Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sardinia [2021] NSWCATOD 119 Hearing dates: 19 – 22 July 2021 Date of orders: 20 August 2021 Decision date: 20 August 2021 Jurisdiction: Occupational Division Before: A Britton, Principal Member V Gibson, Senior Member S Shulz-Robinson, Senior Member R Kusuma, General Member Decision: (1) Ms Sardinia is guilty of professional misconduct. (2) Ms Sardinia is reprimanded. (3) Ms Sardinia's registration is subject to the following conditions: (a) Not to undertake agency nursing. (b) Not to be the nurse/midwife in charge of any shift, ward or unit. (c) To practise no more than 40 hours of full-time employment per week. (d) Not to work for more than one employer at a time. (e) Not to provide nursing care to geriatric/aged care patients other than in a hospital. (f) To obtain Nursing and Midwifery Council of NSW approval before changing the nature or place of practice. (g) To practise under indirect supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. (i) to nominate a supervisor for approval by the Council within 14 days of commencing work or as specified by the Council. (ii) to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. (iii) to authorise the Council to provide nominated and approved supervisors with a copy of relevant decisions. (h) To satisfactorily complete within 18 months of the date of this decision, education approved by the Nursing and Midwifery Council of New South Wales and that has the following characteristics: (i) vocational (ii) content or learning objectives: Falls management and Pain management. (i) within six months of the date of the decision Ms Sardinia must provide evidence to the Council of enrolment in the approved course/s. (ii) within two months of completing the approved course/s, Ms Sardinia is to provide documentary evidence of satisfactory completion to the Council. (iii) to bear responsibility for any costs incurred meeting this condition. (i) Within two months of the date of this decision, to attend for treatment by a psychologist or psychiatrist of her choice. The frequency of on-going treatment is to be determined by the treating practitioner. Ms Sardinia must: (i) authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: (A) failure to attend for treatment; (B) termination of treatment; or (C) a significant change in health status (including a significant temporary change). (ii) provide the Council with the professional details of the treating practitioner. (iii) provide evidence to the Council of her attendance with the treating practitioner, as specified by the Council. (j) Forward evidence to the Nursing and Midwifery Council of NSW within seven days of commencing employment, that she has provided a copy of full conditions to her nursing employer. (k) Must within seven (7) days of a change in the nature or place of practice, forward evidence to the Nursing and Midwifery Council of NSW, that she has provided a copy of full conditions to her nursing employer. (l) Authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where Ms Sardinia works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. She 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) The Nursing and Midwifery Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). (5) Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply while Ms Sardinia's principal place of practice is anywhere in Australia, other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. (6) Ms Sardinia is to pay the Commission's costs as agreed or assessed. Catchwords: HEALTH — professional registration and discipline — unsatisfactory professional conduct — whether conduct amounts to unsatisfactory professional conduct — whether unsatisfactory professional conduct is sufficiently serious to amount to professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Attia v Health Care Complaints Commission [2017] NSWSC 1066 Chen v Health Care Complaints Commission [2017] NSWCA 186 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 Health Care Complaints Commission v Hart [2021] NSWCATOD 36 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 297 Lee v Health Care Complaints Commission [2012] NSWCA 80 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Tessie Sardinia (Respondent) Representation: Counsel: R Donnelly (Applicant) Solicitors: Health Care Complaints Commission (Applicant) R Wilson (Agent) (Respondent) File Number(s): 2021/00033487 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of Patient A is prohibited. REASONS FOR DECISION 1. On 4 January 2020, ninety-nine-year-old Patient A died from "bilateral femur fractures". The day before she had fallen to the floor from her wheelchair while alone in her room in the aged care facility (the Facility) where she was then residing. There were no witnesses to the fall. Eight hours later, Patient A was taken by ambulance to Royal North Shore Hospital and told paramedics she was "in agony and wanted to die". 2. Following referral of notifications made by one of the attending paramedics and later the Facility, the Health Care Complaints Commission (the Commission) investigated the conduct of the registered nurses in charge on the day of Patient A's death, Mr Bhuvaneshwar Singh and Ms Tessie Sardinia. Subsequently, the Commission referred complaints about Mr Singh and Ms Sardinia to the New South Wales Civil and Administrative Tribunal (NCAT). 3. These reasons address whether the matters particularised in the complaint relating to Ms Sardinia (the Complaint) are established and, if so, whether that conduct amounts to "unsatisfactory professional conduct" and "professional misconduct" within the meaning of the Health Practitioner Regulation National Law (NSW) (the National Law). 4. Given the overlap in subject matter, the complaints relating to Mr Singh and Ms Tessie Sardinia were heard concurrently. 5. For the reasons that follow, we find Ms Sardinia guilty of professional misconduct. We have decided not to cancel or suspend her registration but rather to impose several conditions on her registration, including that she continues to work under "indirect supervision". In a separate decision we address the complaint relating to Mr Singh. Background to the Complaint 1. Patient A had been diagnosed with Dementia with severe cognitive impairment and multiple physical conditions, including osteoarthritis and Paget's disease, a disease which causes weakening of the bone. 2. In January 2020, Patient A was receiving regular pain medication, presumably for chronic pain resulting from osteoarthritis and Paget's disease: Paracetamol (500mg) three times per day; Lyzalon (25mg) once a day and Norspan 5mcg/hr transdermal patch (one patch applied weekly). In addition, she was prescribed Endone (5mg) to be administered on a PRN, "as needed basis". 3. On 3 January 2020, Ms Sardinia was rostered to work the afternoon shifts (15:00 to 23:30). She was responsible for about 90 residents. Another registered nurse, Ms Sardiniawikriti Hemchuli was rostered to work 16:00 to 20:00 and was responsible for administering medication. In addition, several care service employees (CSEs) were rostered to work the afternoon shift. 4. Ms Sardinia arrived at the Facility shortly before the commencement of her shift. Mr Singh who was working the morning shift (06.30 to 15:30) left about 45 minutes later. During the shift handover, Mr Singh told Ms Sardinia that Patient A had an unwitnessed fall at about 13:00, he had examined her and there was no sign of injury. 5. An hour later, Ms Sardinia passed on much the same information to the CSEs responsible for Patient A's care. 6. Apart from the neurological and general observations conducted at about 13:15 and a brief and unrecorded observation claimed by Mr Singh to have been conducted about an hour later, Mr Singh had no further contact with Patient A. He did not undertake or direct another member of staff to undertake a further neurological observation. He claims that after leaving Patient A at about 13:15 he told CSEs to carefully monitor Patient A. There is no evidence that Patient A was monitored throughout the remainder of the morning shift. ­ 7. Sometime between 20:00 and 20:30, during evening patient rounds, CSE, Ms Nicole Kelly, entered Patient A's room. Patient A asked Ms Kelly to hold her hand and said, "my leg hurts don't touch my leg". On pulling back the bed covers, Ms Kelly saw that Patient A's legs were swollen to such an extent that her trousers were tight around her legs and in an "awkward position". Ms Kelly called out to a colleague for assistance who stayed with Patient A while Ms Kelly went to summon Ms Sardinia. 8. On examining Patient A's legs, Ms Sardinia concluded that both were injured, and the left leg was probably broken. In a "reflection statement" dated 16 April 2020, prepared for submission to the NSW Nursing and Midwifery Council (the Council) in proceedings under s 150 of the National Law, Ms Sardinia stated that Patient A was "distressed and crying" and said more than once said, "I feel sick". Ms Sardinia asked Ms Kelly to clean Patient A, who was incontinent, as carefully as possible and that she would call for an ambulance. Ms Sardinia did not call for an ambulance until 21:29. The ambulance arrived at 21:52. 9. After leaving Patient A, Ms Sardinia did not give Patient A pain relief nor did she ask another member of staff to do so. In the intervening period between the fall and the arrival of the paramedics, Patient A was not given any pain relief medication apart from her regular pain medication. 10. One of the paramedics who transported Patient A from the Facility to Royal North Shore Hospital reported to the Australian Health Practitioner Regulation Agency: On our arrival the patient was lying in bed, she was complaining of severe pain and was asking for help. On our initial assessment it was noted that the patient had very obvious deformities to bilateral legs, instantly indicating she had bilateral femur fractures. The patient was constantly asking for help and advised us she was in agony and wanted to die. The Registered Nurse on scene handed over to us that she was unaware of the severity of the injuries as it was the day Nurse who had assessed the patient and had noted that she had no injuries and put the patient back into bed. The Complaint 1. Set out at Annexure A to these reasons, the Complaint consists of two individual complaints: 1. Complaint 1 consists of 14 particulars. All relate to the six and a half hours on 3 January 2020 during which Ms Sardinia had responsibility for Patient A's care and management. The Commissioner alleges that the conduct the subject of each particular amounts to "unsatisfactory professional conduct" within the meaning of ss 139(1)(a) and/or 139(1)(l) of the National Law; 2. Complaint 2 alleges that the unsatisfactory professional conduct the subject of Complaint 1 amounts to "professional misconduct" under s 139E of the National Law. 1. Ms Sardinia admits each of the particulars of Complaint 1 and agrees that each amounts to unsatisfactory professional conduct within the meaning of s 139(1)(a). However, she does not agree that her conduct amounts to professional misconduct. Complaint 1 Care and management provided to Patient A in the first few hours of Ms Sardinia's shift: Particulars 1, 2, 3 and 4 1. The shift handover conducted at about 15:00 by Mr Singh was the first time Ms Sardinia and Mr Singh had met. Mr Singh was engaged through a nursing agency and had not previously worked at the Facility. While there are some differences in their respective accounts, they agree that during the shift handover Mr Singh told Ms Sardinia that Patient A had had an unwitnessed fall, she was not injured and appeared to be OK. The handover notes made by Mr Singh are to that effect: "Unwitnessed fall 13.00-no injury NOK] ☑[ LMO ☑ " 1. Mr Singh recorded in Patient A's progress notes: Around 1300 hrs care staff reported that client had slipped out of her wheelchair and is on the floor in her room. On reaching the site of the incident in resident room observed [Patient A] lying on the floor on her back next to the wheelchair. ? Slipped out of wheelchair, unwitnessed fall. Initial head to toe assessment indicating nil injuries. Nil shortening of bones observed, nil skin tear, bruise observed ATOR [At Time Of Report]. Resident able to verbalise even though in incoherent manner. Transferred client to bed x 3 staff using full sling hoist. o/A PEARL BP 137/78 mmhg, T-36.3, P-75 (regular), Spo2 97%, RR 14bm (regular). When asked about pain, client stated pain in legs. ? chronic pain. Nil bruise/injury found around legs. Continue to monitor. 1. Ms Sardinia agrees that after the briefing given by Mr Singh, she: 1. made no enquiries of Mr Singh about Patient A, including when her last neurological observations were conducted (blood pressure, temperature etc.); when the next observations were due; whether a care plan had been developed (Particular 1); 2. failed to determine whether a pain assessment of Patient A had been conducted (Particular 2); 3. at the commencement of her shift, failed to undertake a "bedside assessment" of Patient A, including a pain assessment (Particular 2); 4. at 16:00 and 17:00, failed to undertake general and neurological observations of Patient A or to delegate that task (Particular 3); 5. throughout her shift, failed to undertake, or to seek to delegate, regular general and neurological observations of Patient A (Particular 5); 6. failed to conduct a pain assessment of Patient A or to seek to delegate that task to check for late developing symptoms of injury (Particular 5). The Facility's Falls policy 1. Under the heading, "Responding to a fall for registered nurses", the Facility's "GECKO-Falls Management Implementation Program" (the Falls Policy) instructs that after conducting an initial assessment of a patient who has had a fall, a registered nurse must undertake general and neurological observations of the patient and review and record those observations. The policy requires those observations to be conducted for 24 hours following a fall at the following intervals: * every 15 minutes for the first hour; * half hourly for the next hour, then hourly for two hours; * if the patient is stable, every fourth hour for the next 20 hours. 1. The Falls Policy required Ms Sardinia to undertake general and neurological observations at least at 16:00 and 17:00. Ms Sardinia agrees that by failing to conduct observations at those times she failed to comply with that Policy. 2. In addition, Ms Sardinia agrees that by her conduct the subject of Particular 5 (failing to conduct general and neurological observations, prepare a post-fall care plan and conduct a pain assessment, or to delegate those tasks) she acted in contravention of Standard 1 to 6 of the Nursing and Midwifery Board of Australia's Registered Nurse Standard for Practice (2016) (Standard for Practice) and Code of Conduct for Nurses (2018) (Code of Conduct). Developed by the Nursing and Midwifery Board of Australia under s 39 of the National Law, the Standard for Practice and Code of Conduct are evidence of what constitutes appropriate professional conduct or practice for the profession of nursing: s 41 of the National Law. Failing to administer pain relief: Particulars 7, 8, 9 and 10 1. Particulars 8 and 9 relate to Ms Sardinia's failure to administer pain relief medication to Patient A: 1. when she first concluded that Patient A's legs were severely injured and her right leg was probably broken (Particular 8); 2. when she witnessed Patient A to be distressed and crying and Patient A said she felt nauseous (Particular 9). 1. Particular 7 relates to Ms Sardinia's failure to ascertain whether Patient A required additional pain relief. 2. Particular 10 states that the failures the subject of Particulars 7, 8 and 9 amounted to contraventions of the Standard for Practice and the Code of Conduct. 3. The only issue in dispute in respect of these particulars is when Ms Sardinia first became aware of Patient A's condition. This issue is also relevant to Particulars 11 and 12 which concern the delay in calling for an ambulance. 4. In a reply filed on 4 June 2021, Ms Sardinia stated that she first became of aware of Patient A's condition at about 20:25 not at "about 20:00" as stated in the Complaint. In support, she points to the statement prepared by Ms Hernchili, dated 8 January 2020, in which Ms Hernchili stated that her shift finished at about 20:15. Ms Sardinia she had been with Ms Hernchili until the end of her shift. 5. In a statement dated 6 January 2020, Ms Kelly stated that it had been a very busy night, another patient was very sick and repeatedly incontinent, and she did not have an opportunity to check on Patient A until "around 20:00". In oral evidence, Ms Kelly stated that she was not sure exactly when she first attended Patient A. After calling for another CSE and asking her to look at Patient's A legs, Ms Kelly went to fetch Ms Sardinia and "within minutes" spotted her returning from another level of the Facility. 6. If Ms Kelly's estimate of arriving in Patient A's room at about 20:00 is correct, factoring in the time it took to review and comfort Patient A, to summon another CSE to assist and then to locate Ms Sardinia, this puts the time of Ms Sardinia's arrival in Patient A's room at around 20:10 to 20:15. This broadly accords with Ms Sardinia's claim of being with Ms Hernchili until she finished her shift at about 20:15. In our view, it is likely that Ms Sardinia first attended Patient A sometime between 20:10 and 21:30. That is consistent with the assumption which underpins the particulars relating to Ms Sardinia's failure to administer pain relief and to delay calling for an ambulance, that Ms Sardinia first because aware of the seriousness of Patient A's conditions "at about 20:00". Delay in calling an ambulance: Particulars 11 and 12 1. Ms Sardinia disputes the allegation made in Particular 11 that there was a 90-minute delay in calling for an ambulance, claiming it was about 60 minutes. However, she admits that a 60-minute delay was excessive. 2. In an interview with the Facility's Service Manager, Ms Belle Wu, conducted on 10 January 2020, Ms Sardinia said that after leaving Patient A she went upstairs to ring Patient A's son and "gather the paperwork". In submissions filed in these proceedings, Ms Sardinia stated that she was surprised with the length of the delay given "she worked hard and took no rest". In oral evidence, she said she was unable to explain the delay. Inadequate clinical notes: Particulars 13 and 14 1. Particular 13 states that the clinical notes made by Ms Sardinia following her assessment of Patient A were inadequate in terms of content and timeliness. Particular 14 states that by that conduct Ms Sardinia acted contrary to Standards 1.6 and 4 of the Standard for Practice and Domain 1, 1.2 of the Code of Conduct. Ms Sardinia admits each particular. 2. The progress notes entered by Ms Sardinia were deficient in several material respects. They contain little detail about Patient A's condition, for example, the colour of her skin. They do not describe the bruising, swelling or misalignment of Patient A's legs. Nor do they record Patient A expressing being in pain and feeling nauseous. They do not explain why an assessment of Patient A was not undertaken. Nor do they record that Patient A was not given any additional pain medication after Ms Sardinia became aware of the seriousness of her condition. 3. In addition, the entry made in respect of the blood pressure recording was deficient. The reading was recorded as 110/60 when according to Ms Sardinia it was 100/60. In addition, Ms Sardinia omitted to record that because the blood pressure machine was apparently faulty, she took several readings and entered what she calculated as being the average not the actual reading. Conclusion 1. Ms Sardinia has admitted each particular in writing. In addition, we are independently satisfied that each particular is established. Unsatisfactory professional conduct 1. Section 139B(1) defines unsatisfactory professional conduct to include: 139B MEANING OF "UNSATISFACTORY PROFESSIONAL CONDUCT" OF REGISTERED HEALTH PRACTITIONER GENERALLY [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The Commission contends that: 1. the conduct the subject of each particular of Complaint 1 demonstrates that the judgment possessed and care exercised by Ms Sardinia fell significantly below the standard reasonably expected of a nurse of Ms Sardinia's level of training and experience; 2. the conduct the subject of Particulars 7, 8 and 9 (assessment of pain) demonstrates that the knowledge possessed and skill exercised by Ms Sardinia fell significantly below the standard reasonably expected of a nurse of Ms Sardinia's level of training and experience; 3. the conduct the subject of Particulars 4, 6, 10, 12 and 14 being breaches of the Standard of Practice and Code of Conduct amounts to "improper conduct" within the meaning s 139B(1)(l). 1. In support of the first two contentions the Commission relies upon the opinion of Registered Nurse, Ms Deborah Armitage. Ms Armitage holds a Master's degree in nursing and has significant clinical nursing experience including in senior leadership roles. In a report dated 31 August 2020, in response to several questions asked by the Commission, Ms Armitage set out her opinion about Ms Sardinia's care and management of Patient A. In addition, Ms Armitage gave oral evidence. 2. Ms Sardinia admits that the conduct the subject of each particular amounts to unsatisfactory conduct within the meaning of s 139B(1)(a) of the National Law. Judgment skill and knowledge 1. Whether the conduct the subject of Complaint 1 amounts to unsatisfactory conduct within the meaning of s 139B(1)(a) of the National Law, requires us to: 1. identify the standard "reasonably expected" of a nurse of an equivalent level of training or experience to Ms Sardinia (the relevant standard); 2. evaluate whether the conduct the subject of each particular demonstrates that the knowledge, skill or judgment possessed, or care exercised by, Ms Sardinia in the practice of her profession fell "significantly below" the relevant standard. 1. Ms Sardinia has been registered as a nurse for 32 years and has significant experience in the aged care sector. Accordingly, the relevant standard is that of a senior and very experienced nurse. 2. As a consequence of the failures the subject of Particulars 1, 2, 3 and 5, Ms Sardinia did not become aware of Patient A's injury and distress until about five hours into her shift. We agree with Ms Armitage that "at the very least" during the shift handover Ms Sardinia should have asked Mr Singh when the last neurological observation occurred and when the next observation was due. Had that simple inquiry been made, Ms Sardinia would have been alerted to the fact that despite Mr Singh's positive prognosis, the patient had not been assessed for over two hours. Ms Sardinia had never worked with Mr Singh and had no basis upon which to assess the reliability of his opinion. In addition, a cursory examination of Patient A's progress notes ought to have alerted Ms Sardinia to the fact that there was a thin basis for Mr Singh's opinion, as apart from the assessment conducted by Mr Singh at about 13:15, there was no record that Patient A having been observed, less still assessed or a care plan having been developed. 3. Having failed to make those enquiries, Ms Sardinia then failed to regularly assess Patient A or to delegate that task, as required by the Falls Policy. Being responsible for about 90 patients, there were many demands on Ms Sardinia's time. Nonetheless, given that the fall was unwitnessed, and given Patient A's advanced age and evident frailty, together with the paucity of evidence to support Mr Singh's optimistic prognosis, the standard of care reasonably expected of a nurse of Ms Sardinia's significant experience would be to ensure that regular assessments of Patient A were undertaken. 4. As the evening progressed, the errors of judgment and failure to provide appropriate care continued. Of particular concern is Ms Sardinia's failure to administer pain relief in the face of Patient A's visible distress. It was starkly evident to the attending CSEs and Ms Sardinia that Patient A was in acute pain. A nurse of Ms Sardinia's level of experience and training ought to have been aware that the regular pain medication Patient A was receiving was insufficient to relieve the acute pain caused by her leg injuries. 5. As best we can make out, it appears that the most likely explanation for Ms Sardinia's failure to administer additional pain relief and call immediately for an ambulance was that she was distracted by other less pressing matters. However, the stated reasons Ms Sardinia gave during her interview with Ms Wu for not giving pain relief medication to Patient A – "that the Norspan patch was coping with the pain" and administering Endone would have prevented the paramedics from giving further pain relief on their arrival – indicates a lack of knowledge about pain medication. 6. We agree with Ms Armitage's opinion that the conduct described in each particular demonstrates that the judgment possessed, and care exercised by Ms Sardinia fell significantly below the relevant standard. In addition, we agree that those particulars relating to the administration of pain relief demonstrated that the knowledge possessed by Ms Sardinia fell significantly below the relevant standard. 7. We find that the conduct the subject of each particular amounts to unsatisfactory conduct within the meaning of s 139B(1)(a) of the National Law. Improper conduct 1. The Commission contends that the conduct the subject of Particulars 4, 6, 10, 12 and 14 (breaches of the Standard of Practice and Code of Conduct) amounts to "improper conduct" within the meaning s 139B(1)(l). Ms Sardinia did not make submissions about this issue. 2. In Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [159]-[160], Walton J noted that s 139B(1)(l) is not a stand-alone example of unsatisfactory professional conduct. The use of the word "other" ─ "Any other improper or unethical conduct relating to the practice or purported practice" of nursing (emphasis added) limits its operation to conduct not falling within the definitions of unsatisfactory professional conduct in s 139B(1)(a)–(k). (See also, Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [31]; Health Care Complaints Commission v Hart [2021] NSWCATOD 36 at [47]). 3. In contrast, in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123, the Tribunal considered that as a matter of statutory construction, the same facts could establish unsatisfactory professional conduct within the meaning of ss 139(1)(a) and 139(1)(l). 4. Without considered submissions, this is not the occasion to determine the interrelationship between these two provisions. Having found that the conduct subject of Particulars 4, 6, 10, 12 and 14 falls within s 139B(1)(a) (judgment possessed and care exercised), it is not necessary to decide whether that conduct also falls within s 139B(1)(l) of the National Law. Complaint 2 Does the proven or admitted conduct amount to professional misconduct? 1. "Professional misconduct" is defined by s 139E of the National Law to mean: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 suspension or cancellation of the practitioner's registration. 1. We must decide whether the conduct admitted by Ms Sardinia and found by us to amount to unsatisfactory professional conduct (the impugned conduct) also amounts to "professional misconduct", that is, it is of a "sufficiently serious nature" to justify an order for suspension or cancellation. This requires that we make an evaluative judgement: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. The definition of professional misconduct is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] (Basten JA). 2. In evaluating whether the subject conduct is of a sufficiently serious nature to justify suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the conduct, any mitigating factors, and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. 3. The offending conduct is to be measured by the extent to which it departs from proper standards and not by reference to the worst cases. To do the latter would risk the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWSC 297. 4. Ms Sardinia accepts that the conduct the subject of Complaint 1 is extremely serious and was grossly defective in several material respects. However, she argues that, in evaluating that conduct, proper regard should be given to the significant mental distress she was under on that day. She argues that the impugned conduct was the result of her being unfit for work and being unable to concentrate on the responsibilities of her role as a registered nurse. Conclusion 1. We accept that Ms Sardinia was extremely distressed when she reported for work on 3 January 2020 and throughout her shift. We accept that her daughter was severely depressed and told Ms Sardinia that she was suicidal. In addition, we accept that, as a result, Ms Sardinia was distracted and unable to properly focus on her responsibilities to patients, in particular Patient A. As Ms Sardinia now concedes, her decision to attend for work was a serious error of judgement. 2. Assessed overall, the conduct the subject of Complaint 1 was objectively serious and fell towards the moderate to high end of the scale. That conduct was not in the nature of a single error of judgement or failure to exercise proper care but a series of egregious errors which had a snowball effect, resulting in Patient A's suffering being unnecessarily extended. Ms Sardinia failed to conduct even the most perfunctory of assessments of Patient A when she commenced work. When alerted to the severity of Patient A's condition by staff, she failed to respond appropriately by administering pain relief and calling promptly for an ambulance. We find that these failures were neither deliberate nor motivated by malice. As we explain below, they were the result of Ms Sardinia being distracted by her own problems. Nonetheless, taken overall, that conduct was of a serious nature and sufficiently serious to justify suspension or cancellation of Ms Sardinia's registration. What if any disciplinary powers should be exercised? 1. Where a complaint made under the National Law is admitted or proven, the Tribunal may exercise any of the powers in Subdiv 6, Div 3 of Pt 8 of the National Law. They include the powers to caution, reprimand and to impose conditions on a practitioner's registration. Where, as here, the Tribunal is satisfied that a practitioner is guilty of professional misconduct, it may suspend or cancel the practitioner's registration: s 149C(1) of the National Law. 2. In exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 3. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order". 4. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA observed at [20] that, in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. History post 3 January 2020 1. In January 2020, Ms Sardinia was working as a registered nurse two days per week at the Facility and three days per week at Lady Davidson Private Hospital. 2. In a letter dated 24 January 2020, the Facility notified Ms Sardinia that following investigation, several allegations concerning her actions in relation to Patient A had been found proven and invited Ms Sardinia to show cause as to why her employment should not be terminated. In an email sent to the Facility on 27 January 2020 Ms Sardinia stated that in her opinion "the determination was unduly harsh … in that there is no recognition given to my extreme mental health conditions that day". Mental health 1. In June 2019, Ms Sardinia's daughter experienced a personal tragedy. She became severely depressed and suicidal. It is not necessary for the purpose of these reasons to disclose the nature of that tragedy. Despite Ms Sardinia's encouragement, her daughter resisted seeing a counsellor. 2. Ms Sardinia claims that before going to work on 3 January 2020 she had been trying to comfort her daughter who was "weeping uncontrollably". She claims that she was so concerned about her daughter's mental health that she booked a flight to Melbourne so that her daughter would not be alone when her husband returned to work later that month. Ms Sardinia claims that she feared there was a real possibility that her daughter might take her own life. She said on that day she was so distressed that she felt a great sense of relief when she was told by Mr Singh that Patient A was OK, because at that time she was unable to deal with anything else. 3. According to Ms Sardinia, by mid-December 2019 she had become so concerned for her daughter's well-being that she was struggling with her own mental health. Ms Sardinia claims that she would break down and cry many times a day and found it increasingly difficult to focus on work. On 19 December 2019, "unable to see the way forward", Ms Sardinia spoke to her GP who made a diagnosis of depression and referred her to a psychologist. According to Ms Sardinia she had no previous history of depression or anxiety. 4. Ms Sardinia consulted a psychologist on 13 January 2020 and on three other occasions over the next six weeks. She consulted the psychologist again in February 2021 and in April 2021. In addition, while staying with her daughter in Melbourne in February 2020, she saw a psychologist on two occasions. Ms Sardinia claims that, with the assistance of her mental health team and her partner, Mr Rob Wilson, her mental health has now stabilised. 5. In a statement prepared for these proceedings, Ms Sardinia stated that she believes she is now able to recognise when her mental state deteriorates so that "I am never again in a position whereby I do not have the capacity to make reasonable judgements". In oral evidence, she stated that her daughter's condition had improved as had her own. She claims that when her daughter suffered a setback in late 2020, she was able to use strategies taught by her psychologist to prevent a relapse. Employment post 3 January 2020 1. On 23 March 2020, the NSW Nursing and Midwifery Council convened a hearing under s 150 of the National Law to consider the complaints made about Ms Sardinia. Following that hearing, the delegates decided to impose conditions on Ms Sardinia's registration, which required that she practice under "direct supervision". 2. On 17 May 2020, Ms Sardinia exercised the right conferred by s 150A of the National Law and sought review of that decision. In support of that application, Ms Sardinia stated that her previous employer, Lady Davidson Private Hospital, told her it could not offer her employment while she was required to work under direct supervision. In addition, Ms Sardinia argued that her mental health had improved and she no longer posed a risk to patients. Following a hearing on 22 June 2020, the Council varied its decision and substituted the requirement that Ms Sardinia work under direct supervision with the requirement that she work under indirect supervision. 3. Ms Sardinia returned to work at Lady Davidson Private Hospital in September 2020, working three days per week. Tendered in these proceedings were the monthly reports prepared by Ms Sardinia's supervisor as required by the Council. None raises any issue or concerns. All award Ms Sardinia the highest rating against each of the nursing standards measured. In the most recent report, 6 May 2021, the supervisor wrote: "I have had no concerns regarding Ms Sardinia's competence as an RN, her interaction personally or professionally with patients, staff, visitors or doctors …" 1. In a reference dated 3 May 2021, Ms Kerry Boland, the Director of Nursing at Lady Davidson Private Hospital, stated that she had known Ms Sardinia since she commenced employment at that hospital in 2000. She wrote that she has found Ms Sardinia to be organised, efficient, extremely competent and caring towards her patients and co-workers and that she set a very good example for junior and student staff. Ms Boland stated that she was aware that Ms Sardinia is currently the subject of disciplinary proceedings. Submissions 1. The Commission argues that the appropriate orders are cancellation together with a 12-month disqualification period, or, in the alternative, a six-month suspension and conditions for the following reasons. 2. First, the Commission points out that Ms Sardinia has failed to provide any independent medical evidence to support her claim of suffering significant psychological distress impacting upon her performance or that she was impaired on 3 January 2020. 3. Second, the Commission contends that even if it is accepted that Ms Sardinia was under significant distress or impaired, as a registered nurse she had a responsibility not to attend work. 4. Third, the Commission contends that Ms Sardinia has provided little direct evidence of her claim of having insight and being remorseful. In her dealings with the Council, the Commission and throughout these proceedings she has largely chosen to allow Mr Wilson to speak on her behalf, making it difficult to determine whether her expressions of insight and remorse are genuine or whether she is merely repeating what Mr Wilson told her to say. Mr Wilson acted as Ms Sardinia's agent throughout these proceedings. 5. The Commission submits that a stark example is provided by the answers Ms Sardinia gave in oral evidence about the report prepared by Ms Armitage, which we discuss further below. 6. Fourth, the Commission points to some evidence of Ms Sardinia previously failing to respond appropriately to a patient fall. 7. Fifth, the Commission contends that little weight can be given to the reference provided by Ms Boland in circumstances where she does not state that she is aware of the nature of the complaint. 8. Finally, citing the comments of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) at [35], the Commission contends that cancellation serves to denounce Ms Sardinia's misconduct and to send a message to Ms Sardinia, the profession, and the public as to the standard of conduct expected in the aged care sector. 9. Ms Sardinia urges the Tribunal not to cancel her registration and agrees to comply with any conditions imposed on her registration. She contends that the evidence demonstrates that she has taken steps to address her mental health and in the future she would be able to recognise if she was under significant distress. She argues that the Tribunal could be confident that she has learnt that she must not attend for work if she was under significant distress. Ms Sardinia's mental health post-January 2020 1. In determining the appropriate form of protective orders, a key issue is whether there is a risk that conduct of the type committed by Ms Sardinia is likely to be repeated. For the following reasons, we are comfortably satisfied that, with conditions, there is no real and appreciable risk that the impugned conduct will be repeated. 2. First, we accept Ms Sardinia's claim that she was under significant distress on 3 January 2020. When interviewed by Ms Wu on 10 January 2020, she gave an account of being extremely distressed after speaking with her daughter and was concerned that she might take her own life. That account was consistent with the account Ms Sardinia gave to the Council in the s 150A hearing in June 2020 and the account she gave in these proceedings. It is also consistent with Ms Sardinia's actions in seeing her GP two weeks earlier, being diagnosed with depression and being referred to a psychologist. It is also consistent with her actions in booking a flight to Melbourne to be with her daughter when her son-in-law returned to work. 3. Second, there is evidence that Ms Sardinia has taken steps to ensure that she is better able to cope if her daughter's condition were to deteriorate. We note that in December 2020 a further tragedy befell her daughter. The positive reports prepared by Ms Sardinia's supervisor over this period are consistent with Ms Sardinia's claim of being able to cope on this occasion. 4. Third, while, as the Commission points out, on the available material it is not possible to say whether Ms Boland was fully apprised of the details of the Complaint, nonetheless her reference supports Ms Sardinia's self-report that her conduct on 3 January 2020 was an aberration. Notably, Ms Boland has had the opportunity to observe Ms Sardinia's work performance for over two decades. It is improbable that if, as the Commission appears to suggest, the conduct on 3 January 2020 was in some way typical of Ms Sardinia's conduct, Ms Boland would not have been alerted to that fact. 5. Fourth, the two pieces of evidence relied upon by the Commission to suggest that the impugned conduct was not a one-off, fall well short of supporting that contention. 6. Fifth, we reject the contention that Ms Sardinia does not have insight and has not demonstrated remorse and merely parroted what Mr Wilson had told her to say. We intend no criticism of Ms Sardinia's agent and partner, Mr Wilson, but his determined and defensive advocacy style, illustrated for example, by the nit-picking criticisms made of aspects of the allegations levelled against Ms Sardinia, contributed to the legitimate concerns expressed by the Commission about the veracity of Ms Sardinia's claims. The Council made much the same observation in its reasons for decision following the s 150A hearing. 7. Of particular concern was the statement made by Ms Sardinia in final oral evidence that Ms Armitage was "inflexible" and had been paid to prepare her report. That statement was inconsistent with earlier statements made in cross examination in which she stated that she was ashamed of her actions and readily agreed with the criticism made about her conduct made by Ms Armitage. 8. It was apparent that later, when criticising Ms Armitage, Ms Sardinia was repeating what she and Mr Wilson had discussed during the luncheon adjournment. It was not to her credit that, initially, Ms Sardinia refused to admit that fact. Nonetheless, of itself that does not establish that her earlier statements of remorse and acknowledgement of wrongdoing were rehearsed and not genuine. While it is notoriously difficult to determine whether a person's expression of remorse is heartfelt or to draw any reliable conclusion based on demeanour, we were left with the impression that Ms Sardinia's earlier acknowledgement of her misconduct and expression of remorse was genuine. Cross-examination in these proceedings was not the first time Ms Sardinia had acknowledged the egregious nature of her conduct and expressed remorse. She made statements to the same effect when interviewed by Ms Wu on 10 January 2020 and during the s 150A proceedings in June 2020. 9. Finally, while we agree with the Commission that Ms Sardinia's conduct must be denounced, we do not accept, as the Commission appears to suggest, that any order short of cancellation, or at least suspension for six months, fails to do so. As observed by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [105], it does not follow that because an order for cancellation or suspension is not made, that the practitioner's conduct has not been denounced. In exercising the power to make disciplinary orders, the protection of the health and safety of the public is the paramount consideration, nonetheless, the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed). 10. In our view, the conditions proposed by the Commission (as an alternative to cancellation) with several minor amendments, together with a reprimand, are appropriate. For the reasons discussed above, we have decided not to impose a six-month suspension period, as has been urged by the Commission. Conditions 1. Ms Sardinia seeks several amendments to the conditions proposed by the Commission, including the removal of the requirement that she continue to work under indirect supervision. She states that there is ample evidence that there have been no problems with her work throughout the period of her supervision and, in those circumstances, the continuation of the supervision requirement is punitive. In addition, she submits that because of the associated costs of supervision, her employer is unlikely to be prepared to continue that arrangement indefinitely. 2. While the supervision reports are powerful evidence that Ms Sardinia does not currently pose a risk to the health and safety of patients, in circumstances where Ms Sardinia has been subjected to supervision for less than 12 months, where there is little independent medical evidence to support her self-report that her mental health has stabilised, in our view it is necessary and appropriate that the indirect supervision requirement continue. 3. Because of concerns about Ms Sardinia's knowledge of modern pain management techniques we have added to the conditions proposed by the Commission, a condition requiring Ms Sardinia to satisfactorily complete a course in pain management. Costs 1. The Commission seeks an order that Ms Sardinia pay its costs in these proceedings. Ms Sardinia opposes that order. 2. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Do at [51]. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40]. 3. Ms Sardinia's opposition to the costs order appears to be based on misapprehension of the principles which guide the exercise of the direction to award costs in proceedings commenced under the National Law. While the requirement to pay costs can be onerous, the purpose of a costs order is to compensate the successful party, not to punish the other party. The fact that Ms Sardinia admitted to Complaint 1 is not a proper basis to depart from the general "rule" that, in the absence of evidence of any disentitling conduct, the successful party is entitled to their costs. 4. We order Ms Sardinia to pay the Commission's costs as agreed or assessed. Orders 1. Ms Sardinia is guilty of professional misconduct. 2. Ms Sardinia is reprimanded. 3. Ms Sardinia's registration is subject to the following conditions: 1. Not to undertake agency nursing. 2. Not to be the nurse/midwife in charge of any shift, ward or unit. 3. To practise no more than 40 hours of full-time employment per week. 4. Not to work for more than one employer at a time. 5. Not to provide nursing care to geriatric/aged care patients other than in a hospital. 6. To obtain Nursing and Midwifery Council of NSW approval before changing the nature or place of practice. 7. To practise under indirect supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. 1. to nominate a supervisor for approval by the Council within 14 days of commencing work or as specified by the Council. 2. to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. 3. to authorise the Council to provide nominated and approved supervisors with a copy of relevant decisions. 1. To satisfactorily complete within 18 months of the date of this decision, education approved by the Nursing and Midwifery Council of New South Wales and that has the following characteristics: (i) vocational (ii) content or learning objectives: Falls management and Pain management. 1. within six months of the date of the decision Ms Sardinia must provide evidence to the Council of enrolment in the approved course/s. 2. within two months of completing the approved course/s, Ms Sardinia is to provide documentary evidence of satisfactory completion to the Council. 3. to bear responsibility for any costs incurred meeting this condition. 1. Within two months of the date of this decision, to attend for treatment by a psychologist or psychiatrist of her choice. The frequency of on-going treatment is to be determined by the treating practitioner. Ms Sardinia must: 1. authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change). 1. provide the Council with the professional details of the treating practitioner. 2. provide evidence to the Council of her attendance with the treating practitioner, as specified by the Council. 1. Forward evidence to the Nursing and Midwifery Council of NSW within seven days of commencing employment, that she has provided a copy of full conditions to her nursing employer. 2. Must within seven (7) days of a change in the nature or place of practice, forward evidence to the Nursing and Midwifery Council of NSW, that she has provided a copy of full conditions to her nursing employer. 3. Authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where Ms Sardinia works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. She 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. 1. The Nursing and Midwifery Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 2. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply while Ms Sardinia's principal place of practice is anywhere in Australia, other than in New South Wales, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. 3. Ms Sardinia is to pay the Commission's costs 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: 20 August 2021