Rejfek v McElroy

NCAT Occupational|2014-05-05|Before: Ms P

Introduction 1Registered nurse, Rosalie Piper (the nurse) started working in cosmetic medicine more than a decade ago. For nearly two and a half years, a medical practitioner obtained cosmetic medications for her that were restricted substances under the Poisons and Therapeutic Goods Act 1966 (NSW) (the PTGA). The nurse supplied and administered the restricted substances to patients at the medical practitioner's surgery and at a day spa 30 kilometres away. 2The complainant was advised of the nurse's supply and administration of the restricted substances and conducted an investigation resulting in the filing of these proceedings. The practitioner has admitted the particulars of the Complaints filed. In addition to being satisfied that the particulars of the Complaints are established, the Tribunal's task is to formulate some appropriate orders to protect the public. It is hoped that other nurses working in cosmetic medicine will carefully review their supply and administration of S4 drugs.

The hearing 24The Tribunal heard this matter on 5 May 2014. The complainant's and nurse's evidence was tendered without objection. The nurse gave evidence. The parties' counsel addressed the Tribunal on the appropriate protective orders to be made, given the nurse's admissions. The parties also made submissions on costs. The complainant provided the Tribunal with written submissions on 5 May 2014. The nurse's counsel filed submissions with the Tribunal on 9 May 2014.

Meaning of unsatisfactory professional conduct and professional misconduct 25Pursuant to section 139B of the National Law, unsatisfactory professional conduct of a registered health practitioner includes both 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 expertise. ... (I) other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 26Professional misconduct under section 139E of the National Law 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.

The PTGA's requirements 27Section 10(3) of the PTGA provides that a person who supplies a restricted substance otherwise than by wholesale is guilty of an offence. Section 10(4) exempts the supply by a medical practitioner if it is within the lawful practice of his/her profession.

Complaints' particulars 28Both Complaints rely upon the same particulars. 1. Between around August 2009 and December 2011, the nurse supplied to patients at the Epping practice and/or at the day spa, the restricted substances contrary to section 10(3) of the PTGA. 2. Between around August 2009 and December 2011, the nurse administered the restricted substances to patients at the Epping practice and/or the day spa in the absence of any: (a) consultation, review or assessment of the patients by a medical practitioner; (b) prescription from a medical practitioner; (c) written instructions or written orders from a medical practitioner; (d) supervision by a medical practitioner.

The evidence 29The material tendered by the complainant includes records of interview with the nurse, Dr Haertsch and his medical secretary, Ms Hayward. It also provides an expert opinion from Ms Allison Cummins received by the complainant on 6 May 2013 and Mr Bruce Battye dated 24 February 2014. The respondent's tender bundle includes statements from the nurse, Dr Haertsch and reports from Ms Robyn Barrett Roydhouse dated 29 April 2012, 5 June 2012 and 10 January 2013.

Evidence relied upon by the complainant 30Evidence from the nurse, Dr Haertsch and Ms Hayward which establishes the complaints, has been discussed above. Ms Cummins is a registered midwife. As a lecturer in midwifery at the University of Technology, she teaches the storage and administration of medications. She opines that the nurse's prescribing and administration of Botox and dermal fillers without authority or written orders at the day spa constitutes conduct significantly below the standard of a practitioner of an equivalent level of training. 31Further, this expert considers the nurse's conduct is outside the scope of professional practice as per the national competency standards for the registered nurse developed by the Australian Nursing and Midwifery Council (ANMC). Ms Cummins referred to the requirements in the standard that nurses must practise in accordance with legislation affecting nursing practice and health care. She notes that registered nurses are not permitted to prescribe S4 medications unless they are an endorsed nurse practitioner with prescribing rights. Under the PTGA, the nurse is also prohibited from controlling, storing and dispensing of S4 drugs. 32 In terms of the nurse's prescribing and administration of S4 drugs at the Epping clinic, the expert considers that the nurse's conduct also falls significantly below the standard of a practitioner of an equivalent level of training. Ms Cummins notes that from the statements obtained by the complainant, there is no evidence that Dr Haertsch consulted with patients, developed a care plan or prescribed the S4 medications. Finally, while noting that it is outside the scope of her report, Ms Cummins also opines that Dr Haertsch is partly responsible for the actions taken by the nurse, particularly as she worked in his rooms. 33The Tribunal also considered a report by Mr Battye, the acting Chief Pharmacist and Associate Director of the Pharmaceutical Services Unit, NSW Ministry of Health. The complainant asked the Pharmaceutical Services Unit to comment upon the protocol provided by the nurse governing her employment with Anti Aging Associates. The complainant highlighted to the Pharmaceutical Services Unit that the medical practitioners prescribing S4 substances for patients of the business appeared to be based in Victoria and consult with patients via Skype. 34Mr Battye notes that the Pharmaceutical Services Unit is aware that some medical practitioners are setting up accounts with wholesale suppliers to obtain restricted substances, including botulinum toxin and hyaluronic acid, without taking personal responsibility for the storage, supply or administration of the restricted substances to patients. There is no objection to a medical practitioner authorising the administration of a restricted substance to a patient under the medical practitioner's direct supervision or allowing the administration of a restricted substance, providing that he/she takes responsibility for ensuring the person administering the substance is competent. Mr Battye considers that it is advisable for the medical practitioner to provide written, patient specific authorisation, prior to the administration of a restricted substance, to confirm the medical practitioner's intention. 35The report ends with expressing concern that some medical practitioners are failing to adequately consult and review patients and empowering nurses or other unauthorised persons to administer and make clinical decisions about restricted substances, without authority or supervision. The use of multidose vials on more than one patient with the risks of microbial contamination and cross infection is also raised as a concern.

Evidence relied upon by the nurse 36The nurse tendered three reports from Ms Barrett Roydhouse. Ms Barrett Roydhouse had worked in cosmetic aesthetic injecting for nine years at the time of her first report. She was briefed by the complainant to comment on the nurse's conduct at the day spa and the Epping clinic. Ms Barrett Roydhouse refers to the protocols issued by ASCM and the Australasian College of Cosmetic Surgery. She concludes the nurse's administration of S4 drugs without standing orders from a medical practitioner for a specific patient is a departure from prevailing legislation and standard industry practice. Ms Barrett Roydhouse also considers that the nurse had disregarded industry best practice and legislation and she is strongly critical of this. The expert criticises the nurse's records, opining that she would have expected additional supporting medical records relating to specific patients. 37In a follow-up report, Ms Barrett Roydhouse was asked by the complainant to review a number of the nurse's medical records. As a result of conducting this review, she expresses satisfaction at the level of detail provided by the nurse which she considers is in accordance with the expected standard of practitioner of an equivalent level of training or experience. Further, the expert revised her opinion in relation to the nurse's treatments of patients at Dr Haertsch's practice and said she regards the nurse's administration of S4 drugs is not a significant departure. 38In a third report provided to the complainant, Ms Barrett Roydhouse states that she retracted her initial criticism of the nurse's treatment of patients at the Epping clinic in her last report as she assumed Dr Haertsch had seen the patients prior to treatment. As a result of learning this was not the case, the expert opines the nurse's conduct in administrating S4 injectable medications is a departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience but not a significant departure. Ms Barrett Roydhouse maintains her opinion that the nurse's supply and administration of the S4 medications at the day spa fell significantly below the standard.

Findings 39The nurse admits unsatisfactory professional conduct as particularised in Complaint One which reflects the definition in section 139B(1)(a) and (l) of the National Law. In light of the nurse's admissions and the overwhelming evidence before it, the Tribunal is comfortably satisfied on the balance of probabilities that the Complaint of unsatisfactory professional conduct is proven (Rejfek v McElroy (1995) 112 CLR 517). 40The nurse also admits professional misconduct as particularised for Complaint Two, which reflects the definition in section 139E of the National Law. Again the Tribunal is satisfied that this Complaint is proven. 41The Tribunal finds that the nurse has not met the ANMC Standard of practising in accordance with legislation affecting nursing practice and health care. The PTGA leaves little doubt that S4 medications, including those administered by the nurse, cannot be supplied and administered by a registered nurse. The protocols developed by the ASCM and the Australasian College of Cosmetic Surgery provide further guidance to practitioners who choose to work in this area and clearly set out the roles and responsibilities of medical practitioners and nurses. 42The Tribunal notes that in a document dated 17 December 2013, Dr Haertsch states that in commencing work at his clinic, the nurse adopted the system that had been in place for the previous 18 years and that most of the clients were long-standing and had been treated by the previous nurse injector. The nurse gave evidence that she presumed, in taking over the practice of the previous nurse injector at the Epping clinic, that the practice was appropriate. She knew of Dr Haertsch's reputation as a respected medical practitioner. She said that she recognised that she should have been more assertive so that Dr Haertsch saw all the patients and wrote the scripts for the S4 medication. 43The Tribunal has some sympathy for the nurse given the opportunities provided by Dr Haertsch. It is highly critical of his acquisition and supply of the S4 medication for the nurse. There is no doubt that he provided the means for her to engage in the conduct found to be unsatisfactory and professional misconduct. However, this does not detract from the nurse's responsibility to ensure she was complying with the law and with the terms of her registration to practise. 44Further, it finds that the nurse did not understand or practise within the scope of her practice. The Standard guides registrants to seek clarification if there is uncertainty about what is meant by the scope of practice and to demonstrate an accountability and responsibility for their own actions within nursing practice. The Tribunal finds the report of Ms Cummins more persuasive than the reports from Ms Barrett Roydhouse on whether the nurse had failed to meet the standard expected of a practitioner of an equivalent level of training. 45The nurse gave evidence that as a result of Mr Battye's report she resigned from her employment with Anti Aging Associates. She said prior to commencing with the business she carefully reviewed its protocols to ensure the business met the required Standards. She was disappointed after reading the expert's report, as she believed she had been practicing appropriately but considered there were clearly grey areas, particularly with the use of Skype for patient consultations. 46The Tribunal does not make any findings in relation to the nurse's work at Anti Aging Associates, which is not covered by the Complaints. It finds her evidence that she had reviewed the company's protocols for S4 injections, prior to starting with the company, to be credible particularly, in light of the complaint already made. Mr Battye's report highlights the risks for nurses and medical practitioners involved in the administration of S4 medication for cosmetic procedures. 47At the end of the day, the requirements in the PTGA and the protocols developed to assist practitioners working in cosmetic medicine, leave little ambiguity of the procedures which must be followed by nurses and medical practitioners. It is imperative nurses working in this area access and understand the requirements for the supply and administration of S4 drugs or they practise at their peril. As the subject nurse has found, assuming or hoping that her treatment of patients was within the law because it had the support of a medical practitioner does not protect her from serious consequences.

Protective orders 48The Tribunal's power to make protective orders when a complaint is proven is set out in sections 149A-C of the National Law. The Tribunal's jurisdiction is protective rather than punitive. As such, the object of protection includes deterring the practitioner from repeating the conduct and significantly, in this case, deterring others who may consider engaging in similar conduct (NSW Bar Association v Hamman (1999) NSWCA 404. As noted by Basten JA in NSW Bar Association v Meakes [2006] NSWCA 340: "There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding the vulnerability of many who may require such services." 49The Tribunal considers there may be a high level of vulnerability with patients seeking cosmetic services, such as those offered by the nurse, given S4 medications are still relatively new and the treatments exploratory. As the complainant submits, Botox and dermal filler injections for cosmetic purposes is a growing and financially lucrative area of healthcare where considerations of general deterrence, maintenance of high professional standards and public confidence are of particular importance. 50The nurse's practice of supplying and administering S4 medication occurred at the day spa and Epping clinic for over 2 years. While she would not have been able to have engaged in such conduct without the restricted substances' supplied by Dr Haertsch, the Tribunal does not consider the nurse took sufficient responsibility to ensure that she was operating within the terms of the law. The Tribunal is particularly concerned about the nurse's treatment of patients at the day spa given there was not even the possibility for a medical practitioner to become involved in the management plan and treatment of those patients. 51The nurse cooperated with the complainant's investigation and expressed remorse at various stages of the matter. While the Tribunal finds this expression of remorse and insight genuine, it is troubled by the fact that the nurse, through the NSW Nurses Association, assured the complainant that she had ceased supplying and administering Botox to patients at the day spa in May 2011, when her later evidence and billing records show this was not the case. Further, the Association advised the complainant that Dr Haertsch reviewed the day spa patients' photos and treatment records and had input into medication prescribed which is also untrue. 52Having carefully reviewed all the evidence, the Tribunal considers it unlikely that the nurse will contravene the law or work outside her scope of practice again and our orders reflect this belief. The conditions to be placed on the nurse's registration take account of the complainant's and respondent's submissions as well as the extensive experience of the Tribunal's nursing members. 53As noted in the decision of Medical Tribunal of NSW v Whitton No. 40027/04, "a further consideration is making orders which will deter other practitioners from similar behaviour. It must be seen by the community and the profession that the Tribunal will make orders designed to protect, to maintain standards and to give a clear indication to the profession that the conduct giving rise to such orders is unacceptable." 54The Tribunal hopes the orders will remind and deter all nurses working in this field of cosmetic medicine to ensure they are practising within the law. The administration of Botox and dermal fillers is a medical procedure that must be medically supervised.

The orders of the Tribunal are: (1) The nurse be reprimanded. The Tribunal acknowledges that the nurse has admitted the subject matter of the complaint in writing to the Tribunal after the Complaints were filed. Nonetheless the Tribunal opined that the nurse, Ms Rosalie Piper, would or should have known that the administration of Schedule 4 drugs by subcutaneous injection, that were not prescribed by a medical practitioner, was putting her, and the patients she treated, at great risk. In addition the use of multi-dose vials was seen as a major concern, by the Tribunal. The Tribunal also considered that the nurse would or should have known that the administration of Schedule 4 drugs had to be checked by a second nurse authorised to check Schedule 4 drugs and that this was not done. Further, the Tribunal opined that, even if the nurse honestly believed she was doing the right thing for the patients she was injecting, she should have checked with the Nurses Registration Board or after 1 July 2010, AHPRA, as to whether she needed a script for each patient after the patient was reviewed by a medical practitioner and a second person to check the Schedule 4 drugs. The Tribunal found the nurse's conduct to be well below the standard expected of someone with her level of experience and education. Her actions, putting the public at risk, are well below the accepted standard and show a significant departure and she deserves strong criticism. The Tribunal finds the nurse guilty of unsatisfactory professional conduct and serious misconduct. (2) The nurse's registration is suspended for three months from the date of this decision; (3) Conditions as follows be placed all the nurse's registration : RESTRICTIONS 1.The nurse is not to inject permanent fillers such as polylactic acid, acrylic hydrogel and polyacrylamide. 2.The nurse is not to transport S4 cosmetic injections. PRACTICE CONDITIONS The nurse may only administer S4 cosmetic injections when she is in compliance with the following conditions: 3.The nurse is only to administer S4 cosmetic injections: a.within a medical practice. At all times: i.a medical practitioner must be onsite; ii.If there is a second enrolled nurse or registered nurse employed at the same location as the practitioner, a second person check should occur before the S4 is administered (other than the authorised prescriber) as per the best practice guidelines outlined in Medication Handling in NSW Public Health Facilities; and iii.emergency resuscitation equipment, i.e. equipment for maintaining an airway, equipment to assist ventilation (including bag and mask), intravenous access, and emergency medicines, must be available. b.which have been prescribed by a medical practitioner who has authorised the practitioner to administer such injections to his/her patients and that the prescription for S4 cosmetic injection/s meets the requirements outlined in Clause 35 of the Poisons and Therapeutic Goods Regulation 2008 (or its equivalent in other jurisdictions) including adequate instruction for location and volume of injection. c.that specify the prescribed interval/s between repeat injections, if applicable. 4.The nurse must advise the Nursing and Midwifery Council of New South Wales (the Council) of the name and location of any medical practice that she will administer S4 cosmetic injections. The nurse must also advise the Council of each medical practitioner who has authorised the nurse to administer S4 cosmetic injections to his/her patients. The practitioner must: a.provide the Council with the name, registration number and the contact details of each medical practitioner within two weeks of commencing administration of S4 cosmetic injections. b.authorise each medical practitioner to: i.notify the Council of any breach of the conditions or unsafe practice; ii.exchange information with the Council related to compliance with the conditions; iii.provide the Council with a copy of the conditions signed by the practitioner and by the medical practitioner indicating awareness of the conditions and authorisation; and iv.provide the Council with a report, in a format to be determined by the Council, at 6 monthly intervals, which addresses the practitioner's compliance with the conditions. 5.On each occasion prior to administering S4 cosmetic injections the nurse must verify the following information from the patient's medical record: a.That the patient has undergone prior consultation with the prescribing medical practitioner. b.The prescription for S4 cosmetic injection/s meets the requirements outlined in Clause 35 of the Poisons and Therapeutic Goods Regulation 2008 (or its equivalent in other jurisdictions) including adequate instruction for location and volume of injection. c.The prescribed interval/s between repeat injections, if applicable. 6.The nurse must maintain clinical records for each patient which include: a.Details of the prior consultation including date of consultation and name of medical practitioner. b.Details of the S4 cosmetic injection/s administered including date, time, drug/s, site/s and volume administered. c.Details of any adverse or unexpected outcome following administration including action taken by the practitioner. d.Confirmation, within one week, of consultation by a medical practitioner following any adverse or unexpected outcome. AUDIT 7.The nurse will submit to an audit at her place of employment of a random selection of her clinical records by a registered nurse nominated by the Council. The audit is to occur within three months of her commencing employment and then after a further six months. The nurse is to be given seven days notice of the audits. If the nurse is employed by more than once practice, the audit will only occur at one practice. The nurse is to authorise the auditor to provide the Council with a report on his/her findings. The nurse is to meet all reasonable costs associated with the audit and the report. EDUCATION 8.The nurse is to undertake the following courses (or an equivalent course that has been approved by the Council: a.Basic Life Support incorporating AED as recommended by the Australian Resuscitation Council. b.CPD Infection Prevention and Control course conducted by the Australian College of Nursing. 9.The commencement date for the courses outlined in Condition 8 should be no later than 1/12/2014 (or otherwise at a date determined by the Council) and the completion date should be no later than 1/6/2015 (or otherwise at a date determined by the Council). 10.For a minimum period of two years and thereafter as to be determined by the Council, the nurse is to undertake on an annual basis education which is approved by the Council in relation to each S4 cosmetic product she administers by injection. Prior to commencement the nurse must submit details of the education including the proposed commencement date for consideration by the Council. This education is in addition to the requirements of her registration. 11.The nurse is to provide to the Council evidence of successful completion of the courses / education programs required by Conditions 8 and 10 signed by an individual authorised by the relevant education institution within fourteen days of completion of the course or education program. REVIEW 12.The appropriate review body for the purposes of Division 8 Part 8 of the Health Practitioner Regulation National Law (NSW) (the National Law) is the Council. 13.The Council is to conduct a general review of the conditions imposed on the nurse's registration by the Tribunal within three years of this decision, and no earlier than within two years of this decision, to determine whether each of the conditions should remain, be varied or removed. This does not preclude the Council from varying or removing a condition at any other time as it deems appropriate. 14.Sections 125 to 127 inclusive of the National Law are to apply should the nurse's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the Nursing and Midwifery Board of Australia. (4) Under Clause 7 of Schedule 5D of the National Law, publication of the name, address or any other material identifying any patient to which any facts of the matter relate is prohibited.

Costs 55The complainant submitted at the hearing that the nurse should pay its costs as the successful party to litigation has a reasonable expectation of being awarded costs. Fairness dictates that the unsuccessful party typically bears liability for costs unless it is demonstrated that some other order is appropriate Currabubula Holdings Pty Ltd v State Bank of NSW [2002] NSW SC 232. The presumption is based on the principle that costs are compensatory and applies to this Tribunal. (Ohn v Walton (1995) 36 NSWLR 77) 56The nurse submitted that each party should be ordered to pay their own costs. She referred to the decision of the Medical Tribunal of NSW in Healthcare Complaints Commission v Rolleston 2013 NSWNMT 12 where this was ordered in circumstances where the practitioner advised the complainant at an early stage of the matter that he would not be defending the proceedings and would not practise again. In that case, the medical practitioner had been imprisoned and the Tribunal accepted that it was very unlikely he would attempt to practise in the future given these circumstances coupled with his age. 57In this case, the nurse advised the complainant at the first directions hearing that she admitted the Complaints. She also requested the matter proceed pursuant to section 165H of the National Law. This section provides that no inquiry need be conducted into a complaint if the registered health practitioner admits the subject matter of the complaint in writing to the Tribunal. 58In a statement dated 10 January 2014 the nurse "accepted and acknowledged" that between August 2009 and December 2011 she had practised outside the accepted standards of a cosmetic nurse injector. 59In HCCC v Gower [2011] NSWNMT 17, the practitioner was represented by counsel and admitted all the particulars of the complaint. There were detailed submissions about the appropriate protective orders to be made. In that case the Tribunal awarded costs to the complainant. In the Rolleston case, the Tribunal distinguished this decision when determining costs, given the necessity for that Tribunal to consider protective orders in some detail, as occurred in the present case. In Rolleston, the Tribunal did not need to hear the parties on this important issue because it was satisfied the practitioner would not practice in the future. 60On balance, the Tribunal orders that the nurse pay the complainant's costs in this matter on the ordinary basis as defined in section 3 of the Civil Procedure Act 2005 (NSW) as agreed or assessed. It considers that whilst the nurse's admission resulted in a shortened period of hearing for the Tribunal, this should be reflected in reduced costs to those which would have otherwise have been incurred.

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: 12 June 2014

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