Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Watkins [2021] NSWCATOD 61 Hearing dates: 16 – 20 November 2020 and by written submissions dated 15 January 2021, 1 March 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 Watkins is guilty of professional misconduct. (3) Under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), if Ms Watkins was still registered as a nurse, the Tribunal would have cancelled her registration. (4) Under s 149C(4)(b) of the National Law, Ms Watkins is disqualified from being registered as a nurse for a period of 18 months from the date of these orders. (5) Under s 149C(4)(c) of the National Law, the Tribunal requires the Nursing and Midwifery Board of Australia to record the fact that had she been registered, the Tribunal would have cancelled Ms Watkins' registration for a period of 18 months from the date of these orders. (6) 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, 4 and 5 above as soon as practicable. (7) Ms Watkins is to pay the costs of the Health Care Complaints Commission, to be agreed or assessed. (8) 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. (9) 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 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) Jill Louise Watkins (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) New South Wales Nurses and Midwives' Association (Respondent) File Number(s): 2020/00182199 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 Watkins is a nurse of some 13 years' standing. She was first registered as an enrolled nurse on 19 May 2008 after completing a Certificate IV in Nursing. Ms Watkins subsequently obtained a Bachelor of Nursing degree and according to records maintained by the Australian Health Practitioner Regulation Agency (AHPRA), on 9 January 2015 she became a registered nurse. 2. In May 2008 Ms Watkins commenced employment as an enrolled nurse at a Sydney hospital (the Hospital). Prior to 2008, Ms Watkins had worked as an Assistant in Nursing at the Hospital. 3. In the course of this employment Ms Watkins gained experience and training in mental health nursing. From February 2016 to February 2017 Ms Watkins completed a new graduate programme at the Hospital, completing two six month rotations in the Acute Mental Health Unit (ACMHU) at the Hospital. 4. On 22 February 2016, Ms Watkins commenced working as a "beginning practitioner Registered Nurse" on a part-time basis in the ACMHU. Ms Watkins then had a period of leave of about 7 weeks before returning to work in the ACMHU around 10 May 2017. 5. Whilst working in the ACMHU and as part of a team of night shift nurses, Ms Watkins was 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. 6. In June 2020 the Health Care Complaints Commission (the Commission) brought disciplinary proceedings against Ms Watkins alleging unsatisfactory professional conduct and professional misconduct in relation to the care she provided to Patient A. 7. There were five nurses on duty during the night shift when Patient A died, including Ms Watkins. 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. 8. All of the matters brought by the Commission allege a failure of the registered nurses, including Ms Watkins, to provide proper observations and make appropriate records for Patient A. 9. We heard the five separate cases against the nurses, including Ms Watkins, 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. 10. 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. 11. In respect of the other four nurses see proceedings: Health Care Complaints Commission v Brown (2020/00182212); Health Care Complaints Commission v Dudhela (2020/00182206); 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. 5. 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. 6. On 22 May 2017, Patient A was admitted to the Hospital as a voluntary patient after expressing suicidal ideation to his general practitioner. 7. 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". 8. 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. 9. Later in the morning on 22 May 2017, Patient A was assessed by another psychiatric registrar. Patient A reported low mood but did not express any acute suicidal thought or plan. The psychiatric registrar directed level 4 observations. 10. 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. At this review 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. 11. On 26 May 2017, Patient A was reviewed by another psychiatric registrar as an involuntary patient. The psychiatric registrar noted that the patient 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". 12. Accordingly in the course of Patient A's admission he had expressed suicidal ideation and during the night shift on 26 May 2017 he was on level 3 observations requiring the night shift nursing staff to take observations every 30 minutes. 13. Between about 9:15pm and 9:30pm on 26 May 2017, Ms Watkins commenced her night shift in the ACMHU and worked until about 7:30am on 27 May 2017. Ms Watkins was allocated seven patients. Ms Watkins 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. Subsequently a forensic pathologist prepared a statement for the Coroner and indicated that death could have been over eight hours prior to discovery. 2. 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. The door to Patient A's room could be opened. There was a window in the door 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 opened fully. 2. This meant that it was difficult to see through the blinds into Patient A's room. Evidence before us indicates 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 and two Tribunal members participating from different locations. A peer review expert gave oral evidence via audio visual link. Ms Watkins did not attend the hearing. 2. Although Ms Watkins did not attend the hearing she did participate in the process. Through a legal representative Ms Watkins provided a Reply to the Complaint and submissions which were both dated 9 October 2020. After the hearing Ms Watkins's legal representative provided a statutory declaration from Ms Watkins dated 20 January 2021 and supplementary submissions dated 25 February 2021. Both of these documents were received on 1 March 2021. The facts supporting the Complaint against Ms Watkins 1. The Commission alleges that Ms Watkins's conduct and care 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. 2. The facts underpinning the complaint about Ms Watkins' conduct are set out in particulars and are summarised as follows: 1. At about 12:30am on 27 May 2017, Ms Watkins 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. Between about midnight on 26 May 2017 and 1:00am on 27 May 2017, Ms Watkins failed to record an alleged incident involving Patient A coming out of his room to abuse another patient. 3. At about 4:00am on 27 May 2017, Ms Watkins failed to record an alleged incident involving Patient A being agitated and verbally aggressive. 4. At about 5:00am on 27 May 2017, Ms Watkins recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where: 1. Ms Watkins did not go into Patient A's room; 2. Ms Watkins did not assess Patient A's respiration. 1. At about 5:30am on 27 May 2017, Ms Watkins 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 6:00am on 27 May 2017, Ms Watkins recorded "sleeping" on Patient A's Level 3 Behavioural Assessment and Observation Chart in circumstances where: 1. Ms Watkins did not go into Patient A's room; 2. Ms Watkins did not conduct a proper assessment of Patient A's respiration. 1. At about 6:30am on 27 May 2017, Ms Watkins 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. 1. The Commission also alleges that Ms Watkins' conduct amounts to professional misconduct under s 139E of the National Law. The basis for this is that Ms Watkins' 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. Ms Watkins's response to the Complaint 1. In a written reply to the Complaint Ms Watkins admitted all the particulars of the Complaint. The admissions were reaffirmed on her behalf in the supplementary submissions. 2. In Ms Watkins' Reply to the Complaint she indicated that she had not renewed her registration as a nurse since 2018, and that she did not intend to renew her registration. In her statutory declaration dated 20 January 2021 Ms Watkins indicated that she had retired and had no intention of returning to nursing now or in the future. 3. In Ms Watkins reply to the Complaint she 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. Further, a nurse would "backfill" by signing the previous half-hourly round, which had not been conducted, on the next hourly round. Ms Watkins accepted and regretted following the practice of "backfilling." 4. Ms Watkins accepted that she should have questioned the practice of not attending half-hourly rounds. However, she had only been working in the ACMHU for a few weeks as a new graduate registered nurse (RN) and did not have the confidence to speak up at that time. 5. Ms Watkins referenced her failure at 1:00am and again at 4:00am to record incidents of aggression by Patient A. She accepted that she should have made contemporaneous entries in Patient A's progress notes. However she claimed that she discussed the 4:00am incident with the team leader, RN Brown, at about 5:00am. 6. Ms Watkins claimed that she conducted the 4:00am and 5:00am rounds with RN Dudhela. We note that RN Dudhela's evidence does not corroborate this claim. 7. At the commencement of the 4:00am round Ms Watkins said she was slightly delayed and saw RN Dudhela ahead shining a torch through Patient A's window and then move on. When she got to Patient A's room she also shined a torch through the window in the door but could not see him properly because his light was not on. She opened the door and moved closer to Patient A with her torch which she believed must have disturbed him. Patient A jumped off the bed, yelled and swore at her. Ms Watkins felt threatened and so she backed out of the room. 8. During the 5:00am round, which Ms Watkins claimed she had attended with RN Dudhela, Patient A's room light was on. Ms Watkins said they both looked through the broken blind of the window. She observed Patient A sitting up on the bed, leaning against the backboard behind the bed, and he appeared to be sleeping. Ms Watkins did not go into Patient A's room because he had been aggressive towards her in the earlier round. Ms Watkins claimed that in hindsight she held a mistaken belief that Patient A was alive at the 5:00am round because he appeared to be sleeping. 9. Ms Watkins claimed that she conducted the 6:00am round with RN Chikuku. Ms Watkins said they both looked through the broken blind of the window. She observed Patient A sitting on the end of the bed, he appeared to have moved slightly since the last round and he appeared to be sleeping. 10. We note that significant aspects of this account were disputed by RN Chikuku in her oral evidence given at her hearing. 11. In submissions made after the hearing on behalf of Ms Watkins reference was made to Ms Watkins being the most junior registered nurse on the night shift on 26/27 May 2017. She was a beginning practitioner and her experience in mental health was limited to her six month rotation in 2016. Further, Ms Watkins had only been working in the ACMHU, on a permanent part-time basis, for about six weeks when Patient A died. The Commission's evidence 1. The Commission provided comprehensive evidence to support the Complaint against Ms Watkins. Such evidence included but was not limited to: workplace investigation interviews (conducted under the auspices of the relevant Local Health District) with all nurses including Ms Watkins; s 150 proceedings taken under the National Law by the Nursing and Midwifery Council of New South Wales (the Council) into Ms Watkins's conduct; correspondence from the Commission to Ms Watkins 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. Other evidence available to us indicates that two nurses would conduct observation rounds, and that there was a practice of each nurse on the night shift 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 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. Section 150 proceedings against Ms Watkins 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. 5. A decision record and written reasons for that decision were produced by the Council. The Council imposed various conditions on Ms Watkins' nursing registration. These conditions included that Ms Watkins 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. 6. In the aftermath of Patient A's death Ms Watkins attended investigation interviews instigated by her employer. On 14 August 2017, Ms Watkins' employment was terminated and her name was placed on the service check register. 7. According to AHPRA records Ms Watkins is currently unregistered. Ms Watkins has not renewed her registration. As referenced above Ms Watkins has said that she is retired and does not intend to work as a registered nurse in the future. 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. The particulars in support of Complaint One are admitted by Ms Watkins. Independent of Ms Watkins' concessions we are satisfied from the evidence before us that particulars 1 to 7 of the first complaint in their entirety are made out. 3. Particulars 1, 5 and 7 relate to Ms Watkins purportedly conducting half-hour observation rounds of Patient A and recording that he was sleeping when she did not personally sight Patient A. She 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. 4. Particulars 4 and 6 relate to rounds conducted by Ms Watkins at 5:00am and 6:00am in which she 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. These entries were made without properly assessing whether Patient A was alive. 5. Particulars 2 and 3 represent serious failures of care and judgment by Ms Watkins in failing to record incidents of aggression she claimed to have witnessed by Patient A. 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 Watkins failed to record significant information in Patient A's clinical notes about his behavior relevant to his mental state. 6. The conduct of Ms Watkins was the subject of a comprehensive analysis in an expert report. The expert report was uncontested. The report concluded in all the areas referred to at [59], [60] and [61] below, that Ms Watkins's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and invited strong criticism. 7. 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 basic activity and responsibility of a mental health nurse. It was stated that Ms Watkins' actions demonstrated a blatant disregard for patient safety and the initialling of an observation round she did not carry out conveys an attitude towards observation rounds as merely a "tick box" and thoughtless activity. Ms Watkins' failure to maintain Patient A's observation rounds and falsely signing for rounds she did not complete compromised Patient A's safety, was unethical, neglected her duty of care and directly breached the foundations of nursing. 8. The expert noted that the progress reports provided for the night shift did not describe Patient A to have been particularly unsettled or agitated. Further, there was no documented evidence recording this behaviour. Patient A's observation chart variously recorded that he was "settled" and "sleeping". However Ms Watkins had referred to occasions where Patient A was unsettled during the night, even "aggressive". In the expert's clinical opinion this ought to have indicated to Ms Watkins that Patient A required more regular monitoring as he was agitated and unable to sleep. Further, Ms Watkins should have reported these interactions to her colleagues and documented them. 9. In relation to the observation rounds that Ms Watkins did conduct, the expert stated that in her clinical opinion Ms Watkins did not perform a thorough or legitimate observation of Patient A. Further, she breached Hospital policy by not properly observing Patient A's respiration rate. 10. In light of all the evidence we find that Ms Watkins' 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. 11. The first complaint also alleges unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. 12. 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. 13. 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 Watkins' 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 Watkins is sufficiently serious to amount to professional misconduct. The submissions made on behalf of Ms Watkins are silent on the issue 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. We accept the submissions made by the Commission that Ms Watkins' conduct is sufficiently serious to amount to professional misconduct because: 1. On three separate occasions during the night shift, Ms Watkins made entries indicating observations which had not taken place (12:30am, 5:30am and 6:30am); 2. On two occasions, Ms Watkins failed to record significant information about the patient's behaviour relevant to his mental state in the clinical notes; 3. On two occasions, Ms Watkins made entries on the observation sheet without properly assessing whether the patient was alive. 1. This conduct posed a direct risk to the safety of a vulnerable involuntary mental health patient. It was a risk that was ultimately realised. 2. We accept that at the time of Patient A's death Ms Watkins was the most junior registered nurse on the night shift. However, Ms Watkins worked in an acute 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 recorded observations that did not occur, failed to record significant information relevant to Patient A's mental state and did not properly assess if he was alive. Patient A went to the Hospital for help. He was subsequently admitted as an involuntary patient. He should have been safe. 3. We find that the unsatisfactory professional conduct displayed by Ms Watkins 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, and that Ms Watkins is guilty of professional misconduct. 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 Watkins, 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 that if Ms Watkins had been registered, her registration as a nurse would have been cancelled and that she not be able to seek registration for a period of two years. 2. In a submission made on Ms Watkins' behalf, the Commission's position was acknowledged. There were no specific submissions as to the length of time Ms Watkins should not be able to seek registration and it was accepted that the Tribunal would set an appropriate disqualification period. 3. In our view Ms Watkins' conduct is serious. She demonstrated an absence of care, propriety, honesty and integrity relating to the practice of nursing. 4. Ms Watkins was the most junior registered nurse on the night shift at the time of Patient A's death. At the time of Patient A's death she was a beginning practitioner and had worked in the ACMHU on a permanent part-time basis for about six weeks. 5. In all the circumstances having regard to the seriousness of these matters together with the findings made above, we are satisfied that if Ms Watkins were still registered we would have cancelled her registration. In our view she ought to be disqualified from being registered as a nurse for a period of 18 months. This reflects an appropriate level of deterrence for the professional misconduct we have found proved in this case. 6. In its submissions the Commission referred to the Tribunal's power to make a prohibition order if satisfied that Ms Watkins poses a substantial risk to the health of members of the public. 7. The Commission sought a prohibition order under s 149C(5) and (5A) of the National Law prohibiting Ms Watkins from providing health services on a public, private or volunteer basis until she is re-registered as a nurse in the following areas: 1. nursing services; 2. hospital services; 3. mental health services; 4. community health services. 1. In support of this position, amongst other matters, the Commission referenced an observation in the s 150 decision of a concern that Ms Watkins presented a potential ongoing risk to public safety. 2. In submissions made on behalf of Ms Watkins the making of a prohibition order was opposed. Our attention was drawn to the admissions made by Ms Watkins as to the errors of judgment she had made by allowing herself to be part of an entrenched culture of hourly rounds and "backfilling". 3. 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). 4. An order of this kind is aligned with the protective purpose of the legislation. 5. 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. Ms Watkins was a junior registered nurse and her conduct occurred in the context of a unit which on the evidence before us had a deficient and unsafe culture. The evidence before us does not indicate or suggest that other complaints have been made about Ms Watkins' practice. There is nothing to suggest that Ms Watkins did not comply with the practice conditions imposed on her by the Council. 3. We are not satisfied that the evidence before us is sufficient to demonstrate that Ms Watkins poses a substantial risk to the health of the public if she were to be involved in the provision of allied health services. 4. 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 Watkins about costs. 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 Watkins is guilty of professional misconduct. 3. Under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), if Ms Watkins was still registered as a nurse, the Tribunal would have cancelled her registration. 4. Under s 149C(4)(b) of the National Law, Ms Watkins is disqualified from being registered as a nurse for a period of 18 months from the date of these orders. 5. Under s 149C(4)(c) of the National Law, the Tribunal requires the Nursing and Midwifery Board of Australia to record the fact that had she been registered, the Tribunal would have cancelled Ms Watkins' registration for a period of 18 months from the date of these orders. 6. 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, 4 and 5 above as soon as practicable. 7. Ms Watkins is to pay the costs of the Health Care Complaints Commission, to be agreed or assessed. 8. 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. 9. 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