Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dulal [2021] NSWCATOD 92 Hearing dates: 27 May 2021 Date of orders: 09 July 2021 Decision date: 09 July 2021 Jurisdiction: Occupational Division Before: O Shub, Senior Member S Daly, Senior Member Dr S Schulz-Robinson, Senior Member M Ficarra, General Member Decision: (1) The Respondent is strongly reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). (2) The Respondent must practice under Indirect Supervision, as described in the Nursing and Midwifery Council of New South Wales' "Regulatory Supervision Policy". (a) To nominate a supervisor for approval by the Council before returning to work as a Registered Nurse. (b) That monthly reports are to be provided to the Council by the approved supervisor. (c) To authorise the Council to provide approved supervisors with a copy of relevant decisions. (3) The Respondent is to provide evidence within seven (7) days to the Nursing and Midwifery Council of New South Wales, that she has provided a copy of full conditions to her nursing employer and/or education provider. (4) Within seven (7) days of a change in the nature or place of her practice, the Respondent is to forward evidence to the Nursing and Midwifery Council of New South Wales that she has provided a copy of full conditions to her nursing employer (including nurse managers at agency placements) and/or education provider. (5) The Respondent is to authorise the Nursing and Midwifery Council of New South Wales to exchange information with current and future persons or organisations at places where she works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. The Respondent must only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice, and exchange information with the Council related to compliance with the conditions. (6) Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply should the Respondent's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. (7) The Nursing and Midwifery Council of New South Wales is the appropriate review body for the purposes of these conditions. (8) The conditions placed upon the Respondent in orders (2) to (5) above are Critical Conditions. (9) The Respondent is to pay the costs of the Applicant as agreed or assessed. Catchwords: HEALTH — professional registration and discipline — complaints Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Clyne v The New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: Zach Smith, "Clinical Supervision: What Managers Need To Know" (28 January 2019) https://nursegrid.com/blog/clinical-supervision-what-managers-need-to-know/ Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Benju Dulal (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses and Midwives' Association (Respondent) File Number(s): 2020/00364359 Publication restriction: Nil REASONS FOR DECISION 1. The reasons for the complaint brought by the Applicant appear from the Complaint lodged with the Tribunal under Case No 2020/00364359 dated 23 December 2020. Complaint The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law"). HEREBY COMPLAINS THAT Miss Benju Dulal… being a nurse registered under the National Law, COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c) and/or (I) of the National Law in that the practitioner has: i. contravened a condition to which the practitioner's registration was subject; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a nurse in New South Wales on 11 February 2015. Between 14 October 2019 and 13 April 2020, the practitioner was employed in a temporary position as registered nurse in the Emergency Department at Hornsby Ku-rin-gai Hospital. Relevantly, following a Performance Review Panel ('PRP') meeting on 9 October 2018, the practitioner's registration as a nurse was subject to the following conditions (among others): Condition 1: On return to clinical practice, the practitioner is to practice under the indirect supervision in accordance with the Nursing and Midwifery Council of NSW regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. (a) To nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. (b) To authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. (c) To authorise the Council to provide nominated and approved supervisors with a copy of relevant decisions. Condition 3: Within seven (7) days of a change in nature or place of her practice, she is to forward evidence to the Nursing and Midwifery Council of NSW that he/she has provided a copy of full conditions to her nursing employer (including nurse managers at agency placements) and/or education provider. Condition 4: To authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where she works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. The practitioner must only be employed as a nurse or midwife in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions. Condition 8: To satisfactorily complete education approved by the Nursing and Midwifery Council of NSW and that has the following characteristics: (i) Type of institution: face to face tertiary / vocational; (ii) Content or learning objectives: reflective practice. (a) Within three months of the date of this decision must provide evidence to the Council of her enrolment in the approved course (b) Within 14 days of completing the approved course, she is to provide documentary evidence of satisfactory completion to the Council (c) To bear responsibility for any costs incurred in meeting this condition. On 7 November 2018, the practitioner signed a copy of the conditions placed on her registration as an acknowledgment. PARTICULARS OF COMPLAINT ONE 1. Between 13 October 2019 and 14 April 2020 the practitioner contravened Condition 1 of her registration in that she worked as a registered nurse in the Emergency Department at Hornsby Ku-rin-gai Hospital on approximately 112 occasions in circumstances where the practitioner: (a) was not under indirect supervision of a Council- approved supervisor (b) did not nominate a supervisor for approval by the Council within 14 days of commencing employment at Hornsby Ku-ring-gai Hospital (c) did not authorise the approved supervisor to provide written reports to the Council at monthly intervals (d) did not provide the approved supervisor with a copy of the conditions on her registration. 2. Between 13 October 2019 and 14 April 2020, the practitioner contravened Condition 3 of her registration in that she commenced work as a registered nurse in the Emergency Department at Hornsby Ku-rin-gai Hospital on 14 October 2019 in circumstances where the practitioner failed to provide: (a) a copy of her full conditions to her employers at Hornsby Ku‑rin‑gai Hospital within 7 days of commencing employment (b) evidence to the Council that she had provided a copy of her full conditions to her employer at Hornsby Ku-rin-gai Hospital within 7 days of commencing employment. 3. Between 13 October 2019 and 8 February 2020 the practitioner contravened Condition 4 of her registration in that she commenced work as a registered nurse in the Emergency Department at Hornsby Ku-rin-gai Hospital on 14 October 2019 in circumstances where she failed to authorise the Council to exchange information with her employer about her performance and compliance with the conditions on her registration in that she failed to notify: (a) the Council of her employment as a registered nurse at Hornsby Ku-ring-gai Hospital (b) her employer about the conditions on her registration. 4. Between 9 October 2018 and 16 April 2020 the practitioner contravened Condition 8 of her registration in that she failed to complete a course in reflective practice within 3 months of the date the conditions were imposed on her registration. COMPLAINT TWO The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner 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 the practitioner's registration PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars thereof are relied upon cumulatively. Nature of the jurisdiction 1. The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of nursing. 2. In Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201‑202; [1960] HCA 40 the High Court said: "Although it is sometimes referred to as "the penalty of disbarment", it must be emphasized that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege." 1. Section 3A of the Health Practitioner Regulation National Law (NSW) ("the National Law") provides that "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". The interests of the public include patients or potential patients of the practitioner concerned. 2. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 ("Prakash") at [91]: "… The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of… practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted. 1. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s 3A of the National Law. The issues 1. In essence, therefore, the issues which arise are clearly set out in the Particulars of Complaint One. The Respondent was a registered nurse who contrary to conditions placed on her registration failed to comply with those conditions and worked as a registered nurse in contravention of those conditions. 2. The Respondent prior to the hearing admitted all the allegations made against her and in the circumstances, if found proven by the Tribunal, the only issue to be determined is what appropriate orders should be made in respect of the breaches of conditions by the Respondent. 3. At the hearing the Applicant advised the Tribunal that it would not be calling witnesses and that it would rely on a bundle of documents consisting of 48 tabs and tendered as Exhibit 1. The Applicant indicated to the Tribunal that under s 165(h) of the National Law, with the admissions that had been made, the Applicant proposed to move directly to a Stage 2 hearing and with that the Applicant closed its case. Respondent's evidence 1. The Respondent tendered a bundle of documents consisting of Tabs 1 to 6 which was admitted as Exhibit 2. The Respondent indicated that she wished to give evidence under oath and proceeded to do so. She indicated that she is currently resident in South Australia where she works at United Workers Union as an organiser. 2. In respect of her nursing career she indicated that she started working in 2015 and initially worked for only four months as a graduate nurse and subsequently, while subject to restrictive conditions, worked as a nurse for a period of five months. 3. She indicated that coming before the Tribunal had been very stressful for her and it made her reflect on what she had done. She accepted that it was all her fault and took responsibility for what she did. She stated that she would in future, if allowed to work, have a copy of her conditions with her at all times and would ensure that she was in all respects compliant with any conditions placed on her registration. 4. In response to the complaint made against the Respondent, the Respondent filed a statement dated 9 April 2021 in which the Respondent admitted the contravention of her conditions when she worked as a nurse between 13 October 2019 and 14 April 2020. In that statement she stated that she graduated in 2014 and was able to successfully secure a new graduate position at the Mater Hospital, a private hospital in North Sydney, commencing in February 2015. She indicated that she had always been a very hard working, motivated, dedicated and career‑oriented person. She stated that she had worked hard to get into the nursing profession and that she was very passionate about it. 5. Her employment at Mater Hospital from February to June 2015 was not a pleasant working experience for her. She did make some documentation errors and medication errors. She was not coping with the workload on occasions where she was allocated up to five patients on some shifts. She stated that on reflection she felt that at this early stage of her nursing career she needed more support and senior supervision. 6. In response to questions put to her by the Applicant regarding her statement that she believed she needed more supervision, she stated that it was difficult to access supervision. At the time she was effectively doing the afternoon shift. Everybody had their own workload and was busy. She did indicate that the same thing applied to other workers. The cross-examination addressed the fact that the Respondent had been through various assessments by the Nursing and Midwifery Council of New South Wales (the Council) and that it was indicated that she needed to improve. The Respondent indicated that she had been through training following those assessments. She felt that she had improved and while she was working at Hornsby, albeit in contravention of her conditions, she believed she had improved considerably. She also indicated that she had been through a number of training programs online and she was dealing with emergency situations where the patients could deteriorate very quickly. One of the conditions imposed upon her education requirements was that she do training in the care of deteriorating patients which was imposed in 2018 and only done by the Respondent one year later. The Respondent advised that it took a long time because she had to try and find a course which did not require her to go back to university and it was very difficult. Some of the courses were fully booked but then she found one approved by the Council and completed it. 7. The Respondent was cross-examined on why she had done no further CPD after 26 March 2020 and whether she accepted that she was capable of undertaking CPD even though she was not in a clinical role. The Respondent indicated that she was focussing on getting a job and was having difficulty finding a job. It took a lot of her time and as she was not able to work as a nurse, she failed to comply with her CPD obligations at that time. 8. The Applicant asked the Respondent whether she believed she would be safe to practise as a nurse if she were permitted to do so. She indicated that she feels that she would be perfectly able to work safely. She said that she had gained a lot of knowledge and confidence while working in Hornsby. She gained experience and could reflect on what she could do better as a nurse, how mistakes could affect patients and she is confident that she can practise safely and acknowledges she needs to keep up her skills. 9. In regard to the conditions imposed on the Respondent, the Respondent stated that although her employer knew that she had conditions imposed on her registration she knew that they would not advise the Council. She realised that she should have done it and not relied on them and accepts that she made a mistake and that she is responsible. 10. When questioned as to why the Respondent took a position as a nurse when she knew what conditions were imposed on her and then did not comply, she indicated that she was so excited about the possibility of obtaining employment as a nurse after such a long time of failing to obtain such employment that she did not apply her mind to the conditions placed on her and her obligations to comply with those conditions. 11. She was asked about her future intentions and indicated that she wanted to go to a refresher course and then go back to nursing. She would do the three-month refresher course. She indicated that she would comply with any conditions imposed on her registration; she would advise everything properly and would do all the training required by the Council. Only when it was approved by the Council and everything was in place would she start working. She understands that the purpose of conditions is to ensure that there is no risk to patients, no lack of skill, keeping the community safe, and that she cannot do anything that puts a patient at risk. She indicated that she always wanted to be a nurse in order to help vulnerable and sick people. She indicated that she has a sympathetic nature and wants to give back to the community. People who are sick or very vulnerable are those that she wants to help and she recognises how even a smile can help people and bring a smile to them. 12. In response to some questions from the Tribunal regarding the support that she got when she first started as a graduate nurse, the Respondent indicated that there were educators to see that you were doing the right thing. For a few days, three or four, you had somebody with you, then you got to work on your own and with four or five patients to deal with in an emergency, it was very stressful. She did make a mistake and found that the support that she received was not very good. She looked for support from her supervisor and then she was terminated. She was asked about her current work environment and indicated that she started in July of 2020. She is employed full-time and prior to her current job gained experience at the NSW Nurses and Midwives' Association. She looks after the members of the Union. The workers are workers in factories. She has about 200 members for whom she is responsible over four or five sites where they might have issues with their employer. She indicated that the current employment is a very supportive environment, she has a great manager who treats her with respect and members who are happy with the fact that she is giving them the right help and steering them in the right direction. The job can become very busy and stressful and she thinks before she acts. This experience has taught her a lot and there are lots of skills that she can transfer to nursing. 13. That concluded the Respondent's oral evidence. The Nursing and Midwifery Council's interaction 1. The Council had successive contacts. The initiation of these contacts commenced with a notification from Leanne Laidler, the Director of Nursing at Mater Hospital to advise that the Respondent had failed to demonstrate competency during the graduate program and that her attitude and behaviour did not demonstrate an understanding of the potential repercussions of practice behaviour and conduct to patient safety and care. 2. The Council conducted a s 150 hearing and initially imposed a condition on the Respondent's registration that she not work as a nurse until reviewed by the Council. The conditions were reviewed in August 2015 and the conditions listed below were imposed. 1. The registrant must practise under the indirect or direct supervision of a Registered Nurse (Division 1) who does not have any conditions on his/her practice. The supervisor must be: a. on-site and working in close proximity within a ward or unit with the registrant; and b. able to oversee and provide advice about the registrant's practice when necessary. 2. The registrant must not: a. be the nurse in charge of any shift, ward or unit. 3. The registrant must be supervised by a nurse manager (or equivalent) approved by the Nursing and Midwifery Council of New South Wales who has agreed to oversee supervision and designate supervisors. The registrant must: a. provide the Nursing and Midwifery Council of New South Wales with the name, contact details and résumé of the nominated nurse manager within two weeks of commencing work b. authorise the nurse manager to (i) Notify the Nursing and Midwifery Council of New South Wales of any breach of the conditions or unsafe practice; and (ii) Exchange information with the Council related to compliance with the conditions and (iii) Provide the Council with a copy of the conditions signed by the registrant and by the nominated nurse manager indicating awareness of the conditions and authorisation c. authorise the nurse manager to provide a written report about the registrant's performance against the competency standards for a Registered Nurse (Division 1) approved by the Nursing and Midwifery Board of Australia, one month from the commencement of the registrant's employment. 4. The registrant must: a. inform all current nursing employers (including nurse managers at agency placements) of the conditions immediately and provide the Nursing and Midwifery Council of New South Wales with each employer's name and contact details b. inform all future nursing employers (including nurse managers at agency placements) of the conditions and provide the Nursing and Midwifery Council of New South Wales with the name and contact details of each employer, before commencing work/employment as a Registered Nurse. 5. The registrant must only be employed as a nurse in circumstances where the employer has agreed to notify the Nursing and Midwifery Council of New South Wales of any breach of the conditions or unsafe practice, and exchange information with the Council related to compliance with the conditions. Private Conditions 6. The registrant must complete a performance assessment by performance assessor/s approved by the Nursing and Midwifery Council of New South Wales. The cost of assessment is to be met by the Nursing and Midwifery Council of New South Wales. 1. The Respondent was referred to a performance assessment which was conducted on 21 November 2015 at Longueville Private Hospital. Following receipt of the performance assessment report, the Council referred the Respondent to a Performance Review Panel. The Performance Review Panel considered the evidence and the comments of the assessors which were listed in their report as follows: • Ms Dulal was task focused and exhibited poor time management skills • Ms Dulal was disorganised at times and did not always engage with her patients and/or families other than to perform tasks • Ms Dulal's approach to the Performance Assessment was reactive and her overall underpinning theoretical knowledge, including Medication Administration was limited • She did not seek assistance from other RNs during the assessment and rechecked BGLs and BPS on a number of occasions • After being prompted to sign the medication chart post Medication administration, the registrant continued to sign it before dispensing the medication • Infection control was breached during a wound dressing • Resident's privacy and dignity was not maintained • Medication non-compliance was observed on several occasions. 1. In that hearing the Respondent was asked to describe her work and experience at the Mater Hospital. 37. The first incident occurred after two weeks. She was required to assist the Physiotherapist and took blood pressure sitting and standing. She was unable to find the paperwork at the time to complete and was pressured by the physiotherapist to assist prior to documenting the blood pressure. She had intended to write the blood pressure when she located the paperwork. The educator informed her that it was unsatisfactory practice not to write the blood pressure in the notes at the time. Ms Dulal advised that in future she will not listen to a request from a Physiotherapist or others until she has completed the requirements of her own role. 38. A further criticism of her practice was that she overwrote information in a patient's notes. She had been corrected by the Educator and now if she makes a mistake, she understands the correct procedure to follow. She agreed with the Panel that overwriting the patient's notes may render them illegible. 39. When the issue with the IV antibiotics occurred, Ms Dulal stated that she was practicing under another RN who did not say anything to her at the time of the incident and was not asked for an explanation by Management following the incident. 40. Ms Dulal stated that she believed that because she was the first of the new graduates to make mistakes, she was made the "highlight" and although other new graduates made errors, they were not given the same weight. 41. Ms Dulal stated that she subsequently lost self-esteem. When the earthquake occurred in Nepal she was concerned for her family and missed an appointment with the Educator for a Simulation Assessment and they "made life miserable". She felt she could separate her home and work during the period that she was concerned for her family. Ms Dulal did not consider management responded well to her needs during this time, but they did offer Access Counselling, a free service to staff. Ms Dulal stated that the other new graduates were quite supportive. 42. The Panel recognised that Ms Dulal's experience in the Mater Hospital New Graduate Program may not have been ideal and it may have been of benefit to test Ms Dulal's skills in an alternative ward. 1. In regard to additional education in the various areas, the following strategies were put in place to develop the Respondent's clinical performance including: • Reduced patient load • Additional study day • Self-reflection and critical thinking • Working with Educators to accurately maintain documentation • Review common medications, their use and contraindications and following these measures, the following measures were implemented: • Direct supervision • Learning contracts • Simulation training • Learning packages • Reflection log • Reduced patient load • Extended clinical rotation (remain in orthopaedics and not transfer) • Work with Orthopaedic clinical Nurse Educators • Evaluation of clinical performance by assigned RNs 1. Following those measures, in a notification provided on her behalf by the NSW Nurses and Midwives' Association it was stated that in May 2015 it was noted that the Respondent's clinical practice was improving and as a result her level of supernumerary time was reduced and her patient load was increased. However, on her return from leave her employment was terminated. 47. Ms Dulal stated that when she had the learning contact and was being supervised, she had a poor relationship with one of the Educators who did not respect her confidentiality or privacy. She was not told when she did something wrong, the Educator went straight to the NUM instead. 48. She was required to remain in Orthopaedics on a learning plan when all the other graduates were rotated to other wards and she felt that it was a never-ending process. 49. The Panel noted that Ms Dulal's clinical practice was seen to be improving prior to her termination and considered it unfortunate that it had not been seen as possible to continue her in the program, preferably in a different ward, to give her an opportunity to expand her skills in different areas of nursing where she may have been more suited. 1. In regard to further learning or mentoring in a response via the NSW Nurses and Midwives' Association on 22 July 2015 the Respondent provided evidence of the learning contract undertaken following the incidents at the hospital. 51. Following her termination from the Mater Hospital, Ms Dulal sought employment through an agency. She was put in touch with Longueville Private Hospital where it was agreed that she could work in an unpaid supernumerary RN role for the purpose of gaining experience and obtaining a report from a Nurse Manager. The Council had received a report from Longueville Private Hospital which was very positive. 52. The report indicates that there were no instances of unsafe or unprofessional practice witnessed by the assessor. 53. The Panel commended Ms Dulal for making the effort to work at another Hospital to gain experience and to enable consideration of her performance by another supervisor. 54. The Performance Assessment arranged by the Council was subsequently undertaken at Longueville Hospital two months after she finished working there. On the day of the assessment, Ms Dulal states that she was allocated a full workload of 8 patients. During the assessment, she stated that the assessors often interrupted her work with her patients and she subsequently became behind in her work and was running late. The assessors made critical comments about her time management in their report. Ms Dulal stated that the assessors did not provide her with any feedback on the day although one of the assessors asked her about her plans for the future. 55. The Panel were not critical of Ms Dulal's time management as it was evident that undertaking an assessment in a unit where she had not worked for two months, with a full load of patients and no cover when the assessors removed her from the ward, reduced the time available to her to undertake her duties. It was not surprising that a new graduate would not be able to prove competency in this area under these conditions. 56. The Panel discussed with Ms Dulal, other aspects of the assessment where the assessors were critical of her practice which included Medication Administration, Documentation, Wound care and patient privacy. The Panel were satisfied with Ms Dulal's responses to the assessor's criticisms regarding patient privacy. 57. Ms Dulal stated that she was unable to get work as a nurse until the conditions are lifted. She had recently sought some agency work as a carer. She stated she had recently been successful in obtaining employment as an AIN with Opal care in Warringah. At the interview, she had informed them that she was an RN but had not worked as a nurse for several months as she currently has conditions on her registration. 58. The Panel considered the options available to Ms Dulal and that working as an AIN would be a very good opportunity for her to improve her skills, particularly in relation to documentation, infection control and medication administration. The Panel also encouraged Ms Dulal to take advantage of in-services offered by the facility. 59. The Panel commended Ms Dulal for seeking to undertake work as supernumerary at Longueville Private Hospital and encouraged Ms Dulal to seek opportunities with her new employer wherever possible to reinforce her skills as an RN while working as an AIN. 60. The Panel recognised that the report provided by Longueville Private Hospital was very positive about Ms Dulal's performance, however, were persuaded by the evidence in the Performance Assessment regarding Medication Administration, Documentation and Wound Care that she requires further education in these areas. 61. The Panel considered that following additional learning in the above areas, a further Performance Assessment would be conducted to provide evidence that Ms Dulal's performance was satisfactory. 1. At that time the Panel did not find evidence of unsatisfactory professional conduct and found that the Respondent had been complying with all conditions imposed upon her. The Panel determined that it was necessary to impose conditions on the Respondent which included the following: (a) Practice restrictions • Not to be in charge of any shift. Ms Dulal has worked as a RN for a period of 4 months in total and does not have the experience to equip her to undertake the role of an in-charge at this time. (b) Supervision • Indirect supervision ‑ Ms Dulal has not completed a graduate program following her graduation as a RN and has not yet received sufficient guidance to enable her to work as a RN without any supervision. (c) Education • Courses in Medication Administration (comprehensive), documentation and wound care were recommendations of the assessors and would appear to be the minimum required prior to Ms Dulal undertaking a further Performance Assessment. (d) Performance assessment • Following the completion of the courses indicated, a further Performance Assessment is required to ascertain if Ms Dulal's performance is satisfactory. 1. A further s 150 hearing was conducted on 11 June 2020 which proceeding centred on the breaches of conditions which had been imposed on the Respondent and which restricted the manner in which the Respondent was able to practise. As the Respondent has admitted in full the allegations of breach by her the detail of that s 150 hearing is not worth repeating in this decision. 2. In response to the decision of 11 June 2020 the Respondent provided a response, the details are set out in full below: I worked at NSW Hornsby Hospital because Jenny Neilson (Director of NSHLD) offered me a position. Matt Byrne arranged for the interview with her, where I mentioned about my condition and what's required from me and them. They agreed to provide me full support, supervisor, and education. It was promising that I can finally clear my licence, so I accepted. As all these years I could never get hired for the RN position because of my condition, when offered I was thrilled and excited about the opportunity. In all my excitement I was careless and failed to fulfil my duty of notifying NMC and relied heavily on my NSWNMA case officer as he said he will take care of it. Upon commencement of my employment, I believe NUM1, NUM2, educators, are aware of my condition and they are always monitoring my performance. I was grateful at that time as I was treated fairly and given chance to perform my best. I was too nervous, fearful confront with anyone re my condition as I didn't want to rock the boat. I didn't know who know and who doesn't, I wasn't aware of the arrangement at ED and who was involved so I didn't want to talk to anybody. When I didn't hear from Jenny and Matt, I was concerned so I tried to reach out to Matt. I found out Matt had resigned. There was no message left for me and I left on dark. Later I also discovered that NMC didn't receive any documents either. I tried to reach out to Jenny myself, after many fail attempts finally her assistant responded me, and they sent the signed documents to NMC themselves. Jenny avoided my attempt to meet her and my requests. I was left stranded and now I am in this trouble and I feel I have no way out. After the meeting with NMC board, I was given second chance to make things right. Firstly, NUM1 was away so I spoke with [acting] NUM. She said she can't do anything until NUM1 is back. I informed NMC about it and my conversation with her. I also sent NUM and acting NUM an email about my situation and attached documents for them to sign. I didn't hear back from them. Finally NUM 1 returned, I arranged for an meeting with her, explained my situation and what is required from her. She gave me the signed form and agreed verbally to provide supervisor and an supervisor report. They made me wait, due to covid everyone is too busy she said. Then I was ignored, they avoided me. I asked for my appraisal, they said they are busy, and they didn't arrange an time for my appraisal. I continue to chase them, but I had multiple fail attempts. Lastly, when my contract expired, I received an email from NUM1 stating she cannot provide me report and reference (see attachment below). I informed immediately as soon as I found out they weren't aware. Ros didn't meet with me in person on February when I tried to meet with her in person to tell. She left the message to her assistant stating she had a conversation with Jenny any she is aware of it. On March I spoke to Beda (NUM2, Navigator in ED about my condition and she said she needs to talk to Ros. I was completely shut from meeting or having any conversation. I was always ignore or they tried to make an excuse to run from me so they don't have to answer me or help me.. I tried my best, but I cannot do anything if nobody wants to help me. That last month of my work there I felt very humiliated, judged, discriminated, ignored, helpless, and silently bullied. I am still suffering from it. I feel like a criminal. 6 months I worked there, for 5 months I was adored , praised for my good work ethics, I received no complain, I worked within my scope of practice, did all the training and education, remained within my legal and ethical boundaries, and provide safe care . managers were happy with my hard work and dedication. I received good feedback from my colleagues and team leader. But when the things got out about my condition I was treated differently. I am psychologically deeply impacted by it, and feel depressed, hopeless, loss of self-worth, and a criminal. My career is ruined, and I am jobless with no hope to have career. All I wanted was to get back to Nursing and all the people with power has ruined it all for me. I have no help, I blame union and the Director who gave me the job in first place with false hope and left me to drown. I feel very helpless and I don't know what to do. I have made an appointment to seek counselling to deal with my mental stress and depression. I was only in 2 months as new grad when I made few mistakes which was dealt very badly at Mater hospital. Educator was a bully, she didn't like me. There were other staff who were same. They all continued to make my life harder, picked me up on anything and everything made me nervous and self‑doubt myself. They targeted me so badly that and I know they planned to get me fired from work. As a new grad everyone makes mistakes, everyone did same mistake as I did but I am suffering from it until today. How does NMC intends to give person a chance to clear their licence, make their career, improve and perform in their job with all the unachievable condition requirements. No employer wants to employ you because of the condition requirement, they think it's too much too handle. Is there no other way NMC can do? I am frustrated from this life. Dealing with this stress is causing pressure and mental torture. Is there another way to save my career or is this the end of my career? I am aware that I am non‑compliant, and because it all went out of my control and all the people involved in this blocked me and denied any support or help, I am very helpless. I will accept any decision you make as I have no hope of any positive outcome. Everybody in power will always cause people like me to suffer as they are not the one who is jobless or career less and nobody cares. Sorry for the mistakenly providing wrong email address of my Team leader reference, I will provide another one its… I completed my overall reflection of work at the Hornsby ED when my contract ended ,to clarify it's the reflection for whole 6 months , completed on 12th April. I notified acting NUM beda next day after meeting with NMC board on March 16th when I was not working and requested for supervisor. I have Even emailed them. I went to do last 4 shifts after I didn't receive any response to my email from Alison. I wasn't sure what I was supposed to do. I have email Alison about the situation on 22 March (see attached email), about NUM1 absence, None of them advise me to not work , neither my workplace cancelled my last 4 shifts. I hope to meet NUM, but as I said they all avoided me. It was the worst time for me. Please see all the correspondence attached with this dated March 17th, 18th, 22nd, 23rd updating everything that is going on with me. Please see attached correspondences to Num of ED Hornsby. 1. The Respondent then closed her case. Applicant's written submissions at commencement of the hearing Introduction 1. The Complaint relates to a breach of conditions imposed on a registered nurse's practice (See Tab 1 HCCC documents). 2. Ms Benju Dulal ("the Respondent") is a nurse registered under the Health Practitioner Regulation National Law (NSW) (the "National Law"). The Respondent was first registered as a nurse in New South Wales on 11 February 2015. The Respondent's registration was suspended on 11 June 2020 following section 150 proceedings (Tab 26). 3. The Respondent is prosecuted pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that she has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(l) and/or professional misconduct within the meaning of section 139E of the National Law. 4. The Respondent has admitted the Complaint in full and in writing in her Reply dated 7 April 2021. Accordingly, pursuant to s 165H of the National Law the Commission submits that the Tribunal does not need to conduct an inquiry into the Complaint and the proceedings can be focused on the Stage 2 protective orders. 5. The Commission seeks the following Orders: a) An order under s 149C(1)(b) of the National Law cancelling the practitioner's registration b) An order under s 149C(7) of the National Law that an application for review of the cancellation order may not be made until after 12 months from the date of the decision c) An order under Clause 13, Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed. The Relevant Principals Disciplinary Proceedings under the National Law 6. Part 8 of the National Law deals with complaints concerning health practitioners. The relevant principles include: a) The protection of public safety and health is paramount (s 3A of the National Law); b) The Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community (Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]); c) Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered (s 3(2)(a) of the National Law); d) Deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637); e) Protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession (HCCC v Do [2014] NSWCA 307 at [35]); f) The Tribunal's jurisdiction is primarily protective, not punitive (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637); Burden of Proof 7. These proceedings before the Tribunal are referred to as an inquiry by the National Law (See s 165(2), 165C, 1651-1, 1651, 165J and s 165M of the National Law and clauses 11, 12, 13 of Schedule 5D of the National Law.) 8. The burden of proof rests with the Commission and is the Briginshaw test, requiring reasonable satisfaction on the balance of probabilities, while having regard to (a) the gravity and importance of issues to be determined, and (b) the possible consequences of a finding of guilt. (See Briginshaw v Briginshaw (1938) 60 CLR 336, 360-363; Rejfek v McElroy (1965) 112 CLR 517, 521; [1965] HCA 46; Bannister v Walton (1993) 30 NSWLR 699, 711-712; Lindsay v Health Cam Complaints Commission [2005] NSWCA 356; HCCC v Sunda [2013] NSWDT 1 at [43].) 9. A number of appellate courts have cautioned against the tendency to consider this test as including a requirement that the Tribunal must be 'comfortably satisfied', which implies a higher standard than the balance of probabilities. (See Gianoutsos v Glykis (2006) 65 NSWLR 539, 548-549 (McLennan CJ at CL); In re Dr Suman Sood [2006] NSWMT 1 at [10]; Re Sophie [2008] NSWCA 250 at [68]; Health Care Complaints Commission v Dr McKenzie [2011] NSWMT at [26].) Evidence 10. The Tribunal is not bound by the rules of evidence (section 38(2) Civil and Administrative Tribunal Act 2013 (NSW) and Clause 2 of Schedule 5D of the National Law). However, the Tribunal remains subject to the rules of procedural fairness (Sudath v HCCC [2012] NSWCA 171 at [75]). 11. The Commission relies upon one volume of documents for proof of the Complaint as well as the admissions made by the Respondent. Unsatisfactory Professional Conduct — Contravening a Condition 12. Complaint One alleges that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(c) and/or s 139B(1)(l) of the National Law. 13. The Respondent admits Complaint One. 14. In relation to ss 139B(1)(c) of the National Law, The Commission submits that: a) it is a well-established principle that conditions of registration for medical practitioners must be "scrupulously observed" (Re Dr Than Le [2001] NSWMT, 20 September 2001 at [95] followed in many subsequent cases including: Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [45]; Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23 at [31]; Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [74]); b) that principle has been confirmed by the Court of Appeal (Prakash v Health Care Complaints Commission [2006] NSWCA at [74]); c) that principle also applies to nursing (Health Care Complaints Commission v Lopez (No 2) [2014] NSWCATOD 15 at [52]; Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 at [168]); d) when a nurse breaches a condition of registration it is of a very serious nature because it demonstrates a lack of insight into the need to act scrupulously with regard to professional obligations and to show proper respect to the requirements of the Council and because it is essential to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration (Health Care Complaints Commission v Harvey [2017] NSWCATOD 175 at [107]). Unsatisfactory Professional Conduct — Improper or Unethical 15. The words "improper" or "unethical" are not defined in the National Law. Assistance in determining what is meant by "improper" can be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes (1995) 183 CLR 501 at 514-515; see HCCC v Phung (No. 1) [2012] NSWDT at [68]. That is, if conduct, is not in conformity with standards of professional conduct and practice it can be seen as improper. 16. The words 'unethical conduct' bear no special or technical meaning but are to be understood in their ordinary meaning. The construction of a statutory provision will usually involve a consideration of words in their context and the adoption of a construction that promotes the purpose underlying the statute, which usually involves a question of law. The protective nature of the National Law relevantly bears on an interpretation of what is meant by 'unethical'. 17. Unethical conduct could be characterised as a more serious matter than improper conduct, however the National Law does not offer any guidance in that respect and it is unclear whether it ought have that characteristic. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to a contravention of a professional code of conduct. In Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [41] the Tribunal held that there is no reason to suppose that the words should be given a different meaning in the National Law. See also Slezak, Dr Peter [2011] NSWMPSC 10 at [80] and [83] and [87], suggesting that the assessment of what constitutes improper or unethical conduct is also made by reference to the views of reasonable members of the profession. 18. In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [26] the Tribunal held that conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. 19. The Commission submits that the Respondent's conduct was both improper and unethical, however, it is not necessary for the Commission to establish that the conduct was both improper and unethical; either is sufficient to establish Complaint One. 20. The Commission submits that it is both improper and unethical for a registered nurse to breach conditions on her registration. Complaint Two — Professional Misconduct 21. Complaint Three [sic] is that the Respondent is guilty of professional misconduct under section 139E of the National Law as she has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration or engaged in more than one instance of unsatisfactory professional conduct that, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation. 22. The Commission relies on Complaint One and the particulars thereof cumulatively. 23. The Respondent admits Complaint Two. 24. The Court of Appeal has outlined how any category of unsatisfactory professional conduct may amount to professional misconduct. See Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]‑[21]: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. Protective Orders Governing Principals 25. The Tribunal's jurisdiction is primarily protective in nature, rather than punitive (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637). To put it more precisely, "the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual", although an order may be punitive in effect: Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] per Basten JA ("Lambert"); see also Lee v Health Care Complaints Commission [2012] NSWCA 80 at pars [20] and [31]. 26. Further, "the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection" (per Basten JA at [83], citing Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [101]; see also NSW Bar Association v Meakes [2006] NSWCA 340 at [113]. 27. In NSW Bar Association v Meakes [2006] NSWCA 340 (per Basten JA) it was said that the protective purpose operated first to either remove the practitioner from membership of the profession, or provided a deterrent against repetition of the conduct by way of reprimand or fine. Second, it reminded other members of the profession of the importance of maintaining high professional standards. Third, it gave emphasis to the unacceptability of the conduct involved. Fourth, it sought to maintain public confidence in the standards of the profession. 28. Those statements of principle were further refined by Meagher JA in the context of the National Law in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: the objective extends to protecting the public from not only the practitioner's misconduct but also similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession, "by setting and maintaining standards and, where appropriate, 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". 29. Section 3A of the National Law affirms that the protection of public safety and health is the paramount consideration. Public protection is achieved via registration, "ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner" are registered. 30. Having consideration for the authorities, the Tribunal should consider the following matters bearing on protection: a) Any need to protect the general public against further misconduct by the practitioner; b) The need to protect the public through general deterrence of other practitioners; c) The need to protect the public by reinforcing high professional standards and denouncing transgressions; d) The maintenance of public confidence in the profession; and e) The desirability of making available to the public any special skills possessed by the practitioner. 31. In these proceedings, the Commission submits that the first four factors above are relevant in considering the protective orders sought by the Commission. Cancellation 32. Upon a finding of professional misconduct, the Tribunal can make an order to suspend or cancel a registered health practitioner's registration under s 149C(1)(b) of the National Law. 33. Whether the professional misconduct is sufficiently serious to warrant cancellation is a matter of degree and judgment (Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]). This requires an assessment of the gravity of the professional misconduct found proved and the consideration of remorse and insight, if any, shown by the practitioner (HCCC v King [2013] NSWMT 9). The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards (Health Care Complaints Commission v Litchfield [1997] 41 NSWLR at 638). 34. The Commission submits that cancellation is appropriate because: a) the respondent breached a number of her conditions on her registration over a six month period ‑ a not insignificant time; b) the respondent was aware of the conditions on her registration, having signed an acknowledgement on 7 November 2018; c) conditions on the respondent's registration are not appropriate given the previous breaches and the reasoning for the breaches; d) although the respondent appears to accept that it was her responsibility to ensure she was complying with conditions, the Tribunal cannot be satisfied that the respondent would not suffer the same embarrassment if conditions were to be imposed on her registration; e) there is not enough evidence before the Tribunal that the respondent has sufficiently remedied the underlying issues that led to the imposition of conditions on her registration. Non-Review Period 35. The Commission submits that a 12 month non-review period is needed to allow sufficient time for the respondent to attempt to work further on the professional deficiencies that led to the imposition of her conditions, as well as the personal deficiencies that led to the respondent not speaking up about the conditions on her registration. Applicant's submissions on closure 1. The Applicant submitted that these matters are serious. They did accept that although the breaches were deliberate there was nothing nefarious and they accept that the Respondent was remorseful. 2. However, the attempts by the Council to contact the Respondent were also of significance and it was only after some considerable difficulty that she sent documents to the Council that were required. 3. The Respondent knew that she had to comply with the conditions and did not comply in 2016 when she was in a non-clinical role. She may well have been excited that she could get a clinical role, but she had obligations under her conditions which she ignored in that process. The Applicant submitted that it is the responsibility of the Respondent to notify the Council and that she had to ensure that she had supervision approved by the Council. 4. If the Respondent was able to go back to work now, on conditions, there is no certainty that she would not do the same thing if she was offered a clinical role again. 5. The Respondent has said that she would do the necessary CPD but there is no basis to feel comfortable that she would do that. It will simply be up to her. 6. In the view of the Applicant, the conditions are not appropriate as the Tribunal cannot be satisfied that it will not happen again. 7. As they set out in their written submissions, any decision by the Tribunal must be a deterrent factor and is very important. They do accept that the Respondent has shown some insight into her behaviour. Respondent's submissions on closure 1. Counsel for the Respondent submitted that the Respondent has admitted fully the serious nature of the breaches and at an early stage of the hearing. 2. It was submitted that the Tribunal should decide on the least stringent outcome necessary for the protection of the public and the profession. That the Respondent has taken the matter very seriously, had a very difficult time as a very junior nurse, and having a complaint to the Council early on was very difficult for her. 3. She has taken responsibility for what she did wrong. She has developed insight into her behaviour. She states that she is behind on CPD but has indicated that she would do everything to reskill and there is no reason not to accept that. It was submitted that a reprimand under s 149(1A)(a) and conditions would be very appropriate and sufficiently protective. The Respondent accepted that at the time she did not have the appreciation of what a breach might mean but this process has been a long and gruelling process. She has had to move cities to find employment, she has been humiliated and she recognises the seriousness of what a breach would be in the future and submitted that the Tribunal should be satisfied that the Respondent will be compliant. Submissions on alternative outcomes 1. The parties were called upon to provide written submissions on alternative outcomes that might be determined by the Tribunal and accordingly, the Applicant having called for the Respondent to be deregistered, in the alternative should the Tribunal determine that the Respondent be suspended under conditions or reprimanded and allowed to practice under conditions, that the following conditions should be imposed by way of protective orders: The Commission notes its primary submission is that the Respondent's registration as a nurse be cancelled with a non-review period of 12 months. These conditions are to assist the Tribunal in the event the Tribunal does not find cancellation is the appropriate protective order. The Commission submits that the imposition of any critical compliance conditions is not appropriate in this matter. The nature of monitoring a supervision condition renders it inappropriate to make it a critical compliance condition. Reprimand Under section 149A(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimands the respondent. Practice conditions Under section 149A(1)(b) of the Health Practitioner Regulation National Law, the Tribunal directs that the following Conditions be imposed on the respondent's registration for a minimum period of two years: 1. The practitioner must practise under direct supervision of a Registered Nurse (Div 1) who does not have any conditions on his/her practice. At all times, the supervisor must be present to observe, work with, guide and direct the practitioner. 2. The practitioner must nominate a nurse manager (or equivalent) who has agreed to oversee supervision for approval by the Nursing and Midwifery Council of NSW. The practitioner must: (i) Provide the Nursing and Midwifery Council of NSW with the name, contact details and resume of the nominated nurse manager within 7 days of commencing work. (ii) Authorise the nurse manager to provide a written report about the practitioner's performance against the relevant competency standards approved by the Nursing and Midwifery Board of Australia at 1 monthly intervals. (iii) Authorise the nurse manager to: a) Notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice; and b) Exchange information with the Council related to compliance with the conditions. (iv) Provide to the Nursing and Midwifery Council of NSW a copy of the conditions signed by the practitioner and by the nominated nurse manager indicating awareness of the conditions and authorisation. 3. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of the date of commencing employment in a clinical nursing role, that the practitioner has provided a copy of this NCAT decision to her nursing employer. 4. Sections 125 to 127 of the Health Practitioner Regulation National Law 2009 are to apply should the practitioner's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. Respondent's submissions in reply 1. The Respondent provided submissions in reply as follows: The complainant has sought an order for cancellation of Registration. The outcome for Ms Dulal should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)". Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]. It is submitted that cancellation of Registration is not required to protect the public in this case and that a Reprimand, together with the imposition of appropriate conditions, is a sufficient general and specific deterrent from further breaches of conditions and to maintain the standards of the profession. The respondent has already been suspended from practice for almost a full year and this, together with the process of being brought before the Tribunal, has already served as both a general and specific deterrent in order to reinforce the standards of the profession. There is also no indication in Ms Dulal's matter that gives rise to a need for Direct Supervision in the practice of the nursing profession — the imposition of which may amount to constructive cancellation of the respondent's registration as a nurse due to the often insurmountable barrier such a condition poses to employment. The respondent breached compliance conditions, and as such, should be required to strictly comply in future with all conditions imposed on her registration. There is no nexus between the admitted breaches and her clinical practice that would require the imposition of direct supervision. The respondent admitted the complaints in full and has expressed insight into the breaches and remorse. Costs have been reduced significantly due to the respondent's full admissions and cooperation. The Tribunal process has afforded the respondent the opportunity to fully appreciate that future compliance with any conditions imposed on her Registration as a nurse are both necessary and mandatory. REPRIMAND It is agreed that a Reprimand Under section 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), is appropriate. PRACTICE CONDITIONS 1. The registrant must practice under Indirect Supervision, as described in the Nursing and Midwifery Council of NSW Regulatory Supervision Policy "Appendix A". (a) To nominate a supervisor for approval by Council before returning to work as a Registered Nurse. (b) That monthly reports are to be provided to Council by the approved supervisor. (c) To authorise the Council to provide approved supervisors with a copy of relevant decisions. 2. To provide evidence within seven (7) days to the Nursing and Midwifery Council of NSW, that she has provided a copy of full conditions to her nursing employer and/or education provider. 3. Within seven (7) days of a change in the nature or place of her practice, she is to forward evidence to the Nursing and Midwifery Council of NSW that she has provided a copy of full conditions to her nursing employer (including nurse managers at agency placements) and/or education provider. 4. To authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where she works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. The practitioner must only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions. 5. Sections 125 to 127 of the Health Practitioner Regulation National Law 2009 are to apply should the practitioner's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. 6. The Nursing and Midwifery Council of New South Wales is the appropriate review body for the purposes of these conditions. Appendix "A" REGULATORY SUPERVISION POLICY 1. PURPOSE Regulatory supervision allows a practitioner to continue practising by providing the appropriate level of monitoring and oversight to reassure that public safety is being preserved. Such supervision allows for the maintenance of the nursing and midwifery workforce and public safety. It minimises the premature loss of valuable trained practitioners who have been identified as requiring support and supervision either while a notification about their performance, health or conduct is being assessed or for a period while their performance or health is being remediated with treatment or education. Practitioners who are considered to be not safe to practise even with supervision will have their registration suspended or cancelled. 2. AIM OF SUPERVISION The aim of regulatory supervision is to monitor progress, provide feedback and learning support to the practitioner. The supervision reports also provide independent third party verification to the Council that the practitioner is practising within expected standards and allow for the early reporting and management of unsafe practise, or non-compliance with practise restrictions. The Council, employers and registered practitioners (supervisors and those being supervised) share the responsibility for maintaining public safety, professional workforce, professional standards and appropriate supervision. 3. OVERSEEING SUPERVISION AND PROVIDING REPORTS Nominating a supervisor Generally, the practitioner's employer will be asked to assist with the implementation of supervision by nominating a nurse or midwife manager or equivalent senior nurse (CNE, CNS2 or CNC) to oversee supervision. This person will be asked to submit their resume to the Council for approval. Approved supervisor and reports The approved supervisor may be requested to provide periodic reports to the Council, in the Council approved format on the practitioner's performance against the Nursing and Midwifery Board of Australia's standards for practice. The Council will generally specify the frequency of reports necessary. However, the approved supervisor can make a report to the Council at any time they consider that the practitioner has been practising below accepted standards or unsafely, or when practitioner is not complying with the conditions on registration. Supervisor on every shift The approved supervisor is responsible for ensuring that the practitioner is supervised on every shift. A supervisor (usually the senior lead practitioner on a shift for the unit or area) is assigned to the practitioner for each of their shifts. The supervisor need not be the same person on every shift, but must be a registered nurse (Division 1) or registered midwife (as is relevant) who has no restrictions on their registration. The supervisor must be willing and competent to facilitate the appropriate delegation of patients and/or responsibilities to the practitioner and facilitate the appropriate level of supervision given the environment, context and any directions from the Council about the minimum supervision level. The practitioner being supervised should only accept delegated patients and responsibilities if they have the knowledge and skills to safely meet the delegated responsibilities under the supervision level which is available. Notification and monitoring The practitioner must (i) notify the approved supervisor of the practise conditions on registration; and (ii) request the approved supervisor sign documents acknowledging awareness of the conditions and authorisation to act as specified in the conditions. The approved supervisor and the practitioner being supervised must ensure any supervisor has sufficient information about any practise restriction or limitation on the practitioner to allow the supervisor to carry out their role. The supervisor provides feedback to the practitioner and approved supervisor. Meetings between the practitioner and approved supervisor It is recommended that the approved supervisor meets with the practitioner regularly at a planned and scheduled frequency, which the manager considers necessary, taking into account the practice context, assessment of the practitioner's ongoing performance and reporting requirements 4. LEVEL OF SUPERVISION The level of supervision and the responsibilities delegated to the practitioner depend on the context or practise, the needs of the consumer and the knowledge and skills of the person who is being supervised. Practitioners who require `regulatory supervision' will have a condition on registration which specifies the minimum level of supervision that is required for safe practise. The level of supervision may be identified in the condition as defined below. Regardless of the minimum level of supervision described in the condition on registration, in some instances the supervisor, after considering the context of practise may determine that a higher level of supervision and oversight may be necessary for a period of time or may review the responsibilities delegated to the practitioner. The practitioner may also refuse a delegation if they believe they do not have the knowledge or skills to undertake a particular responsibility without additional professional development. Direct supervision is when the supervisor is actually present and personally observes, works with, guides and directs the person who is being supervised. Direct supervision may be limited to a specific area of practice, such as, the administration of medications or, it may be specified that direct supervision is required for all practise as a nurse in which case it would be expected that the supervised practitioner be "buddied" and work with the supervisor for all practise. Indirect close supervision is when the supervisor must be on site and working in close proximity within a ward or unit with the practitioner, and able to oversee the practitioner's practice and provide regular advice if need be. It may not be necessary to constantly observe the practitioners activities. Indirect supervision is when the supervisor works in the same facility or organisation as the supervised person, but does not constantly observe their activities. The supervisor must be available for reasonable access if required by the practitioner to provide advice and should 'check in' on the practitioner occasionally during the shift to ensure the responsibilities delegated to the practitioner are being met. Remote supervision is when the supervisor is off site or working remotely from the practitioner. The supervisor must be accessible to the practitioner to provide advice either in person or by telephone. Direct Supervision for medications supervision is when the supervisor must be present at all times to observe, work with, guide and direct the registrant in the administration of medications Decision and Reasons 1. The Tribunal having read the evidence contained in Exhibits 1 and 2 provided to the Tribunal, having heard the evidence presented by the Applicant, and the evidence contained in documents provided by the Respondent and given under oath in evidence, and having considered in detail submissions made by the Applicant and the Respondent, is comfortably satisfied that the complaint made by the Applicant against the Respondent is made out, namely that breach of conditions placed on her by the Council is proven and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. The basis for this view is that the Tribunal has before it details of the conditions and proof that while subject to those conditions, the Respondent took employment as a RN, and failed to comply with the conditions imposed on her. She also admitted those breaches. 2. The Tribunal is satisfied that this leads to a decision as to whether the Respondent should be entitled to be practising as a nurse and what disciplinary action would be appropriate in the particular circumstances of the matter. 3. In considering appropriate disciplinary findings, the Tribunal had regard to a number of factors. These included the decision in the s 150 examinations, the various reviews of her by employers as well as a reference provided to the Tribunal by Mr Ron Campbell RN in response to the NSW Nursing and Midwives' Association which read as follows: Principal Member, NSW Civil and Administrative Tribunal TO WHOM IT MAY CONCERN I'm writing to provide a reference for Benju Dulal. I worked with Benju for six months in the Emergency Department at Hornsby Ku‑ring‑gai Hospital. I received the complaint against her regarding not having supervised to comply with the conditions placed on her. Benju had mentioned that her registration was under threat while I was working with her. I was surprised to hear this. During that six months I was often working in the role as team leader/clinical support. I was therefore able to supervise Benju while she worked in the Emergency Department. I found Benju to be a safe and enthusiastic nurse. Benju sought advice when she came across an area in which she was unfamiliar and took advice on board. Benju communicated well with her patients and other team members. Benju observed her patients and passed on to her more senior nurses and the treating doctors when the condition of her patients changed. Benju followed procedures according to the Department guidelines and was particularly careful with medical administration. Signed: R Campbell 3/4 1. The Tribunal was not called upon to determine whether conditions imposed by the Council at any stage of its deliberations were appropriate. The issue for the Tribunal is to decide whether as a result of the breaches as proven against the Respondent she is guilty of unsatisfactory professional conduct and professional misconduct such as to require the Tribunal to cancel the registration of the Respondent, to suspend the registration of the Respondent with conditions imposed, or to reprimand the Respondent for her breaches of conditions and impose appropriate conditions for her continuing to practice. 2. The Tribunal is cognisant of the fact that the protection of the public and the deterrent effect of any decision is the driving force and it must therefore determine whether allowing the Respondent to continue working as a nurse warrants her deregistration or suspension. Based on everything available to the Tribunal and in particular the reports on the Respondent after termination of her employment by the Mater Hospital, which were significantly positive, including reports on her while working as an AIN, while working at Longueville Hospital and even while working in breach of her conditions, it would not put the public at risk if the Respondent was allowed to continue working as a nurse. 3. The Tribunal is comfortably satisfied based on that information that allowing the Respondent to continue working as a nurse would not pose a threat to the safety of the public. 4. The Tribunal is also required to consider whether the deterrent effect can only be achieved by deregistration or a suspension with conditions or whether a strong reprimand by the Tribunal which will be placed on the record of the Respondent constitutes a sufficient deterrent effect. 5. In all the circumstances of this matter the Tribunal has determined and is comfortably satisfied that a large part of the Respondent's behaviour relates to the treatment which she received as an extremely junior nurse at the Mater Hospital where she should have been guided and trained in an appropriate manner and in which she felt she was treated particularly badly. This would have had a strong effect on the subsequent behaviour of the Respondent and the Tribunal believes that that needs to be considered in the circumstances and differentiated from a circumstance in which a breach of conditions in other circumstances might be dealt with. While the Tribunal does not in any way condone the breaches by the Respondent, the Tribunal believes that the Respondent is unlikely to breach conditions placed on her by the Tribunal. Accordingly, the Tribunal is comfortably satisfied that a strong reprimand with appropriate conditions is the appropriate manner in which to deal with the Respondent. 6. The Tribunal noted that the Applicant submitted that if conditions are imposed on the Respondent they should not be made Critical Conditions, and that would place a burden on the Council. While the Tribunal accepts that Critical Conditions might add in some way to the Council's burdens, the added burden should not be significant and the Tribunal believes that an order that the conditions be Critical Conditions sends the strongest message to the Respondent and to members of the nursing profession. 7. The Tribunal, constituted of four members, two of which are Registered Nurses of considerable experience, reviewed an article titled "Clinical Supervision: What Managers Need To Know" which indicated that: Nurses need professional support and training throughout their careers to make sure they can meet the demands of modern healthcare. That's why it's so important for healthcare facilities and nurse managers to invest in what's known as clinical supervision. Working in healthcare means dealing with the unexpected. Unlike a traditional office job, the role of a nurse is always evolving and expanding. Nurses need professional support and training throughout their careers to make sure they can meet the demands of modern healthcare. That's why it's so important for healthcare facilities and nurse managers to invest in what's known as clinical supervision. This process of mentoring and educating nurses ensures that everyone has the tools and training they need to provide quality care to patients. If you're working as a nurse manager, learn more about the demands and rewards of clinical supervision. What Is Clinical Supervision? Clinical supervision is a means of training and educating nurses on an ongoing basis. This gives nurses a chance to reflect on their experiences on the job, improve their skills, and find ways to avoid burnout. Clinical supervision may involve meeting one-on-one with nurses, reviewing their performance on the job, and talking with nurses about the struggles and challenges they face when caring for patients. As a nurse manager, you can provide support to your staff members, while fostering a productive learning environment that encourages them to enhance their skills. Why Clinical Supervision Is So Important While nurses undergo an extensive training period during their first few weeks on the job, nurses shouldn't stop learning once they're acclimated to the position. Healthcare is a tough business that always seems to be influx. That means nurses need to continue their training long after the initial orientation process. Healthcare policy is always changing, patients present new challenges every day, and nurses will need to learn new skills if they want to keep up. Clinical supervision gives nurses a platform to talk about their experiences on the job, while learning from any mistakes they might've made along the way. This isn't about scolding nurses for their behavior; it's about creating a safe, professional environment where nurses can learn from their peers and supervisors. Nurses can also use this time to talk about their frustrations with the job. You can offer feedback and advice on how nurses can overcome these challenges and avoid compassion fatigue and burnout. Nurses will likely encounter all kinds of physically demanding and morally complex situations on the job, and if they don't have a means of talking about and reflecting on these experiences, their job performance may start to suffer. Being an effective manager means listening to your staff members, creating an open dialogue, and working to address these challenges head on. The Challenges of Implementing Clinical Supervision As effective as this process can be, making time for clinical supervision is often easier said than done. Nurses and nurse managers have a lot on their plate with many of them dealing with multiple crises at once. Losing sight of the value of clinical supervision is all too easy when you have other priorities to deal with. Nurses are usually overworked as it is and finding time to listen and respond to their experiences can be an uphill challenge, especially if you're already dealing with budget cuts, staffing issues and other managerial headaches. In addition to these time constraints, clinical supervision is often inefficient when managers defer to their facility's power structure instead of creating an open dialogue with their staff members. Even if you're working with limited resources and you're short on time, remember that clinical supervision is about listening to your staff members with an open mind, not just handing out orders. Put yourself in the shoes of your staff members and try to mentor them as individuals, not cogs in a machine. Make clinical supervision an integral part of your management style and you'll see your staff members grow and thrive on the job as time goes on. Listen to their concerns with an open mind and look for ways to help them hone their skills. You won't fully understand the needs and challenges of your department unless you're willing to hear what your staff members have to say. Make time for clinical supervision and become the manager you always wanted to be. Published: January 28, 2019 1. In the circumstances the Tribunal reflected on the views expressed above that direct supervision limits employment. The Tribunal noted that although the nurse breached conditions there were no issues with her practice. Nurse managers and team leaders are expected to monitor patient care and therefore the practice of the nurses they work with. In all health services a registered nurse, all nursing and medical staff ought to have supervision. The Tribunal understands that indirect supervision means that the work of registered nurses is monitored to ensure they comply and that appropriate personnel, nurse educators, clinical nurse specialists and clinical nurse consultants are available to provide support and education as appropriate (as with all staff), but it means they do not need an RN working with them constantly to monitor their practice. It is the view of the Tribunal that indirect supervision in the Respondent's case would be sufficient. 2. The Tribunal also holds the view that it would be advisable for the nurse to voluntarily participate in individual or group professional clinical supervision offered within her workplace by a trained professional supervisor. It would be preferrable in her workspace or at her own expense outside of work. A supervisor can be useful in providing a professional reference and helping a nurse navigate professional challenges. The Tribunal believes that supervision is about reflection, exploring and building a professional self. Professional supervision is accessible in most health services or externally in the private sector. 3. The Tribunal formed the view that having experienced what the Respondent has experienced she is cognisant of the need for reflection, for exploring and building a professional self. 4. In the circumstances, the Tribunal makes the following orders. Orders 1. The Respondent is strongly reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). 2. The Respondent must practice under Indirect Supervision, as described in the Nursing and Midwifery Council of New South Wales' "Regulatory Supervision Policy". 1. To nominate a supervisor for approval by the Council before returning to work as a Registered Nurse. 2. That monthly reports are to be provided to the Council by the approved supervisor. 1. To authorise the Council to provide approved supervisors with a copy of relevant decisions. 1. The Respondent is to provide evidence within seven (7) days to the Nursing and Midwifery Council of New South Wales, that she has provided a copy of full conditions to her nursing employer and/or education provider. 2. Within seven (7) days of a change in the nature or place of her practice, the Respondent is to forward evidence to the Nursing and Midwifery Council of New South Wales that she has provided a copy of full conditions to her nursing employer (including nurse managers at agency placements) and/or education provider. 3. The Respondent is to authorise the Nursing and Midwifery Council of New South Wales to exchange information with current and future persons or organisations at places where she works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. The Respondent must only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions. 4. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply should the Respondent's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. 5. The Nursing and Midwifery Council of New South Wales is the appropriate review body for the purposes of these conditions. 6. The conditions placed upon the Respondent in orders (2) to (5) above are Critical Conditions. 7. The Respondent is to pay the costs of the Applicant as agreed or assessed. ********** 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: 09 July 2021