Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Marks [2021] NSWCATOD 151 Hearing dates: 10 September 2021 Date of orders: 23 September 2021 Decision date: 23 September 2021 Jurisdiction: Occupational Division Before: The Hon F Marks Principal Member S Daly Senior Member J Barker General Member Decision: (1) consequent upon our finding that the respondent is guilty of professional misconduct we determine that if the respondent were still registered we would have cancelled her registration (2) the respondent is disqualified from being registered in the nursing and midwifery profession for a period of 2 years (3) we ask that the Registrar inform the Nursing and Midwifery Board of Australia that we require it to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. (4) the respondent is to pay the costs of the applicant assessed in default of agreement. Catchwords: OCCUPATIONS – Nurses – Misconduct and discipline – disciplinary proceedings – findings of multiple incidents of misconduct – held constituted professional misconduct – respondent no longer registered – held would have cancelled registration if registered – consequential orders including costs order made. EVIDENCE — Opinion evidence — Exceptions — Expert opinion – expert report did not comply with Procedural Directions – discretion exercised in the particular circumstances of the proceedings to admit report and accord it full weight. Legislation Cited: Health Practitioner Regulation National Law (NSW) ss 139B,139E,149C,165C Nurses and Midwives Act 1991 (NSW) s 4 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Karissa Louise Marks (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) No appearance (Respondent) File Number(s): 2021/00113485 Publication restriction: Non-publication order of the names of the persons identified in the proceedings as patients A and B and any other patient of the respondent also so identified and any material which might tend to identify any such persons. Reasons for decision Background 1. These proceedings are constituted by an Application for disciplinary findings and orders filed by the applicant, the Health Care Complaints Commission, seeking findings of unsatisfactory professional conduct and professional misconduct against the respondent, Karissa Louise Marks, pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (the National Law) together with consequential protective orders. The proceedings arise out of work performed by the respondent whilst employed as a registered nurse in a regional Correction Centre in New South Wales. 2. The complaints made against the respondent as contained in the Application are in the following terms 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 Ms Karissa Louise Marks ("the practitioner") of (address omitted), being a nurse registered under the National Law, COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. BACKGROUND TO COMPLAINT ONE In 2003, the practitioner completed a Bachelor of Nursing. On 22 December 2003, the practitioner was first registered as a registered nurse. Between 2004 and April 2015, the practitioner worked as a registered nurse at several hospitals, medical centres, aged care centres, and health services. In July 2015, the practitioner started working as a registered nurse at (name of a Correctional Centre omitted) ("the centre"). On 5 August 2019, Patient A was an inmate at the centre. Patient A was 50 years old. Patient A had a history of asthma and chronic obstructive pulmonary disease. Patient A reported symptoms to the practitioner including inability to sleep, headache, coughing up phlegm, and shortness of breath. PARTICULARS OF COMPLAINT ONE 1. At about 1030 on 5 August 2019, the practitioner failed to provide appropriate care to Patient A in that she failed to: a. obtain a sufficient history from Patient A, including information about the nature, intensity and duration of Patient A's reported symptoms and recent medication use; b. conduct a sufficient examination of Patient A, including a Peak Expiratory Flow and sputum sample; c. document sufficient findings of her examination of Patient A, including any difficulties with Patient A's speech, any use of accessory muscles for breathing, and any cyanosis; d. document sufficient medication information, including when Seretide and Salbutamol (Ventolin) were administered; e. escalate the patient's elevated temperature to the nurse in charge. 2. At about 1030 on 5 August 2019, the practitioner inappropriately administered a Seretide Accuhaler inhaler and a Salbutamol (Ventolin) nebuliser and/or inhaler to Patient A in circumstances where: a. The last telephone order for the Seretide Accuhaler inhaler and the Salbutamol (Ventolin) inhaler on 29 June 2019 had expired; b. The practitioner did not have a current medication order authorising her to administer the medications; c. A Salbutamol (Ventolin) nebuliser was not clinically indicated. 3. Between about 1500 and 1530 on 5 August 2019, the practitioner failed to provide appropriate care to Patient A in circumstances where: a. The nurse unit manager directed the practitioner to complete tasks including taking another full set of observations, contacting the Remote Onsite Afterhours Medical Service (ROAMS), completing a transfer form and arranging to send Patient B to hospital; b. The practitioner did not complete those tasks herself; c. The practitioner did not conduct a sufficient handover to ensure that another nurse completed those tasks. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. BACKGROUND TO COMPLAINT TWO On 13 August 2019, Patient B was an inmate at the centre. Patient B was 26 years old. Patient B had a history of self harm. PARTICULARS OF COMPLAINT TWO 1. Between about 1000 and 1030 on 13 August 2019, the practitioner failed to provide appropriate care to Patient B in circumstances where: a. Patient B had self inflicted wounds to his neck; b. Patient B was in a room awaiting the attendance of ambulance officers; c. An enrolled nurse was in a room with Patient B; d. The practitioner did not remain in the room with the enrolled nurse; e. The practitioner did not make arrangements for another registered nurse to provide support and supervision to the enrolled nurse during that time; f. The practitioner did not complete any clinical records regarding Patient B's self harm. 2. Between about 1500 and 1530 on 13 August 2019, the practitioner failed to provide appropriate care to Patient B in circumstances where: a. Patient B had returned from hospital following his self harm; b. The practitioner did not review Patient B herself; c. The practitioner did not conduct a sufficient handover to ensure that another nurse reviewed Patient B; d. The practitioner did not complete any clinical records regarding Patient B's return from hospital. COMPLAINT THREE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. 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 PARTICULAR OF COMPLAINT THREE 1. Complaints One and Two, individually or in combination, justify a finding of professional misconduct. 1. After the commencement of the proceedings, the respondent had been represented by a solicitor employed by the New South Wales Nurses and Midwives' Association. By letter dated 20 May 2021 the solicitor advised the Tribunal that the respondent had surrendered her registration as a nurse, she would not be participating further in the proceedings and that the solicitor would not be appearing on her behalf, as a consequence of her instructions having been withdrawn. That letter also enclosed a copy of a Notice to Surrender Registration as a registered nurse form signed by the respondent dated 19 May, 2021 and a statutory declaration sworn by the respondent dated 18 May, 2021. 2. In her statutory declaration the respondent said that she had requested that the Nursing and Midwifery Board of Australia immediately remove her name from the Register of Nurses, and that she undertook not to seek registration as a nurse or practice nursing again in Australia. 3. When the proceedings came on for hearing on 10 September 2021, one of the members of the Tribunal, Senior Member T Anderson said that she had been urgently required to provide specialist professional assistance to NSW Health in connection with the current Covid 19 pandemic and would be unable to participate in the proceedings. Because the proceedings were to proceed ex parte, there was less likely to be a need for Ms Anderson's professional contribution to the Tribunal, and because there was a compelling reason why she was unable to participate, the remaining members of the Tribunal determined to continue the hearing without her participation, she having vacated her office. Such a determination was made pursuant to section 165C of the National Law. 4. The proceedings before us were conducted without the participation of the respondent. Nevertheless, as was acknowledged by Ms Bayley, the solicitor who appeared for the applicant, it was necessary that the applicant prove to our satisfaction that each of the Complaints and the particulars of those Complaints contained in the Application have been established. In conformity with the jurisprudence of this Tribunal in dealing with matters of this kind we acknowledge that in view of the seriousness of the Complaints the applicant must establish the factual bases to the standard established in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, namely that we must be "comfortably satisfied" on the balance of probabilities that they have been made out. Service of the applicant's documents 1. As we have previously stated, the applicant dealt initially with a solicitor employed by the New South Wales Nurses and Midwives' Association who was then representing the respondent. After this representation ceased the respondent did not participate in any way in the case management of the proceedings. She did not acknowledge receipt of the Application or any of the evidentiary material filed by the applicant. 2. This caused the applicant to have to prove before us that the Application and all of the evidentiary material which had been filed had been served on the respondent. The applicant filed affidavit evidence as to the residential address of the respondent, the email address of the respondent and many communications with her both in documentary form and by email serving documentary evidence and notifying the respondent of the details of the hearing before us. We are satisfied that the respondent has received these communications, which are addressed to residential premises and to an email address whose details were provided by the respondent to the applicant, as late as 18 May 2021. The expert report of Christine May Muller 1. The applicant tendered into evidence a large bundle of documentary material, including an expert report of Christine May Muller, a Nurse Practitioner of many years' experience. Ms Muller also gave oral evidence. It is not necessary to describe Ms Muller's qualifications and expertise in any detail, save to point out that they are extensive, and we are comfortable in relying upon her opinions as expressed in her report. Furthermore, relevant to these proceedings, Ms Muller has held the position of Nurse Practitioner Adult Mental Health within the Justice Health and the Forensic Mental Health Network since 28 September 2008 and has had extensive experience within NSW Adult Correctional Centres. 2. Ms Muller's report as reproduced in the documentation tendered by the applicant is undated and unsigned. In terms of its date, the report clearly responds to a letter of instruction forwarded to Ms Muller by an officer of the applicant by email dated 17 July 2020. The letter of instruction was comprehensive, contained a detailed summary of the factual background to the complaints and included a copy of the Procedural Direction issued by this Tribunal with respect to the formulation and contents of expert reports. 3. Notwithstanding the request made of Ms Muller that she read this Procedural Direction and acknowledge that she had read it and agreed to be bound by the code of conduct set out in it, Ms Muller failed to do so. Her failure included a failure to acknowledge the following matters contained in that Procedural Direction 14. An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise. 15. An expert witness's paramount duty is to the Tribunal and not to any party to the proceedings including the person retaining the expert witness. 16. An expert witness is not an advocate for a party. 1. This deficiency in the expert report of Ms Muller was not raised during the course of the hearing. Because of logistical problems associated with restrictions imposed by the Covid 19 protocols, the presiding member only had access to the approximately 700 pages of documents in these proceedings the day prior to the hearing, with no adequate opportunity to peruse the expert report to ensure specific compliance with the Procedural Direction prior to the hearing. 2. It now becomes necessary to determine what approach should be taken to the acceptance or otherwise of Ms Muller's opinion, and if it is to be accepted, the weight that should be given to it notwithstanding this failure to comply. 3. The discretion to deal with Ms Muller's report notwithstanding the failure to comply with the Procedural Direction is included within the body of the Direction 5. The Tribunal may excuse a party or an expert witness from complying with this Procedural Direction before or after the time for compliance. 6. In Evidence Rules Proceedings, a failure to comply with the code of conduct may, depending on the circumstances, render the report or evidence inadmissible or adversely affect the weight to be attributed to that report or evidence. 7. In non-Evidence Rules Proceedings, a failure to comply with the code of conduct does not render any expert report or evidence inadmissible but it may, depending on the circumstances, adversely affect the weight to be attributed to that report or evidence. 1. These are non-Evidence Rules Proceedings. 2. In determining this matter, we take into account that, as will be seen, Ms Muller has based her expert opinions on documentary material, which is uncontroversial. The respondent had been given a copy of this report within the material served upon her by the applicant well prior to the hearing. In addition, having regard to the expertise available to the Tribunal by the presence of a professional member, Ms Daly, in considering and dealing with the expert opinion with regard to the Complaints and particulars which are the subject of these proceedings, we do not regard the expressions of expert opinion as raising any particular matters of technical controversy. The opinion of Ms Muller is, in all the circumstances, non-controversial. 3. In expressing her opinions, we do not regard Ms Muller as exhibiting any particular bias and we regard those opinions both in written form and in oral evidence given during the course of the proceedings as having been expressed impartially on matters relevant to her area of expertise. 4. For these reasons we intend to rely on this expert opinion and give it full weight accordingly, notwithstanding the failure to comply with the Procedural Direction. We would however ask the applicant to renew its efforts to ensure compliance with this important Direction in all matters where expert opinion is retained by it. The nature of the documentary evidence 1. It will be recalled that Complaint One deals with the circumstances of Patient A on 5 August 2019 and Complaint Two deals with the circumstances of Patient B on 13 August 2019. Representatives of the Correctional Centre conducted an interview with the respondent on 19 September 2019 during the course of which the respondent provided information concerning her treatment of and involvement with both patients. A transcript of that interview is included within the applicant's documents. 2. Following this interview, a complaint was made concerning the respondent's conduct which culminated initially in proceedings brought against her by the Nursing and Midwifery Council of NSW under section 150 of the National Law with respect to the treatment of both patients. Delegates of that Council conducted a hearing on 9 December 2019 during the course of which the respondent provided information to them. A transcript of those proceedings is included within the applicant's documents. 3. On 12 February 2020 Delegates of the Council determined that the respondent should not work as a registered nurse until reviewed by the Council. The reasons for decision are available to us. We state for completeness that their reasons were not confined to the incidents which are the subject of these proceedings. 4. By letter dated 6 October, 2020 an officer of the applicant wrote to the respondent informing her that the applicant was "at the end" of an investigation of complaints which form the basis of these proceedings, indicating that the evidence demonstrated that her standard of care with respect to both patients was "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience in a number of respects", furnishing considerable details of the allegations made with respect to the patients, enclosing the report of an expert whose identity was not disclosed and inviting the respondent to make submissions in reply. By email dated 3 November 2020 the NSW Nurses and Midwives' Association informed the applicant that the respondent did not wish to make any submissions. 5. In addition to the above documents, we have received clinical notes with respect to each of the patients, a number of publications including some issued by way of NSW Health Policy Directives, publications issued by Justice Health and Forensic Mental Health Network (Justice Health) which covered patients who were inmates in correctional centres, and other documentation referring to standard clinical nurse practices. We shall refer to this additional material where relevant during the course of these reasons for decision. 6. There is clear evidence, and there can be no contention, which demonstrates that the material in the Application relating to the Background to both Complaints One and Two has been made out to the requisite standard. The respondent's work history and her qualifications are established by a CV which she presented to the applicant. The circumstances of both patients are established by their clinical notes. The evidence with respect to Complaint One and particulars 1. The respondent's clinical notes made by her show that this patient was examined by her at 10:30 am on 5 August 2019. She noted inter alia that the patient complained of being unable to sleep and suffering from a headache. She entered his "vital signs" on his Standard Adult General Observation Chart (SAGO). This showed that he had a temperature of 39.8°, a heart rate of 110, a respiratory rate of 23, blood pressure of 112/68 and 100% oxygen saturation. 2. In various interviews which the respondent gave to explain her treatment of this patient she noted that he did not seem to be suffering from a migraine, he looked unwell and was wheezing. On listening to his chest, she could detect no signs of a bacterial chest infection, she thought he was suffering from a viral infection and gave him paracetamol to reduce his temperature. 3. The patient informed her that he had not had his normal medication of Ventolin or Seretide for some time. The respondent conceded that she gave him this medication even though his last script had expired on 29 June 2019. In interviews the respondent conceded that this had been poor practice and that she should have contacted a doctor to authorise the scripts. She said that she was "being lazy," she had just returned from a four weeks' vacation during which she had been ill, and it was a busy day. 4. In the course of the section 150 proceedings the respondent said that she had rebooked this patient for a follow-up in 2 days' time, but had told him that if he was feeling any worse he should make arrangements to ask a correctional officer to call for a nurse. 5. There is evidence in a statement by the Nurse Unit Manager (NUM) at the correctional centre that she had had a discussion with the respondent concerning this patient at approximately 3 pm on 5 August 2019. The NUM directed the respondent to call the patient back to the health centre to complete a form to transfer him to hospital, contact a medical officer and arrange for him to be sent to hospital prior to her leaving duty that day. The respondent said that she made arrangements with a correctional officer for the patient to be brought from his cell to the health centre, but this had not occurred prior to the scheduled end of her shift at 3:30 pm that day. In interviews the respondent said that she was unsure whether she would be able to obtain approval to work overtime, so she took it upon herself without reference back to the NUM to ask another nurse who was commencing duty at 3:30 pm to take over the management of the patient and left at the end of her shift. This was her explanation for not having attended to the instructions which had been given to her. 6. In her expert opinion dealing with the respondent's conduct concerning this patient Ms Muller had regard to clinical notes, Emergency Response guidelines and other guidelines issued by Justice Health for the management of patients in health clinics conducted in correctional centres. Having regard to these matters, the condition of the patient as revealed in the clinical notes and general principles of good nursing practice Ms Muller made the following observations 1. having regard to the patient's complaints and his clinical signs the respondent should have: 1. sought additional information from the patient including more details about his symptoms, their intensity and duration and any medication which he had recently used; 2. assessed the reason for his difficulty in sleeping including caused by coughing; 3. explored the intensity or frequency that the patient was coughing; 4. determined if he had been eating and drinking sufficiently; 5. determined if he had been able to attend to normal activities at the centre; 6. considered whether his condition was secondary to acute respiratory infection whether viral or bacterial; and 7. determined whether he was in shared accommodation so as to consider possible community exposure and infection control management. 1. the clinical signs exhibited by this patient as recorded in his notes and on the SAGO form should have alerted the respondent to administer oxygen at 15 L per minute or contact the medical officer if the patient's condition was not caused by asthma but was caused, for example, by chronic obstruction pulmonary disorder (COPD) 2. in assessing the patient's possible asthma condition the respondent was required to carry out a series of tests and document them including, by way of summary, difficulties with speech, the use of accessory muscles for breathing and any cyanosis 3. in assessing the patient's condition, the respondent was required to carry out an appropriate examination including a Peak Expiratory Flow and sputum sample 4. because the patient's temperature was abnormally high and having regard to his relatively high respiration rate and elevated heart rate the respondent should have initiated appropriate care by reassessing the patient and escalating treatment, particularly by informing the attending medical officer. Furthermore, if a documented monitoring plan was not implemented the patient should have had a complete set of vital sign observations conducted at least three times a day, and the matter escalated at least to the nurse in charge or NUM. 5. The respondent failed to document the time at which she administered paracetamol, Seretide and Ventolin to the patient. 6. The respondent had failed to adequately conduct a handover of this patient by giving appropriate details at the conclusion of her shift. 1. Ms Muller was also highly critical of the respondent's failure to inform the NUM that she was intending to finish a shift without completing the work assigned to her concerning this patient. 2. All of these matters of criticism lead Ms Muller to conclude that with respect to each and every one of them, the conduct of the respondent was significantly below the standard expected of a registered nurse of an equivalent level of training or experience of the respondent. 3. Because of the factual matters which have been established by the evidence which are set out in the above narration, we are comfortably satisfied to the requisite standard that all of the particulars of this Complaint have been established The evidence with respect to Complaint Two and the particulars 1. In her statement given during the course of the interview on 19 September 2019 the respondent confirmed that on 13 August 2019 she had responded to an emergency call to attend to patient B who was in a pod in the correctional centre and who had self-inflicted cuts to his throat. The respondent was the nurse in charge of the clinic that day. Enrolled nurse, Michelle Kingston was with her. The patient resisted attempts to examine him so they moved him in a wheelchair to the clinic. She said that she had arranged for an ambulance to be called, and after they arrived at the clinic she left to arrange for a medical officer working nearby to attend the patient. She said when she had looked at the wounds, they were not bleeding profusely but they were obviously deep. The respondent said that she did not return to the clinic and left the patient there with the doctor and enrolled nurse. Because the patient was being cared for by these persons, she did not complete any documentation about the incident. 2. It transpired that the doctor left the clinic after she had finished treating the patient, and at that stage the patient was alone with the enrolled nurse in charge of her care. 3. During the course of the section 150 proceedings the respondent said that she had not handed over the care of this patient to the enrolled nurse, even though the patient had been alone with her after the medical officer had left. 4. The respondent was unable to explain why she did not return to the clinic other than on the basis that she must have been busy with other tasks. During the course of the interview it was put to the respondent that her documented work on that shift had involved attending on one patient between 11 am and 11:10 am that day, and no other activities. Nevertheless, the respondent conceded that she did not return to the clinic to assess the patient's condition prior to him being transported to hospital for treatment. 5. During the course of the interview it was alleged that when the patient was returned to the clinic from his treatment at hospital at about 3 pm that day, the nurse in charge of the afternoon shift asked the respondent to assist the patient. The respondent replied that she could not remember this occurring, nor could she remember the patient having returned to the centre that day. The respondent conceded that she had not assisted the patient upon his return, nor had she completed any documentation concerning the incident, notwithstanding that the patient had attempted to commit suicide and that he had returned from hospital with 22 sutures in his neck. It followed that she had not attempted to initiate any handover of this patient to the afternoon nursing personnel. 6. The enrolled nurse, Michelle Kingston attended an interview with staff at the correctional Centre on 12 September 2019 concerning this incident. She said that she had taken the "lead" in the clinical care of the patient and it was she who arranged for an ambulance to be called and for the patient to be moved by wheelchair to the clinic. She said the respondent did not accompany her to the clinic. At various stages a student nurse and the doctor were present with her and the patient in the room. At one stage she was assisted by another registered nurse to take observations whilst she was endeavouring to insert a cannula, but otherwise she was alone with the patient until the ambulance came. 7. Amanda Cochrane CNE was the nurse in charge of the clinic during the afternoon shift that day. She attended an interview with staff at the correctional Centre on 12 September 2019. She said that patient B had returned from the hospital at about 3 pm. She was working next to the respondent at that time. The respondent asked her whether she could see the patient because she, the respondent, was finishing her shift shortly. Ms Cochrane replied that she was unable to see the patient at that stage and asked the respondent to do so. The respondent then got up from her position and left the room. Ms Cochrane assumed that the respondent was going to attend on the patient, and that she would complete the necessary documentation. It was not until the next morning that she discovered that the respondent had not seen the patient and no documentation had been completed by her. 8. Ms Muller commenced her review of the circumstances surrounding this patient by noting that an enrolled nurse should at all times work under the supervision of a registered nurse, whether that supervision be direct or indirect. In leaving the enrolled nurse to deal with the patient without having made alternative arrangements for herself or another registered nurse to provide that supervision, the respondent was in breach of conduct which would be expected of a registered nurse with the equivalent experience and qualifications of the respondent. 9. Ms Muller was also critical of the failure of the respondent to ensure that appropriate documentation had been completed concerning all aspects of the treatment of patient B, both initially within the centre and, subsequently, upon his return from hospital. 10. Significantly, also, Ms Muller was critical of the failure of the respondent to review this patient after he had returned from hospital when requested to do so by the nurse in charge and, seemingly, failing to ensure that someone else conducted that review, which was essential for the well-being of the patient and mandated by the protocols which applied to the correctional centre. 11. All of these matters of criticism lead Ms Muller to conclude that with respect to each and every one of them, the conduct of the respondent was significantly below the standard expected of a registered nurse of an equivalent level of training or experience of the respondent. 12. Because of the factual matters which have been established by the evidence which are set out in the above narration, we are comfortably satisfied to the requisite standard that all of the particulars of this Complaint have been established. Is the respondent guilty of unsatisfactory professional conduct? 1. Each of Complaints One and Two alleged that by virtue of the conduct of the respondent she is guilty of unsatisfactory professional conduct as defined in section 139B(1)(a) of the National Law. That provision is in the following terms 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 significantly below reasonable standard 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. 1. In determining this matter we rely on the opinion of Ms Muller which we have set out in detail, and on her experience and expertise in assessing what is the appropriate reasonable standard to be expected of a registered nurse of the respondent's equivalent level of training and experience. On one view, a narration of the factual circumstances which apply to each of the particulars of each of the Complaints is sufficient per se to indicate that the respondent's behaviour, the manner in which she sought but failed to exercise her professional skills, her lack of judgment which caused her to fail to perform a number of her tasks as described, and her lack of care are all indicative of conduct significantly below the requisite standard. Lest there be any doubt about this matter, the expert opinion of Ms Muller confirms that with respect to all of the particulars contained in each of the Complaints, the respondent is guilty of unsatisfactory professional conduct. Is the respondent guilty of professional misconduct? 1. This matter is the subject of Complaint Three, which relies upon and is based upon all of the misconduct particularised in Complaints One and Two. 2. Professional misconduct is defined in section 139E of the National Law 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (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. The discriminating factor which changes unsatisfactory professional conduct to professional misconduct is that it is sufficiently serious to justify suspension or cancellation of registration. Suspension or cancellation of registration is part of the armoury of protective orders that this Tribunal may make consequent upon a finding of professional misconduct. The orders which can be made must be protective in nature, having regard to the health and safety of the public. The underlying principles have been succinctly summarised in the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. Meagher JA (Basten and Emmett JJA agreeing) said: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [36] In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." [37] In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Some assistance in exercising the value judgment which is inherent in determining whether unsatisfactory professional conduct is sufficiently serious to constitute professional misconduct is provided in the judgment of Basten JA (Leeming JA agreeing) in the NSW Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]: "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..." 1. We proceed on the basis that it is appropriate to consider all of the findings that we have made in the aggregate. In so stating we should not be taken to have determined that there are no individual findings which in themselves would justify a determination that the respondent is guilty of professional misconduct. Indeed, the respondent's misconduct with respect to both patients as particularised against her is of a most serious nature. 2. We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other members of the nursing profession. 3. In determining this matter it is necessary to refer to some additional evidence. We have been provided with a file note made by Nicole Kesby the NUM at the Centre of a discussion which she had with the respondent on 6 August 2019, the day after the incidents involving patient A. The respondent acknowledged that she had failed to follow appropriate protocols in failing to attend to the patient prior to leaving her duties at the end of the shift. Ms Kesby again met with the respondent on 8 August 2019 concerning the administration of Seretide and Ventolin on an expired phone order prescription. She pointed out that the respondent had also given the patient a Salbutomol nebuliser that was not clinically indicated because the patient's oxygen saturation was 100% and this was not indicative of an acute asthma algorithm. The respondent said that she did not realise that at the time and undertook to call for professional help if she was unsure about any treatment. Notwithstanding these discussions about these areas of concern, the respondent again engaged in inappropriate conduct on 13 August 2019 with respect to patient B, in the circumstances outlined above. There is a pattern to the respondent's lack of care and concern in dealing with both patients within such a short time period, which we take into account. 4. We also refer to additional evidence concerning the circumstances of patient A. He was admitted to hospital on 5 August 2019 after being treated by the respondent with a diagnosis of infective exacerbation of his COPD and he was placed on intravenous antibiotics. This is corroborative of the respondent's lack of care in assessing this patient. 5. In all the circumstances we regard the respondent's misconduct as being serious, involving two patients both of whom had serious conditions and whose care by the respondent was seriously lacking. In the case of patient A that care was given by the respondent directly. In the case of patient B there was a failure to give appropriate care. In both cases there was a failure to complete necessary documentation and to communicate otherwise with other members of the nursing team at the clinic. 6. We regard the misconduct of the respondent overall as being incompatible with the standard reasonably expected by the public of a registered nurse with the qualifications and experience of the respondent such that we have grave concerns for her ability to practice nursing in an appropriately safe manner. Such an assessment is indicative of misconduct which is incompatible with her continued ability to practice nursing in the interests of the safety of the public and would justify cancellation of her registration. Accordingly, we find that the respondent is guilty of professional misconduct as alleged in Complaint Three. Consequential protective orders 1. Notwithstanding that the respondent had surrendered her registration, the applicant sought an order to the effect that if the respondent were registered, registration should be cancelled. Such an order is available to us pursuant to the provisions of section 149C of the National Law 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied— (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note— Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order— (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. We add for completeness that there are alternative protective orders that may be made under section 149A of the National Law. In view of the determination which we have made concerning the appropriate protective orders it is not necessary that we consider the provisions of that section. 2. In considering what protective orders should appropriately be made consequent upon our finding that the respondent is guilty of professional misconduct we are entitled to take into account any other matters which are relevant. We note that this is not the first occasion on which the respondent's conduct as a nurse has come to the attention of the NSW Nursing and Midwifery Council. On 18 July 2011 the respondent was reprimanded by the Professional Standards Committee after finding her guilty of unsatisfactory professional conduct as defined in section 4 of the former Nurses and Midwives Act 1991(NSW) arising out of her care of an elderly patient in a regional hospital on 1 and 3 June, 2008. The Committee found that the respondent had "failed to regularly monitor, document and assess [the patient's] condition and to change the nursing care plan for [the patient] particularly to a more frequent observation level. The [respondent] failed to notify the medical officer of the significant changes in vital signs recording and provided oral evidence that respiratory rates have not been recorded for patients who were under her care for the past four years." The Committee imposed conditions on the respondent's registration requiring her to undertake a number of professional development courses. 3. We note for completeness that the respondent has been the subject of two further proceedings, but we do not regard the nature of those proceedings and their outcome as being relevant to the determination of these proceedings. 4. The applicant submitted that in all the circumstances the only appropriate protective order was the cancellation of the respondent's registration. We observe that we are empowered to make such an order even though the respondent is no longer registered by reason of the provisions of section 149C(4) set out above. 5. We agree with the submissions of the applicant that in all the circumstances the misconduct of the respondent as particularised in the Complaints is so serious that it must call into question her competency to practice nursing safely, and her commitment to the health, welfare and safety of her patients. This is compounded by the fact that the respondent was the nurse in charge with respect to the circumstances affecting patient B which occurred on the morning of 13 August, 2019. We repeat our observations made in [57] above. It is conduct of such a kind that warrants cancellation of the respondent's registration in the interests of the protection of the safety of the public, as a deterrent to the respondent and other members of the nursing profession, and in order to uphold the integrity of the nursing profession in the eyes of the public. Indeed, the misconduct which we have described, and in particular as it applies to patient A is similar in nature to the conduct which gave rise to the order of reprimand made by the Committee in 2011, referred to above. 6. In circumstances where the respondent has provided no explanation for her conduct other than dereliction of duty, we are unable to assess on any scientific basis any appropriate period which should be fixed under section 149C(4)(b). In all the circumstances, we assess an appropriate period as being 2 years which will allow the respondent an opportunity to take such rehabilitative action and to engage in such reflective exercise as she might see fit. Costs 1. This is a costs jurisdiction. The applicant sought a costs order in its favour. There is no conduct on the part of the applicant which would disentitle it to a costs order, nor is there any other reason why such an order should not be made. We propose to make a costs order as sought. Orders 1. We make the following orders 1. consequent upon our finding that the respondent is guilty of professional misconduct we determine that if the respondent were still registered we would have cancelled her registration 2. the respondent is disqualified from being registered in the nursing and midwifery profession for a period of 2 years 3. we ask that the Registrar inform the Nursing and Midwifery Board of Australia that we require it to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. 4. the respondent is to pay the costs of the applicant assessed in default of agreement. 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: 23 September 2021