Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Chikuku [2021] NSWCATOD 58 Hearing dates: 16 – 20 November 2020 and by written submissions dated 15 January 2021, 26 February 2021 and 5 March 2021 Date of orders: 11 May 2021 Decision date: 11 May 2021 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member J O'Baugh, Senior Member Dr S Schulz-Robinson, Senior Member J Houen, General Member Decision: (1) The Complaint is dismissed. (2) The Health Care Complaints Commission is to pay Ms Chikuku's costs of and incidental to these proceedings as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: HEALTH — professional registration and discipline — complaints — nurse — mental health nursing — failure to observe patient in acute inpatient facility — disciplinary action Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Texts Cited: Nursing and Midwifery Board of Australia, "Code of Ethics for Nurses in Australia" (August 2008) Nursing and Midwifery Board of Australia, "Code of Professional Conduct for Nurses in Australia" (August 2008) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Phoebe Chikuku (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) New South Wales Nurses and Midwives' Association (Respondent) File Number(s): 2020/00274863 Publication restriction: Under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure to any person or entity of the names, addresses or any other identifying information of Patient A or his family is prohibited. A non-publication order is made in relation to the photographic images contained in the Health Care Complaints Commission's bundle of documents which appear at Tab 12 of those documents. Reasons for Decision Introduction 1. Ms Chikuku was first registered as a nurse in Australia on 18 March 2013 after migrating from the United Kingdom. Prior to migrating to Australia, Ms Chikuku had worked as a nurse at a hospital in London for 12 years. 2. In January 2014 Ms Chikuku commenced employment as a registered nurse in an Acute Mental Health Unit at a large Sydney hospital (the Hospital). Ms Chikuku also works casually at two other Sydney hospitals. 3. Whilst working in the Acute Mental Health Unit (ACMHU) Ms Chikuku was part of a team of nurses on a night shift responsible for providing care to a patient whom we refer to in this decision as Patient A. In May 2017, during the night, Patient A took his own life. 4. In September 2020 the Health Care Complaints Commission (the Commission) brought disciplinary proceedings against Ms Chikuku alleging unsatisfactory professional conduct and professional misconduct in relation to the care she provided to Patient A. 5. There were five registered nurses on duty during the night shift when Patient A died, including Ms Chikuku. Each nurse had a different role during the night shift, and the conduct of each nurse is the subject of separate disciplinary proceedings brought by the Commission. 6. In essence, all of the matters brought by the Commission allege a failure by the nurses, including Ms Chikuku, to provide proper observations and make appropriate records for Patient A. 7. We heard the five separate cases against the nurses, including Ms Chikuku, consecutively. Under s 165D of the Health Practitioner Regulation National Law (NSW) (the National Law) we made an order joining the Complaints, but we have made separate decisions in respect of each nurse. 8. Both stage 1, regarding the culpability of individual nurses in relation to the Complaints before the Tribunal and stage 2, regarding the issue of what disciplinary orders it is appropriate for the Tribunal to make, were the subject of evidence and submissions. 9. In respect of the other four nurses see proceedings: Health Care Complaints Commission v Brown (2020/00182212); Health Care Complaints Commission v Watkins (2020/00182199); Health Care Complaints Commission v Dudhela (2020/00182206) and Health Care Complaints Commission v Egbufor (2020/00182187). Patient A 1. Patient A was 49 years old. He had a partner and adult children. He was indigenous. 2. Prior to admission to the Hospital, Patient A had a recent history of suicide attempts and depression. 3. A statement by his partner recorded that in January 2017 Patient A attempted to hang himself at home. He was discovered by his partner and was taken to the Hospital for treatment. He was released after several hours and given anti-depressant medication. 4. On a date in early April 2017, Patient A made two further suicide attempts, both within a short period of time. On the first occasion he attempted to set himself alight in the garage of his home. On the second occasion he attempted to hang himself whilst in police custody. It appears that Patient A may have been taken into police custody in the context of domestic violence proceedings. He was again taken to the Hospital for treatment. 5. On 22 May 2017, Patient A was admitted to the Hospital as a voluntary patient after expressing suicidal ideation to his general practitioner. 6. In the early hours on 22 May 2017, Patient A was assessed by a psychiatric registrar who noted that he had a long history of untreated depression and had attempted to hang himself the previous year. Patient A had worsening depression with suicidality in the past few weeks, precipitated by separation from his partner and inability to contact his children. Reference was also made to his living conditions, being homeless and living in his car, lack of social support and an upcoming court case. He planned to gas or hang himself, had bought items a few weeks ago and said "I have nothing to live for". 7. Patient A agreed to start treatment in the Hospital and was admitted as a voluntary patient to the older persons mental health unit because there was no bed available in the ACMHU. The psychiatric registrar directed level 3 observations, which required nursing staff to take observations every 20 minutes during the day shift and every 30 minutes during the night shift. 8. Later in the morning on 22 May 2017, Patient A was assessed by another psychiatric registrar. Patient A reported low mood but denied any acute thoughts of harming himself or suicide. The psychiatric registrar directed level 4 observations. 9. On 24 May 2017, Patient A was reviewed again by the same psychiatric registrar who had seen him on the second occasion on 22 May 2017. Patient A stated he needed to make a will because he would "not be here in a week" and he "had nothing left". The psychiatric registrar changed Patient A's status from voluntary to involuntary and transferred him to the ACMHU as a bed had become available. 10. On 26 May 2017, Patient A was reviewed by another psychiatric registrar as an involuntary patient. The psychiatric registrar noted that Patient A had two recent suicide attempts: an attempted hanging in January 2017 and an attempted burning in April 2017. Patient A denied current suicidal intent but said if he went to gaol he would kill himself. The psychiatric registrar directed Patient A be detained as a mentally ill person. A day nurse noted severe agitation in the morning, "abrupt and demanding engagement with nursing staff, and "plan to monitor on level 3 observations as risk of suicide and aggression". 11. Accordingly in the course of Patient A's admission he had expressed suicidal ideation and during the night shift on 26 May 2017 was on Level 3 observations requiring the night shift nursing staff to take observations every 30 minutes. 12. At about 9:30pm on 26 May 2017, Ms Chikuku commenced her night shift in the ACMHU and worked until about 7:30am on 27 May 2017. Ms Chikuku was in charge of patient medications for the shift. There were 32 patients in the ACMHU. 13. At about 7:30am on 27 May 2017, Patient A was found deceased by hanging. Patient A's death 1. A coronial inquest was held into Patient A's death. The exact time of Patient A's death is unknown. Police estimated he had been deceased for up to seven hours. The pathologist who completed the limited autopsy report dated 30 June 2017 estimated Patient A had been deceased for at least 2 hours. 2. Subsequently a forensic pathologist prepared a statement for the Coroner and indicated that death could have been over eight hours prior to discovery. 3. The findings of the Coroner dated 29 November 2019 recorded that the forensic evidence was unable to accurately identify the time Patient A died. The Coroner indicated that the range of time could be as little as two hours or as much as eight hours before Patient A was found. That is, from about 11pm to 5:30am. Patient A's room 1. There was a window in the door to Patient A's room at eye height. There were horizontal venetian blinds in the window. The magnetic device used to open the blinds had been faulty for some time. The blinds could not be fully opened. The door to Patient A's room could be opened. 2. This meant that it was difficult to see through the blinds into Patient A's room. It was common ground that a proper observation of Patient A could not be conducted without entering the room. The Hearing 1. This matter has come before the Tribunal in the midst of COVID-19 pandemic restrictions. To reflect the public health measures deployed in response to the pandemic the hearing was conducted via audio visual link with the Commission, Ms Chikuku and her legal representative, and two Tribunal members participating from different locations. 2. Ms Chikuku and a peer review expert gave oral evidence via audio visual link. The Complaint against Ms Chikuku 1. The Commission makes two complaints against Ms Chikuku. 2. In the first complaint the Commission alleges that Ms Chikuku's conduct concerning the care she provided to Patient A during the night shift amounts to unsatisfactory professional conduct. Specifically, that the judgment possessed, or care exercised, by her in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience: see s 139B(1)(a) of the National Law. It is also additionally and alternatively alleged that her conduct was improper or unethical: see s 139B(1)(l) of the National Law. 3. The alleged facts underpinning the complaint about Ms Chikuku's conduct are set out in one particular as follows: 1. On one occasion between about 9:30pm on 26 May 2017 and about 7:30am on 27 May 2017, Ms Chikuku failed to conduct an adequate observation of Patient A in circumstances where: 1. Ms Chikuku did not go into Patient A's room; 2. Ms Chikuku did not conduct a proper assessment of Patient A's respiration. 1. In the second complaint the Commission alleges that Ms Chikuku's conduct amounts to professional misconduct under s 139E of the National Law. The basis for this is that Ms Chikuku's unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of her registration. Ms Chikuku's response to the Complaint 1. In a written reply dated 6 November 2020 prepared with the assistance of a legal advisor Ms Chikuku denied the particulars of the Complaint. 2. It was submitted on Ms Chikuku's behalf that the Complaint against her had been insufficiently particularised. 3. Ms Chikuku stated she had a conversation with Patient A at about 10:30pm on 26 May 2017 which in context related to her role as the nurse in charge of patient medications. 4. Ms Chikuku stated that she was not allocated to care for Patient A nor was she allocated to undertake care level observations of Patient A. 5. Ms Chikuku referenced the evidence that had been provided to her by the Commission. She noted that none of the evidence established that she had purported to undertake any observation of Patient A or that she failed to undertake any required observation of Patient A. 6. In a statement dated 12 November 2020 Ms Chikuku stated that on the night of 26/27 May 2017 she was not allocated to undertake rounds, however she remembered that she did do some. Rounds were done by two nurses. She could not recall which rounds she had done or who she had done rounds with. She stated that the practice was for each nurse to take one side of the hallway and observe the patients on that side. 7. During the rounds Ms Chikuku undertook she stated that she did not observe Patient A as she was on the other side of the hallway to where his room was located. She could recall this matter because the next day when she was informed that Patient A had died she recalled that the last time she had seen him was when he approached her for medication at 10:30 pm. Agreed facts 1. A statement of agreed facts was prepared by the parties. Relevantly this document states as follows: 1. Ms Chikuku was allocated seven patients and she was not allocated to Patient A. 2. Ms Chikuku knew that level 3 observations meant half-hourly observations. 3. The observation window blind in the door to Patient A's room was broken. 4. Ms Chikuku was aware of a practice among nursing staff of doing hourly rounds during night shifts. 5. Ms Chikuku was aware of a practice among nursing staff for one nurse to look at the patients on one side of the corridor and another nurse to look at the patients on the other side of the corridor then for one of the two nurses to sign the individual observation charts for all the patients for that particular hourly round. 6. At around 10:30pm on 26 May 2017, Patient A approached the nurses' station requesting medication to help him sleep. Ms Chikuku told him that he had already been given his sleeping tablets. 7. During the night shift, Ms Chikuku did some of the hourly rounds with another nurse. 8. At about 1:00am on 27 May 2017, Nurse Brown ticked a box indicating "settled" on Patient A's Level 3 Behavioural Assessment and Observation Chart. 9. At about 6:00am on 27 May 2017, Nurse Watkins ticked a box indicating "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart. 1. The reason points (8) and (9) above are significant is that both Ms Brown and Ms Watkins claimed in their written replies to the respective Complaints that had been made against them by the Commission, that Ms Chikuku accompanied them on their rounds at 1:00am and 6:00am respectively. 2. Further, Ms Watkins alleged that during the 6:00am round the light to Patient A's room was on and both she and Ms Chikuku looked through the broken blind. Ms Watkins claimed to have observed Patient A sitting on the end of his bed. 3. Neither Ms Brown nor Ms Watkins gave oral evidence at the hearing and as a result their versions as to these matters could not be tested through cross examination. Events following Patient A's death 1. Arising from Patient A's death, an investigation into allegations of misconduct against Ms Chikuku was instigated by her employer. Ms Chikuku was interviewed on 14 July 2017 by Fiona Bryant, Human Resources Manager and Kim Maddock, Nurse Manager from the relevant Local Health District. 2. Ms Chikuku appears to have prepared a statement dated 16 June 2017 for the investigation. In this statement Ms Chikuku referenced her contact with Patient A at 10:30pm on 26 May 2017 in relation to medication he had sought. Ms Chikuku stated that she conducted her allocated night rounds as per the Fireboard and observation charts. 3. Ms Chikuku is recorded as stating that she did not recall doing any observations or Fireboard checks, which record a patient's presence, for Patient A. In the interview Ms Chikuku stated that observations are only done every hour instead of in accordance with the level of observation. Ms Chikuku also stated that the observations and Fireboard checks are done by each nurse only doing one side of the corridor rather than both nurses checking each patient individually. 4. An investigation report was prepared by Ms Bryant and Ms Maddock. This report is undated. 5. The report stated that Ms Chikuku did not have any direct care of Patient A nor did she sign the observation chart for Patient A recording that an observation had been completed when it in fact had not. 6. The report found that Ms Chikuku was aware that the observation policy was not being followed and received a warning. 7. We note that Ms Chikuku was the only nurse of the five involved in the matters before us who retained her employment at the Hospital. 8. On 29 November 2019 the Coroner's Court published findings into the death of Patient A. In those findings the Deputy State Coroner made a referral in respect of all five nurses, including Ms Chikuku, to the Commission. 9. On 3 February 2020, Ms Chikuku attended s 150 proceedings conducted by the Nursing and Midwifery Council of New South Wales (the Council). 10. Section 150 proceedings occur in the context of the Council's obligation under the National Law to take action at any time if it is satisfied it is appropriate to do so for the protection of the health and safety of the public or for reasons otherwise in the public interest. 11. A decision record and written reasons for that decision were produced by the Council on 10 April 2020. The Council was not satisfied that it was appropriate to take any action against Ms Chikuku under s 150(1) for the health and safety of any person or otherwise in the public interest. 12. There are no conditions attached to Ms Chikuku's registration. Her registration carries the notation "solely qualified in the area of mental health nursing". The Commission's evidence 1. To support the Complaint against Ms Chikuku the Commission relied on the same set of material that had been provided in respect of all five nurses. 2. Such evidence included but was not limited to: statements made by Ms Chikuku; investigation reports (conducted under the auspices of the relevant Local Health District); s 150 proceedings taken by the Council; correspondence from the Commission to Ms Chikuku and her response; coronial proceedings; witness statements; Level 3 Behavioural Assessment and Observation chart for Patient A; daytime Fireboard chart; clinical records for Patient A; an expert report; and guidelines produced by the Nursing and Midwifery Board of Australia such as the Code of Ethics for Nurses in Australia (August 2008) and the Code of Professional Conduct for Nurses in Australia (August 2008). 3. The observation chart for Patient A was available to us. An examination of this chart shows that there is no entry made by Ms Chikuku. That is; there is no independent evidence demonstrating that Ms Chikuku purported to or did actually observe Patient A during the night shift. 4. The Fireboard chart from the night of 26/27 May 2017 that was referred to in all of the matters before us was not located. Therefore it is not in evidence before us. Ms Chikuku's evidence 1. Ms Chikuku gave oral evidence at the hearing as to whether she did a 1:00am or 2:00am round with Ms Brown. Ms Chikuku stated she had no specific recollection of doing either of those rounds. In relation to whether it was possible, she replied she may have but she was not sure. She went on to confirm, as in her written statement, that during the rounds she undertook she did not observe Patient A as she was on the other side of the hallway to his room. 2. In relation to whether Ms Chikuku did a 6:00am round with Ms Watkins, she stated she had no recollection of doing that round. However she again agreed it was possible that she was on the other side of the corridor to Patient A's room. 3. Ms Chikuku's evidence was also to the effect that she knew that, given the window blind in the door to Patient A's room was faulty, the only way to conduct a proper observation of him would be to enter his room. Conclusions Complaint One 1. Complaint One alleges unsatisfactory professional conduct under both ss 139B(1)(a) and 139B(1)(l) of the National Law. It is supported by only one particular. 2. The Complaint alleges that on one unspecified occasion between 9:30pm on 26 May 2017 and 7:30 am on 27 May 2017 that Ms Chikuku failed to conduct an adequate observation of Patient A in circumstances where she did not go into Patient A's room and did not conduct a proper assessment of Patient A's respiration. In its submissions the Commission concedes that the single particular alleges only one occasion. 3. Ms Chikuku does not admit the particulars in support of the Complaint. 4. The Commission points to evidence from Ms Brown in which she claims that she did the 1:00am observation round of Patient A with Ms Chikuku. It also points to Ms Watkins' claim that she and Ms Chikuku did the 6:00am observation round of Patient A. 5. The Commission submitted that Ms Watkins' evidence should be accepted for various reasons including that Ms Watkins signed the observation chart for the 6:00am round and consistently claimed she did that round with Ms Chikuku, and because Ms Chikuku acknowledged that she had done some rounds during the night shift. The Commission also references a concession Ms Chikuku made in oral evidence that it was possible she undertook the 6:00am round. 6. The Commission also concedes that Ms Brown's and Ms Watkins' evidence will have reduced weight because they elected not to attend the hearing so their evidence could not be tested in cross-examination. 7. For the following reasons we are not satisfied that the claims of Ms Brown and Ms Watkins that they each did a round with Ms Chikuku establishes that Ms Chikuku failed to conduct an adequate observation of Patient A. 8. Ms Brown gave inconsistent evidence about the rounds she said she did with Ms Chikuku. 9. Ms Brown initially stated in her Local Health District interview conducted on 4 July 2017 that she did observation rounds of Patient A at 1:00am and 2:00am. Concerning who she did the rounds with, Ms Brown said she thought one was with Ms Chikuku and one was with Ms Watkins but she could not be sure. 10. Ms Brown said much the same thing in her s 150 hearing conducted by the Council on 20 November 2017. Ms Brown stated she was "…not entirely sure who I did them – well, I think it was Jill that I did one round with, and I think it was Phoebe that I did another round with". 11. Letters from the New South Wales Nurses and Midwives' Association to the Council on behalf of Ms Brown dated 2 November 2017 and 19 November 2017 do not refer to who she allegedly did those rounds with. 12. In a statement dated 19 December 2017 from the Crown Solicitor's Office as part of the coronial inquest, Ms Brown stated "my best recollection is that the other nurse who was conducting those rounds with me at 01:00 and 02:00 checked Patient A. I did not personally sight Patient A during those rounds". Ms Brown does not name any particular nurse. 13. In our view the claim of Ms Brown that she undertook a round with Ms Chikuku is weak. It could not be tested in cross examination. In our view the evidence does not clearly establish that Ms Chikuku accompanied Ms Brown at the 1:00am observation round for Patient A. 14. It is the case that Ms Watkins has consistently stated that she undertook the 6:00am observation round with Ms Chikuku. Firstly in a police interview conducted with Ms Watkins later in the morning of 27 May 2017, (police record of interview, Commission documents at p 467) and later in her Local Health District interview conducted on 30 June 2017 (Commission documents at p 489). However her evidence about this was not tested. 15. Although Ms Chikuku concedes she may have done a round with Ms Brown and/or Ms Watkins, her evidence is that she was not the nurse undertaking observations on the same side of the corridor as Patient A. She had a clear recollection of this because when she found out on her shift the following day that Patient A had died, she immediately recalled that the last time she saw him was at 10:30pm when he approached her asking for medication. 16. Ms Chikuku gave her evidence in a forthright manner. She made appropriate concessions and did not seek to prevaricate or minimise the part she played in supporting an unsafe workplace culture around patient observations. 17. The evidence establishes that Ms Chikuku was allocated the care of seven patients, but she was not allocated to care for Patient A. Ms Chikuku's initials do not appear on the observation chart maintained for Patient A during the night shift on 26/27 May 2017. Further, there was no suggestion, nor did the evidence show, that Ms Chikuku signed the observation chart for Patient A when observations were not completed. 18. In determining whether issues of fact are proved or not the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding: Bronze Wing International Pty Ltd v SafeWork NSW at [127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]. 19. As Fullerton J observed in Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705 at [18]: "... because of the seriousness of the allegations and their consequences [the Tribunal] had to be reasonably satisfied that the particulars of the complaints had been established by evidence of sufficient quality and weight before considering whether those particulars constituted unsatisfactory professional conduct or professional misconduct or both." 1. In our view the evidence does not clearly establish that Ms Chikuku had any direct care of Patient A after her contact with him about medication earlier in the shift. Further, the evidence does not clearly establish any distinct obligation or occasion for Ms Chikuku to have entered Patient A's room or to have conducted a proper assessment of Patient A's respiration. 2. Accordingly we are not satisfied that the evidence establishes that on one occasion between about 9:30pm on 26 May 2017 and about 7:30am on 27 May 2017, Ms Chikuku failed to conduct an adequate observation of Patient A in circumstances where she did not go into Patient A's room and did not conduct a proper assessment of Patient A's respiration. 3. We find that the Commission has not proved the single particular upon which its Complaint is based. 4. Accordingly the complaint of unsatisfactory professional conduct is dismissed. Complaint Two 1. As the complaint of unsatisfactory professional conduct has been dismissed there is no foundation for the complaint of professional misconduct. Accordingly the complaint of professional misconduct is also dismissed. Costs 1. As the Commission has not been successful in proving its Complaint an order for costs will be made in Ms Chikuku's favour. Orders 1. The Complaint is dismissed. 2. The Health Care Complaints Commission is to pay Ms Chikuku's costs of and incidental to these proceedings as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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: 11 May 2021