Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Egbufor [2021] NSWCATOD 60 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) Ms Egbufor is guilty of professional misconduct. (3) Ms Egbufor's registration as a nurse is cancelled. (4) Ms Egbufor is not to make any application for review of the cancellation of her registration for a period of 12 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) Ms Egbufor 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 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 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 Holbrook [2019] NSWCATOD 146 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Lee v Health Care Complaints Commission [2012] NSWCA 80 NSW Bar Association v Meakes [2006] NSWCA 340 R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 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) Nursing and Midwifery Board of Australia, "Registration standard: Recency of practice" (1 June 2016) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Florence Egbufor (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) New South Wales Nurses and Midwives' Association (Respondent) File Number(s): 2020/00182187 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 Egbufor is a nurse of some 9 years' standing. She was first registered as a nurse on 2 February 2012 after completing a Bachelor of Nursing degree. 2. In 2012 Ms Egbufor commenced employment as a registered nurse in an Acute Mental Health Unit at a large Sydney hospital (the Hospital). In 2015, she started working as a casual nurse in mental health at another hospital. On 13 December 2016, she completed a Masters of Mental Health Nursing. 3. Whilst working in the Acute Mental Health Unit (ACMHU) at the Hospital, Ms Egbufor was part of a nursing team 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 June 2020 the Health Care Complaints Commission (the Commission) brought disciplinary proceedings against Ms Egbufor alleging unsatisfactory professional conduct and professional misconduct in relation to the care she provided to Patient A. 5. There were five nurses on duty during the night shift when Patient A died, including Ms Egbufor. 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. All of the matters brought by the Commission allege a failure of the registered nurses, including Ms Egbufor, to provide proper observations and make appropriate records for Patient A. 7. We heard the five separate cases against the nurses, including Ms Egbufor, 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. 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 Watkins (2020/00182199); Health Care Complaints Commission v Dudhela (2020/00182206); Health Care Complaints Commission v Brown (2020/00182212); 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 assessed 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 1:30pm on 26 May 2017, Ms Egbufor started her afternoon shift. During the course of her shift or at the end of it, and due to staff shortages, Ms Egbufor was asked to do an overtime night shift. She did an overtime shift from 9:30pm on 26 May 2017 and worked until about 7:30am on 27 May 2017. 13. Ms Egbufor was allocated 7 patients. She was not allocated to Patient A. There were 32 patients in the ACMHU. 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, Ms Egbufor and her legal representative, and two Tribunal members participating from different locations. 2. Ms Egbufor and a peer review expert gave oral evidence via audio visual link. Mr Gyamfi, registered nurse and Nurse Unit Manager, who has worked with Ms Egbufor, also gave oral evidence via audio visual link. The Complaint against Ms Egbufor 1. There are two individual complaints alleged by the Commission against Ms Egbufor which were contained in an amended Complaint filed on the first day of the hearing. 2. The first complaint is that Ms Egbufor's conduct and the care she 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 Ms Egbufor 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. 4. The second complaint is that Ms Egbufor's conduct amounts to professional misconduct under section 139E of the National Law. 5. The basis for this complaint is that Ms Egbufor's unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of her registration; and/or she 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 her registration. 6. The facts underpinning the complaint about Ms Egbufor's conduct are set out in the particulars of the first complaint and are summarised as follows: 1. At about 2:30am on 27 May 2017, Ms Egbufor recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where she did not personally sight Patient A at that time. 2. At about 3:00am on 27 May 2017, Ms Egbufor recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where: 1. she did not go into Patient A's room; 2. she did not assess Patient A's respiration. 1. At about 3:30am on 27 May 2017, Ms Egbufor recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where she did not personally sight Patient A at that time. 2. At about 4:00am on 27 May 2017, Ms Egbufor recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where: 1. she did not go into Patient A's room; 2. she did not conduct a proper assessment of Patient A's respiration. Ms Egbufor's response to the Complaint 1. In a written reply to the Complaint Ms Egbufor admitted all the particulars of the Complaint except particular 2(a) and (b) above. The admissions and her denial of particular 2 were reaffirmed on her behalf in supplementary submissions received after the hearing. 2. Ms Egbufor also conceded in submissions made on her behalf that her admitted conduct amounted to unsatisfactory professional conduct and professional misconduct. Agreed facts 1. A statement of agreed facts was prepared by the parties. Relevantly this document states as follows: 1. Ms Egbufor was aware that Patient A had a history of suicidal ideation and was on level 3 observations. 2. Ms Egbufor knew that level 3 observations meant half hourly observations. 3. At about 10:00pm on 26 May 2017, Ms Egbufor conducted a round. 4. The observation window blind was broken. Ms Egbufor knew that the blind was had not been in a good condition for a while. 5. Ms Egbufor was aware of a practice among nursing staff of doing hourly Fireboard rounds and for one of the two nurses who conducted the hourly Fireboard round to also sign the individual observation charts for all the patients for that particular round. 6. Ms Egbufor was aware of a practice among nursing staff of only doing hourly observations for patients on level 3 observations during night shifts and signing the observation chart to indicate half-hourly. 7. Ms Egbufor was aware of a practice among nursing staff of checking the patients using a torch to look through the blinds of the window and not go into the room. 8. At about 10:00pm, 11:00pm, 12:00 midnight, 3:00am and 4:00am on 26 May 2017, Ms Egbufor conducted rounds. 9. Between about 1:15am and 2:45am on 27 May 2017, Ms Egbufor took her meal break. 10. At about 3:00am on 27 May 2017, Ms Egbufor ticked a box indicating that at 2:30am she had observed Patient A "sleeping" on his Level 3 Behavioural Assessment and Observation Chart in circumstances where she did not personally sight Patient A at 2:30am. 11. At about 3:00am on 27 May 2017, Ms Egbufor ticked a box indicating that at 3:00am she had observed Patient A "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart. 12. At about 4:00am on 27 May 2017, Ms Egbufor ticked a box indicating that at 3:30am she had observed Patient A "sleeping" on his Level 3 Behavioural Assessment and Observation Chart in circumstances where she did not personally sight Patient A at 3:30am. 13. At about 4:00am on 27 May 2017, Ms Egbufor ticked a box indicating that at 4:00am she had observed Patient A "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart. However Ms Egbufor did not go into Patient A's room and did not conduct a proper assessment of Patient A's respiration. 1. The significance of the agreed fact at point (5) above is that two nurses would conduct observation rounds but 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. 2. We note that the Fireboard chart from the night of 26/27 May 2017 has not been located. Accordingly it was not in evidence before us. 3. The significance of the agreed fact at point (6) above is that there was 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. Other 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. Events following Patient A's death 1. In the aftermath of Patient A's death on 30 June 2017 Ms Egbufor attended an interview instigated by her employer, conducted by Fiona Bryant, Human Resources Manager and Kim Maddock, Nurse Manager from the relevant Local Health District (LHD). 2. On 14 August 2017, Ms Egbufor's employment was terminated and her name was placed on the service check register. 3. In March 2018 Ms Egbufor travelled to her country of origin and returned to Australia in May 2019. Ms Egbufor gave birth to a child in June 2019 and 5 months later she experienced some ill health resulting in the need to have two major surgeries. 4. On 29 May 2018 Ms Egbufor changed her registration status. Currently and as from May 2018, she has been registered as a Nurse, Non-practising. The Commission's evidence 1. The Commission provided comprehensive evidence to support the Complaint against Ms Egbufor. Such evidence included but was not limited to: workplace interviews with Ms Egbufor (conducted under the auspices of the relevant LHD); s 150 proceedings taken under the National Law by the Nursing and Midwifery Council of New South Wales (the Council) into Ms Egbufor's conduct; correspondence from the Commission to Ms Egbufor and her response; coronial proceedings; witness statements; 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). 2. Section 150 proceedings against Ms Egbufor took place on 13 July 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. 3. A decision record and written reasons for that decision were produced by the Council on 9 August 2017. The Council imposed various conditions on Ms Egbufor's nursing registration. These conditions included that Ms Egbufor 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. 4. As indicated above Ms Egbufor is currently registered as a Nurse, Non-practising. Ms Egbufor's evidence 1. Ms Egbufor made full admissions in respect of the Complaint and the particulars, except she does not admit particular 2 of the Complaint. She was firm in her oral evidence given at the hearing that she conducted an appropriate observation of Patient A at 3:00 am. 2. It is Ms Egbufor's evidence that at 3:00 am she opened the door to Patient A's room and observed him sleeping. In oral evidence, Ms Egbufor confirmed that she saw the rise and fall of Patient A's chest when completing this observation and therefore assessed Patient A's respiration. 3. Another account about the night is contained in Ms Egbufor's interview with the relevant LHD conducted on 30 June 2017. Ms Egbufor confirmed that she saw Patient A and observed him sleeping at 3:00 am. Ms Egbufor accepted that there was some confusion in the transcript of her interview with the LHD where she referred to a "door" being broken. However in her oral evidence she clarified that she meant the "blind door" or the "blind in the door". At another point in the transcript she says "I can recall this patient, I saw this patient at 3 o'clock". 4. Earlier in the LHD interview, Ms Egbufor was asked questions about the blind being broken, to which she responded that she was aware that it was broken. Ms Egbufor was asked if that meant that she was required to open the door, to which she replied "yes". 5. In Ms Egbufor's s 150 hearing she referenced the 3:00 am round and that "Patient [A] was still there". 6. Mr Gyamfi, a registered nurse, who works as the Nurse Unit Manager at the Hunter New England Local Health District provided a written reference and gave oral evidence. Mr Gyamfi worked with Ms Egbufor at the Hospital in his capacity as Clinical Nurse Educator. Mr Gyamfi referred to Ms Egbufor's diligence in her studies, and spoke well of her skills, competence and knowledge as a nurse. He had read the Complaint and regarded her conduct as out of character. 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, the particulars in support of Complaint One are admitted by Ms Egbufor. 3. Independently of Ms Egbufor's admissions we are satisfied from the evidence before us that particulars 1, 3 and 4 are made out. That is; that at about 2:30am and again at about 3:30 am on 27 May 2017, Ms Egbufor recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where she did not personally sight Patient A. Further, that at about 4:00am on 27 May 2017, Ms Egbufor recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where she did not go into Patient A's room and did not conduct a proper assessment of his respiration. 4. Particular 2 alleges that at 3:00am on 27 May 2017, Ms Egbufor recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where she did not go into Patient A's room and did not assess his respiration. 5. Ms Egbufor was firm in her oral evidence given at the hearing that she conducted an appropriate observation of Patient A at 3:00am. She said she opened the door to Patient A's room and observed him sleeping. Ms Egbufor was adamant that she assessed Patient A's respiration. 6. Ms Egbufor's recollection that she saw Patient A at 3:00am is in broad terms consistent with her account given in an interview with the LHD conducted on 30 June 2017. There is some confusion in the transcript of her interview with the LHD as to aspects or nuances of her evidence about her observation of Patient A at 3:00am. However having had the benefit of seeing and hearing Ms Egbufor give oral evidence, and the fact that English is not her first language, we consider this explains any variation to the extent that one exists. 7. Ms Egbufor was very firm in her evidence about the 3:00am observation. In general she gave her evidence in a forthright manner and did not seek to prevaricate or minimise her role in the failings of care provided to Patient A. 8. Ms Egbufor has made admissions in relation to particulars 1, 3 and 4 as well as admitting to unsatisfactory professional conduct and professional misconduct. Ms Egbufor has already experienced consequences as a result of her admitted conduct, including loss of employment and conditions placed on her registration. We agree with the submission made on her behalf that there is no motivation for her to deny particular 2 other than that it does not accord with her recollection of what occurred. 9. We do not accept the Commission's submissions to the contrary on this point. The fact that Ms Egbufor was generally aware of a practice among nursing staff of using a torch to look through the blinds of a room is not evidence that she did that during the 3:00am round, especially in circumstances where she knew the blind was broken and the door had to be opened to observe the patient. 10. Nor do we infer from acknowledgements made by Ms Egbufor in her s 150 interview that it is not really best practice to just check on the patients using a torch to look through the blinds instead of going into the room; and she "will not go back to that practice of not checking the patients", that this is in fact what she did at 3:00am. This is particularly so given that Ms Egbufor made admissions in that interview that she signed for observations that were not conducted at other times. 11. Nor is Ms Egbufor's admission that she did not enter Patient A's room at 4:00am evidence that supports a finding that she did not enter the room at 3:00am. 12. In our view the Commission has not proved this particular. We accept Ms Egbufor's evidence that she entered Patient A's room and assessed his respiration in the manner prescribed by the policy in place at the time. 13. Particulars 1 and 3 relate to Ms Egbufor purportedly conducting level 3 (30 minute) observation rounds of Patient A and recording that he was "sleeping" when she did not personally sight Patient A. 14. Particular 4 relates to the 4:00am observation in which Ms Egbufor recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where she did not go into his room and did not conduct a proper assessment of his respiration. 15. Ms Egbufor did not maintain the proper observation levels for Patient A and compounded her poor practice with fraudulent documentation. These failures put Patient A's safety directly at risk. 16. 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. Ms Egbufor should have been fully aware of the risk factors from the afternoon handover. 17. The conduct of Ms Egbufor was the subject of a comprehensive analysis in the expert report. The expert report was uncontested. The report concluded that Ms Egbufor's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and invited strong criticism. 18. The expert expressed the view that while Ms Egbufor's actions may be somewhat understandable due to the culture around level 3 observations in the unit, in her view the observation rounds became merely a tick box and thoughtless procedure for her. 19. The expert's report referenced the Code of Ethics for Nurses in Australia and the Code of Professional Conduct for Nurses in Australia. The expert's opinion was that maintaining observation rounds is a clear-cut activity. Ms Egbufor's failure to maintain Patient A's observation rounds and falsely signing for rounds she did not complete compromised his safety, was unethical, neglected her duty of care and directly breached the foundations of nursing. 20. We find that Ms Egbufor'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. 21. The first complaint also alleges unsatisfactory professional conduct within the meaning of section 139B(1)(l) of the National Law. 22. 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. 23. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes (1995) 183 CLR 501; [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. 24. 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. Ms Egbufor's conduct was improper and unethical because she recorded and allowed to be recorded observations of Patient A that she knew did not occur. 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 Ms Egbufor is sufficiently serious to amount to professional misconduct. The submissions made on behalf of Ms Egbufor acknowledge her admission of 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. On two separate occasions during the night shift, Ms Egbufor made entries indicating observations which had not taken place (2:30am and 3:30am). On one occasion, she made an entry on the observation sheet without personally assessing whether Patient A was alive (4:00am). 5. This conduct posed a risk to the safety of a vulnerable involuntary mental health patient. This risk was ultimately realised. 6. We find that the unsatisfactory professional conduct displayed by Ms Egbufor is of a sufficiently serious nature to justify suspension or cancellation of her 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 Ms Egbufor, 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 Ms Egbufor's registration and that she not be able to make an application for review (re-instatement application) for two years. 2. In a submission made on Ms Egbufor's behalf, after canvassing insight and the lengthy process for her if she sought to switch back to general registration, it was submitted that the appropriate protective orders are a reprimand and/or suspension of her registration for a period not exceeding six months. 3. It was also submitted that in order for Ms Egbufor to be eligible for general registration as a nurse, she must comply with the Nursing and Midwifery Board of Australia's Recency of Practice Registration Standard, which requires that she has completed a minimum of 450 hours (approximately 3 months) within the past five years. [1] As Ms Egbufor has not practiced as a nurse since her employment was suspended on 2 June 2017, if her registration is cancelled then she would need to successfully obtain a re-instatement order and commence practising before March 2022 in order to not fall foul of this registration standard. 4. It was further submitted that if a suspension order was not seen to be appropriate, then a cancellation order be made, but without setting a review period. 5. The health and safety of the public is the paramount consideration and our task is protective not punitive. Any order designed to protect the public from a repeat of the conduct that is the subject of a complaint which has been found proven, requires an evaluation of the seriousness of that conduct and the nature and extent of any justifiably apprehended harm that might be caused if it were to be repeated. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose: NSW Bar Association v Meakes [2006] NSWCA 340 at [113]. 6. The definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order. While a finding of professional misconduct is a prerequisite for the making of a protective order that cancels or suspends a health professional's registration, not all findings of professional misconduct warrant cancellation or suspension. That is, cancellation or suspension does not automatically follow a finding of professional misconduct: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. 7. In applying these principles the purpose of the disciplinary powers available to us, is not to punish a practitioner but rather to protect the public and maintain proper professional standards. 8. In our view, for the reasons that follow, we do not think reprimand and/or suspension of Ms Egbufor's registration is appropriate. Nor do we think it appropriate that a cancellation order be made without setting a review period. 9. At the time of Patient A's death Ms Egbufor had been a registered nurse for five years. Her conduct is serious. She demonstrated an absence of care, propriety, honesty and integrity relating to the practice of nursing. Given that Ms Egbufor was an experienced mental health nurse who had already completed a Masters degree in mental health nursing, her decision to follow the poor practice of signing for half-hourly rounds shows very poor judgment. Ms Egbufor then compounded this by completing patient records, the purpose of which is to serve patient wellbeing, which she knew were not accurate. 10. The length of the non-review period must send a message to Ms Egbufor, and other practitioners, that such conduct cannot be condoned. 11. We found the character reference from Mr Gyamfi to be of limited assistance. This was because his oral evidence revealed that he had no discussions with Ms Egbufor about her conduct and he was unaware of her admission about the 4:00am round. Accordingly he incorrectly assumed that Ms Egbufor had carried out the "on the hour check". 12. We agree with the Commission's submission that an appropriate non-review period should not be reduced due to recency of practice requirements. The Tribunal has previously rejected another nurse's submission for a reduced non-review period that would allow the nurse to seek re-instatement of registration before a certain date to meet recency of practice requirements. The Tribunal held that any recency of practice requirements might be imposed if done so with the protection of the public in mind. Accordingly, the timeframe for recency of practice requirements is not a strong factor which would persuade the Tribunal to shorten a non-review period which is appropriate. See Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 at [90]. 13. Ms Egbufor worked in a mental health unit where all of her patients were vulnerable and dependent upon proper nursing care for their welfare. It was a secure and specially-designed environment. She allowed observations to be recorded that did not occur. Patient A went for help. He was subsequently admitted as an involuntary patient. He should have been safe. 14. Having regard to the seriousness of these matters, the denouncement of Ms Egbufor's misconduct and maintaining public confidence in the high standards of the nursing profession, we are satisfied that Ms Egbufor's registration should be cancelled. A review of the cancellation order should not be made for a period of 12 months. In our view this reflects an appropriate level of deterrence for the professional misconduct which we have found proven in this case. 15. In its submissions the Commission referred to the Tribunal's power to make a prohibition order if satisfied that Ms Egbufor poses a substantial risk to the health of members of the public. 16. The Commission submitted that Ms Egbufor's conduct is serious and identified areas in which it was said that she held limited insight. 17. 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). 18. An order of this kind is aligned with the protective purpose of the legislation. 19. 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. The Commission's submissions did not address in any material way, nor did they detail, how Ms Egbufor would pose a substantial risk to the health of the public if she were to be involved in the provision of health services. 3. We are not satisfied that the evidence before us demonstrates that Ms Egbufor poses a substantial risk to the health of the public if she 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 Ms Egbufor about costs apart from the costs order being proportional in relation to the other nurses whose cases were heard concurrently. 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. Ms Egbufor is guilty of professional misconduct. 3. Ms Egbufor's registration as a nurse is cancelled. 4. Ms Egbufor is not to make any application for review of the cancellation of her registration for a period of 12 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. Ms Egbufor 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. ********** Endnote 1. Health Practitioner Regulation National Law (NSW), s 38(1)(e); Nursing and Midwifery Board of Australia, "Registration standard: Recency of practice" (1 June 2016). 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