it happened". Significant portions of the incident report were not completed. 1. An incident report dated 7 March 2022 which appears to have been completed by the Operational Manager (exhibit 5, p122-124). The report concludes: "weighing all the evidence, we support the client's point of view over Nancy's view. Though we do not have any evidence. The Commission can benefit from the witness statement."
16. Also provided by Community Home Care were case notes and observations from the co-ordinator around the incident (exhibit 5, p 95 - 100). The case notes record that following timeline: 1. On 1 October 2024, the co-ordinator spoke to Support Network for a support worker for the client. It states that the co-coordinator asked for documentation of the support worker's qualification, police check and experience of hoisting. 2. On 21 October 2021, the support worker arranged for Ms Misoy to visit the client's home for orientation and to be familiar with her home and her care plan. 3. The records for 22 October 2021 note the following: "Today at 10:05am I received a call from [the] Client Services Manager Support Network relating to service to [the client] by their SW Nancy relating to her 9:00-11:00 morning shift. He informed me that he received a call from the support worker (Nancy Misoy), and she had informed him that [the client] had skin tears - and the leg was bleeding. He did not specify which leg. He didn't know why Nancy didn't call at 9.00 am as she was there from 9.00 a.m I found the information incomplete and worrisome. I immediately phone [the client's] daughter… as she is the main contact person for [the client]. She is usually present when the consumer is receiving services in the morning, I was hoping to receive further details from her, however she was not present during the service. I explained to her that [the client] that the SW reported that [the client] had a skin tear and was bleeding. I asked if we could contact [the client's] Doctor or send a nurse to see [the client's] wound. She informed me "that it is fine, and she would go to see [the client] and if a Doctor is required, she would then take [the client] herself. I then contacted the Support worker, Nancy Misoy, directly and asked her about the bleeding and whether the bleeding had stopped. She said she doesn't know the cause as [the client] already had already had the skin tear when she got to the client's home and it was already bleeding when she got there. She said she cleaned it and bandaged it and the bleeding had stopped. She said The support worker had showered the client that morning, and the client wanted to stay in bed and have her breakfast in bed. I then asked the support worker to make sure that this was in her progress notes, and she said she will complete them. I notified my operational manager of all this, and she told me to write a report and to ensure progress notes had been noted by myself and also the support worker." 1. The records continued with notes for the afternoon of 22 October 2021: "At 2:20 pm [the daughter] called me and told me that she thinks the skin tear may have been due to the support worker not listening to client when she was transferring her onto the hoist, before her receiving injury [the client's] leg was stiff, [the daughter] reminded us after the injury that "[the client's] leg is stiff, and she can't bend it well". I tried to follow this up with the support worker Nancy, but I was unable to reach her by phone, I had called her twice, but no answer. I contacted … Client Services Manager Support Network at 4:30 and told him the situation and the feedback we received from the client - as they weren't too happy and informed him that we have tried to contact her to receive further details. However, Nancy was also supposed to do 2 hr shift for [the client] on the same day between 6-8pm and a morning and evening 1.5 hour shift each the next day on Saturday and on Sunday. [The daughter] didn't ask for a change in the support worker. Again [the daughter] assured me that she would take her mum to the doctors if required." 1. The record for 24 October 2021 relevantly notes that: "SW did deliver the evening shift of 22nd Oct, the 2 shifts of 23rd and the morning shift of 24 Oct, without any incident. No complaints was received from [the client] or [her daughter]. However, on Sunday night at 7:30 pm I received a message from Saffa that she had a missed call from [the daughter], …. I immediately called the SW to find out if she was at the client, she said, yes, she reported on the rostered time of 6.00 and attended to her till 7:00 and was there till 7:30 as per roster. She said the client had a fever and complained of a stomach ache. The daughter immediately called an ambulance and [the client] was taken to the hospital. She and the daughter were not allowed to go to the hospital or in the ambulance due to COVID-19 related restrictions. I called back Saffa (my operational manager) and informed her of what the SW told me she told me she would contact [the daughter]. - Saffa spoke to [the daughter] and [the daughter] had told Saffa that she holds the support worker responsible for injuring her mum on 22/10/21 as, her mum said she told the support worker she was in pain - but the support worker dismissed it as she continued to deliver support. Nancy however said the bleeding was there already and in fact she cleaned and bandaged the bleeding." 1. The record continues that on 25 October 2024 the co-ordinator spoke to the daughter who informed them that the client was in a hospital, where they were keeping her. She still had a fever and that there was a fracture on the leg. The case note continues: "She repeated she was not happy with the SW and she demanded to know from the SW what happened on Friday [22/10/21- morning shift with [the client]], but the support worker did not answer and did not tell her what happened. She was convinced that the SW was somewhat responsible for the fracture. She mentioned also that after the ambulance took her mother at around 7:00 pm, she told the support worker to leave now as ambulance took [the client] , but she refused to leave until roughly 7:30pm, her rostered time was to 8pm. Anne believes [the client's] fractured leg was caused when SW was moving the client she was not gentle. I told Anne that I will be contacting Nancy - to discuss what happened and that she will be coming in for a meeting. I called Nancy several times after my phone call with [the daughter] but Nancy did not answer." 1. On 28 October 2021, the notes record that between 25 October 2021 and 28 October 2021 the case worker called Ms Misoy over 15 times, and she did not answer. She then sent her an email on the 28/10/2021 for her to fill out an incident report. On 12 November 2021 the coordinator called Ms Misoy and she answered. She organised for Ms Misoy to go in and fill out an incident report. The Notes record that on 17 November 2021, Ms Misoy replied to the email with an incomplete incident report. The notes go on to reveal that the coordinator was advised by the daughter on 3 December 2021 that the client's leg had to be amputated and that on 10 December 2021 the client passed away.
17. The HCCC conducted an interview, by way of a panel, with Ms Misoy on 1 July 2022 pursuant to s 34A of the Health Care Complaints Act. A transcript of that interview has been provided by the HCCC (exhibit 5, p 148-200).
18. The panel asked what occurred with the client on the morning of 22 October 2021, and Ms Misoy responded (exhibit 5, p 181-182): "[The client] was in bed. Then, when I wanted to handle her, she told me she's in some pain, so I just - I just assisted - I just - I told her, "[the client], do you want to shower?" She told me. "Yes." Then, I had to take [the client] - I used - I had to use the hoist, transfer to the - to the shower, where I'm supposed to go and shower her. Showered [the client] and return her back. So when my - I - I wanted to use the - the - I wanted to take her back too, with the hoist. [The client] - [the client] was complaining, so the other - the other - the other lady came... There was a lady who was looking after the other - - … … So she came. She assisted me. We took [the client] back to bed. We dressed her, give her her medication and we BAND-AID the wound that she had... … I think she had - she - she had some blood she had some - I think - [the client], I think, had some - her wound, so the - the lady assisted me to - to - we put the bandage on the wound and I left [the client] there."
19. I find, considering the timeline of events set out in the case note of the co-ordinator for Community Home Care services and the evidence of the witnesses, that the client's knee was injured because of the way Ms Misoy used the hoist. The carer who was there on the day heard a scream from the room which caused her to come over. I find that is the point when the injury occurred. If, as Ms Misoy states, the client was already exhibiting signs of injury (bleeding) before she showered her, then she should not have gone ahead and showered her. I do not accept the submissions that because there was a period of two days between when Ms Misoy attended on 22 October 2021 and when the client was taken to the hospital, then the injury could not have happened then. The evidence suggests that in the intervening two days, the client was demonstrating some forms of pain, even if she was not taken to hospital.
20. The interview conducted by the HCCC on 1 July 2022 also confirms that Ms Misoy was born overseas and came to Australia while studying in around 2017. She states she studied psychology overseas. According to Ms Misoy, she commenced a Certificate III in Individual Support from "Kavata" and did a two-week practical placement with Opal Aged Care, Lakemba. Ms Misoy then resumed her studies in Individual Support in 2019 and stated she holds a Certificate III in Individual Support from St Adam College. Ms Misoy was asked in her interview to elaborate on some of the core units completed in her Certificate III and was unable to provide details other than she was taught about things such as changing incontinence pads, showering and administering medications. A copy of that certificate is included in the HCCC's material (exhibit 5, p83). Except for a copy of that certificate, Ms Misoy has not been able to provide any documentation in support of her commencement of the course or the completion of her placement.
21. Ms Misoy confirmed in cross-examination that she did a placement as part of her placement in Opal Aged Care in 2017 and then a placement at Pearl Aged Care in July 2021 for training as way of induction. She worked with Pearl for a total of two weeks. An interpreter was provided for Ms Misoy at the hearing. Ms Misoy's evidence regarding the use of the hoist was inconsistent.
22. In the transcript of the interview with the HCCC, Ms Misoy was asked how often she used the hoist. The applicant indicated that she used a hoist "maybe once a week or once a month"(exhibit 5, p 172). In cross-examination, after some confusion she indicated that in her two week placement she used the hoist at Pearl one to two times a day.
23. Ms Misoy's evidence regarding how often she used a hoist was inconsistent. What she stated at the hearing, was different to what she had stated to the Panel investigating the complaint. The evidence reveals that even at its highest, the applicant had very little experience using a hoist.

The appropriateness of a prohibition order

1. Section 41A of the Health Care Complaints Act sets out the grounds on which the HCCC may make a prohibition order prohibiting a health practitioner from providing specified health services. Section 41A relevantly provides: 41A Prohibition orders and public statements (1) The Commission may take action under this section if - (a) it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and (b) it finds that the health practitioner has breached a code of conduct for non-registered health practitioners or has been convicted of a relevant offence, and (c) it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public. (2) The action that the Commission may take under this section is either or both of the following - (a) make a prohibition order that does any one or more of the following - (i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently, (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently, Note - Section 102 (3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner. … (5) In this section - code of conduct for non-registered health practitioners means a code of conduct prescribed by regulations under section 100(1)(a) or (b) of the Public Health Act 2010. …
2. The relevant Code of Conduct at the time of the complaint was the Code of Conduct for Non-registered Health Practitioners, which was included in Sch 3 to the Public Health Regulation 2012 (NSW) (repealed). Clause 3 of the Code of Conduct relevantly provided: 1. A health practitioner must provide health services in a safe and ethical manner. 2. Without limiting subclause (1), health practitioners must comply with the following principles - (a) a health practitioner must maintain the necessary competence in his or her field of practice, (b) a health practitioner must not provide health care of a type that is outside his or her experience or training, (c) a health practitioner must not provide services that he or she is not qualified to provide, …
3. I find that Ms Misoy did not provide health services in a safe manner. She was inexperienced using a hoist and proceeded to use it in circumstances where there were already signs that the client's leg was injured. Because she did not have the experience required to transfer the client using a hoist in a safe manner, she caused injury to the client's left leg and knee when transferring her using the hoist.
4. The evidence establishes that Ms Misoy had very little prior experience in the operation of a hoist. Taking her evidence at its highest, Ms Misoy completed two weeks of practical experience in 2017 and then may have used a hoist for the very short time (between a couple of weeks to a month) she worked in 2021.
5. On that basis I agree with the findings of the HCCC that Ms Misoy had breached the Code of Conduct for Non-Registered Practitioners by failing to provide services in a safe and ethical manner to the client and by attempting to provide services that fell outside her training and experience. By failing to provide care to the client in a safe and ethical manner, and by attempting to provide services that fell outside of her training and experience, the applicant breached the Code of Conduct.
6. I am satisfied that the criteria listed in s 41A(1) of the Health Care Complaints Act are met, and the power to make a prohibition order and/or issue a public statement can be exercised pursuant to s 41A of the Act.
7. In exercising the power under s 41A, the protection of the health and safety of the public must be the paramount consideration: s 3(2) of the Health Care Complaints Act.
8. Support workers are afforded trust by family members and the wider community to provide health care of a type that is within their experience or training and in a safe and ethical way. I find that having regard to the evidence, the prohibition order and issuing of a public statement is appropriate for the health and safety of the public and that the decision of the HCCC should be affirmed by the Tribunal. The 2 year period of the prohibition order provides an opportunity for Ms Misoy to gain some insight into the incident. The conditions in relation to a further application to discharge the prohibition order allow her to demonstrate a reflection on her practice, demonstrate that she is properly qualifies and undertake a risk assessment. The public statement serves as a warning to the public about Ms Misoy providing non-registered health services.

Costs

1. The HCCC also sought its costs in the proceedings as agreed or assessed. They also seek the costs of the adjournment of the hearing on 14 August 2023 for costs thrown away.
2. Section 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), requires that each party bears their own costs. However, pursuant to s 60(2) of the NCAT Act, a costs order can be made if "special circumstances" are established. The applicants must establish special circumstances to warrant a costs order being made in their favour.
3. Pursuant to s 60(3) of the NCAT Act, in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant.
4. In Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], the Appeal Panel cited with approval the meaning of the expression "special circumstances" that had been given to the same expression in the former section 88 of the Administrative Decisions Tribunal Act 1997 (NSW) by the NSW Court of Appeal in Cripps v G & M Mawson [2006] NSWCA 81, per Santow JA at [60], Mason P and Brownie AJA agreeing. That is, special circumstances are "circumstances that are out of the ordinary" but the circumstances do not have to be "extraordinary or exceptional".
5. In eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48], the Appeal Panel said: The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]. From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case-by-case basis to see whether or not special circumstances exist so as to warrant the award of costs.
6. In Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 [14], the Appeal Panel stated in connection with the issue of "special circumstances": An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special. There are no scientific means by which the former can be ascertained. The evaluative process is necessarily one of impression informed by the particular provisions of section 60, which by sec 60(3)(f) incorporates also a consideration of section 36(3) of the Act.
7. Each situation is to be assessed on a case-by-case basis to see whether special circumstances exist so as to warrant the award of costs.
8. The respondent contends that there are special circumstances which warrant the awarding of costs because the proceedings were initiated by the applicant and in the HCCC's view were without merit. They HCCC also submits that the applicant unreasonably prolonged the time taken to complete the proceedings.
9. On 30 May 2024, the Tribunal listed the matter for final hearing on 14 August 2023. The applicant had not provided her documents, in accordance with directions. An interpreter was not also made present at the hearing. The final hearing was adjourned. The HCCC submits they were prepared to proceed on that day, but it was the applicant who appeared with no evidence put on from the applicant.
10. I am not satisfied that there are special circumstances in this case which would warrant an award of costs. I do not accept that the proceedings were without merit. The right to have decisions administratively reviewed is an important one. Ms Misoy is not very fluent in English and she required an interpreter. I also accept that she had some mental health issues. The adjournment of the final hearing only prolonged the proceedings by about a month. I am not satisfied that there are special circumstances warranting a departure from the usual presumption in s 60(1) of the NCAT Act that each party pay its own costs of proceedings. Accordingly, I make no orders as to costs with the intention being that each party is to pay its own costs of the proceedings.

Orders 1. The decision of the respondent made on 20 October 2022 is affirmed. 2. Each party is to pay its own costs of the proceedings.

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

Amendments 22 November 2024 - Date of Orders changed to 2024 from 2023 on cover sheet

Decision of the applicant changed to Decision of the respondent on cover sheet and on final under Orders. 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: 22 November 2024