CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 42 of 2015

The Tribunal being satisfied that the respondent acted in a way that constitutes unsatisfactory professional performance, it is ordered that:

1. In these proceedings the Nursing and Midwifery Board of Australia (the Board) seeks orders for occupational discipline against the respondent.
2. The application for occupational discipline was filed on 20 October 2015.
3. The parties on 12 April 2016 filed proposed consent orders. The document filed by the parties outlined the:
   • (a) professional history of the practitioner;
   • (b) history of receipt and consideration of the notification;
   • (c) content of the Board's application to the Tribunal;
   • (d) agreed facts in relation to the incident; and
   • (e) proposed consent orders.

Extracts of that document are reproduced at the end of these reasons.

1. The incident giving rise to the disciplinary proceedings occurred on 24 June 2013. The respondent was working at the Adult Mental Health Unit (AMHU) at the Canberra Hospital. The respondent assisted in, largely by observing, a vaginal examination of a patient in that unit. At the time, she failed to advise that that procedure was outside her scope of practice, and she failed to raise the concerns that she had about the procedure.
2. The parties agreed by the proposed consent orders that the conduct of the practitioner on 24 June 2013 was to be characterised as unsatisfactory professional performance. The parties also agreed that the respondent should be cautioned and her registration for 12 months made subject to a condition that she engage in monthly mentoring sessions, at her own expense.

1. In any matter, when making orders by consent of the parties, the Tribunal must be satisfied that the orders proposed would be both within the Tribunal's power and appropriate for the Tribunal to make. In practice, this involves a number of steps.
2. First the Tribunal must satisfy itself that the Tribunal has jurisdiction in relation to the matter, and that the proposed orders are within any relevant jurisdictional limits.
3. Secondly, the Tribunal must satisfy itself that it is appropriate to make the proposed orders. This may incorporate consideration of both the content of the orders, and the process by which they are to be made.
4. Section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides a mechanism by which consent orders may be made without the holding of a hearing. The Tribunal is also empowered by section 56 of the ACAT Act to make consent orders after holding a hearing. Whether there should be a hearing prior to making a proposed consent order, and if so the scope of that hearing, will depend upon a number of factors. One such factor is the nature of the matter. In an occupational discipline matter, in which the Tribunal plays an important role in setting standards for the profession, and protecting the public, it is usually appropriate for consent orders to be made after a hearing, albeit of limited scope.
5. As identified in Medical Board of Australia v Martin [2013] QCAT 376 there is a public interest in parties to an occupational discipline matter being able to identify areas of agreement, and seeking to resolve the matter by way of consent orders. However the role of the Tribunal is not to simply issue orders as requested by the parties. In making an order for occupational discipline, even where by consent, the Tribunal must actively consider the facts that are agreed, the characterisation of those facts and the orders proposed as an appropriate response to the matter.[1]
6. Consequently, it is the practice of the Tribunal to require the parties to consent orders in an occupational discipline matter to attend a mini-hearing prior to the Tribunal making final orders. This gives the Tribunal the opportunity to review and comment upon the consent orders proposed, and satisfy itself that the orders are both within power, and appropriate.

1. On 29 April 2016 the Tribunal held a short hearing in relation to the proposed consent orders. The Board was represented by Ms Tarbet of the ACT Government Solicitor, the practitioner represented herself but was accompanied by a number of persons for support.

The Tribunal's power to make the proposed consent orders

1. Under section 8 of the Health Practitioner Regulation National Law (ACT) Act 2010 (the adopting Act) the Tribunal is the responsible Tribunal for proceedings for disciplinary action in relation to the practitioner.
2. Sub-section 196(1)(b)(i) of the Health Practitioner Regulation National Law (ACT) (the National Law) empowers the Tribunal to decide that a practitioner has behaved in a way that constitutes unsatisfactory professional performance.
3. Sub-section 196(2) of the National Law details the powers the Tribunal has after making a finding under sub-section 196(1)(b). These include cautioning the practitioner and imposing a range of conditions on the practitioner's registration, including requiring the practitioner complete further education, training or counselling.
4. The Tribunal was satisfied it had the power to make the orders sought by the parties.

1. The facts in relation to the incident on 24 June 2013 were agreed. The practitioner did not clearly advise the procedure was outside her scope of practice, nor did she voice her concerns or discomfort about the procedure. She has been a registered practitioner since 2009.
2. The Code of Ethics for Nurses in Australia, Code of Professional Conduct for Nurses in Australia, and National Competency Standards for the Registered Nurse were before the Tribunal. While the Codes provide a reference point for the conduct of nurses from a broader perspective, the Standards provide a more specific framework against which performance of a nurse may be assessed. The Codes and Standards clearly set out the responsibility of a nurse to practice within their own scope of practice, and to actively question or seek clarification in relation to a procedure which appears inappropriate. Failure by a nurse to advise relevant members of the team that a procedure in which they are participating is outside their scope of practice can have serious ramifications for the consumer. Similarly, where a nurse has concerns about whether a procedure should be undertaken, and fails to raise those concerns despite the circumstances allowing for such action, implications for the health of the consumer may follow.
3. On the basis of the agreed facts, the Tribunal was satisfied that the practitioner acted in a way that constituted unsatisfactory professional performance. In failing to adequately raise that the procedure being undertaken was outside her scope of practice and in failing to take any action to question the procedure being undertaken, the care exercised by the practitioner in relation to the incident was below the standard reasonably expected of a health practitioner of an equivalent level of training and experience.
4. The question that next arises is what orders, if any, should be made by the Tribunal as a consequence of this finding.
5. Section 4 of the National Law sets out that functions under the Law are to be exercised with regard to the objectives and guiding principles set out in section 3. A key objective is to provide for the protection of the public by ensuring only health practitioners who are suitably trained are registered. One of the guiding principles is that restrictions on the practice of a health professional are to be imposed only if it is necessary to ensure that health services are provided safely and to an appropriate standard. The purpose of the proceedings is protective rather than punitive.
6. The parties had agreed that the practitioner should be cautioned, and that her registration should for twelve months be subject to conditions requiring mentoring.
7. Because of the public interest in matters being resolved by way of consent orders, the Tribunal will ordinarily be reluctant to depart from agreed sanctions in a matter, provided that these are considered to be within the range of outcomes appropriate to the conduct[2].
8. In considering the practitioner's conduct the Tribunal took account of its seriousness, the level of the practitioner's remorse and insight and the risk of the practitioner repeating the conduct. The Board acknowledged that this was only one incident, and was at the lower end of the scale of seriousness. It was submitted that the practitioner has reviewed the organisational policies and codes, and continues to be employed at the same workplace where she is well supported.
9. A caution expresses, both to the practitioner and to the profession generally, the Tribunal's disapproval of the conduct. The Tribunal considered that in the circumstances a caution was warranted.
10. However the Tribunal was not satisfied that the conditions for mentoring sought to be imposed were necessary, and was concerned that to impose such conditions almost three years after the incident would be punitive in effect rather than protective. While the practitioner indicated that she had identified a potential mentor, her evidence was that since the incident occurred she had engaged informally in mentoring within her workplace. She has been subject to the disciplinary proceedings for almost three years, necessitating her contemplation of the incident and what she could have done differently in some detail. The time for mentoring, in the view of the Tribunal, was immediately post the incident.
11. While reluctant to depart from orders proposed by consent of the parties, the Tribunal considered that it was both unnecessary, and possibly punitive, to require a condition as to mentoring to be imposed at this time. The issuing of a caution, coupled with this public decision, was in the view of the Tribunal sufficient to achieve the objects of the legislation.

1. On 7 August 2013, the Australian Health Practitioner Regulation Agency (AHPRA) received a notification about the respondent's conduct which related to an internal search of an inpatient at the AMHU. The notification attached a file note from the respondent and from the notifier, and notes of a clinical meeting in relation to the incident.
2. The Board did not resolve to take immediate action pursuant to section 156 of the Health Practitioner Regulation National Law (ACT) (National Law) at that time.
3. On 14 August 2013, AHPRA wrote to the respondent to advise her of the notification and invited her to respond to the notification.
4. On 28 August 2014, the respondent provided a written statement to AHPRA, in response to the notification.
5. On 28 August 2013, the Nursing and Midwifery Board of Australia (Board) considered the notification and the respondent's response, and decided to take action under s150(4A)(d) and 160(l)(a) of the National Law to refer the matter to AHPRA for investigation.
6. On 20 February 2014, the Board considered the matter and proposed to take action by cautioning the respondent and imposing conditions on her registration under s 178(2)(c) of the National Law.
7. On 1 April 2014 the respondent was notified of the Board's proposal to issue a caution and to impose conditions on her registration, and was invited to make submissions to the Board. The respondent provided an undated submission to the Board. The respondent did not object to the Board's proposed outcomes.
8. On 15 May 2014, the Board considered the matter and the respondent's written submissions and decided to refer the matter for further investigation, under s 160 of the National Law.
9. On 12 June 2014, the respondent participated in a face-to-face interview with the AHPRA investigator.
10. Between August 2014 and November 2014, AHPRA sought and received copies of relevant material (including clinical notes of the incident and various ACT Health documents).
11. On 10 February 2015, AHPRA provided the respondent with a copy of the material obtained during the course of its investigation and invited her to provide a response. On 20 February 2015, the respondent provided a written response to AHPRA.
12. On 19 March 2015, the Board met to consider all the material received in the course of the investigation and decided to defer making a final decision until its next meeting.
13. On 16 April 2015, the Board met again to consider all the material received in the course of the investigation and resolved to refer the matter to the ACT Civil and Administrative Tribunal (ACAT) under s 193 of the National Law, on the basis that it had formed the reasonable belief that the respondent had acted in a way that constituted professional misconduct.
14. On 31 July 2015, the matter was jointly considered by the Board and the Health Services Commissioner (Commissioner). As the Board and the Commissioner were unable to agree on the appropriate action to take in relation to the notification, the Board applied s 150(4) of the National Law, which provides that, if there is no agreement after joint consideration of a matter about how to proceed, the most serious action (that is, referral to the ACAT) must be taken.
15. On 19 August 2015, the respondent was notified of the Board's decision to refer the matter to the ACAT under s l93(2)(b) of the National Law.

1. The respondent admits, and the Board accepts, the following facts.
2. On 24 June 2013, the respondent witnessed/observed an unsanctioned and invasive internal vaginal search of a patient in the HDU of the AMHU by another nurse (Nurse A), due to concerns the patient, also known as the consumer in the AMHU context, had been inserting objects into her vagina.
3. The respondent had advised the notifier that at about 9.00pm on 24 June 2013, she was approached by HS04 [name redacted], who was seeking assistance with a female patient in the HDU. The respondent was advised to attend the patient's room to assist with a search of the patient
4. The respondent arrived at the patient's room and found the patient on the bed with a towel over her abdomen. The patient was naked from the waist down. The respondent was told by Nurse A, who was already in the room, that Nurse A had prepared the patient for an internal examination due to concerns expressed by the morning staff at handover that the patient had been inserting foreign objects in her vagina.
5. Nurse A asked the respondent if she would conduct the internal examination. The respondent declined.
6. Nurse A asked the patient, in the respondent's presence, whether the patient was able to remove the items from her vagina; the patient responded that she could not see what she was doing and asked the nurses to do it.
7. Nurse A asked the patient if she and the respondent could proceed with the internal exam and the patient indicated that they could. Nurse A then conducted the internal examination in the presence of the respondent.
8. The respondent indicated that she felt uncomfortable during the procedure as it was the first time she had been present for such a procedure.
9. The respondent did not voice her concerns or discomfort because she did not feel she had an opportunity to do so and because it did not occur to her that it may have been in breach of policy.
10. The respondent indicated that when the patient was asked whether she consented to the procedure, the consumer said she had bullets and a cup ''up there". The respondent was aware that the consumer had been reviewed by the gynaecology team the previous week after referral by the treating team due to concerns raised by nursing staff.

1. For the purposes of s 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) the parties consent to and respectfully request that the Tribunal make, under s 196 of the Nationa1 Law, the following orders:
2. The respondent has acted in a way that constitutes unsatisfactory professional performance, in that she engaged in behaviour as set out in the agreed statement of facts dated 12 February 2016;

1. The respondent's registration is to be subject to the following conditions for twelve months from the date of these orders being made and the conditions, insofar as they are applicable, are to be reviewed by the Board after twelve months:

(a) The respondent is to undergo formal mentoring with a Board-approved mentor; and

(b) The respondent is to engage in monthly sessions with the Board-approved mentor; and

(c) The mentoring sessions are to cover the following topics:

1. The Nursing and Midwifery Board of Australia - Code of ethics for nurses;

1. The Nursing and Midwifery Board of Australia - Code of professional conduct for nurses;

1. The Nursing and Midwifery Board of Australia - Registered nurse competency standards; and

1. The Nursing and Midwifery Board of Australia -Professional boundaries for nurses.

(d) The mentor is to report to the Board at the end of twelve months on the respondent's progress and the mentor is to report any concerns to the Board.

(e) The respondent is to bear the costs, if any, of complying with the conditions.

[1] See Pharmacy Board of Australia v Jattan [2015] QCAT 294, Medical Board of Australia v Mbo [2015] ACAT 69

[2] Pharmacy Board of Australia v Jattan [2015] QCAT 294