[8] The parties have presented an agreed statement of facts, and evidence upon which the following summary is based.

[9] The relevant events occurred on 22 - 23 April 2005. At that time the respondent was employed as a casual registered nurse at the Pacific Private Hospital, Southport. He had been employed as a registered nurse since 1991, and at the relevant time was 47 years old.

[10] He ceased practice as a nurse immediately after the relevant events. His registration lapsed on 30 June 2005, and he has not sought its renewal or ever again been employed as a nurse.

[11] The respondent was initially charged with manslaughter and, following a lengthy committal proceeding was committed for trial. Eventually a nolle prosequi was entered in the Supreme Court in 2006.

[12] The present proceedings were commenced in QCAT by the Queensland Nursing Council on 29 June 2010. Following early directions in QCAT, the parties sought the deferral of the proceedings pending investigations by the Coroner. A stay was granted in September 2011 by consent.

[13] The matter then appears to have gone to sleep. The Coroner delivered findings on 28 November 2012. Finally on 31 January 2014 the parties agreed to the lifting of the stay in QCAT. Directions were then given leading to the present proceeding.

[14] The event giving rise to these proceedings was the death of a 41 year old school teacher following elective orthopaedic surgery at the Pacific Private Hospital on 22 April 2005.

[15] The surgery was performed under general anaesthetic. There were no intra-operative complications, and oxygen saturations did not drop below 99 per cent.

[16] Following the surgery he was taken to the Post Anaesthetic Care Unit (PACU).

[17] In the PACU he suffered a significant oxygen desaturation during which his oxygen saturation level dropped to 64 per cent at 6:25 pm. The anaesthetist was advised. He attended PACU and did not physically examine the patient but had guedels inserted, and advised jaw support. The oxygen saturations then rose to 87 per cent over a 10 minute period, which the anaesthetist regarded as less than ideal, but not unusual. Seemingly, and the coroner so inferred, the anaesthetist assumed the problem to be an airway obstruction rather than aspiration pneumonia, which was the real problem.

[18] The patient was transferred to the accommodation ward between 7:15 pm and 7:40 pm where he came under the care of a registered nurse, Mr Manton, who is also the subject of disciplinary proceedings arising out of these events.

[19] A few hours later, at 10:00 pm, the respondent commenced his shift and assumed the care of the patient. He was assisted by an enrolled nurse, Ms V.

[20] The preceding events in the PACU (including the significant oxygen desaturation) were not brought to the respondent's attention.

[21] The patient's condition then deteriorated significantly, registering 89 per cent at 10:00 pm, 85 per cent at around midnight, 60 per cent at around 1:00 am and 53 per cent at 2:00 am.

[22] The respondent did not regularly check patients in the ward, relying on the enrolled nurse to check them while he remained at his station. He first visited this patient at 11:30 pm when he administered an intravenous dose of Keflin. He later attended the patient with Nurse V and noticed the patient's colour (circulation observation) to be '0 (dusky)'. It had previously been noted as '2 (normal)' he attached a non-rebreather mask to the patient but did not recognise the need for medical intervention. He accepts that his treatment was not appropriate or adequate in the circumstances.

[23] He then took a 45 minute break, arranging for Nurse V to keep an eye on the patient and notify him of any problems.

[24] There is a conflict of evidence between the respondent and Mr Manton as to what information was mentioned about the patients condition at the time of handover to the respondent, but it is not necessary to determine that issue in the light of the expert opinion.

[25] Expert opinion (from Dr Greenland) is to the effect that oxygen saturation of 85 per cent (as it was around midnight) should have engendered a level of concern amongst nursing staff. Most nursing texts advocate advising a higher authority if saturation levels drop below 90 per cent. The condition of the patient at 1:00 am should have been treated as a medical emergency. Life support procedures should have been commenced immediately. By 2:00 am the patient was unconscious and his oxygen saturation reading was inconsistent with survival. The patient was subsequently transferred to the Gold Coast Hospital where he was pronounced dead at 3:51 am. The cause of death was aspiration pneumonia.

[26] In this case there was a series of errors and inadequacies, each of which, in isolation, was unlikely to have led to major harm to the patient. However, collectively they led to the patient's death.

[27] The combination of 'gaps' through human errors in this case was likened before the coroner to the curiously named 'Swiss cheese model' identified by Professor John Reason. This was adopted as an apt description of the cause of death by Dr Greenland and was also by the Coroner in his report. One of these errors or 'gaps' was that of the respondent.

[28] Briefly stated, the series of errors could be regarded as including the failure of the anaesthetist who wrongly assumed airway obstruction to be the cause of the decline in oxygen saturation in PACU and who did not cater for the possibility of aspiration pneumonia. Another was that the patient should have been kept longer and investigated more thoroughly in PACU. Another was that when the patient was delivered from PACU to the accommodation ward, Mr Manton was not adequately advised by the handover nurse. He was not told of the concerning de-saturation event, or that oxygen levels had only been maintained by increasing the flow of oxygen or that the patient had made frequent requests (per button) for narcotic infusions, suggesting a high level of distress.

[29] In turn, when the patient was handed over by Mr Manton into the care of the respondent, the respondent was not told of these or other concerning events during Mr Manton's shift.

[30] Finally there was the respondent's own failure to recognise the urgent need for medical intervention.

[31] The respondent's care was inadequate and it displayed a seriously unacceptable level of incompetence and lack of patient care.

[32] That conduct clearly constituted unsatisfactory professional conduct as defined in s 104A(3) of the Nursing Act. In my view, aided by the assessors, it satisfies each of the inclusive definitions in subparagraphs (a), (b), (d) and (e) of the definition, namely:

(a) professional conduct that is of a lesser standard than that which might reasonably be expected of the relevant person by the public or the relevant person's professional peers;

(b) professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in nursing practice;

(e) conduct discreditable to the nursing profession

[33] The parties have jointly proposed the orders that the Tribunal should make. Notwithstanding this agreement, the Tribunal must be satisfied that the orders are appropriate.

[34] The proposed order includes a reprimand, and the imposition of conditions that disentitle the respondent from applying for registration until he has completed specified courses of education, undertaken specified counselling and oral examination, and the provision of various reports that indicate appropriate insight and competence. It also imposes conditions that would prohibit employment through a nursing agency and requiring specified supervision and the keeping of a logbook, and notifications to the Board that would allow surveillance of his conduct. Those conditions would be satisfied, if at all, at the expense of the respondent.

[35] Very little information was provided to the Tribunal about the circumstances of the respondent, and it is not known whether he has any desire or intention of ever returning to the nursing profession. Certainly his self-imposed deregistration and absence of practice for a period in excess of nine years might suggest this to be unlikely. But it seems appropriate that conditions of this kind should be insisted upon in the event that he desires to resume practice as a nurse.

[36] One of the proposed orders is as follows:

But for the lapsing of the respondent's registration, the Tribunal would have cancelled the respondent's registration.

[37] That is a hypothetical statement which has no place in an order unless specifically authorised by the legislation. No such order is authorised by s 116 of the Nursing Act, and in the absence of statutory authorisation it is not appropriate to include it in the order.

[38] The place for such a statement is in these reasons, and I am prepared to say that but for voluntary cessation of practice by the respondent and the lapsing of his registration, it may reasonably be presumed that the Tribunal would have cancelled the registration under s 116(1)(f) of the Nursing Act.

[39] I have concluded that the proposed order is reasonable in the circumstances. These include the fact that the respondent was only one of many cogs in a machine that failed, the fact that he has effectively lost his professional practice for nine years and possibly permanently, the fact that he has undergone separate criminal proceedings, and the fact that the suggested conditions are appropriate for the future protection of the public. These all combine to make the order a reasonable one.

[40] Accordingly, the order will be in substance that which was proposed by the parties, with the deletion of the hypothetical declaration mentioned above.