Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dudhela [2021] NSWCATOD 59 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 of unsatisfactory professional conduct is proved. (2) Mr Dudhela is guilty of professional misconduct. (3) Mr Dudhela's registration as a nurse is cancelled. (4) Mr Dudhela cannot make an application for review of the cancellation order until 18 months from the date of these orders. (5) The Registrar is requested to notify the Nursing and Midwifery Council of New South Wales and the Australian Health Practitioner Regulation Agency of Orders 3 and 4 above as soon as practicable. (6) Mr Dudhela is to pay the Health Care Complaints Commission'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). (7) 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. (8) Under s 64(1) of the Civil and Administrative Tribunal Act, 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. Catchwords: HEALTH — professional registration and discipline — complaints — nurse — mental health nursing — failure to observe and attend to patient in acute inpatient facility — disciplinary action Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Health Care Complaints Commission v Tam [2020] NSWCATOD 30 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Lee v Health Care Complaints Commission [2012] NSWCA 80 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) Mehul Mukundray Dudhela (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) New South Wales Nurses and Midwives' Association (Respondent) File Number(s): 2020/00182206 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. Under s 64(1) of the Civil and Administrative Tribunal Act, 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. Mr Dudhela is a nurse of some 9 years' standing. In 2011, he completed a Bachelor of Nursing degree, and on 11 April 2012, he was first registered as a registered nurse. 2. In February 2013, Mr Dudhela commenced employment as a registered nurse in a new graduate program in mental health at a hospital. Mr Dudhela continued to work at this hospital until 2016. His duties included ongoing mental state examinations and documentation, and looking after patients with severe and enduring mental illness. 3. In June 2016 Mr Dudhela commenced employment as a registered nurse in an Acute Mental Health Unit at a large Sydney hospital (the Hospital). 4. Whilst working in the Acute Mental Health Unit (ACMHU) Mr Dudhela was part of a nursing team 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. 5. In June 2020 the Health Care Complaints Commission (the Commission) brought disciplinary proceedings against Mr Dudhela alleging unsatisfactory professional conduct and professional misconduct in relation to the care he provided to Patient A. 6. There were five nurses on duty during the night shift when Patient A died, including Mr Dudhela. 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. 7. In essence, all of the matters brought by the Commission allege a failure of the registered nurses, including Mr Dudhela, to provide proper observations and make appropriate records for Patient A. 8. We heard the five separate cases against the nurses, including Mr Dudhela, consecutively. We made an order joining the Complaints under s 165D of the Health Practitioner Regulation National Law (NSW) (the National Law), but we have made separate decisions in respect of each nurse. 9. 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. 10. 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 Egbufor (2020/00182187); and Health Care Complaints Commission v Chikuku (2020/00274863). 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 at the time of the night shift on 26 May 2017 he was on level 3 observations. This required the nursing staff to take observations every 30 minutes during the night shift. 12. At about 9:30pm on 26 May 2017, Mr Dudhela commenced his night shift. At the commencement of the shift, he was allocated to eight patients. Mr Dudhela was specifically allocated to Patient A. There were 32 patients in the ACMHU. 13. At handover, Mr Dudhela was informed that Patient A had been admitted with a history of drug use and suicidal ideation, was on level 3 mental health observations and had a history of aggressive behaviour towards the staff. Mr Dudhela knew that level 3 meant half-hourly observations. Mr Dudhela had access to the notes in the Electronic Medical Records (EMR) during his shift. 14. 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, Mr Dudhela and his legal representative, and two Tribunal members participating from different locations. 2. Mr Dudhela and a peer review expert gave oral evidence via audio visual link. A registered nurse, where Mr Dudhela is currently employed, also gave evidence via telephone in support of Mr Dudhela. The Complaint against Mr Dudhela 1. There are two individual complaints alleged by the Commission against Mr Dudhela. 2. The first complaint is that Mr Dudhela's conduct and the care he provided to Patient A during the night shift amounts to unsatisfactory professional conduct. 3. The basis for this complaint is that the judgment possessed, or care exercised, by him 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 his conduct was improper or unethical: see s 139B(1)(l) of the National Law. 4. The second complaint is that Mr Dudhela's conduct amounts to professional misconduct under section 139E of the National Law. 5. The basis for this complaint is that Mr Dudhela's unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or 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. 6. The facts underpinning the complaints about Mr Dudhela's conduct are set out in the particulars of the first complaint and are summarised as follows: 1. At about 11:30pm on 26 May 2017, Mr Dudhela recorded "settled" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where he did not personally sight Patient A at that time. 2. At about 6:20am on 27 May 2017, Mr Dudhela made a progress note stating "Pt observed to be asleep during each round[s]" in circumstances where: 1. he was allocated to provide nursing care to Patient A; 2. he did not go into Patient A's room after about 11:00pm on 26 May 2017; 3. he did not assess Patient A's respiration after about 11:00pm on 26 May 2017; 4. Patient A's Level 3 Behavioural Assessment and Observation Chart suggested that Patient A was awake between about 11:00pm on 26 May 2017 and about 2:00am on 27 May 2017. 1. Between about 11:00pm on 26 May 2017 and about 7:30am on 27 May 2017, Mr Dudhela failed to conduct sufficient observations of Patient A in circumstances where: 1. he was allocated to provide nursing care to Patient A; 2. Patient A had a history of suicidal ideation; 3. Patient A was on level 3 observations, which required nursing staff to take observations every 30 minutes during the night shift; 4. he did not personally sight Patient A after about 11:00pm on 26 May 2017; 5. between about 12:30am and 6:00am on 27 May 2017, he was unaware whether any other nurse was taking half-hourly observations of Patient A; 6. he was aware of a practice among nursing staff of only taking hourly level 3 observations during night shifts. Mr Dudhela's response to the Complaint 1. In a written reply to the Complaint Mr Dudhela admitted all the particulars of the Complaint with the exception of particular (2)(d). In respect of this particular he stated he could neither admit nor deny. The admissions were reaffirmed on his behalf in supplementary submissions received after the hearing. 2. Mr Dudhela explained in his Reply that the ACMHU provided nursing care under the team nursing model. The patients were allocated to a nurse for review of their patient records, documenting patient care and progress during the shift, and updating individual patient records in preparation for handover to the morning shift nursing staff. 3. Mr Dudhela referred to an entrenched practice within the ACMHU on night shift to only conduct hourly observation rounds. This meant that although they were required, half-hourly rounds were not actually conducted. 4. In hindsight Mr Dudhela regretted following this poor practice and not complying with the mental health care level policy. Agreed facts 1. A statement of agreed facts was prepared by the parties. Relevantly this document states as follows: 1. At about 11:00pm on 26 May 2017 Mr Dudhela attended an observation round. He opened Patient A's door but did not go into the room. He shone a torch. Patient A moved and was half asleep. Mr Dudhela signed his initials "MD" on Patient A's Level 3 Behavioural Assessment and Observation Chart in the row labelled "23:00". 2. Mr Dudhela did not go into Patient A's room after about 11:00pm on 26 May 2017. He did not assess Patient A's respiration and did not personally sight Patient A after about 11:00pm on 26 May 2017. 3. Mr Dudhela signed his initials "MD" on Patient A's Level 3 Behavioural Assessment and Observation Chart in the row labelled "23:30" in circumstances where he did not personally sight Patient A at 23:30pm. 4. Mr Dudhela left the unit for his break between about 12:30am and 1:30am on 27 May 2017, then did his paperwork and worked on education slides. 5. At some time after his break, Mr Dudhela read the notes for his allocated patients. 6. At about 6:20am on 27 May 2017, Mr Dudhela made a progress note stating "Pt observed to be asleep during each rounds". 7. Between about 11:00pm on 26 May 2017 and about 7:30am on 27 May 2017, Mr Dudhela failed to conduct sufficient observations of Patient A. 8. Between about 12:30am and 6:00am on 27 May 2017, Mr Dudhela was unaware whether any other nurse was taking half-hourly observations of Patient A. 9. Mr Dudhela was aware of a practice among nursing staff of only taking hourly level 3 observations during night shifts. 10. Mr Dudhela worked until about 7:30am on 27 May 2017. 1. In relation to point (5) above we note that the evidence suggests that at some time after handover, or after his break, Mr Dudhela read the notes for his allocated patients. Events following Patient A's death 1. In the aftermath of Patient A's death Mr Dudhela attended interviews instigated by his employer on 23 June 2017 and 18 July 2017. On 30 August 2017, Mr Dudhela's employment was terminated and his name was placed on the service check register. 2. In October 2017 Mr Dudhela started working at a nursing home. 3. Mr Dudhela has completed courses offered by the University of Tasmania including "Mental Health Well-Being and Dementia" (on 30 November 2018) and "Policy and Leadership in Older Person Care" (on 1 May 2019). 4. On 22 August 2020, Mr Dudhela completed a Graduate Diploma of Nursing (Gerontological Nursing). The Commission's evidence 1. The Commission provided comprehensive evidence to support the Complaint against Mr Dudhela. Such evidence included but was not limited to: workplace investigation interviews with Mr Dudhela (conducted under the auspices of the relevant Local Health District); s 150 proceedings taken under the National Law by the Nursing and Midwifery Council of New South Wales (the Council) into Mr Dudhela's conduct; correspondence from the Commission to Mr Dudhela and his response; coronial proceedings; witness statements; Level 3 Behavioural Assessment and Observation chart for Patient A; clinical records for Patient A; daytime Fireboard chart; 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). 2. Evidence that was also available to us indicates that two nurses would conduct observation rounds. During the night shift there was a practice of each nurse checking the patients on a different side of the corridor. It was also the practice for one nurse to sign the observation chart and the other nurse to sign a Fireboard checklist chart which merely recorded that a patient was present. This meant that a nurse would be signing a patient observation chart without personally sighting that patient. 3. The Fireboard chart from the night of 26/27 May 2017 has not been located. Accordingly it was not in evidence before us. 4. Mr Dudhela also referred to an entrenched practice within the unit on night shift to only conduct hourly observation rounds. This meant that although they were required, half-hourly rounds were not actually conducted. Further evidence available to us indicates that a nurse would "backfill" by signing the previous half-hourly round, which had not been conducted, on the next hourly round. 5. Section 150 proceedings against Mr Dudhela took place on 20 November 2017. 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. 6. A decision record and written reasons for that decision were produced by the Council on 14 February 2018. The Council imposed various conditions on Mr Dudhela's nursing registration. These conditions included that Mr Dudhela must practice nursing under supervision, not be the nurse in charge of any shift, unit or ward, not have supervisory responsibilities for any other nurse, not work night duty and not engage in agency work. Supervision reports were also required. 7. Before the conduct the subject of the Complaint, Mr Dudhela had completed relevant education, including courses on mental state examination, Between the Flags – Tier 2: Systematic Assessment, the Code of Conduct, Deteriorating Patient – Adult, Suicide Prevention and Management, Promoting Acceptable Behaviour in the Workplace, Clinical Documentation – Getting it Right. Mr Dudhela's evidence 1. Mr Dudhela provided various documents including details of his continuing professional development, his own reflections, letters from the Director of Care and his current supervisor at the nursing home (Ms Maguire, who also gave oral evidence), supervision reports and a reference from a former colleague. 2. Amongst other matters this material indicates that Mr Dudhela is well regarded by his current employer who was aware of the Complaint against him. His current workplace referees referenced his insight and the work he had done to improve ethical decision making capabilities. Both attested to his fitness to be held out to patients and the community as a person worthy of their confidence. Conclusions Complaint One 1. Complaint One alleges unsatisfactory professional conduct under both ss 139B(1)(a) and 139B(1)(l) of the National Law. 2. With the exception of particular 2(d), the particulars in support of Complaint One are admitted by Mr Dudhela. Independently of Mr Dudhela's concessions we are satisfied from the evidence before us that particulars 1, 2 and 3 are made out. 3. Particular 1 relates to Mr Dudhela purportedly conducting observation rounds of Patient A and recording that he was settled when he did not personally sight Patient A. He did not maintain the proper observation levels for Patient A and compounded his poor practice with fraudulent documentation. These failures put Patient A's safety directly at risk. 4. Particulars 2 (a), (b) and (c) relate to Mr Dudhela making a progress note about Patient A which was not based on his observations and was inaccurate. It was a serious failure of care and judgment by Mr Dudhela. 5. As the nurse specifically allocated to Patient A, Mr Dudhela had responsibility for him during the nightshift. Patient A was an extremely vulnerable patient. He had made previous attempts at suicide. He was on level 3 observations requiring nursing staff to take observations every 30 minutes during the night shift. Yet Mr Dudhela conducted no observations of Patient A after 11:00 pm. 6. Particular 2(d) is not admitted or denied by Mr Dudhela. Submissions were made on behalf of Mr Dudhela that because he did not sight Patient A after 11:00pm this particular could not be made out in its entirety. 7. We reject this submission. Particular 2(d) is directed towards the accuracy of the progress note about Patient A made by Mr Dudhela towards the end of the shift in the context of the notations made during the night on Patient A's Level 3 Behavioural Assessment and Observation Chart. 8. The Observation Chart allows a nurse to choose between various categories including "sleeping" or "settled". The ticks in the column labelled "settled" on Patient A's Observation Chart are in the rows between 11pm and 2am. There are no ticks in the column labelled "sleeping" on Patient A's Observation Chart for the 11pm–11:30pm rows or the 1–2am rows. 9. The reverse side of the Observation Chart contains the definitions for the various categories. The definition for "settled" is that the person is awake. Mr Dudhela's oral evidence was to the effect that he looked at the chart before writing the progress note. 10. The expert was critical of Mr Dudhela writing a progress note which was inconsistent with the chart. The expert's clinical opinion was that the patient being awake between 11pm and 2am was a significant period of time which Mr Dudhela should have noted. Further, Mr Dudhela's brief and inaccurate documentation of Patient A's presentation during the shift potentially represented that, like checking observation levels, his documentation practice was inattentive and haphazardly routine. 11. We find that given Mr Dudhela did not look at Patient A himself after 11:00pm it was significantly below the relevant standard for Mr Dudhela to then write a progress note at about 6:20am asserting "Pt observed to be asleep during each rounds". We find particular 2(d) established. 12. Particular 3 is directed towards Mr Dudhela's failure to conduct sufficient observations of Patient A in circumstances where Patient A had a history of suicidal ideation and was on level 3 observations. Further, Mr Dudhela was unaware whether any other nurse was taking half-hourly observations of Patient A and was aware of a practice among nursing staff of only taking hourly level 3 observations during night shifts. 13. The conduct of Mr Dudhela was the subject of a comprehensive analysis in the expert report. The expert evidence set out in this report was not challenged in a meaningful way. The report concluded that Mr Dudhela's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and invited strong criticism. 14. The expert's report referenced the Code of Ethics and the Code of Professional Conduct for Nurses in Australia. The expert's opinion was that maintaining observations as directed by a medical officer is a clear-cut basic function and responsibility of a mental health nurse. Mr Dudhela's failure to maintain Patient A's observation levels and falsely signing for rounds he did not complete compromised Patient A's safety, was unethical, neglected his duty of care and directly breached the foundations of nursing. 15. Further, as Patient A's allocated nurse Mr Dudhela had contravened the Hospital's mental health observation policy. This policy clearly instructed that an observation of patients on level 3 was to be maintained by the nurse assigned to care for the patient during the shift. 16. We find that Mr Dudhela's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and amounts to unsatisfactory professional conduct under s 139B(1)(a) of the National Law. 17. The first complaint also alleges unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. 18. Section 139B(1)(l) refers to "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". It requires a determination by the Tribunal as to whether a practitioner has been guilty of unsatisfactory professional conduct, arising from an assessment as to whether conduct was improper or unethical in relation to the practice of their profession. It is therefore directed at a broader range of conduct than that which occurs "in the practice of" a person's profession. 19. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]–[48]: "[47] … The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: 'Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case.' [48] This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited." 1. Mr Dudhela's conduct was improper and unethical because he recorded an observation of Patient A that he knew did not occur. He compounded this by making an inaccurate progress note. It was contrary to both the Code of Ethics for Nurses in Australia and the Code of Professional Conduct for Nurses in Australia. 2. We find the complaints of unsatisfactory professional conduct under both ss 139B(1)(a) and 139B(1)(l) of the National Law are proved. 3. We are satisfied that Complaint One is established. Complaint Two 1. The Commission submits that the conduct of Mr Dudhela is sufficiently serious to amount to professional misconduct. As we understood a submission made on behalf of Mr Dudhela, it was admitted that cumulatively his conduct amounted to professional misconduct. 2. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s 139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners, from repeating the same misconduct: see Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [43]–[50] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. 3. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he 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": see [19]. 4. Mr Dudhela was the nurse allocated to Patient A. He had significant information about Patient A's involuntary status and his behaviour in recent days from the handover and from reading the previous notes. He should have been alert to the necessity to maintain half-hourly observations overnight. 5. Mr Dudhela made an entry indicating an observation of Patient A at 11:30pm which had not in fact taken place. He did not personally conduct any observations for Patient A over an eight hour period or take any steps to ensure they occurred. He made a progress note suggesting that Patient A was asleep during all rounds in circumstances where he had last sighted the patient almost seven hours previously. He was unaware whether the patient was sleeping during the hourly rounds and he was aware that the half-hourly rounds did not occur. 6. We find that the unsatisfactory professional conduct displayed by Mr Dudhela is of a sufficiently serious nature to justify suspension or cancellation of his registration and constitutes "professional misconduct" under s 139E of the National Law. We are satisfied that the complaint of professional misconduct as detailed in Complaint Two is proved. Principles regarding protective orders 1. The complaints of unsatisfactory professional conduct and professional misconduct have been proved. 2. Having found the Complaint proven against Mr Dudhela, we may exercise any disciplinary powers conferred by Subdivision 6 of Division 3 of Part 8: see ss 149A, 149B and 149C of the National Law. 3. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s 3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective: see s 3A National Law. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]. 4. In Health Care Complaints Commission v Do [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred at [35] to the importance of denunciation of misconduct, in the context of ss 3 and 3A of the National Law as follows: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards. Consideration of protective orders 1. In its submission the Commission sought an order cancelling Mr Dudhela's registration and that he not be able to make an application for review (re-instatement application) for two years. 2. The Commission submits and we accept that Mr Dudhela has shown limited insight, particularly as it concerned his role as the nurse allocated to Patient A. 3. In a workplace interview conducted on 23 June 2017 Mr Dudhela claimed that the role of the allocated nurse was "just for the documentation". During the s 150 hearing he again described the role of allocated nurse as "just for documentation." This theme was somewhat repeated in his Reply to the Complaint where he stated that patients were allocated to nurses for the review of patient records, documentation of patient progress during the shift and updating patient records in preparation for handover to the morning staff. 4. It was submitted on Mr Dudhela's behalf that this was the usual procedure on the night shift and he was not attempting to minimize his role as the allocated nurse. 5. However, and as submitted by the Commission, Mr Dudhela claimed that he did not reflect on the usual practice prior to Patient A's death, but it appears that he raised his concern with a clinical nurse educator, received decent advice to "do what's right" and follow policy, and then carelessly disregarded that advice and continued to follow the poor practice at the ACMHU. 6. Regardless of what the usual practice may have been Mr Dudhela was the allocated nurse for Patient A. In our view, at its core, this involves providing care to the patient and escalating any concerns. The evidence demonstrates that before making his progress notes at 6:20am, apart from one observation of Patient A at 11:00 pm, all Mr Dudhela did in the care he provided was to read Patient A's notes. Notes which overwhelmingly indicated that Patient A was at risk of suicide. 7. Various references were provided on behalf of Mr Dudhela. Overall we found these references of limited assistance although we accept that Mr Dudhela is well regarded and has committed to a range of work to improve his practice of nursing. 8. It was submitted on behalf of Mr Dudhela that given the genuine effort made by him to improve his practice the protective orders sought by the Commission would be punitive and have more serious consequences for him than is reasonably necessary to promote the protective purpose. It was suggested that a reprimand or suspension for 6-12 months would be appropriate. 9. In this respect our attention was drawn to the decision of Health Care Complaints Commission v Tam [2020] NSWCATOD 30. In this case a nurse in a mental health unit failed to properly observe patients and to record accurate and contemporaneous observations over a period of around five hours. In that case a reprimand was determined to be the appropriate protective order. 10. In our view it is not appropriate for us to place weight on the outcome in Tam and use it as a means to determine the appropriate protective orders in these proceedings. Each matter has to be assessed on its own merits. Once findings have been made, it then requires a consideration of what, if any, are the appropriate protective orders having regard to the protection of public. 11. In Lee v Health Care Complaints Commission Barrett JA at [20] stated that the task of the decision-maker in making protective orders centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 1. Mr Dudhela's conduct is serious. He breached the Hospital's mental health observation policy, prioritized his work on education slides and abandoned Patient A's level 3 observations. He relied on other staff members to do the observations of Patient A and failed to speak up against the culture of observing patients hourly instead of half-hourly. He failed to provide fundamental care for Patient A. He failed to ensure Patient A's safety and wellbeing. 2. At the time of Patient A's death Mr Dudhela had been a registered nurse for five years. He had significant experience in mental health nursing. Yet, in his conduct he demonstrated an absence of care, propriety, honesty and integrity relating to the practice of nursing. 3. Mr Dudhela worked in a mental health unit in a hospital. It was a secure and specially-designed environment. Patient A went to the Hospital for help. He was subsequently admitted as an involuntary patient. He should have been safe. Mr Dudhela's conduct posed a direct risk to the safety of a vulnerable involuntary mental health patient. This risk was ultimately realised. 4. In our view suspension is not appropriate because at the end of the suspension period automatic renewal of registration will follow. 5. Having regard to the seriousness of these matters, the denouncement of Mr Dudhela's misconduct and maintaining public confidence in the high standards of the nursing profession we are satisfied that Mr Dudhela's registration should be cancelled. A review of the cancellation order should not be made for a period of 18 months. In our view this reflects an appropriate level of deterrence for the professional misconduct which we have found proven in this case. 6. In its submissions the Commission referred to the Tribunal's power to make a prohibition order if satisfied that Mr Dudhela poses a substantial risk to the health of members of the public. 7. The Commission submitted that Mr Dudhela's conduct is serious and identified areas in which it was said that he held limited insight. Reference was also made by the Commission to what employment Mr Dudhela might seek if his registration is cancelled. 8. Where the Tribunal makes an order under s 149C(4) of the National Law declaring that if the person were still registered it would have suspended or cancelled the person's registration, the power to make a "prohibition order" can be exercised: s 149C(5A). 9. An order of this kind is aligned with the protective purpose of the legislation. 10. Section 149 of the National Law states if the Tribunal is satisfied that the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— 1. prohibit the person from providing health services or specified health services for the period specified in the order or permanently; 2. place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. 1. Section 5 of the National Law defines "health service" to include, whether provided as public or private services, mental health services, community health services and health education services, among other services. 2. Mr Dudhela is currently working in aged care, a position he has held since October 2017. The evidence indicates that his employer is satisfied with his work. The evidence does not suggest that he is posing a substantial risk to the health of members of the public in his current role. 3. We are not satisfied that there is evidence before us to demonstrate that Mr Dudhela poses a substantial risk to the health of the public if he were to be involved in the provision of health services. Accordingly we are not satisfied that the appropriate protective orders in this case should include a prohibition order. Costs 1. The Commission seeks an order for costs. No submissions were made by Mr Dudhela about costs apart from the fact that he should pay one equal portion of the total costs of the hearing between himself and Nurses Watkins, Egbufor, Chikuku and Brown. 2. The Commission has been successful on the complaints of unsatisfactory professional conduct and professional misconduct. Accordingly an order for costs will be made in its favour. Decision and Orders 1. The Complaint of unsatisfactory professional conduct is proved. 2. Mr Dudhela is guilty of professional misconduct. 3. Mr Dudhela's registration as a nurse is cancelled. 4. Mr Dudhela cannot make an application for review of the cancellation order until 18 months from the date of these orders. 5. The Registrar is requested to notify the Nursing and Midwifery Council of New South Wales and the Australian Health Practitioner Regulation Agency of Orders 3 and 4 above as soon as practicable. 6. Mr Dudhela is to pay the Health Care Complaints Commission'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). 7. 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. 8. Under s 64(1) of the Civil and Administrative Tribunal Act, 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. ********** 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