5. Tammy Jacobsen is to pay the Nursing and Midwifery Board of Australia's costs as agreed by the parties or otherwise as assessed on the standard basis for matters in the District Court.

PROFESSIONS AND TRADES- HEALTH CARE PROFESSIONALS- NURSES- DISCIPLINARY PROCEEDINGS- whether conduct engaged in constituted unprofessional conduct and/ or professional misconduct- whether the use of syringe driver might achieve the administration of appropriate levels of drugs- where drugs administered in a manner contrary to prescription- where conduct fell below standard- where conduct is unprofessional and professional misconduct

PROFESSIONS AND TRADES- HEALTH CARE PROFESSIONALS- NURSES- DISCIPLINARY PROCEEDINGS- where fluids where withheld in the absence of a medical order- whether conduct engaged in constituted unprofessional conduct and/ or professional misconduct- where evidence based on report- whether report establishes that the basis of expert opinion coincides with applicant case- where insufficient evidence to find unprofessional conduct and/ or professional misconduct

PROFESSIONS AND TRADES- HEALTH CARE PROFESSIONALS - NURSES - LICENCES AND REGISTRATION- whether need for specific deterrence- whether public will be adequately protected by extension of existing conditions on registration- where departure from standards of practice are unexplained- where circumstances emphasis the need for general deterrence - where period of suspension for 6 months is appropriate.

Ms C.T Houston SC instructed by Moray & Agnew applicant

Ms S.B Robb of counsel instructed by Roberts & Kane Solicitors for the respondent.

[1] DEPUTY PRESIDENT: I'll just for the purposes of the recording call the matter on again. It's OCR 273 of 2013 between the Nursing Midwifery Board of Australia and Tammy Jacobsen. Could you announce your appearances please. Ms Houston.

[2] MS C.T. HOUSTON: Yes, your Honour. My name is Houston, initials C.T., solicitor with the firm Moray & Agnew and I appear for the Nursing and Midwifery Board of Australia.

[4] MS S.B. ROBB: My name is Robb, R-o-b-b, initials S.B. instructed by Roberts & Kane Solicitors appearing on behalf of the respondent Ms Jacobsen.

[5] DEPUTY PRESIDENT: Thank you. All right. Pardon me.

[6] The Nursing and Midwifery Board of Australia has referred disciplinary proceedings to the tribunal in which it alleges that the respondent Tammy Jacobsen, a registered nurse, has engaged in conduct which constitutes unprofessional conduct and/or professional misconduct within the meaning of those expressions as used in the Health Practitioner Regulation National Law. The matter arises out of the respondent's care and treatment of two patients who will be described as DO and EI in December 2010, whilst those patients were residents at the Brookfield Village Care Centre at which Ms Jacobsen was then employed as a registered nurse and clinical nurse consultant.

[7] The matter has proceeded before the tribunal by way of a schedule of agreed facts in which Ms Jacobsen makes certain admissions, and in which she also admits that the conduct to which those admissions relate constitute both unprofessional conduct and professional misconduct within the meaning of the National Law. The schedule of agreed facts is annexed to these reasons because it is important to fully understand the extent to which the facts are agreed and the extent to which Ms Jacobsen has made admissions.

[8] Several observations may, and should, be made about those facts as agreed and the admissions by Ms Jacobsen in them. First, in respect of the patient DO the following should be observed: how the respondent came to advise the first RN that he may need to consider the use of a syringe driver to keep the patient comfortable given the prescriptions which had been made for the administration of the four drugs if required is unknown. The facts, as agreed, do not give any indication of how the use of a syringe driver to keep the patient comfortable might achieve the administration of the appropriate levels of each drug given that the periods over which the volumes for each drug were to be administered varied from two to six to eight hours.

[9] Although there is no direct evidence on the issue one can reasonably infer that some relatively sophisticated pharmacological calculations would need to be performed to convert the prescriptions to the common period over which all four drugs were to be simultaneously administered. There is evidence as to what the mixture of medicines to patients DO and indeed EI contained in each instance; however, there is no evidence as to how these mixtures were determined and no evidence as to whether they were appropriate. That said, there is equally no evidence that however determined, and by whom, they were inappropriate. One would have thought that this was evidence which the Board would place before the tribunal for its consideration.

[10] Similarly, there is no explanation as to how Ms Jacobsen came to renew the syringe after having reviewed with another registered nurse the relevant documentation. In that unexplained state it seems rather startling. One would readily infer that a review of the relevant documentation would only have revealed that the drugs were being administered in a manner, and perhaps in quantities, contrary to prescription and in circumstances where the clinical indicators for their proper administration as prescribed may not have been present.

[11] Similarly, there is no explanation provided by the registrant as to how she came to make the note reflected in paragraph 34 of the schedule of agreed facts against the background of having checked the patient's relevant documentation. To the extent that the notation that the patient was on a 12 hour syringe driver of morphine, Maxolon and midazolam was a statement of fact as to what drugs were being administered it was true enough. However, to the extent that it may have purported to represent that this was what had been prescribed for the patient it was patently false. If one assumes the former rather than the latter, as I am prepared to do, perhaps the most positive thing that can be said in Ms Jacobsen's favour in this regard is that her notation on the file revealed rather than concealed the departure from the prescribed medication regime.

[12] That this notation could be made by Ms Jacobsen and that it could remain unexplained by her, is particularly difficult to understand and is particularly troubling when one considers action taken by the third registered nurse of 18 December 2010. Having reviewed the patient's medication orders that registered nurse pushed the stop button on the syringe driver. That is, he or she immediately brought to an end the administration of drugs in a manner which was not in accordance with the medications order. This was obviously apparent to the third registered nurse and was on her review of those orders. That RN also, in stark contrast to the notation written by Ms Jacobsen the previous day, recorded the discontinuance of the syringe driver administration of drugs upon the review of the current medication order.

[13] In my view, this is the standard which might reasonably be expected of a registered nurse by the public and by her professional peers. Ms Jacobsen fell below that standard, and substantially so. In doing so, as she now admits, she engaged in professional misconduct.

[14] Also troubling in that regard, and also demonstrative of the substantial extent to which she fell below the standards reasonably expected is her reaction to the third RN's concerns about the administration of those drugs when those concerns were raised with her. Ms Jacobsen's advice to the third RN to make a decision regarding what to do with the syringe driver based on the third RN's observations of the patient having had the absence of a medication order raised with her was not only plainly wrong; it evidence a preparedness to depart from the medication order.

[15] Any doubt as to her knowing the substance of the order which may have been attributable to her even on the most favourable consideration of her actions after herself reviewing the patient's documentation the previous day is completely removed when the third RN raised this issue with her. Yet adherence to the medical order was not, as it should have been, her immediate reaction. Rather, her immediate reaction was to leave open the continued failure to adhere to the medications order. The impropriety of this reaction was somewhat compounded by her preparedness to leave the decision in respect of this in the hands of the RN who had called her to seek her advice.

[16] More or less, the same observations can be made in relation to the administration of the drugs to the patient EI. However, on this occasion Ms Jacobsen did not merely continue the administration of the drugs contrary to the patient's current medication orders, she, together with another RN, initiated it. Again, the reasons for this departure are unexplained by Ms Jacobsen. Again, perhaps the best thing that can be said for Ms Jacobsen is that her notation in the chart revealed even more overtly in this instance the departure rather than having concealed it. Again, there is no explanation of how the mixture of drugs and the varying dosages was fixed upon. This substantial departure is of itself an instance of professional misconduct.

[17] The Board also seeks a finding that Ms Jacobsen's admitted withholding of fluids and nutrition from patient DO in the absence of a medical order to do so was inappropriate conduct sufficient to amount to unprofessional conduct or professional misconduct. The Board urges that finding based upon the evidence of Dr Carol Douglas. Dr Douglas has affirmed an affidavit to which she exhibits a report she provided to a coroner inquiring into the deaths of four patients at the Brookfield Village Care Centre, including the patient DO.

[18] The passage of Dr Douglas' report upon which the Board places particular reliance is paragraph 12(d) in which she says:

Reasonable clinical care was denied to the patient where there was evidence of improvement and documented evidence of thirst. Fluids were denied.

[19] In my view, it is insufficiently clear that the evidentiary basis upon which Dr Douglas expressed that opinion coincides with the facts upon which the board seeks the finding of professional misconduct. As Mr Robb of counsel, who appeared for Ms Jacobsen, pointed out in her written submissions, Dr Douglas expresses no opinion at all about the denial of nutrition yet the Board seeks a finding based upon that. Furthermore, whilst it is clear that the denial of fluids to which Dr Douglas refers was the direction by Ms Jacobsen countermanding an earlier direction given by another RN that DO not be given water, it is far from clear that the evidence of improvement to which Dr Douglas refers was evidence which preceded Ms Jacobsen's direction.

[20] If it were not, then Ms Jacobsen's direction of itself could not have constituted the unreasonable denial of care to which Dr Douglas refers. I cannot be satisfied, as the Board urge me to be, that this improvement was the intermittent responsiveness of DO in the period between 15 and 17 December referred to in paragraph 36(a) of the schedule of agreed facts. There is evidence of subsequent responsiveness, particularly on 18 December as reflected in paragraph 39 of the schedule of agreed facts. But there is nothing from which I could conclude that any of those matters are what Dr Douglas was referring to as improvement. In the absence of further evidence from Dr Douglas the finding which the Board seeks should not be made.

[21] The Board seeks the suspension of Ms Jacobsen's registration for a period of 18 months. It also seeks the imposition of conditions upon her resumption of practice after the suspension period. Ms Jacobsen submits that the protection of the public will be achieved by maintaining for a further 12 months the current conditions which were imposed by the Board in exercise of its powers to take immediate action against her. She submits that this is not a case which calls for specific deterrence. In this regard she points to the fact that she has not been subject of complaints since these events. She also points to the positive statements made in her favour by those involved in the current practise. She also points to her compliance with the current conditions.

[22] I am also told by her counsel, although there is no actual evidence of it, that these events and the associate publicity have imposed an unusual burden on her, and that the experience is already a cautionary tale. In my view, this is a case which calls for a sanction which will act as both a specific and general deterrent. I am not satisfied that there is no need for specific deterrence in respect of Ms Jacobsen. I am not satisfied that the public will be adequately protected simply by extending the conditions on her registration. As I have already noted, the substantial departures from the standards of practice reasonably expected of her are unexplained by her.

[23] In the absence of such an explanation one cannot be confident that there may not be such departures in the future. One cannot have confidence that Ms Jacobsen fully appreciates the extent of the inappropriateness of her conduct. I acknowledge that these events have imposed a burden upon Ms Jacobsen, perhaps, given their publicity, to a somewhat greater extent than might be usual, but such burdens are a product of her misconduct. In my view, a suspension of her registration is necessary and appropriate. It will also serve as a deterrent to other nurses who may consider it appropriate to depart from the medication regime ordered by patients' treating doctors.

[24] There is evidence in this case that Ms Jacobsen was not the only RN in this nursing home who was prepared to administer drugs contrary to medication orders; however, that circumstance emphasises the need for general deterrence rather than diminishes the need for a suspension of Ms Jacobsen's registration. The fact that she has complied with her current conditions is really of little significance. The short point is that she is required to do so. Not to do so would of itself constitute unprofessional conduct. It does, however, give confidence that future conditions will be complied with.

[25] So too, too much should not be made of the fact that no further compliant has been made. Her practice has been restricted by conditions. The context in which she has practised - a medical clinic - is not that in which the kinds of departures from acceptable standards, the subject of these proceedings, would occur.

[26] As one might hope, the cases concerning matters such as these are not numerous and all of those to which I have been referred have their own peculiar facts. Gupta v Nursing and Midwifery Board of Australia is of little assistance as it concerned an appeal from a decision of a professional standards panel. The tribunal was thus limited to the powers exercisable by the panel at first instance. Those powers did not extend to the suspension of registration.

[27] Both HCCC v Lopez, and HCCC v Kocsis involved patients who were at the time nil by mouth although having been prescribed oral medications. They were administered medications which ought to have been given orally, intravenously. Each involved endorsed enrolled nurses of limited training experience. They serve to highlight the variation which one finds in the facts of different cases. Whilst the grinding up of oral medications and their intravenous administration is appalling and alarming, those cases found that the nurses concerned did not appreciate, particularly in the case of Lopez, at the time the extent that this was so.

[28] Here the departure is different. Ms Jacobsen is an experienced RN who was at the time a clinical nurse consultant. One can only assume, because she gives no evidence about it that she knew that it was inappropriate to depart from medication orders. But, as I say, her reasons for doing so are unexplained. In Lopez, the nurse was suspended for six months. In Kocsis, the nurse's registration was cancelled and she was prohibited from applying for further registration for a period of 18 months. In that case, though, there were numerous other errors over time, and it was considered that she lacked basic nursing skills. She was also found to have lacked candour and insight. The tribunal was not satisfied that she could practise safely with any set of conditions.

[29] In HCCC v Santos, the nurse's registration was cancelled and she was prohibited from applying for further registration for 12 months; however, there were also many other issues in addition to the two medication errors.

[30] Ordinarily I would have suspended Ms Jacobsen's registration for a period of 12 months; however, some allowance should be made for the period in which she was unable to secure work after the conditions were imposed by the Board. I am told, although there is again no actual evidence of it that this inability was as a consequence of the conditions. I am prepared to accept that this was so at least to a significant extent

[31] The tribunal has observed in other cases that periods of de facto suspension may appropriately be taken into account in determining an appropriate sanction. This, however, is not a case where, for example, Ms Jacobsen voluntarily withdrew herself from practise in recognition of her own misconduct.

[32] In light of these matters I consider that an appropriate period of suspension is six months. The Board also seeks the imposition of conditions upon the renewal of her registration. Most particularly, the Board seeks a condition that Ms Jacobsen must attend and complete and adult education program within six months of the conditions being imposed. That program being in respect of, or addressing, palliative care nursing. The Board also seeks that an AHPRA manager or team leader be authorised to approve the nominated education program.

[33] In my view, the case does not identify that palliative care nursing is necessarily the issue upon which Ms Jacobsen might need to be further educated. I would also not be prepared to order that a manager or team leader of AHPRA be authorised to nominate an education program. There is simply no evidence to establish why such a person might be appropriate and might be qualified to make such a decision.

[34] For her part, Ms Jacobsen does not oppose the continuation of the conditions currently on her registration. In my view, it is appropriate that those conditions be extended for a period of 12 months from the date upon which she recommences practice after the suspension, and I fix the period of 12 months as the review period for those conditions.

[35] The Board seeks its costs of the proceedings. As Ms Houston who appeared for the Board submits in her written submissions, section 193 of the National Law requires a board to refer such a matter as this to the tribunal in circumstances where it reasonably believes that the registrant may have engaged in professional misconduct. That, of course, is now not only found, but admitted. The Board is funded, at least to a substantial degree, by the registration fees paid by members of the profession. There is in my view no reason why the board ought not have its costs of the proceedings in this instance.

[36] I will order that Ms Jacobsen pay the Board's costs of and incidental to the proceedings as agreed, or in the absence of agreement as assessed on the standard basis for matters in the District Court.