Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Wardman [2020] NSWCATOD 126 Hearing dates: 14, 15 and 16 September 2020 Date of orders: 04 November 2020 Decision date: 04 November 2020 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member L Hopper, Senior Member I McQualter, Senior Member J Houen, General Member Decision: (1) For the purposes of these proceedings: (a) the name of the patient referred to in the Application for disciplinary findings and orders is anonymised as Patient A; (b) the name of the four nurses other than the respondent working in the ward on the night shift on 16 July 2020 are anonymised as Nurse 1, Nurse 2, Nurse 3, and Nurse 4, respectively. (2) The publication of the name of the Patient A, and Nurses 1 to 4, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited; (3) the applicant is to inform the respondent of what protective orders it seeks within 7 days; (4) the respondent is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 21 days thereafter; (5) the applicant is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 14 days thereafter; (6) the proceedings are adjourned for the conduct of the stage 2 hearing to a date to be fixed by the Registrar. Catchwords: TRADES AND PROFESSIONS – nurse – failure to take observations of patient - failure to reconnect patient's heart monitor – death of patient - whether constitutes unsatisfactory professional conduct or professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Care Complaints Act 1993 (NSW), s 40 Health Practitioner Regulation National Law (NSW), ss 41B, 139B, 139E, 150 Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Cheng (No 2) [2017] NSWCATOD 93 Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ian Craig Wardman (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Jason Li Lawyers (Respondent) File Number(s): 2020/00040728 Publication restriction: The disclosure of the name of Patient A, and Nurses 1 to 4, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited. REASONS FOR DECISION Summary 1. In these proceedings the applicant, the Health Care Complaints Commission, is seeking findings of unsatisfactory professional conduct and/or professional misconduct under the Health Practitioner Regulation National Law (NSW) (the National Law) against the respondent, Ian Craig Wardman, a nurse, and the making of consequential protective orders, which arise out of the death of a patient, who is referred to as Patient A, in cardiothoracic ward CB3D (the ward) at Liverpool Hospital (the hospital) on 16 July 2018 (the incident). 2. We have decided: 1. to prohibit the disclosure of the name of Patient A, together with any information or material which could identify this person, whether by itself or with other information and material; 2. that the respondent is guilty of unsatisfactory professional conduct within s 139B(a) and (l) of the National Law; 3. that the respondent is guilty of professional misconduct within s 139E(b) of the National Law; 4. to make directions for the provision of any further evidence, and an outline of submissions, on what protective orders should be made. Anonymisation and non-publication of the name of the Patient A Introduction 1. On 13 March 2020, the Tribunal, pending further order, made a non-publication order in respect of the name of Patient A. 2. On 2 November 2020, the applicant with the consent of the respondent, applied for order prohibiting the publication of the name of the four nurses other than the respondent working in the ward on the night shift on 16 July 2020 because their identity is not relevant and there is no complaint before the Tribunal regarding their conduct. The applicable statutory provisions NCAT Act 1. The relevant power of the Tribunal to restrict the publication of certain matters in proceedings before it is found in s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which relevantly provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), … (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. National Law 1. Clause 7 of Schedule 5D deals with the release of information, relevantly provides: 7 Release of information [NSW] (1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)— (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters are not to be published— (i) the name and address of any witness; … (iii) the name and address of a registered health practitioner or student; Consideration 1. The relevant principles as to the prohibition of the publication of evidence are encapsulated in the judgment of McHugh JA in the Court of Appeal in John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477: "Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication." 1. We are satisfied that it is appropriate in accordance with the practice of the Tribunal to continue the anonymisation order, and make a non-disclosure order, pursuant to s 64(1)(a) of the NCAT Act in respect of Patient A. 2. The presiding member is satisfied that it is appropriate to make the anonymisation order, and to make a non-disclosure order, pursuant to cl 7 of Sch 5D of the National Law in respect of the four nurses other than the respondent working in the ward on the night shift on 16 July 2020: 1. the nurse in charge (Nurse 1); 2. a second year registered nurse (Nurse 2); 3. an endorsed enrolled nurse (Nurse 3); 4. a casual registered nurse (Nurse 4). The background 1. The respondent, who was born on 30 August 1963, is a nurse currently registered under the National Law. 2. Between about 1991 and 1997, the respondent worked as an assistant in nursing. 3. In 1997, the respondent completed a Bachelor of Nursing degree at the University of Western Sydney. 4. On 19 January 1998, the respondent was first registered as a nurse in New South Wales. 5. In February 1998, the respondent commenced employment as a registered nurse at the hospital. 6. From 8 April 2013 to 31 March 2016, the respondent worked in cardiothoracic ward 3 West. 7. On 1 November 2015, the respondent signed and acknowledged the NSW Health Code of Conduct. 8. On 31 March 2016, the respondent commenced working in the ward. 9. The ward has 30 beds and four nurses' bays. The central monitor for telemetry is located in the nurses' bay adjacent to beds 11 and 12. 10. Commencing on the evening of 13, 14 and 15 July 2018, the respondent worked in the ward on three consecutive night shifts commencing at 9.30pm, and provided care to Patient A. 11. On the night shift on 15-16 July 2018, there were five nurses working in the ward: Nurses 1 to 4 and the respondent. Nurse 3 and 4 were located in the nurses' bay adjacent to beds 11 and 12, and the respondent was located in the nurses' bay adjacent to beds 19 and 20. 12. Between 1.00am and 2.54am on 16 July 2018, the World Cup soccer final was broadcast on SBS television and screened on a computer on wheels located in the nurses' bay adjacent to beds 11 and 12. 13. On 15 October 2018, the Director of Nursing and Midwifery Services of the South Western Sydney Local Health District (the LHD) lodged a notification with the Australian Health Practitioner Regulation Agency about the incident. 14. On 23 November and 5 and 6 December 2018, representatives of the LHD conducted interviews with the respondent and the other nursing staff on the ward at the time about the incident. The respondent provided his self reflection log to his interviewers. 15. On 18 March 2019, the Nursing and Midwifery Council of New South Wales (the Council) notified the respondent of proceedings about the incident pursuant s 150 when read with s 41B(1) of the National Law. 16. On 22 March 2019, the respondent provided a response to the Council. 17. On 25 March 2019, the respondent with his solicitor Jason Li (Mr Li) attended the hearing pursuant to under s 150 of the National Law before the delegates of the Council, and gave evidence about the incident. The delegates imposed a condition on the registration of the respondent that he not work as a registered nurse until reviewed by the Council. 18. On 2 September 2019, the applicant invited the practitioner's solicitor to make submissions under s 40 of the Health Care Complaints Act 1993 (NSW) (HCC Act) as to whether the Director of Proceedings should decide to prosecute a complaint before a professional disciplinary body. 19. On 1 October 2019 and 28 October 2019, Mr Li made submissions to the applicant about the incident. The proceedings 1. On 7 February 2020, the applicant commenced these proceedings against the respondent by filing an Application for disciplinary findings and orders, in which the respondent is referred to as the practitioner, and which relevantly provides: "3. ORDERS SOUGHT The applicant seeks the following orders: 1. An order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013. In the event the subject-matter of a complaint is proved or admitted, the applicant seeks: 2. Protective orders under section 149A (caution, reprimand, counsel etc.) section 149B (fine) and/or section 149C (suspension, cancellation or prohibition order) of the National Law, and 3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. 4. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a) and/or (I) and/or professional misconduct within the meaning of section 139E of the National Law. … COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice of nursing BACKGROUND TO COMPLAINT ONE On 19 January 1998, the practitioner was first registered as a nurse in NSW. In February 1998, the practitioner commenced employment as a registered nurse at Liverpool Hospital ("the hospital"). On 26 June 2018, Patent A was admitted to the hospital for an elective mitral valve replacement ("MVR") and coronary artery bypass grafts ("CABG") at the hospital ("the surgery"). Patient A was 78 years old. Patient A suffered complications after the surgery and was admitted to the Intensive Care Unit ("ICU") at the hospital. At about 20:51 on 13 July 2018, Patient A was transferred from the ICU to the High Acuity Area of the Cardiothoracic Ward (CB3D) ("the ward"). Patient A had cardiac monitoring with the use of a telemetry. From about 21:30 on 15 July 2018, the practitioner was rostered on night duty at the ward and was responsible for providing care to Patient A. At about 05:06 on 16 July 2018, Patient A was found unresponsive. At about 05:45 on 16 July 2018, Patient A was declared deceased. PARTICULARS OF COMPLAINT ONE 1. Between about 21:30 on 15 July 2018 and 05:06 on 16 July 2018, the practitioner failed to take observations regarding Patient A's condition in circumstances where: a) Patient A was an acute care patient; b) Patient A's care plan directed six hourly observations; c) Patient A's observations were last taken at about 18:34 on 15 July 2018 by another practitioner; d) At about 00:14 on 16 July 2018, the practitioner requested special one to one nursing for Patient A which was documented by a medical practitioner; e) between 01:47 and 01:54 on 16 July 2018, Patient A suffered a cardiac event. 2. Between about 01:47 and 01:55 on 16 July 2018, the practitioner failed to recognise and respond to Patient A's cardiac event in circumstances where: a) between 01:47 and 01:54 on 16 July 2018, telemetry indicated a cardiac event; b) the practitioner was responsible for regularly assessing Patient A; c) Patient A's cardiac condition was being monitored by telemetry; d) the cardiac event was life threatening; e) the practitioner failed to seek assistance from other staff. 3. Between about 00:30 and 05:00 on 16 July 2018, the practitioner failed to reconnect Patient A's telemetry leads in circumstances where: a) at about 01:55 on 16 July 2018, the telemetry leads were disconnected and the system was left in standby mode; b) after the disconnection of the telemetry leads, the practitioner failed to reconnect the leads; c) after the disconnection of the telemetry leads, Patient A's cardiac condition was no longer being monitored; d) Patient A had not been assessed for the safe removal of the telemetry device; e) the practitioner had not completed a full set of observations. 4. Between about 00:30 and 05:06 on 16 July 2018, the practitioner inappropriately silenced the telemetry alarms on several occasions in circumstances where: a) between 01:47 and 01:55, the telemetry device raised high alert alarms; b) the practitioner failed to seek assistance from other staff. COMPLAINT TWO The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in 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 the suspension or cancellation of the practitioner's registration. PARTICULAR OF COMPLAINT TWO 1. The particulars of Complaint One, individually or in combination, justify a finding of professional misconduct." 1. On 2 July 2020, the respondent filed his Reply to application for disciplinary findings, which relevantly provides: "COMPLAINT ONE The Respondent denies that he is guilty of unsatisfactory professional conduct under section 139B(l)(a) and/or (I) of the National Law in that the Respondent has: i Engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Respondent in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii Engaged in improper or unethical conduct relating to the practice of nursing. PARTICULARS OF COMPLAINT ONE 1. The Respondent does not admit paragraph 1 of the Particulars of Complaint One and says: a. It is Hospital Policy and common, accepted and usual practice of all the nursing staff in the ward that when care plans direct six hourly observations, this meant that nurses were required to conduct observations at least four times in a 24 hour period and not that they are required exactly every six hours. b. The Respondent was advised by the day shift nurse that Patient A needed rest and was advised not to disturb Patient A's sleep. c. Patient A's observations were completed at 6:00 AM, 10:30 AM, 3:30 PM and 6:30 PM on 15 July 2018 and already had four sets of observations taken during that 24 hour period. d. At around 12:00 AM on 16 July 2018, the Respondent attempted to take Patient A's observations however was prevented from doing so by the Patient. e. The Respondent then requested special one to one nursing for Patient A which was documented by a medical practitioner. f. The Respondent continued to take visual notice and observations of Patient A during the early morning of 16 July 2018. g. The Respondent was to take a final observation at the end of his shift at around 4:00 AM to 5:00 AM on 16 July 2018. 2. The Respondent does not admit paragraph 2 of the Particulars of Complaint One and says: a. The Respondent is not trained as a critical care nurse nor has the Respondent been provided with sufficient cardiac care training, b. The Respondent was assigned to the cardiothoracic/ cardiology ward following the closure of the orthopaedics and trauma ward and had not received sufficient training with regards to the cardiothoracic/ cardiology ward. c. The Respondent has received limited training from the Hospital on the use of the telemetry equipment. The particular type of telemetry equipment in use at the ward was only installed approximately two or three weeks prior to the event. d. When the Respondent went to check on Patient A at around 1:55 AM on 16 July 2018, the Respondent observed that Patient A had disconnected the telemetry leads and the leads were wrapped around Patient A's legs. e. The Respondent made a clinical decision that the telemetry leads were agitating Patient A and unwrapped the telemetry leads from Patient A's legs. f. The Respondent noted that Patient A was responsive and that Patient A's perfusion was within the normal range. 3. The Respondent does not admit paragraph 3 of the Particulars of Complaint One and says: a. When the Respondent went to check on Patient A at around 1:55 AM on 16 July 2018, the Respondent observed that Patient A had disconnected the telemetry leads and the leads were wrapped around Patient A's legs. b. The Respondent noted that throughout the last two nights, Patient A was constantly agitated and restless and consistently removed the telemetry leads. c. The Respondent notes that there were no directions by the medical staff that the telemetry leads were required to remain on Patient A. The Respondent was also instructed by the day shift nurse to disturb Patient A minimally and allow Patient A to get optimal rest. d. The Respondent made the assessment that the telemetry leads were affecting Patient A's ability to sleep and based on the advice of the medical staff and the day shift nurse decided to not reconnect the telemetry leads. 4. The Respondent denies paragraph 4 of the Particulars of Complaint One and says: a. At no time did the Respondent inappropriately silence the telemetry alarms. b. The telemetry alarms were accessible by at least four other nurses and all other medical practitioners on the night. c. The practitioner is unaware as to why the alarms were silenced during Patient A's cardiac event. COMPLAINT TWO The Respondent denies that he is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or ii Engaged in 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. PARTICULARS OF COMPLAINT TWO 1. The Respondent denies paragraph 1 of the Particulars of Complaint Two and says: a. If the replies to the Particulars of Complaint One are accepted then they do not justify a finding of professional misconduct." 1. On 3 July 2020, the Tribunal listed the proceedings for a stage 1 hearing. The hearing 1. On 14, 15 and 16 September 2020, the stage 1 hearing took place by audio visual link. 2. The parties filed a statement of agreed facts (the SAF) which was amended to delete the first sentence of paragraph 40 and the accompanying footnote, and was admitted into evidence. 3. The applicant relied on two volumes of documents and additional documents which were admitted into evidence without objection and included the following evidence: 1. the LHD transcript of interview of Nurse 1 held on 23 November 2018, and corrected and signed on 30 January 2019 by Nurse 1 (the 23 November 2018 Nurse 1 LHD interview); 2. the self reflection log dated 2 December 2018 of the respondent (the 2 December 2018 log); 3. the LHD transcript of interview of the respondent held on 5 December 2018, and corrected and signed on 29 January 2019 by the respondent (the 5 December 2018 Wardman LHD interview); 4. the LHD transcript of interview of Nurse 2 held on 6 December 2018 (the 6 December 2018 Nurse 2 LHD interview); 5. the LHD transcript of interview of Nurse 3 held on 6 December 2018 (the 6 December 2018 Nurse 3 LHD interview); 6. the LHD transcript of interview of Nurse 4 held on 19 December 2018; 7. the response dated 22 March 2019 of the respondent to the Council (the 22 March 2019 response); 8. the transcript of the hearing held on 25 March 2019 before the Council under s 150 of the National Law (the 25 March 2019 Council hearing); 9. the statement dated 1 August 2019 of Megan Steiner (Ms Steiner), a clinical application specialist of Philips Australia New Zealand; 10. the email of Mr Li sent to Sarah Clark (Ms Clark) of the applicant on 1 October 2019 at 1.00pm pursuant to s 40 of the HCC Act (the 1 October 2019 Li email); 11. the email of Mr Li sent to Ms Clark on 28 October 2019 at 1.50pm; 12. the report dated 14 August 2019 of Michelle Parker (Ms Parker), a registered nurse (the Parker report); 13. the statement dated 11 September 2020 of Nurse 2 (the 11 September 2020 Nurse 2 statement); 14. the statement dated 11 September 2020 of Nurse 3 (the 11 September 2020 Nurse 3 statement); 15. the statement dated 11 September 2020 of Nurse 4 (the 11 September 2020 Nurse 4 statement). 1. The respondent relied on the following documents which were admitted into evidence without objection: 1. the affidavit of himself affirmed on 5 June 2020 (the Wardman affidavit); 2. a document setting out the times he checked on Patient A during the night shift on 15-16 July 2018 (the Wardman record of checks on Patient A on 15-16 July 2018). 1. Nurses 1 to 4, Ms Steiner, Ms Parker, and the respondent gave oral evidence. 2. The applicant relied on the following written submissions: 1. the submissions dated 23 September 2020; 2. the submissions in reply dated 7 October 2020. 1. The respondent relied on his undated submissions received on 1 October 2020. The issues 1. The following issues arise for determination: 1. the burden of proof and the evidential onus; 2. whether the respondent failed to take observations regarding Patient A's condition in the specified circumstances and had a reasonable excuse for any such failure; 3. whether the respondent failed to recognise and respond to Patient A's cardiac event in the specified circumstances and had a reasonable excuse for any such failure; 4. whether the respondent failed to reconnect Patient A's telemetry leads in the specified circumstances and had a reasonable excuse for any such failure; 5. whether the respondent inappropriately silenced the telemetry alarms on several occasions in the specified circumstances; 6. whether any such proved conduct constitutes unsatisfactory professional conduct; 7. whether any such proved conduct constitutes professional misconduct. 1. We have considered issues (3) and (5) together because whether the respondent had a reasonable excuse for any failure to recognise and respond to Patient A's cardiac event in the specified circumstances may be impacted by whether he respondent inappropriately silenced the telemetry alarms on several occasions in the specified circumstances. 2. The applicant in its submissions dated 23 September 2020 has contended that the respondent did not have a reasonable excuse for the failures in paragraphs 1 to 3 of the particulars of Complaint One on various grounds that have not been relied upon by the respondent. In these circumstances, we have not set out the relevant evidence and considered the applicable submissions. 3. Before considering these issues it is appropriate to set out the applicable provisions of the National Law and the underlying facts, and to make findings about the reliability and credibility of the witnesses. The applicable provisions of the National Law 1. Part 8 Division 1 (ss 138-139I) contains provisions dealing with preliminary matters in relation to health, performance and conduct. Section 139B contains a definition of unsatisfactory professional conduct of a registered health practitioner, and relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each 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 experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E contains a definition of professional misconduct of a registered health practitioner, and provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner 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. 1. Part 8 Division 3 Subdivision 7 (ss 150-150J) contains provisions dealing with the powers of a Council for protection of the public in relation to complaints. Section 150 deals with the suspension or conditions of registration to protect the public, and relevantly provides: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest— … (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or The underlying facts 1. The following facts as set out in the SAF with the omission of footnotes, in which the respondent is referred to as the practitioner, underly the complaints against the respondent: "The patient 7. On 26 June 2018, Patent A was admitted to the hospital for an elective mitral valve replacement (MVR) and coronary artery bypass grafts (CABG) at the hospital (the surgery). Patient A was 78 years old. Patient A suffered complications after the surgery and was admitted to the Intensive Care Unit (ICU) at the hospital. 8. On 27 June, Patient A had further surgery for post operative bleeding. 9. On 4 July, a MET call was made for bradycardia. 10. On 6 July, a pacemaker was inserted. … 12. During the evening of 13 July: a. Medical staff transferred Patient A from ICU; b. Medical staff noted transient left ventricular (LV) dysfunction (requiring doputamine) and recent pacemaker insertion and planned to cease doputamine and cardiac monitoring; c. At 1843, nursing staff noted monitoring in a paced rhythm, femoral CVC to left groin, IDC insitu, plan to move to ward 3D once dobutamine weaned off d. At 2005, nursing staff noted right femoral CVC in situ, dobutamine has since been successfully weaned; e. At 2105, RN Trung (Trung) noted complete heart block, permanent pacemaker (PPM) insertion, nursing care plan telemetry; f. At 2123, Trung noted Patient A was admitted to the ward after weaning from dobutamine infusion, intravenous therapy (IVT) running via femoral CVC, IDC insitu, remains on telemetry monitoring. 13. At about 2051, Patient A was transferred from the ICU to the High Acuity Area of the Cardiothoracic Ward (CB3D) (the ward). Practitioner's first night shift with Patient A 14 At 2130 on 13 July, the practitioner started his first night shift. 15 Between 2130 on 13 July and the early morning of 14 July, the practitioner was allocated to care for Patient A. Patient A had cardiac monitoring with the use of a telemetry. The practitioner was responsible for Patient A after he was transferred from ICU. 16. Between 14 and 16 July, the care plan required observations at a frequency of "QID". 17. During the early morning of 14 July, the practitioner made some notes in the Electronic Medical Record (EMR): … d. At 0421, the practitioner made a nursing note stating: "Restless, agitated, pulling off telemetry Attempting to climb out of bed turning self IDC Low output Telemetry: Paced rhythm Oxygen therapy 4 Its/ min" … Practitioner's second night shift with Patient A 19. At 2130 on 14 July, the practitioner started his second night shift. 20. Between 2130 on 14 July and the early morning of 15 July, the practitioner was allocated to care for Patient A. … 22. During the early morning of 15 July, the practitioner made some notes in the EMR: … b. At 0426, the practitioner made a nursing note stating "restless resting in chair. Telemetry paced rhythm" … 24. On 15 July, Patient A had four sets of observations completed at 0609, 1039, 1531 and 1834. After 1834 on 15 July, no observations were recorded. Practitioner's third night shift with Patient A 25. At 2130 on 15 July, the practitioner started his third night shift. The practitioner was rostered on night duty at the ward in the capacity of a registered nurse. 26. Between 2130 on 15 July and the early morning of 16 July, the practitioner was allocated to care for Patient A. Patient A was an acute care patient. 27. At the start of the third night shift, Patient A's cardiac condition was being monitored by telemetry. The practitioner was responsible for regularly assessing Patient A. After starting his shift, the practitioner saw Patient A and saw that the leads were connected. 28. The practitioner was allocated 4 or 5 post-ICU patients, including Patient A. The practitioner was allocated the patients in beds 20-23 or 20-24. Patient A was in bed 23. … 30. Between about 2130 on 15 July and 0506 on 16 July 2018, the practitioner did not record any observations. 31. At some time during his second or third night shift, the practitioner completed an increased supervision request form, with the diagnosis stating "coronary heart block [difficult to decipher] pulmonary HTN MTP RVF" and the relevant past medical history stating "CCF DM AF Asthma" with the reason for increased supervision "unstable behaviour or mental state" box ticked and the "other" box ticked stating "pulling out IDC. Pulled out Femoral line. Pulled out ET Tubing. Removing cardiac monitor. Stripping. Attempting to climb out of bed" and the comment stating "1:1 supervision at Noct overnight". (ET means endotracheal). 32. At 0014 on 16 July, Dr Dano made a medical note including "Nursing staff inform me he is agitated and attempting to decannulate and remove IDC, Have asked for 1:1 nursing special, I agree this is appropriate." 33. At 0157 on 16 July, Nurse 1 made a nursing note stating "Increased supervision request form had been faxed to after hours manager. After hours manager also contacted and notified the need of 1:1 nursing special. 34. Sometime on 16 July, the increased supervision request form had a handwritten note "faxed + after hours manager called". Soccer 35. Between about 0100 and 0254, the World Cup soccer game was broadcast. The practitioner watched some of the game. Cardiac event 36. Between 0147 and 0154, telemetry indicated a cardiac event. The cardiac event was life threatening. 37. At some time in the night shift, during the second half of the soccer game about 0100 while the practitioner was watching the game, around 1200 around the middle of the night, about 0030, about 0130-0200, about 0155, around 0200 the practitioner saw that the telemetry leads were disconnected. 38. The leads off alarm (was) activated. The monitor was silenced. 39. The practitioner did not reconnect the leads. The practitioner decided to rely on visual observation of the patient. 40. The device remained in standby from about 0158. 41. The practitioner did not seek assistance from the nurse in charge or other staff. 42 From about 0158, Patient A's cardiac condition was no longer being monitored by the telemetry device. 43. Patient A had not been assessed by a medical practitioner for the safe removal of the telemetry device. … 45. At 0341, the practitioner made a nursing note relating to the event earlier in the evening stating "Pt restless, agitated, pulling off Telemetry, stripping, attempting to climb out of bed reviewed for 1:1 supervised care". 46. Between about 1200 and 0500, the practitioner viewed Patient A from his bay through the perspex screen and did one visual check. MET call 47. At about 0500, the practitioner found Patient A unresponsive. The practitioner pressed the nurse assist button. The telemetry was not attached. The practitioner did not start CPR. 48. At 0507, a MET call was made. 49. At 0510, medical staff started CPR. At 0540, CPR ended. At about 05:45 on 16 July 2018, Patient A was declared deceased." 1. The acronym "QID" in paragraph 16 of the SAF is an abbreviation of the Latin words "quarter in die" and means four times a day. The reliability and credibility of the witnesses The respondent 1. We are satisfied that the respondent is not a reliable and credible witness in relation to his evidence of the incident to the extent that it is not recorded in the contemporaneous documentary records for the following reasons: 1. he gave the following differing versions as to the number of times he checked on Patient A after 2.00am on 16 July 2018: 1. in the 2 December 2018 log he said: "17. Next nursing clinical round assessed patient non-responsive, called assistance and called MET" with the handwritten note "5.06am""; 1. in the 5 December 2018 Wardman LHD interview he said: "GAIL: Okay. After that time when you were not present on the Ward during that episode did you do any more rounding through the night? Did you check the patients again every hour through the night? IAN: No." 1. in the 22 March 2019 response he said: "On collecting the new dots observed the EEN and RN watching me, watching the cardiac monitor and watching the World cup soccer game. Informed the patient need to put the cardiac monitor back on, and I heard a moan response from the patient. I informed the patient that I would come back latter to check on you. I went on to update patient notes, and update nursing handover On full time, collected patient medication charts. Reviewed the medications to be administered. Reviewed patient 20 applied the Bp cuff and oxygen saturation and temperature, applied the cuff and oxygen sats prob to bed 21. Same procedure to bed 22. On bed 23 observed patient not responsive activated the nurse assist button, the RN came to assist, repositioned patient up the bed." 1. at the 25 March 2019 Council hearing he said: "MS CHENEY: Yes, I understand that. Okay. And so at 1.30 that happened. MR WARDMAN: Yes. MS CHENEY: And so what happened after that? What was the next thing? When was the next time you saw him or cared for him? MR WARDMAN: Then at 5 o'clock when I do my next round, did my observation assessments on patients and then he was unresponsive and got the 10 nurse assist button and we started CPR on the patient. … MS BOLAND: So obviously you've been asked a lot of questions about what happened in the night and what measures were taken. I suppose the thing for me is from 1.30 to 5 am is about four and a half hours, so what — MR WARDMAN: I can't be exact on that times because I — MS BOLAND: About that. I mean, I'm just using the times you gave me — MR WARDMAN: Yes. MS BOLAND: between observations. That seems like quite a long time not - did you walk the ward? Did you walk around the beds just to check people? MR WARDMAN: Yes, yeah. MS BOLAND: So how often would you have — MR WARDMAN: Normally, I actually do it on an hourly basis." 1. in the 1 October 2019 Li email Mr Li said: "When Mr Wardman checked the patient at 1230am, the leads been removed (Mr Wardman assumes by the patient himself, although Mr Wardman did not witness the patient removing it). Mr Wardman attempted to reaffix the leads, but the patient physically resisted this on approximately 3 occasions. In the circumstances, Mr Wardman made the clinical decision to rely on visual observation of the patient. Mr Wardman performed continuous visual observation during the period until 5.00am." 1. in the Wardman affidavit at [46] and [47] he referred to "hourly checks"; 2. in the Wardman record of checks on Patient A on 15-16 July 2018 he included the following times: "2:30 3:20 4:00 5:00" 1. he gave the following differing versions as to when he recorded observations of patients: 1. at the 25 March 2019 Council hearing he said: "MS BOLAND: Okay. So can you just explain that to me? So when would you document that? That would be at the end of the time or — MR WARDMAN: No, usually because we have the - I usually document that around about 4 o'clock." 1. in his oral evidence in chief he said he planned to record his observations of Patient A at 5.00am; 2. in his oral evidence in cross-examination he said he said there was no discrepancy because it depended on whether medication was to be administered; 1. he gave the following differing versions as to whether he was suffering from diarrhoea and the number of times he went to the toilet: 1. in the 2 December 2018 log and in the 5 December 2018 Wardman LHD interview he did not refer to suffering from diarrhoea; 2. in the 22 March 2019 response he referred to three toilet breaks and that he suffering from diarrhoea (underlining added): Reviewed the patients x4 head to toe visual on the patients. Walked over to Cardiac Monitor screen on far wall (as indicated by layout) review telemetry and indication patient with sinus bradycardia with pace maker. Commenced administration tasks of reviewing medication charts, fluid orders, Nursing care plans, and reviewing patient's notes in preparation for the next day (basically crossing all the T" and dotting the Ts). Started with bed 20 then 21. Toilet break. Then 22 and finally 23 (the patient of concern). … … Completed my Administration task. A toilet breaks. Attended a visual check on my patient's check and change their urinal bottles, emptied the IDC. Washed my hands. Meal break. At this (time) the EEN invited me to come over and watch the game as it was about to start, and be able to watch the cardiac monitors from the nursing bay. As currently had barriers between my workstation and the cardiac monitor (telemetry) work station, (as per layout). … At half time the EEN and RN left the nurses bay to attend to their patients. As well as I did, then it hit me I needed to go to the toilet immediately with diarrhoea, as unable to locate any other nurses on my way to the toilet." 1. at the 25 March 2019 Council hearing he said: "PROF RICKARD: - - - let alone without a toilet break. So you went when? MR WARDMAN: Three times to use the toilet." 1. in the 1 October 2019 Li email Mr Li said: "Additionally, he notes that he had diarrhea during the shift, and made 3 visits to the bathroom during the shift. In addition, he two hourly urine breaks." 1. in his oral evidence in chief he said he went to the toilet six times; 2. in his cross-examination when asked about the discrepancy between his evidence at the 25 March 2019 Council hearing and his oral evidence in chief he said he urinated three times and defecated three times; 1. he made the significant concession in cross-examination that the times in the Wardman record of checks on Patient A on 15-16 July 2018 were a "guess"; 2. he gave an implausible explanation as to his decision not to reconnect the telemetry leads relying on the clinical notes on his admission to the ward on the evening of 13 July 2020 and the comfort of Patient A in circumstances where they had remained on Patient A since his admission to the ward; 3. he gave the following implausible evidence: 1. he could recall the 13 precise times he attended Patient A during the night shift as set out for the first time in the Wardman record of checks on Patient A on 15-16 July 2018; 2. he could remember his observations of Patient A in his "hourly rounds" in circumstances where he made no record of those observations pending their entry into the EMR; 1. on a number of occasions in cross-examination he gave evidence of matters that were not referred to in the Wardman affidavit or any earlier document such as he would have used a portable computer but for it being used to watch the World Cup soccer final; 2. he had a precise recollection of not silencing the telemetry alarm at the central monitor, but on other issues such as the number of times he attended Patient A to reconnect the telemetry leads he had an imprecise recollection of "multiple times". The applicant's witnesses 1. We are satisfied that each of Nurses 1 to 4 was a reliable and credible witness about the incident for the following reasons: 1. they each gave evidence in a straight forward manner; 2. Nurse 3 made admissions against his interest such as setting up and watching the World Cup soccer final without permission, and that he could have silenced the telemetry alarm for Patient A. 1. We are also satisfied that each of Ms Steiner and Ms Parker was a reliable and credible witness. In particular, we are satisfied that Ms Parker had the necessary experience and independence to express reliable opinions in the Parker report and in giving oral evidence. The burden of proof and the evidential onus 1. In his Reply to paragraphs 1 to 3 of the particulars of Complaint One the respondent has in substance asserted that he had a reasonable excuse for any such failure. 2. It is an established principle in disciplinary proceedings before the Tribunal that while the applicant has the burden of establishing unfitness to practice by reason of professional misconduct, nevertheless the respondent has the burden of establishing any mitigating factors in favour of the respondent: Health Care Complaints Commission v Cheng (No 2) [2017] NSWCATOD 93 (Cheng (No 2)) at [31]. 3. In Cheng (No 2) at [31] the Tribunal quoted with approval the following observations of Campbell JA in Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [59]-[67] which relevantly included: "[61] In Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at [4], Barwick CJ, Kitto and Taylor JJ referred to two distinct meanings of the expression "burden" or "onus" of proof. "(1) the burden of proof as a matter of law and pleading – the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of "introducing evidence"." [62] Their Honours approved the statement from Phipson on Evidence, 10th ed 1963, para 95: "The burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates." [63] In Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [78], [84] I endeavoured to explain what is involved in there being a shifting of an evidential onus: "If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. …" 1. We consider that these principles apply to this stage 1 hearing. The applicant has the burden of establishing each failure of the respondent in paragraphs 1 to 4 of the particulars of Complaint One. If the applicant establishes sufficient evidence of such a failure, then so far as paragraphs 1 to 3 the respondent has the evidential onus of introducing evidence which tends to show he had a reasonable excuse for the failure. If the respondent does so, then the applicant must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. Whether the respondent failed to take observations regarding Patient A's condition in the specified circumstances and had a reasonable excuse for any such failure Introduction 1. By reason of the facts as set out in the SAF, the parties are agreed as to the circumstances in which the complaint of the failure of the respondent to take observations regarding Patient A's condition in paragraph 1 of the particulars of Complaint One occurred. The evidence of the applicant 1. In the 23 November 2018 Nurse 1 LHD interview, Nurse 1 said that the respondent told her that Patient A was "confused" and his GCS (Glasgow Coma Scale) was "14". She did rounds and checked her patients every hour through the night. She did not know if the respondent did any rounds of his patients. 2. In her cross-examination, Nurse 1 said that observations were done "usually from 5 to 6 in the morning and then 10 to 11, then 2 to 3, then 7 to 8 but observation need to be done if the patient's condition getting worse" such as when a patient's GCS has decreased, when a patient becomes short of breath, and when a patient complains of severe pain. She said that she did not know whether the nurses were understaffed for the night shift. 3. In the 6 December 2018 Nurse 2 LHD interview, Nurse 2 said although there was a practice of doing observations once at around 5.00am to 6.00am that applied to just general patients, not "specially agitated patients". 4. In his oral evidence in chief, Nurse 2 said that staff had been advised to do hourly rounds for the patients in general, but if the patient needed closer supervision and monitoring extra observations should be attempted. In July 2018, it was not common practice to perform observations at the start of the night shift. Generally for most patients it was common practice to do a set of observations from 5am to 6am. 5. In her oral evidence in chief, Nurse 4 said that it was the usual practice in the ward about when to take observations of a patient who was stable four times or three times per shift. 6. In the Parker report Ms Parker expressed the following opinions: 5.1 a) The minimum types of observations to be documented, according the Observations of Adult patients LH_Proc2017_P01.55, are as follows: • Respiratory Rate • Heart Rate • Blood Pressure • Temperature • Oxygen Saturation • Neurological - AVPU • Pain Score According to the Guidelines above, they need to be performed at least 8 hourly unless otherwise indicated. [Patient A's] care plan indicated that they were to be performed 6 hourly. … 5.3 According to [Patient A's] medical records there was no nursing observations documented since 1830 on the 15 July 2018. Therefore on the night shift of 15 July, 2018, RN Wardman took handover and care for this patient at 2130 and did not complete any observations until he went to complete them at 0500 when he found the patient unresponsive. From the interview transcripts of Nurse 2 and the evidence of RN Wardman, it appears that it was common and usual practice for the night staff to only complete observations at end of their shift. If the patients require 8 hourly observations this could appear reasonable. It is difficult to criticise one person for their actions if it was an accepted and usual practice of all the staff on the wards. However, [Patient A] was documented as requiring 6 hourly observations. He had had 4 sets of observations completed on the 15 July, 0600, 1030, 1530 and 1830. It is noted that the previous 24 hr period he had observations documented 5 times but he did not have any observations between the times of 1830 on the 14 July until 0609 on the 15 July. Had Mr Wardman not made the clinical decision to remove the telemetry monitoring his inaction in completing observations before 0500 could be somewhat excused, …" 1. In her oral evidence in chief, Ms Parker gave the following evidence: "Q. Mr Wardman says that you don't necessarily need to do the observations every six hours, what factors would you look at when deciding when to do observations? A. You would look at the patient's history, if they were on any medication that's new or they've just been taken off a medication that you need to check that it hasn't affected their blood pressure or observations in any way and also the culture of the hospital, the routine, the shift I guess would influence the timing of the observations. Q. Is there anything about this patient's patient history, medication, conditions or behaviour during that night shift which would affect when observations should be done? A. I would expect a patient that has had a complex admission such as he had, with numerous complications and a transfer from a high acuity area into a lower acuity area, that you would be more vigilant I guess and doing a patient assessment at the beginning of the shift, which would include observations. … Q. Mr Wardman says that the afternoon nurse instructed him to avoid disturbing the patient, does that play a part in when you'd decide to do observations? A. I guess you know, handover is important, what's happened the shift before, but it's up to you to assess your patient fully and decide whether it warrants disturbing the patient to do observations, the fact that he was on telemetry, so heart rate should've been available. The only one that would've been intrusive to him would be doing the blood pressure, that should be your own decision to make, it's good to have handover but if you're responsible for that patient for the next eight hours. … Q. Mr Wardman says that the patient was resistive and that he couldn't apply the blood pressure cuff and that applying the cuff posed a risk of injuring the patient, can you ..(not transcribable).. blood pressure without(?) having a risk of injuring the patient or with, with any risk of ..(not transcribable).. A. Well I mean it depends on how important it is to get the blood pressure, I mean if, you know a patient is on their side and you know they're sort of curled up and tucked in, you know you can get their arm out and you can get someone else to help you and just to try and you know, have someone to talk to them or you know, just inform the patient on what you're doing and just try and get their arm out and do a blood pressure, you can do it on the bottom of their leg if you needed to, if you really wanted a blood pressure. So just because a patient needs sleep and is a bit delirious doesn't, doesn't sort of negate the need to do basic observations. … Q. Does the timing of the last observation affect when you do the next one? A. Well the next shift change is at 9.30 so I would assume that when you take over the patient's care when you do that first initial round, so that mightn't be until 10.30 or 11 o'clock, certainly before midnight depending on how many patients you're caring for, that you would do a complete set of observations, so it's not too late before that you'd actually settled the patients down for the night." 1. In cross-examination, Ms Parker gave the following evidence: "Q. --and that is that he had regular rounds with visual observations of those matters, albeit undocumented, what would be your opinion? A. I, I think that that's probably common practice on night shift, is to visualise your patients, I mean there's not, you don't have that same movement of people around the ward, the lights are off, there's less people around, so there's more risk that, that something untoward has happened to a patient and, and it might be an hour or an hour and a half before a nurse sees a patient, so it's encouraged, that rounding, of the ward on night shift especially. … Q. Would you agree that looking at the patient load, that is a fairly minimal staffing level? A. Look, I don't know the patient acuity of the rest of the ward, but to have five patients on a night duty is quite reasonable." 1. In answer to questions by the Tribunal, Ms Parker gave the following evidence: "Q. What do you expect a visual round to be, to include? A. I would expect a visual round to be, depending on what area you are, which is what, like, equipment that you've got, but if you're just looking at a patient, making sure that they're breathing, they're safe in the bed, they're warm, just maintaining their safety. If, if, if you were in a ward such as this where you could just slip on a pulse oximeter so you've got a bit more information, that's - you could do that if it was available to you. Q. And not actually doing any observations as such apart from perhaps the sats monitor and just eyeballing the patient, not touching the patient, not-- A. Well, I mean, you would do the observations when, you know, according to their care plan or, or routine of the hospital, of if you were worried about things you would do an extra set, but in terms of, you wouldn't leave someone for, if their observations are six hourly, you would not not look at a patient for six hours during your night shift, so it doesn't necessarily mean doing a full set of observations. I mean, it's easy just to touch someone's hand. You can feel they're warm so they're perfused. You don't, you know, if you're not worried about a blood pressure, you don't need to do one then, so …" The evidence of the respondent 1. In the 1 October 2019 Li email Mr Li said: Mr Wardman checked his pulse and his oxygen saturation at 0030, but is unsure why they were not documented. … His pulse rate was approximately 58 on the pacemaker, as recorded on the cardiac monitor, and his oxygen saturation was approximately 95%. Mr Wardman did not record the information, but recalls this information." 1. In the Wardman affidavit, the respondent gave the following evidence: "11 On the 14 July 2018, when I commenced my third night shift, I was advised by the nurse at hand over, words to the effect: "the Patient requires constant supervision, … 12 It was my understanding that the Patient required four observations to be undertaken every day. It is accepted usual practice at the hospital from what I have seen and learnt that this does not mean that the Patient requires an observation every six hours within the single day period but rather that the Patient required four in total in a day and it did not necessarily mean that they needed to be done in equal periods. … 18 After I checked in, I immediately went to my work station where I met with the hand over nurse. I was told by the hand over nurse, words to the effect, " … I have turned the (bedside) monitor off, so the patient could get some sleep. Do your best to try to not to disturb the Patient during the shift as he needs his sleep. …". … 28 At around 12:00 AM, I attempted to take the Patient's observations, but the Patient's arms were crossed, and I was unable to apply the blood pressure cuff on the Patient's arm. I recall checking his pulse and his oxygen saturation noting that his pulse rate was approximately 58 on the pacemaker, as recorded on the cardiac monitor, and his oxygen saturation was approximately 95%. I did not record my observations at this time. … 46 I then continued to do my work throughout the night. I continued to conduct hourly checks on my patients and noted in particular that the Patient still had slight movement and appeared fine. I did not however document my hourly checks. 47 The Patient was significantly less agitated than he previously was and I observed this to be because the telemetry leads were no longer agitating him. Additionally when I did my hourly checks, the Patient was not displaying any issues which would trigger my concern." 1. In his oral evidence in chief, the respondent gave the following evidence: 1. he could see Patient A in bed 23 from the nurses' bay adjacent to beds 19 and 20 which was a distance of 2.5 metres; 2. he checked Patient A at 2.00am, 3.00am. 3.20am, 4.00am and 5.00am; 3. his check involved inspecting the ECG dots, looking at Patient A, covering Patient A with a sheet, and checking his safety. He also checked he was breathing and estimated his heart rate; 4. the practice in the ward in the night shift was to do observations at midnight if medication was to be administered, and otherwise at 5.00am; 5. he checked Patient A at 4.00am who was restful, clinging to the side of the bed, sleeping, and breathing. 1. In his cross-examination, the respondent gave the following evidence: 1. the times in the Wardman record of checks on Patient A on 15-16 July 2018 were "guesses"; 2. he agreed that if he was concerned enough to request special one to one nursing for Patient A, then he would be concerned to do observations. 1. In his re-examination, the respondent said that the times in the Wardman record of checks on Patient A on 15-16 July 2018 were an "estimate" and not a "guess". The submissions of the applicant 1. The applicant made the following submissions: 1. the Tribunal should not accept the respondent's purported justification that Patient A did not need observations every six hours because the evidence suggested that Patient A's condition during the three night shifts was not stable; 2. the Tribunal should reject the respondent's evidence that he measured Patient A's pulse and oxygen saturation during the third night shift; 3. the Tribunal should reject the respondent's evidence that he physically touched Patient A on 13 times during the third night shift; 4. the Tribunal would not accept the respondent's evidence of justification of reliance on what he was told by the afternoon shift nurse on 15 July 2018. The submissions of the respondent 1. The respondent made the following submissions: 1. it was common, accepted and usual practice of all nursing staff in the ward that, when care plans required observations QID, this meant the observations were required at least four times in a 24 hour period; 2. it was his usual practice to document his observations towards the end of the night shift, being approximately 5.00am, depending on whether medication rounds were required for the patients; 3. it was his intention to complete a set of observations at the end of his shift being around 5.00am on 16 July 2018, which would have meant that in total there would be at least four sets of observations in a 24 hour period; 4. he had attempted to complete a full set of observations but Patient A resisted and he was unable to complete them; 5. he did not fail to take observations, but he took regular observations during his regular rounds, maintained physical observations from his nursing bay, and had intended to document his regular observations; 6. the ward was short staffed. Consideration 1. The issue is whether the respondent undertook observations of Patient A's condition during the night shift on 15 and 16 July 2018, and not whether he failed to record his observations of Patient A's condition. This issue raises the question of whether the respondent had any reasonable excuse for not undertaking observations of Patient A's condition. 2. Contrary to the applicant's submissions, we are not satisfied that Patient A's care plan of "QID" of itself required observations every six hours. In her oral evidence in chief Ms Parker accepted that the timing of observations depended on a multiplicity of factors including "the culture of the hospital, the routine, the shift". 3. There is a conflict between the evidence of Nurse 1 and Nurse 2, on the one hand, and the respondent, on the other hand, as to the practice on the night shift of undertaking observations of the condition of patients in the ward. While all agreed that observations were undertaken from 5.00am to 6.00am, there was disagreement as to whether this practice applied to all patients or only those patients whose condition was stable. 4. We prefer the evidence of Nurse 1 and Nurse 2 that the usual practice did not apply where the patient needed closer supervision and monitoring, such as where their condition was worsening or they were agitated. It is implausible that the nursing staff in deciding the timing of observations would not differentiate between patients according to their condition. 5. We are satisfied that in the following circumstances which were known the respondent on 15-16 July 2018 Patient A needed closer supervision and monitoring: 1. as recorded in the SAF, the respondent when completing the increased supervision form on the second or third night shift ticked the box "unstable behaviour or mental state" and noted behaviour including ""pulling out IDC. Pulled out Femoral line. Pulled out ET Tubing. Removing cardiac monitor. Stripping. Attempting to climb out of bed"; 2. as recorded in the SAF, the respondent when completing the hand over notes at 3.41am on 16 July 2018 recorded that Patient A was "restless, agitated , Pulling off Telemetry, stripping, attempting to climb out of bed"; 3. as recorded in the 23 November 2018 Nurse 1 LHD interview, the respondent during the third night shift informed Nurse 1 that Patient A was "confused". 1. Given these circumstances, the respondent should have undertaken observations of Patient A's condition during the night shift on 15 and 16 July 2018 during his first rounds or at the latest when he decided not to connect the telemetry leads. We did not accept that the resistance of Patient A to the applications of the blood pressure cuff prevented the respondent from undertaking observations of Patient A's condition at around 12.00am for the reasons given by Ms Parker. Whatever attempted observations the respondent undertook at 12.00am it is inherently implausible that he would have measured Patient A's pulse and oxygen saturation, not recorded them, and then over 15 months later be able to give precise instructions to enable Mr Li to record them in the 1 October 2019 Li email. 2. Notwithstanding the tender of the Wardman record of checks on Patient A on 15-16 July 2018 and his oral evidence as to his 13 checks on Patient A on 15-16 July 2018, the respondent did not seek to withdraw paragraph 46 of the SAF that between about 12.00pm and 5.00pm the respondent "viewed Patient A from his bay through the perspex screen and did one visual check". We find that it is likely that the one visual check occurred at about 1.54am when the respondent attended to Patient A's bedside and decided not to reconnect the telemetry leads. 3. Even if we had received and acceded to an application by the respondent to withdraw paragraph 46 of the SAF, in view of our finding that the respondent is not a reliable and credible witness in relation to his evidence of the incident to the extent that it is not recorded in the contemporaneous documentary records, we would not have accepted his evidence that he conducted hourly checks on Patient A between 1.55am and 5.06am. We would have been satisfied that the respondent's failure to refer to having conducted hourly checks on Patient A in the 2 December 2018 log, the 5 December 2018 Wardman LHD interview, the 22 March 2019 response, the 25 March 2019 Council hearing in response to Ms Cheney, and the 1 October 2019 Li email, was an accurate record that he did not conduct hourly checks rather than being an oversight in referring to hourly checks which he conducted. 4. While we accept that the respondent had visual contact with Patient A from the nurses' bay adjacent to beds 19 and 20 from 1.55am to 5.06am, we are not satisfied that this was an appropriate level of observation of Patient A's condition having regard to the following circumstances: 1. the circumstances referred to in paragraph 73 above; 2. the increased risk of an undetected change in Patient A's cardiac condition due to his decision not to reconnect the telemetry leads; 3. visual contact was not an adequate substitute for undertaking observations. If Patient A had continued to resist the taking of observations, the respondent could have placed an oximetry probe on the Patient A's finger to obtain a heart rate and an oxygen saturation level, and have counted Patient A's respiratory rate, and recorded that data in the same way as for observations. 1. We are not satisfied that the ward was short staffed. Even if we had been satisfied that the ward was short staffed, we would not have been satisfied that this provided any reasonable excuse for the respondent not undertaking observations of Patient A's condition. 2. Accordingly, we find that the applicant has established that the respondent failed to take observations of Patient A's condition, and that he did not have any reasonable excuse for this failure. Whether the respondent failed to recognise and respond to Patient A's cardiac event in the specified circumstances and had a reasonable excuse for any such failure Whether the respondent inappropriately silenced the telemetry alarms on several occasions in the specified circumstances Introduction 1. By reason of the facts as set out in the SAF, the parties are agreed as to the circumstances in which the complaint of the failure of the respondent to recognise and respond to Patient A's cardiac event in paragraph 2 of the particulars of Complaint One occurred. 2. The issue, in view of the respondent's admission that he failed to recognise and respond to Patient A's cardiac event, is whether he had any reasonable excuse for not recognising Patient A's cardiac event. 3. The particulars in paragraph 4 of the particulars of Complaint One are limited to the silencing of the telemetry alarm for Patient A between 1.47am and 1.54am. There is no dispute between the parties that there were high alert alarms during this period. 4. However, we are unsure of what is the gravamen of this complaint because paragraph 4 does not specify what appropriate standard is being invoked by the use of the word "inappropriately". The applicant's submissions about paragraph 4 do not clarify the position because they are confined to the question of whether the respondent silenced the alarm and assume that the complaint is established if we make a finding that the respondent silenced the alarm. 5. As will be seen, we have not found it necessary to make any finding about the scope of this complaint as we have found that the applicant has not established that the respondent silenced the alarm. The evidence of the applicant 1. The telemetry data shows alarms for Patient A were silenced 6 times between 1.47am and 1.48pm and 7 times between 1.51am and 1.55pm. Several were high alert alarms recording "Asystole" and "Vent Fib" (ventrical fibrillation). There were also "Leads Off" alarms. 2. In the 23 November 2018 Nurse 1LHD interview, Nurse 1 said that she did not silence the alarm. 3. In her oral evidence in chief, Nurse 1 said that she could not remember seeing anyone silence the alarm, and she could not recall whether she silenced the telemetry alarm for Patient A. 4. In the 6 December 2018 Nurse 3 LHD interview, Nurse 3 said that he saw asystole alarms come up on two or three occasions, the respondent came out of his chair to check, pushed the silence alarm, went back to his table and sat down. He also saw that the respondent was intermittently watching the World Cup soccer final. 5. In the 11 September 2020 Nurse 3 statement, Nurse 3 gave the following evidence: "I do recall seeing multiple alarms for [Patient A] throughout the evening. Majority of alarms I recall were the "V lead off' alarm. I believed this to be from the patient pulling of his monitoring leads as he had previously been doing for multiple days prior. I do recall seeing an asystole alarm later on in the evening but I believed this to be false as the patient still had some leads insitu and I observed a trace on the remaining lead which appeared to be Sinus Rhythm." 1. In his oral evidence in chief, Nurse 3 said that the respondent was intermittently watching the soccer. He saw the respondent silence the leads off alarm. 2. In his cross-examination, Nurse 3 said that he could have silenced the telemetry alarm for Patient A. 3. In answer to questions by the Tribunal, Nurse 3 said that the asystole alarm often comes up when a V lead is off. If he saw a VF on the monitor, he would go and check the patient regardless of whose patient it was. 4. In the 6 December 2018 Nurse 2 LHD interview, Nurse 2 thinks that one of his colleagues did silence the alarm for Patient A, but he could not remember. 5. In the 11 September 2020 Nurse 2 statement, Nurse 2 gave the following evidence: "9. … the telemetry beeped and I saw a bit of artefacts for some of the alarms. The alarms for the patient was frequent but I do not remember what I heard or saw on each occasion. … 15. …. I do not recall if RN Wardman, other colleagues or myself silenced the alarms. 16, …. I remember seeing RN Wardman watching the World Cup as well during the night shift. He watched parts of the game in both halves of the match, possibly about half of the entire match, but he would be constantly interrupted by the alarms of the telemetry from the patient and the constant restlessness and removal of the telemetry leads by the patient." 1. In his cross-examination, Nurse 2 said that the respondent watched some of both halves of the soccer, and possibly about half of the match. He could not recall whether he silenced the telemetry alarm for Patient A. 2. In her oral evidence in chief, Nurse 4 said that the respondent sat and watched the World Cup soccer now and then, for "maybe minutes". She said that she did not see or remember anyone silencing the alarm as she was busy with her patients. She did not silence the alarm for Patient A. 3. In her oral evidence in chief, Ms Steiner said that an alarm for a patient could be silenced at the bedside or the central monitor. Between 1.47am and 1.55am the telemetry device raised high alert alarms. 4. In answer to questions by the Tribunal, Ms Steiner gave the following evidence: "Q. Ms Steiner, the spreadsheet that Ms Bayley took you to under tab 7 there there's also some asterisks next to the alarms. Do they mean anything? A. Those asterisks - for instance, if there's three asterisks, it just indicates that it's a high level alarm. Q. When that sounds as an audible alarm is it a different character? A. So we have red alarms and yellow alarms, so the red alarms are those high priority alarms, it's a higher pitch and obviously you see the red message associated with it. The yellow alarms are a different pitch, a little less severe Q. The other thing I was going to ask, when you do the training with staff with the new monitors, do you go through what I might call artefact or interference, you know if a patient takes their leads off, it's often a cause for an alarm or if there's not a good connection and you might get what I might call artefact, is that something that you talk about when you do the education? … Q. When that sort of interference alarm sounds, is that a different sound again or would that be like a yellow sound or A. It depends on what kind of interference it's picking up, yeah." 1. In the Parker report Ms Parker expressed the following opinion: "5.7 … It is a mystery how an experienced registered nurse, with current relevant education sessions, could clearly just not recognise a basic life threatening event such as ventricular fibrillation. There is no other explanation as the telemetry evidence is undeniable. … the misinterpretation of a life threatening cardiac event being mistaken for leads being pulled off is unacceptable. … "5.8 As discussed in 5.7, the actions of RN Wardman of silencing alarms denied the opportunity for other members of his team to assist him in the interpretation of the patient's cardiac rhythm. The alarms were silenced 13 times between the times of 0147 and 0155." 1. In her cross-examination, Ms Parker gave the following evidence: "Q. I'm actually asking about the signs and symptoms of a patient such as [Patient A] who is having such a cardiac event, and the-- A. Well he would-- Q. --physical symptoms of that? A. He would've been unresponsive, he might have been moaning or making some sounds, but he wouldn't have made any purposeful you know, mentation and he may or not have been breathing, it might have been very sort of agonal gasping kind of breaths or he might not have been breathing at all and depending on how long he'd been like that, to what his colour would've been and he certainly wouldn't have had any output. … Q. Mr Wardman talks about when he was trying to deal with the situation to reaffix the leads, non-compliant combative type of patient, and my question is, is it possible that with a patient having that situation, that cardiac event, that could I guess permeate in different matters, it can exemplify and show itself with different signs and symptoms? A. Well that's hard to, I mean all patients are different but I mean he could've, he could've been not in that ventricular fibrillation rhythm when the leads were put back on, he might have been in a ventricular tachycardia or a slow ventricular agonal rhythm, there could've been lots of things that were happening to him and he might have still been a bit awake until the leads went on and then he went into VF, so it's a bit hard to make a judgment about that. … Q. Mr Wardman's version of what occurred on the night at the time was that he was far from unresponsive and far from lacking in breathing. He was actually combative and non-compliant with arms crossed over and essentially fighting Mr Wardman off, from reattaching the leads. A. Yep. Q. Would you agree that that is not the classic sign and symptom of someone who's having a cardiac event? A. Yeah, I agree with that. Q. I think you said it was also possible that he was having a seizure. Do you have a hypothesis around the like? A. It could have been yes." The evidence of the respondent 1. In the Wardman affidavit, the respondent gave the following evidence: "32 At around 1:45 AM however I heard the first alarm go off. I did a quick visual observation at where my patients were located and noticed that none of them were displaying any problems. 33 I then tried to look at the cardiac monitor work station to see if there was an issue with my patients, however my view of this was obstructed by the monitor which was set by Nurse 3. By the time, I was able to get a clearer view of the cardiac monitor work station, the alarm stopped. 34 At the time, I also noticed that the other nurses were attending to their patients and had assumed that the alarm was meant for them. 35 A short while later, I then heard the alarm go off again. I then repeated `the steps above, I did a visual observation of my patients and then again tried to look at the cardiac monitor work station to see if there was an issue with my patients. Again by the time I was able to see the cardiac monitor work station, the alarm was off again. 36 This happened a few times before I became concerned and decided to do a close visual observation of my patients. 37 I did not at any time during this period, silence any of the alarms. I do not know who was silencing the alarms or whether there was a fault with the alarm system. I deny ever silencing the alarm and failing to attend to the alarm. 38 I was not the only nurse or medical staff who had access to the alarms. All other medical personnel on duty that night had access to the alarms. 39 It was at this time, around 1:55 AM, that I noticed there was an issue with the Patient. I recall telling Nurse 3, words to the effect, "the Patient is agitated and keeps removing his leads, I need to go and help him". I do not recall speaking to anyone else at the time about this. 40 On review of the Patient, I observed that the Patient was curled up on his right side. I observed that the cardiac monitor (telemetry leads and telemetry box) was wrapped around his left thigh and stuck to the left side of hip. 41 On checking the Patient's airway while he was on his right side he moaned. I informed the Patient that I needed to check his pulse and blood pressure. I also observed that his right and left arms where tightly clenched across his chest. 42 I attempted to reapply the telemetry leads on the Patient, however he kept resisting and placed his arms firmly clenched across his chest. 43 I recall seeing some of the other nurses watching me attend to this out of the corner of my eye, however they did not offer any assistance. … 45 I recall that I observed that the Patient's perfusion was 'within normal range' however I did not record this observation. I informed the Patient that I would come back later to check on him." 1. In his oral evidence in chief, the respondent gave the following evidence: "Q. The next matter that the applicant has contended you failed to do is the failure to recognise a cardiac event. What do you tell the Members of the Tribunal? A. That because I was under stress and very agitated and concerned that I viewed the patient's leads were off and I couldn't get his legs, I didn't actually look at the telemetry monitor so I could have - I could have - I could have missed it and I did not analyse the rhythm strips at that time. … Q. The final matter that the applicant has brought is that you silenced the alarms. What do you say about that? A. Well, when did I actually silence them on because I was actually on the patient's bedside reapplying the leads onto the patient so I physically could not be in two places at once trying to silence the alarms at the computer and be at the bedside applying leads. Q. Just on that matter, Nurse 3 gave evidence that he saw you silence the alarms at the central monitoring station within the nurses bay on a few occasions - on multiple occasions he said. What do you say about that? A. He could have accidentally saw me trying to review the ECG alarm - the ECG rhythms and probably identified me as silencing the alarms because his view might have been the box while I was actually - actually reviewing the patient's cardiac monitor rhythm strip. Q. For the record, did you silence the alarms at the central monitoring station in the nurses bay at any stage? A. I never touched the button or the mouse at any stage. Q. Is it possible that you may have silenced the alarms around 1.47am and 1.55am when you were at the bedside of [Patient A]? A. As I stated before, when I had the leads and the telemetry in my hand obviously the leads were off so I had to silence the alarm to indicate the leads were off so there was no noise disturbing the patients. 1. In his cross-examination, the respondent gave evidence that he watched about a quarter of each half of the World Cup soccer final. He accepted that if his view of the central monitor was obscured by other nurses or the computer on wheels, he could have moved his position or asked them to move. He said he saw the leads off, he didn't actually look at the monitor, "I could've missed it" and he didn't analyse the rhythm strips at the time. The submissions of the applicant 1. The applicant made the following submissions: 1. the Tribunal should not accept the respondent's claim that he did not have any training or qualifications in cardiology because: 1. he had been working in the ward for about 5 years; 2. he had previously attended several courses about cardiac care; 1. how Patient A was behaving at that particular time is more difficult to assess because it relies on the respondent's recollection of his behaviour during the night shift and the respondent's memory about when that behaviour occurred by reference to a cardiac event which the respondent did not recognise at the time. It is therefore difficult to know whether Patient A was actually combative at the time of the cardiac event; 2. it is also difficult to surmise why the respondent did not recognise the cardiac event: perhaps poor lighting, perhaps because the visual display of the bedside monitor was turned off, perhaps because he was frustrated/flustered, perhaps he assumed that it was another leads off alarm, or perhaps he assumed that because Patient A was combative he was at a lower risk of a cardiac event. The submissions of the respondent 1. The respondent made the following submissions: 1. he had not been provided with sufficient cardiac care training and had limited training on the use of the telemetry equipment; 2. Patient A at approximately 1.47am was combative, non-compliant and refused to allow the telemetry leads to stay on; 3. Nurses 1 to 4 indicated to the Tribunal that they did not notice anything urgent either on the central monitor or on the high priority alarm, as they would have responded, even if it were not their patient. Consideration 1. We are satisfied that Patient A suffered a ventrical fibrillation between 1.47am and 1.54am on 16 July 2018 and that the occurrence of this cardiac event was visible upon examination of the telemetry data on the central monitor and audible on the sounding of the high alert alarm. 2. We are not satisfied that the respondent should have recognised Patient A had suffered a cardiac event and inappropriately silenced the telemetry alarms on several occasions for the following reasons: 1. there is no evidence as to Patient A's physical appearance between 1.47am and 1.54am on 16 July 2018. Whether the respondent was at Patient A's bedside, at the nurses' bay adjacent to beds 19 and 20, or at the nurses' bay adjacent to beds 19 and 20, he may not have been able to discern any change in Patient A's physical appearance. Ms Parker accepted that Patient A may have been moaning or making sounds and breathing during this event. Any such condition could have appeared to be a continuation of his disturbed or agitated condition that had been observed previously. Ms Parker agreed that Patient A's non-compliance with arms crossed over and essentially fighting the respondent off from reattaching the leads were not the classic sign and symptom of someone who is having a cardiac event; 2. while the high alert alarm which sounded at the central monitor between 1.47am and 1.54am on 16 July 2018 provided a clear indication that Patient A was suffering a cardiac event, these alarms could have been silenced by one or more of Nurse 1, Nurse 3 and Nurse 2 in the belief that they were false alarms. Nurse 1 and Nurse 2 could not remember whether they silenced the alarm. Nurse 3 conceded that he could have silenced the alarm. Nurse 3 also conceded that he had seen the asystole alarm sound for Patient A, but believed that it was a false alarm. 1. While there is insufficient evidence to make any finding as to the actions of the nursing staff between 1.47am and 1.54am on 16 July 2018, it is conceivable that during this period Nurse 3, Nurse 2 and the respondent were looking at the World Cup soccer final on the computer on wheels located in the nurses' bay adjacent to beds 11 and 12, and that Nurse 3 or Nurse 2 silenced the alarms in the belief that they were false alarms. One of the unsolved puzzles is by whom and in what circumstances the "Vent Fib" alarm was silenced. 2. We are not satisfied that the respondent lacked the necessary training to recognise that Patient A had suffered a cardiac event for the following reasons: 1. he was an experienced nurse, had received substantial cardiac training and had been deployed in the ward for over five years; 2. his inexperience with telemetry did not contribute to this failure because he admitted that he did not analyse the rhythm strips and may not even have looked at the monitor. 1. Accordingly, we find that the applicant has not established that the respondent did not have any reasonable excuse for his failure to recognise and respond to Patient A's cardiac event, and that the respondent inappropriately silenced the telemetry alarms on several occasions. Whether the respondent failed to reconnect Patient A's telemetry leads in the specified circumstances and had a reasonable excuse for any such failure Introduction 1. By reason of the facts as set out in the SAF, the parties are agreed as to the circumstances in which the complaint of the failure of the respondent to reconnect Patient A's telemetry leads in paragraph 3 of the particulars of Complaint One occurred. 2. The issue, in view of the respondent's admission that he failed to reconnect Patient A's telemetry leads, is whether he had any reasonable excuse for not doing so. The evidence of the applicant 1. The Clinical Guideline attached to Cardiac monitoring of adult cardiac patients in NSW public hospitals which was published on 17 August 2016 (the 2016 Clinical Guideline) and quoted in paragraph 5.5 of In the Parker report contains the following definition of "clinically stable": "Clinically stable means that the patient has not exhibited any of the following during the previous 24 hours: • recurrence of symptoms of myocardial ischaemia • cardiac arrhythmias requiring intervention • haemodynamic instability requiring supportive therapy (i.e. intravenous vasoactive medications or temporary cardiac pacing." 1. In the 23 November 2018 Nurse 1 LHD interview, Nurse 1 said that "Usually the Doctor should be involved like we call the Doctor to say … 'Can we take off the monitor or not?'" 2. In her oral evidence in chief, Nurse 1 said that the usual practice is that the medical team decide when to discontinue telemetry monitoring. 3. In her cross-examination, Nurse 1 agreed that in circumstances where patients do not find the attachment of the leads telemetry comfortable and are rejecting their attachment, "you should speak to the medical team to review the patient for the patient's safety". 4. In the 6 December 2018 Nurse 3 LHD interview, Nurse 3 said that "we get an order … from the doctor (that the) patient can come off telemetry monitoring". 5. In his oral evidence in chief, Nurse 3 gave the following evidence: "Q. Is there any usual practice about nursing staff making that decision to leave leads off? A. I know that they can, so the defibrillator accredited nurses, we do have telemetry monitoring guidelines in the ward that give an outline as to what's required for monitoring and what's not. As far as I'm aware, RNs can make that decision but generally that's not something that they do in, like, in my ward in terms of common practice, so it's usually better to get a medical order and documentation to say that they're happy for that to be ceased." 1. In his oral evidence in chief, Nurse 2 gave the following evidence: "Q. Was there any usual practice in the ward amongst the nursing staff back at that time about when a decision could be made to leave the leads off? A. I don't believe so. We should always keep the leads on, unless you're, unless it's clearly documented by the medical officer or you have sufficient reason to take it off." 1. In answer to questions by the Tribunal, Nurse 2 gave the following evidence: "Q. You said that you should always keep the leads on unless you get a medical officer to review the patient or you have sufficient reasons to take the leads off. Can you just expand on what you meant by "sufficient reasons to take the leads off?" A. … If the patient is deemed safe enough, mostly by clinical judgment, unless, you know, the patient is really unstable or unwell, then there should be no reason to - but they, yeah, they shouldn't be a reason to take the leads off if the patient is unstable and unwell. …" 1. In the Parker report, Ms Parker expressed the following opinion: "5.5 According to the Cardiac Monitoring of Adult Cardiac Patients in NSW Public Hospitals, it could be said that [Patient A] did not require telemetry. Post operative cardiac surgery patients are to be monitored for 48 hours, [Patient A's] MVR and CAVG was on 26 June 2019 and his single wire cardiac pacemaker was implanted on 6 July 2018. Patients are to be assessed every 24 hours by the admitted medical team to decide whether telemetry is still required. It is stated in the guideline... "Patients should have cardiac monitoring ceased by registered nursing staff at the completion of the recommended monitoring period if they are assessed as clinically stable, unless there is a written medical order to continue NB the decision to discontinue cardiac monitoring should be discussed with the RN in charge or another competent registered nurse" If RN Wardman felt that the patient was distressed and agitated because the telemetry leads were annoying him, there are steps that could have been taken to ensure the safety of the patient and make an informed clinical decision to remove the telemetry or put the monitor in standby: • Firstly a full set of observations should have been performed and documented, • a 12 lead ECG performed with a proper interrogation of the cardiac rhythm and rate • check if the patient had recent pathology to confirm electrolyte balance • at the minimum discuss this with your in charge RN and come to a decision together • If unsure, leave the telemetry connected or call the night medical officer to review the patient I note the medical progress note on 13 July at 1345, the plan of care was "... Since not on Dobutamine, patient does not require CCU or cardiac monitoring anymore" Although it has been documented that telemetry was not required, once the patient moved to the ward, it was in fact put on the patient and there were no further medical entry to remove it. It does not appear this requirement was assessed by a senior nurse who could have made the decision to remove the telemetry. Unfortunately for RN Wardman, because the telemetry was on the patient, it is expected that the nurses are able to management and interpret that information safely and correctly." 1. In her oral evidence in chief, Ms Parker gave the following evidence: "Q. If Mr Wardman was unable to reattach the lead for whatever reason, what would you expect a nurse of his training and experience to do? A. I would expect that you do a full set of observations, talk to your in charge nurse and have a conversation about whether, what the benefits and you know, the pros and cons of having the telemetry on, to his comfort and sleeping, or his risk of a cardiac event, so it's - you'd want all of that information before you decide to take them off." 1. In her re-examination, Ms Parker gave the following evidence: "Q. You were taken to the medical note about where a doctor some time previously had made a note about a plan to remove telemetry. Do you maintain the view in your expert report that if at the start of the shift telemetry was still attached to the patient that you maintain your criticism? A. Yes, so that hasn't, that hasn't been decided to be removed by either the doctor or the senior nurse and documented appropriately. I'd expect that you maintain that until a more senior person can make that decision." The evidence of the respondent 1. In the Wardman affidavit, the respondent gave the following evidence: "44 Having been advised by the handover nurse to try my best to not disturb the Patient's sleep and the fact that the telemetry leads appeared to be agitating the Patient, as he was constantly removing them, I made the clinical decision to leave the telemetry leads disconnected. I did not remove the telemetry leads myself, as they were already disconnected when I attended to the Patient." 1. In his oral evidence in chief, the respondent gave the following evidence: "Q. Did you consult with anyone prior to or at the time of you making that clinical decision to leave the leads off? A. No, I didn't. Q. Why did you not do so? A. Because I reviewed the patient's medical orders and reviewed the patient's nursing care plan and there was no indication that the patient required - clear indication the patient required telemetry. The patient was actually in a pacemaker that would actually indicate false readings on the telemetry." 1. In his cross-examination, the respondent the respondent gave the following evidence: "Q. You didn't seek a medical review before you decided not to reattach the leads? A. Yes. Q. You could have gone to Nurse 1's bay and asked her about it? A. That would actually be taking eyes off the patient so then there would be less visual contact with the patient which was too risky. Q. So you were so concerned about keeping your eyes on the patient that you didn't want to step up - walk up the ward to speak to Nurse 1 for assistance. Is that right? A. Yes." The submissions of the applicant 1. The applicant made the following submissions: 1. the Tribunal would not accept the respondent's purported justification that the afternoon nurse had instructed him not to wake Patient A; 2. the Tribunal would not accept the respondent's purported justification that Patient A refused to wear the cardiac monitor and prevented him reattaching the leads. The submissions of the respondent 1. The respondent made the following submissions: 1. he had on multiple occasions during the care of Patient A both on the night of the incident and the prior nights, observed that Patient A was disconnecting the telemetry leads; 2. he accepted the advice from the day shift nurse that Patient A was to be disturbed minimally and to allow Patient A to obtain optimal rest; 3. there were no directions by any medical staff that the telemetry leads were required to remain on Patient A; 4. he made a clinical decision based on what was observed by him to leave the telemetry leads off and that accorded with accepted practice; 5. when Patient A was non-compliant around 1.47am and refused to allow the telemetry leads to stay on, he was left with no option but to leave them off and rely on observations through regular rounds and constant visual observation. Consideration 1. We are satisfied that Patient A had detached the telemetry leads on several occasions on previous night shifts and as well the night shift on 15-16 July 2018, and was resistant to their reconnection. 2. There is a conflict between the evidence of Nurse 1, Nurse 3 and Nurse 2, on the one hand, and the respondent, on the other hand, as to the usual practice for the removal of telemetry leads on a patient. 3. We prefer the evidence of Nurse 1, Nurse 3 and Nurse 2 that even where a patient's care plan provided for the removal of telemetry leads on a patient, the usual practice in the ward was to obtain permission from a medical officer. 4. In view of paragraph 3 of the particulars of Complaint One we consider that it is unnecessary to consider the usual practice in the ward in relation to the respondent's failure to reconnect Patient A's telemetry leads. In any event, this usual practice in the ward was irrelevant to Patient A as his medical plan when he was transferred to the ward on the evening of 13 July 2018 indicated that cardiac monitoring was to cease. Nonetheless, it would have been prudent for the respondent to have obtained a medical review or to have consulted with Nurse 1 before making the decision not to reconnect the telemetry leads. 5. We are not satisfied that the respondent had any proper basis for his clinical decision not to reconnect Patient A's telemetry leads on account of his failure to assess whether Patient A was clinically stable within the meaning of the 2016 Clinical Guideline. This assessment could have involved taking observations of Patient A to the extent of placing an oximetry probe on the Patient A's finger to obtain a heart rate and an oxygen saturation level, and counting Patient A's respiratory rate, which could have been readily undertaken even though Patient A was resistant to the reconnection of the telemetry leads. If he had done so he may have ascertained that Patient A had experienced ventrical fibrillation between 1.48am and 1.53am. We accept that in view of Patient A's agitation it was not realistic for him to have conducted a full set of observations on Patient A. 6. We reject the respondent's submissions that he was left with no option but to leave the telemetry leads off, and that his clinical decision not to reconnect Patient A's telemetry leads accorded with accepted practice. We accept that the respondent when faced with Patient A's resistance to their reconnection had the options identified by Ms Parker as well as the option of seeking the help of one of his colleagues. 7. Accordingly, we find that the applicant has established that the respondent failed to reconnect Patient A's telemetry leads, and that he did not have any reasonable excuse for his failure to reconnect Patient A's telemetry leads. Whether any such proved conduct constitutes unsatisfactory professional conduct Introduction 1. As we have found that the applicant has not established that the respondent did not have any reasonable excuse for his failure to recognise and respond to Patient A's cardiac event, and that the respondent inappropriately silenced the telemetry alarms on several occasions, we have not considered the applicant's submissions in relation to paragraphs 2 and 4 of the particulars of Complaint One. The evidence of the applicant 1. The NSW Health Code of Conduct, which was published on 16 December 2015, relevantly provides: "4.3 Acting professionally and ethically Staff must: 4.3.1 At all times act in a way which is consistent with NSW Health's duties of care to its patients and clients, and its obligations to provide a safe and supportive environment on its premises for patients and their family members … 4.3.5 Carry out their duties diligently and efficiently … 4.3.10 Maintain and enhance their professional standards and skills, and keep up to date with best practice" 1. The Code of Ethics for Nurses in Australia, which was published in August 2008 (the 2008 Code of Ethics), relevantly provides: "Value statement 1 Nurses value quality nursing care for all people Explanation … 1. Self: Nurses who value quality nursing care recognise that they are accountable for the decisions they make regarding a person's care; accept their moral and legal responsibilities for ensuring they have the knowledge, skills and experience necessary to provide safe and competent nursing care; and practise within the boundaries of their professional role. … Value Statement 5 Nurses value informed decision-making Explanation … 1. Self: Nurses make informed decisions in relation to their practice within the constraints of their professional role and in accordance with ethical and legal requirements." 1. On 1 March 2018, the 2008 Code of Ethics ceased to be in force and was replaced by the Code of Conduct for nurses (the 2018 Code of conduct), which relevantly provides: "Principle 2: Person-centred practice Value Nurses provide safe, person-centred, evidence-based practice for the health and wellbeing of people and, in partnership with the person, promote shared decision-making and care delivery between the person, nominated partners, family, friends and health professionals. 2.1 Nursing practice Nurses apply person-centred and evidence-based decision-making, and have a responsibility to ensure the delivery of safe and quality care." 1. The Registered Nurses Standards for Practice of the Nursing and Midwifery Board of Australia, which was published on 1 June 2016, relevantly provides: "The Registered nurse standards for practice consist of the following seven standards: 1. Thinks critically and analyses nursing practice. 2. Engages in therapeutic and professional relationships. 3. Maintains the capability for practice. 4. Comprehensively conducts assessments. 5. Develops a plan for nursing practice. 6. Provides safe, appropriate and responsive quality nursing practice. 7. Evaluates outcomes to inform nursing practice." 1. In the Parker report Ms Parker expressed the following opinions: "5.3 … but the fact that he did not complete a full set of observations before removing telemetry, to make an informed decision constitutes conduct that falls significantly below what would be reasonably expected of a practitioner with the same training or experience as the practitioner in this complaint. This departure from the standard, invites my strong criticism of the conduct of this practitioner, as described in s139B Health Practitioners Regulation National Law 2010 (NSW). … 5.5 … This conduct (of not reconnecting the telemetry leads) that falls significantly below what would be reasonably expected of a practitioner with the same training or experience as the practitioner in this complaint. This departure from the standard, invites my strong criticism of the conduct of this practitioner, as described in s139B Health Practitioners Regulation National Law 2010 (NSW). 5.6 As discussed at 5.5, RN Wardmans decision not to attempt to reconnect the telemetry leads or place the leads back on [Patient A's] chest falls significantly below what would be reasonably expected of a practitioner with the same training or experience as the practitioner in this complaint. The reasons and actions that should have been taken are outlined above. This departure from the standard, invites my strong criticism of the conduct of this practitioner, as described in s139B Health Practitioners Regulation National Law 2010 (NSW). It is clear that RN Wardman failed to recognise the patient was in a life threatening arrthymia. … 5.10 RN Wardman has breached 4.3.1 of the NSW health Code of Conduct. He failed to act in a way which is consistent with his duty of care to his patient and he failed to provide a safe environment for [Patient A] It appears he also was in breach of 4.3.5 as he did not carry out his duties diligently and efficiently. Part 4.3.10 of the Code of Conduct has also not been met as he failed to maintain his skills and keep up to date with best practice. Although RN Wardman did attend numerous education sessions, it appears that this knowledge did not translate into his practice. With reference to the Code of Ethics for Nurses in Australia, RN Wardman has not met the requirements of Value Statement 1 - Nurses value quality nursing care for all people. … … He did not have the skills and competence to care for this patient, even though it appears he has had the experience and education to do so. Value statement 5 - Nurses value informed decision-making. … RN Wardman has not met this standard as he made a clinical decision to remove the telemetry from the patient without a full and proper assessment of that patient and without a discussion with RN in charge of the shift. This decision had a catastrophic consequence for [Patient A]. With reference to the Nursing and Midwifery Board of Australia's Registered Nurses Standards for Practice, the following standards have not been met for the same reasons as listed above. • Standard 1 - Thinks critically and analyses nursing practice • Standard 2 - Engages in therapeutic and professional relationships • Standard 3 - Maintains the capability for practice • Standard 4 - Comprehensively conducts assessments • Standard 5 - Develops a plan for nursing practice • Standard 6 - Provides safe, appropriate and responsive quality nursing practice • Standard 7 - Evaluates outcomes to inform nursing practice This conduct that falls significantly below what would be reasonably expected of a practitioner with the same training or experience as the practitioner in this complaint. This departure from the standard, invites my strong criticism of the conduct of this practitioner, as described in s139B Health Practitioners Regulation National Law 2010 (NSW)." (bold print in the original) The submissions of the applicant 1. The applicant made the following submissions: 1. the respondent's conduct in paragraphs 1 and 3 of the particulars of Complaint One amounts to unsatisfactory professional conduct under s 139B(1)(a) of the National Law; 2. the respondent's conduct in paragraph 3 of the particulars of Complaint One may amount to unsatisfactory professional conduct under s 139B(1)(l) of the National Law because it is improper/unethical in the following respects: 1. he breached cll 4.3.1 and 4.3.5 of the NSW Health Code of Conduct; 2. he breached value statement 1 and 5 of the Code of Ethics for Nurses in Australia; 1. the respondent's conduct in each of paragraphs 1 and 3 of the particulars of Complaint One justifies a finding of unsatisfactory professional conduct. In the alternative, when the respondent's conduct in these two paragraphs is taken together, a finding of unsatisfactory professional conduct is justified. The submissions of the respondent 1. The respondent in his submissions at [99] submits that his conduct occurred the following context: "g. On the evening in question, the in charge RN Nurse 1 also agreed to a one on one special as requested by the Respondent. Nurse 1 initially decided to allocate Nurse 3 to the Patient, but Nurse 3 spoke against the initial decision of Nurse 1, arguing that it was not necessary given where the Patient's bed (Bed 23) was located relative to the nursing bay where most of the nursing staff for the evening were located (including the Respondent and himself), and that he would assist if required in the Patient's care. … i. It should also be noted that the preliminary decision by Nurse 1 was for Nurse 3 to attend to the special one to one care of the Patient. It is unremarkable that it was Nurse 3 who spoke out against the preliminary decision. It is also not coincidental that we find out after he had unbeknownst to everyone made arrangements to set up watch the World Cup soccer finals. j. It is self-evident that had the preliminary decision proceeded that would have affected Nurse 3's plans to watch the World Cup soccer finals later that evening. Had that preliminary decision proceeded without Nurse 3's intervention, a different outcome may have been reached. … l. It is submitted that had the Respondent's request for a one on one special been granted, there may have been a different patient outcome." Consideration 1. In approaching we are satisfied that the following legal principles are applicable: 1. the same conduct can amount to unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law: Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [59]-[66]; 2. an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102]. 1. We accept the opinions of Ms Parker expressed In the Parker report. However, we note that Ms Parker expressed opinions about the respondent's compliance with provisions of the 2008 Code of Ethics rather than the applicable provisions of the 2018 Code of Conduct which was in force at the time of the incident. We regard her opinions in relation to the 2008 Code of Ethics as being equally applicable to Principle 2 of the 2018 Code of Conduct. 2. We reject the submissions of the respondent that the contextual matters on which he relies lessens his culpability. His responsibility was to provide care to Patient A notwithstanding that his request for special one to one nursing for Patient A had been recommended by a doctor. His responsibility to provide care to Patient A was unaltered by the fact that the World Cup soccer final was screened on a computer on wheels located in the nurses' bay adjacent to beds 11 and 12. It was his decision to view parts of the match. 3. Accordingly, we find that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law in respect of the following complaints against him in relation to Patient A: 1. the failure to take observations regarding Patient A's condition in the specified circumstances; 2. the failure to reconnect Patient A's telemetry leads in the specified circumstances. Whether any such proved conduct constitutes professional misconduct Introduction 1. The particulars of Complaint Two are paragraphs 1 to 4 of the particulars of Complaint One. 2. As we have found that the applicant has not established that the respondent did not have any reasonable excuse for his failure to recognise and respond to Patient A's cardiac event, and that the respondent inappropriately silenced the telemetry alarms on several occasions, it is unnecessary to consider the respondent's conduct in paragraphs 2 and 4 of the particulars of Complaint One. The applicable legal principles 1. in Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 at [19]-[20] Basten JA relevantly said: "[19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. … [20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …" The submissions of the applicant 1. The applicant submits that the respondent's conduct amounts to professional misconduct because he has engaged in 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 the suspension or cancellation of his registration. The submissions of the respondent 1. The respondent made the same submissions as for the issue as to whether his conduct in paragraphs 1 and 3 of the particulars of Complaint One amounts to unsatisfactory professional conduct. Consideration 1. The applicant's submissions are based on the respondent' having engaged in more than one instance of unsatisfactory professional conduct which we have found did not occur. 2. We are satisfied that the unsatisfactory professional conduct of the respondent when considered together is of a sufficiently serious nature to justify suspension or cancellation of his registration within s 139E(b) of the National Law for the following reasons: 1. the catastrophic consequences for Patient A; 2. the failure to take observations regarding Patient A's condition was a fundamental obligation which was breached, and a departure from the usual practice of the ward for a patient in Patient A's condition for which there was no satisfactory explanation; 3. his decision not to reconnect Patient A's telemetry leads was a departure from the 2016 Clinical Guideline for which there was no satisfactory explanation, and was reckless. 1. Accordingly, we find that the respondent is guilty of professional misconduct within s 139E(b) of the National Law. The further course of the proceedings 1. Consequent upon our finding that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law and of professional misconduct within s 139E(b) of the National Law there will need to be a stage 2 hearing to determine what protective orders should be made. Orders 1. We make the following orders: 1. For the purposes of these proceedings: 1. the name of the patient referred to in the Application for disciplinary findings and orders is anonymised as Patient A; 2. the name of the four nurses other than the respondent working in the ward on the night shift on 16 July 2020 are anonymised as Nurse 1, Nurse 2, Nurse 3, and Nurse 4, respectively. 1. the publication of the name of the Patient A, and Nurses 1 to 4, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited; 2. the applicant is to inform the respondent of what protective orders it seeks within 7 days; 3. the respondent is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 21 days thereafter; 4. the applicant is to file and serve any further evidence, and an outline of submissions, on what protective orders should be made within 14 days thereafter; 5. the proceedings are adjourned for the conduct of the stage 2 hearing to a date to be fixed by the Registrar. ********** 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: 04 November 2020