Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Singh [2021] NSWCATOD 191 Hearing dates: 19 – 22 July 2021 Date of orders: 26 November 2021 Decision date: 26 November 2021 Jurisdiction: Occupational Division Before: A Britton, Deputy President V Gibson, Senior Member S Shulz-Robinson, Senior Member R Kusuma, General Member Decision: (1) Mr Singh is guilty of professional misconduct. (2) The proceedings are listed for directions in respect of the conduct of a Stage 2 hearing at a date to be determined by the Registrar 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 Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Gautam v Health Care Complaints Commission [2021] NSWCA 85 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 at 638; [1997] NSWSC 297 Health Care Complaints Commission v Sardinia [2021] NSWCATOD 119 Ng v Health Care Complaints Commission [2017] NSWSC 53 Texts Cited: Nursing and Midwifery Board of Australia, Registered Nurse Standards for Practice (2016) Nursing and Midwifery Board of Australia, Code of Conduct for Nurses (2018) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Bhuvaneshwar Singh (Respondent) Representation: Counsel: R Donnelly (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2021/00025053 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, the day after falling from a wheelchair while alone in her room in the aged care facility (the Facility) where she was then residing, ninety-nine-year-old Patient A died. Eight hours after the fall, Patient A was taken by ambulance to a NSW public hospital. She told paramedics she was "in agony and wanted to die". The death certificate stated that the cause of death was "bilateral femur fractures". 2. Following 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 Mr Singh (the Complaint), which he largely denies, are proven, and whether any admitted or proven conduct amounts to "unsatisfactory professional conduct" and "professional misconduct" within the meaning of the Health Practitioner Regulation National Law (NSW) (the National Law). 4. We find most of the particulars of the Complaint to be proven and Mr Singh to be guilty of professional misconduct. We will determine the appropriate disciplinary orders at a second hearing. 5. Given the overlap in subject matter, the complaints relating to Mr Singh and Ms Sardinia were heard concurrently. In a separate decision we found Ms Sardinia to be guilty of professional misconduct: Health Care Complaints Commission v Sardinia [2021] NSWCATOD 119. Background to the Complaint 1. On 3 January 2020, Mr Singh was the nurse in charge of the morning shift at the Facility (06:45 to 15:45). He was the sole registered nurse rostered to work that shift and was responsible for about 47 residents. Several Care Service Employees (CSEs) were rostered to work the morning shift. In addition, a Deputy Service Manager was on site at the Facility. 2. The Facility had engaged Mr Singh through a nursing agency, Quality Care Service Agency (the Agency). This was the second time Mr Singh had worked at the Facility. 3. At about 13:00 Patient A had an unwitnessed fall. She had been left in her room unattended. CSE, Ms Puspa Gauntan, heard Patient A call out and went to her assistance at about 13:00. She summoned Mr Singh who examined Patient A and found no signs of injury. Patient A was returned to bed. 4. Apart from the neurological and general observations conducted by Mr Singh at about 13:15 and a brief and unrecorded observation 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 any further neurological observations. He claims that after leaving Patient A at about 13:15 he told care staff to carefully monitor Patient A. There is no evidence of Patient A being monitored throughout the remainder of the morning shift. 5. At the shift hand over given at about 15:00 Mr Singh told Ms Sardinia that Patient A had had an unwitnessed fall, she was not injured and appeared to be OK. 6. Mr Singh claims that it was an extremely busy shift and he received no induction or support from the Facility's management. 7. 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 bones. 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. 8. At about 20:00 a CSE found Patient A in pain and in distress. On pulling back the bed covers, the CSE 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". An hour later an ambulance was called. 9. One of the paramedics who transported Patient A to 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. 1. Patient A died in hospital the following day. Standard and onus of proof 1. The Commission bears the burden of proving, on the balance of probabilities, the matters particularised in the Complaint. 2. Pursuant to s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW), NCAT is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act [which sets the standard of proof in civil proceedings] applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127] (Leeming JA, Gleeson JA agreeing); Ng v Health Care Complaints Commission [2017] NSWSC 53 at [56]. (cf Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [89] (Payne JA, Leeming JA and Simpson AJA agreeing)). Nonetheless, given the gravity of the allegations made against Mr Singh, in deciding whether the particulars alleged are proven we have adopted the approach set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. 3. In that case, Dixon J, in considering the question of the proof required to meet the civil standard, said at 361-362: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found... Reasonable persuasion is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences of flowing from a particular findings are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. 1. The allegations in this case are serious, as are the consequences of an adverse finding for Mr Singh. In making our findings, we have been conscious of those factors. The Complaint 1. The Complaint consists of two individual complaints: 1. Complaint 1 consists of 20 particulars. All relate to the final two and a half hours of Mr Singh's shift on 3 January 2020 during which he was responsible for Patient A's care and management. The Commission 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. Mr Singh denies most of the particulars of Complaint 1. In addition, he denies that the alleged conduct amounts to unsatisfactory professional conduct or professional misconduct. Complaint 1 1. Complaint 1 relates to Mr Singh's: 1. first assessment and examination of Patient A at about 13:15 and when he reviewed her again after she had been returned to bed (Particulars 1, 4, 5); 2. actions in relation to Patient A's transfer by hoist from the floor to bed (Particular 2); 3. assessment that Patient A's complaints of pain were attributable to her age and chronic conditions (Particular 6); 4. failure to take steps to ensure that Patient A received pain relief (Particulars 7); 5. actions in inaccurately recording that he had assessed Patient A's lower limbs as "normal" and his failure to make an adequate clinical record (Particulars 9, 17); 6. failure to monitor and to provide appropriate care for Patient A after her fall (Particulars 13, 15 and 19). 1. By Particulars 3, 5, 8, 10, 12, 14, 16, 18 and 20, the Commission complains that by the conduct identified above, Mr Singh acted contrary to the Nursing and Midwifery Board of Australia's Registered Nurse Standard for Practice (2016) (Standards for Practice) and/or the Nursing and Midwifery Board of Australia, Code of Conduct for Nurses (2018) (Code of Conduct). Mr Singh's first assessment and examination of Patient A: Particulars 1 and 4 1. Particulars 1 and 4 state: 1. On 3 January 2020 when the practitioner first reviewed Patient A on the floor, and prior to arranging to move her to her bed, he failed to adequately assess and examine Patient A's upper legs and hips for injuries by assessing her range of motion and power. 4. On 3 January 2020 when the practitioner reviewed Patient A in her bed he failed to adequately assess and examine the severity, location, and cause of her pain, including by adequate assessment and examination of her lower limbs and back. 1. In these proceedings, Mr Singh denied: 1. as alleged by Particular 1, that when he first reviewed Patient A while she was lying on the floor (the first assessment), he failed to "adequately assess and examine Patient A's upper legs and hips for injuries by assessing her range of motion and power"; 2. as alleged by Particular 4, that when he assessed Patient A after she was returned to bed (the second assessment), he failed to conduct an adequate assessment of Patient A's lower legs and back. He claims that during that assessment he rolled down Patient A's trousers and examined the upper part of her legs and her hips. 1. Mr Singh claims that in each assessment he undertook a "thorough head to toe" examination. The first assessment: Particular 1 1. CSE, Ms Puspa Gauntan, was the first person to come to Patient A's assistance after she heard her call out "help". On 4 January 2020, Ms Gauntan met with the Facility's Service Manager, Ms Belle Wu, who prepared a statement "according to Puspa Gauntan's verbal description. Confirmed by Puspa Gauntan". English is not Ms Gauntan's first language. Apparently she is not proficient in written English. In that statement, Ms Wu recorded: 1. on finding Patient A on the floor, Ms Gauntan summoned Mr Singh who asked Patient A whether she is "OK and if she is pain". Patient A responded that she was "hurting in her legs"; 2. while Ms Gauntan and a colleague were transferring Patient A to bed, Mr Singh left the room for a few minutes; 3. on his return Mr Singh asked Ms Gauntan to remain in the room while he conducted a "head to toe" assessment of Patient A. In that assessment: 1. Mr Singh checked Patient A's arms and asked her to move them; 2. Mr Singh did not ask Patient A to move her legs; 3. Mr Singh did not check Patient A's lower limbs carefully and only lifted her clothes at her hips and ankles; 4. Patient A said, "don't touch my legs, it's painful"; 5. Mr Singh said it was "chronic pain". 1. In a statement prepared at the request of the Commission dated 11 June 2020, Ms Gauntan stated that she wished to add to her previous statement that: 1. while Patient A was lying on the floor, Mr Singh "conducted an assessment" and moved Patient A's arms but not her legs to check her range of movement; 2. while she was transferring Patient A to bed using a hoist, Patient A complained of pain; 3. on examining Patient A when she had been transferred to bed, Mr Singh tried to turn Patient A around to check her back and when she complained of pain he did not assess her further; 4. shortly after the second assessment, she left work as her shift finished at 13:30; 5. she does not recall Mr Singh asking her to monitor Patient A. 1. In these proceedings, Ms Gauntan said that during the second assessment Mr Singh rolled up Patient A's trousers from her ankles to her knees but did not roll down her trousers from her waist to her knees. When asked by Mr Singh whether during that assessment he asked her to swap sides so he could check Patient A's back, Ms Gauntan said that she recalled Mr Singh asking her to turn Patient A onto her side, but not to swap positions with him while Patient A was on her side. 2. In answer to questions from the Tribunal, Ms Gauntan said that when Patient A was returned to bed, she said she was in pain. Ms Gauntan admitted that she failed as required to make notes of the incident. She said it was because of lack of time and her shift was about to end. 3. In a statement prepared at the request of the Commission, CSE, Ms Rabina Mandandhar, stated that on returning from lunch at about 13:00, she went to Patient A's room and saw Mr Singh on the floor examining Patient A. She stated she could not recall exactly what Patient A was saying or what Mr Singh was doing. Ms Mandandhar stated that after that assessment Mr Singh asked her and Ms Gauntan to return Patient A to bed, which they did using a "full hoist lifter". Ms Mandandhar stated that Patient A did not like being transferred by the lifter and usually said "quick, quick". According to Ms Mandandhar, on this occasion Patient A said, "pain pain-quick quick". She left the room after Patient A was returned to bed and before the second assessment of Patient A. She stated that she does not recall Mr Singh asking her to monitor Patient A. Like Ms Gauntan, Ms Mandandhar finished work at 13:30. 4. In these proceedings Mr Singh said: 1. when, after being called by Ms Gauntan, he came to Patient A's assistance, her eyes were open and she responded to his questions, although her responses were incoherent; 2. after conducting a "head to toe" examination he concluded that there was no obvious sign of fracture or deformity; 3. it was difficult to examine Patient A while she was on the floor. She was "trapped" between the bed and chair. Because of limited space he was unable to bend Patient A's knees; 4. he did not agree, as claimed by Ms Gauntan, that during the first assessment Patient A said, "don't touch my legs, it's painful". He claimed that throughout that assessment, whenever he touched Patient A she said it hurt and when he asked whether she had pain in a particular part of her body, head, shoulder etc., she answered "yes". 5. during the first assessment he saw no breaks in Patient A's skin, signs of external rotation or shortening of the limbs. In his view, these were the "usual signs" of a fractured femur. In addition, he said he asked Patient A to cross her arms, which she did after he demonstrated the movement. He said that he tested the power in Patient A's legs and placed his hands on her thighs and lower leg and asked her to push back. 6. his immediate concern was to get Patient A off the concrete floor and to make her comfortable. She was clearly distressed and uncomfortable. 1. Mr Singh said that in the second assessment he conducted a "head to toe" assessment and with Ms Gauntan's assistance rolled Patient A onto her left and right side and examined her back. 2. In the daily handover worksheet Mr Singh recorded: Unwitnessed fall 13.00-no injury NOK] ☑[ LMO ☑" 1. In Patient A's progress notes, Mr Singh recorded: 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. On 7 January 2020, in response to a request for information from the Agency, Mr Singh wrote: I strongly disagree with above [apparently a reference to the statement prepared by Ms Wu on behalf of Ms Gauntan]. As an experienced RN when staff reported to me that the resident had "slided on to the floor" from her wheelchair in her room, I thoroughly performed head to toe assessment whilst resident is on the floor in the presence of care staff members which indicated nil head injury, nil visible skin tears or any other injuries. nil signs of external rotation of the extremities joints and shortening of bones were observed at that particular time. Resident was able to perform Range of motions (ROM) as per pre-fall capacity. After establishing staff was directed to transfer resident back to the bed using full hoist transfer for full assessment. Resident throughout the transfer was alert and verbalising as per her cognition level. Again head to toe assessment was carried out whilst resident lying in the bed with the help of a care staff. Again nil head injury or any other injury were found. Nil external rotations of the extremities joints including shortening of bones were observed. Besides assessing resident, also resident was asked several times whether she hit or head or any other part against the floor or object. Resident clearly denied hitting her head but unable to recall about the order of events that lead [sic] to her fall. Also denied any headache or any other discomfort when asked several times. Nil signs of verbal and non verbal pain demonstrated by the resident even after moving back to bed. This is mentioned in the progress note and also in the handover to the PM shift RN. Based on the initial assessment and full assessment there were no signs which indicated resident is in pain or pain or discomfort related to possible fracture. As mentioned there was no signs of swelling or bruise observed around bony prominence. Neuro obs were conducted and were unremarkable and documented. Resident incident report was initiated and progress note was documented about the incident. Care staff was directed to put resident bed in low low position and perform regular checks. I performed regular check on the resident and she looked comfortable in the bed. 1. In a letter to the Commission dated 2 February 2020, Mr Singh stated that while she was lying on the floor he "thoroughly assessed" Patient A: As I documented in my progress note I have thoroughly assessed the client whilst she was lying on the floor post incident of fall. Again head to toe assessment carried out by me post client transferred to the bed. On both occasions as documented nil bruise, injuries, shortening of bones observed, obs unremarkable. Client was shaken by the fall incident and was verbalising incoherently. Care staff was asked to maintain the height of the bed to the low low position, reassure the client and observe the client regularly. On my check client did not show any new signs of bruising, swelling, injuries/deformity and demonstrated verbal and non verbal signs of pain. I notified NOK [Next of Kin] and client's regular doctor as documented. The incident occurred at the end part of my shift and I thoroughly handed over to the afternoon shift regular Registered Nurse (I was there as a nursing agency RN) to observe and monitor the client. As an experienced nurse registered with APHRA since 2008 I understand that sometimes the appearance of bruises, injuries associated with the fall takes time to appear. I documented the same in my progress note as continue to monitor. 1. In the section 150 proceedings convened by the NSW Nursing and Midwifery Council (the Council) on 24 February 2020, Mr Singh said that when he first went to Patient A's room she was lying on her back and "it was completely dark". There was "no television on, nothing". He said: I went there and [Patient A] was obviously responding to my commands. I said, you know - explained everything, as per the progress notes, like how she's going and does she have any - any pain. Did she hit her head? And she was all - all, you know obviously she was shaken by - by the fall and I believe, so she slipped out of wheelchair, even though the care staff, they said we don't know how she - she was on the floor but they said she was in the wheelchair. She was obviously responding to the verbal commands and she crossed her arms. I immediately checked head to toe, checked her head for obvious - any obviously injuries on the head, there was absolutely nothing - nothing on the shoulders. That's what you tend to do, checked on the bony prominences, just to make sure there's no shortening of bones or anything, which I did mention 5 specifically in my progress notes, there was no shortening of bones. And also went through and she was definitely up - shaken by - by even so people surrounding her. And then when I assessed her fully, including head to toe which involved lower limbs and everything, I didn't find, to be honest, any sort of external rotation or any - any sort of injury which might suggest like she's 10 got some fracture or anything. Absolutely no bruises and no skin tears, nothing. And when I was sure like she's okay, in terms of transferring her to the bed, which is almost like maybe one feet away from - from the floor where she was lying, I asked the care staff to get some full hoist and they didn't understand what I'm asking for. I said you need - we need to actually transfer this lady through the machine and then one of the girls she went and brought some stand hoist. Just said, "I don't need a stand-up hoist, I need a full hoist, or if you've got a full lifter here. So that's - that's what I mean." I said, "We need to put a sling underneath," and a couple of carers and me. I've helped them and in between, I said, "Okay, I'll have to go and get some obs machine." Because in the morning there was an issue with the machine. They have to get it from level 3 for one of the resident who was not well and then they said, you know our machines are not working and it's all kept in the basket. So I just thought, okay I'll go myself and came 25 back. I just grabbed a basket and came back immediately. 1. Later when questioned by the Council about the second assessment, Mr Singh said: Well, I started by asking her - you know "Do you have any injury or any pain in the head?" And she was saying, "No, nothing." And when I was saying like, "Shoulder" and then she said, "Yes, in the shoulder." Well, then there after where else I was asking her, she was saying, "Yes, in here." "Yes, in here." All that (indistinct) it was (indistinct) it was basically wanted what I - I gathered she wanted; you know to leave her on her own. Because maybe why she was shaken. Like there's strange faces around her. Don't know she was very, very incoherent in her - - - 1. In the section 150 proceedings Mr Singh said that when Patient A was on the bed he and Ms Gauntan gently rolled her onto her side: [G]oing through head to toe, checking each and every single bony prominence, that's the way you've been trained and checking everything, looking for anything. And then I asked the girl [Ms Gauntan], she thought - it's finished, then I asked her to come on my side and I'll go on that side. And then went on to the other side to check it. And absolutely no open wounds or bruises or anything deformity, or any shortening of bone (indistinct) Consideration 1. Particular 1 requires the Commission to establish that: 1. in the first assessment, Mr Singh failed to assess Patient A's range of motion and power; and 2. such examination was necessary to "adequately assess and examine Patient A's upper legs and hips". 1. Mr Singh has consistently claimed that in the first assessment he examined Patient A "head to toe" and checked her head and bony prominences. We accept that. 2. In Mr Singh's first written account of the first assessment, which he gave to the Agency on 8 January 2020, Mr Singh wrote, apparently in reference to that assessment, "Resident was able to perform range of motions (ROM) as per pre-fall capacity". In that statement he does not state whether he tested the ROM of Patient A's upper or lower limbs or both. In the section 150 proceedings Mr Singh made no mention of any ROM testing. 3. In these proceedings, Mr Singh said that he asked Patient A to cross her arms but he did not ask her to bend her legs to test her ROM. 4. The first occasion Mr Singh claimed to have attempted to assess the power in Patient A's lower limbs by asking her to press against his hands, was in cross-examination in these proceedings. While possible that Mr Singh overlooked mentioning that examination in the several written accounts he prepared and in his evidence in the section 150 proceedings, we find it more likely than not that during the first assessment, Mr Singh failed to assess the range of power in Patient A's lower limbs and hips. 5. Particular 1 rests on the premise that an assessment of Patient A's range of motion and power was necessary to "adequately assess and examine Patient A's upper legs and hips". That requires consideration of the circumstances in which that assessment was conducted, which include: 1. that Patient A was lying on the floor, in an awkward position wedged between the chair and bed; and 2. Patient A's evident distress being on the floor, surrounded by nursing staff and being examined by a stranger. 1. At the request of the Commission, registered nurse, Ms Deborah Armitage, prepared a report dated 31 August 2020 and gave evidence in these proceedings. In that report, Ms Armitage criticised aspects of the first assessment and stated that in her opinion it was inadequate. However, she did not address whether in the circumstances it would have been possible for Mr Singh to test Patient A's ROM and the power in her lower limbs, and whether, in those circumstances, those tests could be described as necessary. 2. The Commission failed to provide evidence: 1. to support the contention that an assessment of the range of motion and power in Patient A's lower limbs was necessary to "adequately assess and examine Patient A's upper legs and hips" in the first assessment; 2. to support the proposition that given her advanced cognitive impairment and evident distress, it would have been possible for Patient A to follow the commands, necessary to test the range of motion and power in her lower limbs; 3. to provide evidence to support the proposition that given her position, wedged between the bed and the chair, it would have been possible to test the range of motion of Patient A's lower limbs. 1. The Commission bears the evidentiary onus. It has failed to establish that in the circumstances in which the first assessment was conducted, an assessment of the range of motion and power of Patient A's lower limbs was necessary to "adequately assess and examine Patient A's upper legs and hips". 2. Particular 1 is not proven. Second assessment 1. Particular 4 requires the Commission to establish that Mr Singh failed: 1. to adequately assess and examine Patient A's lower limbs and back; and 2. to adequately assess and examine the severity, location, and cause of her pain. 1. With the assistance of Ms Gauntan, Mr Singh examined Patient A again after she had been returned to bed. Ms Mandandhar was not present. 2. We find it more probable than not that, as claimed by Ms Gauntan, Mr Singh did not pull down Patient A's trousers from the waist to her knees to examine the upper part of her legs. In addition, we find, as Mr Singh appeared to admit in these proceedings, that because of Patient A's complaints of pain, Mr Singh limited his examination of her lower limbs. Further, we find that Mr Singh failed to test the ROM and power of Patient A's lower limbs. 3. Whether Particular 4 is established requires consideration of the circumstances in which the assessment was conducted, which include: 1. The information available to Mr Singh when he conducted that assessment. Mr Singh had not previously met Patient A and, unsurprisingly, had no knowledge of her medical history. He had correctly concluded that she suffered from some form of dementia and was frail but was unaware of her history, of her physical conditions and that she was taking regular medication for pain relief. There is no evidence and nor is it suggested that Ms Gauntan or Ms Mandandhar gave Mr Singh any information about Patient A's medical history, or the medication she was taking. Indeed, there is no evidence that either had knowledge of any of those matters. 2. The circumstances surrounding the fall, that is an unwitnessed fall involving a 99-year-old patient, who apparently had dementia and appeared frail. 3. Patient A's reports of pain. While in various written accounts of the first and second assessments, Mr Singh claimed that Patient A did not complain of pain, we are unable to accept that claim for these reasons: 1. it is contradicted by Ms Gauntan's claim that during the first assessment Patient A said her legs "hurt"; 2. it is inconsistent with the clinical note made by Mr Singh "client stated pain in legs. ? chronic pain"; 3. it is inconsistent with Mr Singh's admission in oral evidence. In making this finding, we note that there is no evidence to suggest that Ms Gauntan or Ms Mandandhar told Mr Singh that Patient A's complaints of pain, during the lift and when returned to bed, were out of the ordinary, as each suggested in these proceedings. 1. In the second assessment, in contrast to the first, Mr Singh was not limited in the type of examination that he could conduct because of Patient A's position. 2. Mr Singh's decision that apart from on-going monitoring no further review was required. 1. The steps taken by Mr Singh to assess Patient A's lower limbs were inadequate, in circumstances where Mr Singh had no knowledge of Patient A's medical history, the fall was unwitnessed and Patient A had reported pain in her lower legs. Likewise, the assessment Mr Singh conducted of the severity, location and cause of Patient A's pain was inadequate. Had Mr Singh decided to call for an ambulance or a medical practitioner, arguably the limited and preliminary examination he conducted could be described as adequate. However, in circumstances where Patient A was complaining of pain when moved and Mr Singh had little information about Patient A's condition, more comprehensive testing, including the range of movement of her lower limbs, was required. 2. Particular 4 is established. Mr Singh's role in transferring Patient A to bed after the fall: Particular 2 1. Particular 2 states: On 3 January 2020, after instructing two care service employees to move Patient A from the floor to her bed using a hoist, the practitioner failed to be present to monitor Patient A, guide the care service employees, and provide responsive care to Patient A in the event of increased pain and potential injury from the transfer. 1. Mr Singh agrees that Ms Gauntan and Ms Manandhar transferred Patient A to bed using a hoist. In these proceedings, he claimed that the transfer occurred while he was out of the room trying to locate a working observations machine. He claims that he did not ask Ms Gauntan and Ms Mandandhar to move Patient A while he was out of the room. 2. That account differs from the handwritten statement prepared for Ms Gauntan, which stated that while she and Ms Mandandhar were transferring Patient A to bed, Mr Singh left the room for "a few minutes". In oral evidence, Ms Gauntan said that Ms Singh was out of the room throughout the transfer. In her statement dated 11 July 2020, Ms Mandandhar stated that Mr Singh was not in the room when the transfer occurred. In oral evidence, Ms Mandandhar said that she could not recall what Mr Singh was doing through the transfer. 3. Mr Singh has given several accounts of the transfer: 1. In an email to the Commission sent on 18 June 2020, Mr Singh stated that he was present during the transfer of Patient A, though he briefly left the room to obtain the obs machine from the adjacent nurses' station. 2. At the section 150 proceedings, Mr Singh said that he advised the care staff they needed to transfer Patient A to the bed with a lifter and that he assisted placing the sling of the lifter under the patient before leaving the room to obtain the obs machine. 3. In an email sent 7 January 2020 to the Agency, Mr Singh stated "… staff was directed to transfer resident back to the bed using full hoist transfer for full assessment. Resident throughout the transfer was alert and verbalising …". 4. In cross-examination, Mr Singh said that he left the room to find a working obs machine and when he returned Patient A had been transferred by the CSE staff without his authority. He was unable to explain the reason for giving differing versions about the transfer. 1. It is uncontroversial that Mr Singh directed Ms Gauntan and Ms Mandandhar to transfer Patient A to bed using a hoist and for at least some of the time he was out of the room when that occurred. Whichever of the accounts given by Mr Singh is accepted, there is no evidence to suggest that he directed Ms Gauntan and Ms Mandandhar not to commence or not to proceed with the transfer in his absence. 2. Particular 2 is established. Attributing Patient A's complaint of pain and failure to provide pain relief: Particulars 6 and 7 1. Particulars 6 and 7 state: 6. On 3 January 2020, after assessing Patient A in her room, the practitioner inappropriately attributed Patient A's complaints of pain following her fall to chronic pain, in circumstances where the practitioner: a. had not seen Patient A prior to his review of her at 1300 hours; b. had no prior knowledge of her clinical history, presentation, cognition, medication history, and comorbidities; c. had not adequately assessed Patient A to safely conclude whether her pain was chronic or acute; d. based his assessment of Patient A on his belief that Patient A's age meant she was likely to be expressing concerns about chronic pain. 7. On 3 January 2020 from about 1300 hours until the end of his shift the practitioner failed to provide Patient A with, or direct that she receive any pain relief in response to her fall and complaints of pain. 1. As Mr Singh appeared to concede in these proceedings, he attributed Patient A's complaint of pain following her fall to "chronic pain". That is consistent with the clinical note made by Mr Singh and the statement he made in the section 150 proceedings: [I]n my experience when you ask elderly people at times, you get you know like old pain they're talking about, and they say you've got pain then you need to tell them, or is it something to do with the fall. But she wasn't - she wasn't in that situation where she can differentiate whether it's because we have moved her and transferred her. Is it happening because of that or is it something which is directly related to the fall. 1. While a possibility, on the available material we could not be satisfied that there is a strong likelihood that Patient A's bilateral femur fractures occurred during the fall, as the Commission contends. In reaching that conclusion, we note that after the fall Patient A was moved by hoist to her bed and for about seven hours after the second assessment, was left alone and not re-examined. In any event, the issue raised by Particulars 6 and 7 is not when the fractures occurred but whether there was a proper basis for Mr Singh's opinion that Patient A's complaints of pain were attributable to chronic pain. In circumstances where Mr Singh had failed to conduct an adequate examination of Patient A's lower limbs, where he had no knowledge of Patient A's comorbidities, medication history and usual presentation, Mr Singh's opinion that Patient A's reported pain was likely to be chronic in nature, lacked a proper basis. 2. Particular 6 is established. 3. Mr Singh admits Particular 7 but does not admit that it amounts to unsatisfactory professional conduct. Recording that the power in Patients A's lower limbs was normal: Particular 9 1. Particular 9 states: 9. On 3 January 2020 the practitioner inappropriately and/or falsely recorded in the clinical record for Patient A that he had assessed the power in her lower limbs as being "normal" in circumstances where: a. the practitioner had not tested or adequately tested the power in her lower limbs; b. Patient A had complained to him of pain in her lower limbs. 1. Mr Singh recorded in the neurological observation chart for Patient A: Legs-left leg Normal power Legs-right leg Normal power 1. As discussed above we found that Mr Singh did not test the power in Patient A's legs and Patient A had complained to him of pain in her legs. In those circumstances it was inappropriate for Mr Singh to record the power in Patient A's legs as being normal. Particular 9 is established. Monitoring and assessing Patient A after the fall: Particulars 11, 12, 13, 14 Particular 11 1. Particular 11 states: 11. On 3 January 2020, after reviewing Patient A in her room at about 1300 hours, the practitioner inappropriately relied on care service employees to monitor and assess Patient A in circumstances where: a. the practitioner was aware of the potential for the slow onset of signs of injury in Patient A post-fall; b. the practitioner delegated the monitoring of Patient A to staff who were not appropriately trained and skilled to do so; c. the practitioner did not provide care service employees with adequate directions in order to monitor and assess Patient A. 1. Before addressing these particulars, it is necessary to make some observations about Mr Singh's responsibilities as the nurse in charge of the morning shift on 3 January 2020. 2. In an email to the Agency which was sent a few days after the incident, Mr Singh stated that the shift was extremely busy, so much so that to finish his work he did not take a lunch break and stayed back for 30 minutes after the end of the shift. In these proceedings he described the shift as "a race against time". Throughout the shift there were several sick patients who required Mr Singh's attention, including: 1. a patient receiving palliative care who was febrile; 2. a patient who required treatment for a skin tear; 3. two patients who required treatment for pressure areas. 1. In these proceedings Mr Singh said he was given no induction or orientation at the commencement of the shift. That claim is supported by the Facility's notes of its investigation of Patient A's fall dated 23 January 2020: "no system on place for onboarding agency RNs/CSs coming working to facility". 2. Mr Singh was the sole RN responsible for about 47 residents. Several CSEs were rostered to work the morning shift. In addition, a Deputy Service Manager was on site at the Facility. According to Mr Singh, at various times throughout the day he sought the advice of the manager about several patients, including the patient in palliative care. He said the manager was difficult to contact, did not answer the phone and he wasted a significant amount of time trying contact her. 3. Mr Singh agrees as stated in Particular 11 that: 1. he was aware of the potential for the slow onset of signs of injury in Patient A after the fall; 2. he performed a single neurological observation of Patient A at about 13:10 and a single visual observation about an hour later. 1. However, Mr Singh does not agree, as stated by sub-particular 11(c), that he failed to provide the care staff with "adequate directions to monitor and assess Patient A". 2. When interviewed by the Facility on 22 January 2020, Mr Singh said that after the fall he "instructed care staff to check Patient A regularly. They didn't come back to me with anything". In the section 150 proceedings, Mr Singh said "so if you can just keep a close eye on her, monitor her, even though you're busy". 3. In these proceedings, Mr Singh said that he directed the CSE staff to look for signs of pain such as "grimacing or screaming". Mr Singh claimed that the people he gave these directions to were the "three to four AINs [assistants-in-nursing] standing in the hallway to report to him if Patient A, anything, if there are signs of pain". He made much the same claim when interviewed by the Facility on 22 January 2020: "2-3 people, they were sitting around". 4. Ms Gauntan and Ms Mandandhar both stated that they do not recall Mr Singh asking them to continue to monitor Patient A. Conclusion 1. On the available evidence we could not be satisfied that Mr Singh did not ask members of the CSE staff to monitor and assess Patient A after the fall. Neither Ms Gauntan nor Ms Mandandhar could be described as independent witnesses. Each admit being "in a rush" to get away at the end of their shift at 13:30. In any event, Mr Singh's account indicates that his comments were not only directed at Ms Gauntan and Ms Mandandhar. 2. A difficulty confronting Mr Singh on the day of Patient A's fall was that there were no trained staff to whom he could delegate the task of monitoring and assessing Patient A. He had other responsibilities, and several other patients required his immediate attention. 3. Nonetheless, the directions Mr Singh gave staff were inadequate, especially given that the staff given those directions were untrained. They were of a general nature and gave no guidance about the type and frequency of checks care staff were required to undertake. 4. Particular 11 is established. Particular 13 1. Particular 13 states: 13. On 3 January 2020 the practitioner failed to appropriately care for and assess Patient A after his review of her at about 1300 hours, in that the practitioner: a. particular (11) is repeated and relied on; b. did not know and did not ascertain whether the care service employees had reviewed Patient A again; c. did not develop and communicate a post-fall care plan for Patient A; d. only conducted a visual observation of Patient A at about 1412 hours, who he considered to be asleep, which was contrary to [the Facility's] Falls Management Program that required more frequent assessment of Patient A; e. failed to respond to the risk that Patient A may have had a head injury, be in shock, or have a decreased level of consciousness; f. only performed one set of vital sign observations and neurological observations for Patient A after her fall at about 1412 hours. 1. Mr Singh does not admit the premise on which Particular 13 rests: that he failed to appropriately care for and assess Patient A after his initial review. However, he admits sub-particular (a) (except in relation to sub-particular 11(c)), 13(b), 13(c) and 13(f). Observation of Patient A at about 1400: sub-particular 13(d) 1. In cross-examination, Mr Singh claims that at about 14:12 he checked Patient A's breathing, examined her skin colour and checked her extremities. This was the first time Mr Singh claimed that that observation was something more than a "visual observation". In the section 150 proceedings, Mr Singh claimed that when he returned to check on Patient A she was "fast asleep" and appeared to be comfortable. In the interview conducted with the Facility on 22 January 2020, Mr Singh said he went into Patient A's room and she appeared to be comfortable. The clinical notes made by Mr Singh make no reference to Patient A's breathing, skin colour, or extremities. 2. For these reasons we find it more probable than not that at about 14:12, Mr Singh conducted only a visual observation of Patient A. 3. The Facility's Falls policy "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. Mr Singh failed, as required by the Falls Policy, to undertake general and neurological observations every 15 minutes until 14:15 and then half hourly until the end of his shift. 2. Sub-particular 13(d) is established. For largely the same reasons, so too is sub-particular 13(e). 3. Particular 13 is established. Failure to report fall to Manager: Particulars 15 and 16 1. Particular 15 states: During his shift on 3 January 2020 the practitioner failed to inform and failed to make any attempts to inform [the Facility's] Manager of Patient A's fall, contrary to his obligations under the [the Facility's] Falls Management Program. 1. Mr Singh admits this particular. However, he denies that his failure to report Patient A's fall to the Manager amounts to unsatisfactory professional conduct. Failure to adequately document Patient A's fall: Particulars 17 and 18 1. Particular 17 states: The practitioner's documentation in the clinical record for Patient A on 3 January 2020 was deficient in its accuracy, level of detail, and timeliness in that the practitioner: (a) entered his notes about Patient A's fall one hour after his assessment of her; (b) failed to document that his assessment of her lower limbs was limited and that he stopped when the patient told him not to touch her legs; (c) failed to document the severity of her pain; (d) failed to record any detail about his opinion of her having chronic pain; (e) failed to record why he chose not to treat Patient A's pain; (f) failed to record his review of Patient A at about 1412 hours; (g) failed to record an adequate plan of ongoing care and monitoring of Patient A. 1. Mr Singh denies sub-particular 17(d) but admits the balance of Particular 17. That denial appears to be based on a misreading of sub-particular 17(d). The clinical note made by Mr Singh states "When asked about pain, client stated pain in legs. ?chronic pain…". The substance of this sub-particular is that Mr Singh failed to record any detail about the basis for his opinion that Patient A's report of pain was attributable to pain of a chronic nature. While Mr Singh stated in the note that the pain experienced by Patient A was of a chronic nature, he did not detail the basis of that opinion. 2. Sub-particular 17(d) is proven. Particular 17 is established. Failure to properly handover Patient A's care at end of shift: Particular 18 1. Particular 18 states: 18. On 3 January 2020 the practitioner failed to appropriately handover Patient A's care to another nurse at about 1530 hours in that he did not provide sufficient information orally and in writing about Patient A's progress and status including: a. details of Patient A's fall; b. details of Patient A's complaints of pain; c. the limitations of his assessment of Patient A during the shift as set out in particulars (1), (4), (9), and (11); and d. that he had not examined Patient A since her fall. 1. At about 15:00, Mr Singh gave Ms Sardinia, the nurse in charge of the afternoon shift, a briefing about what happened during the morning shift. While there are some differences in their respective accounts, they agree that Mr Singh told Ms Sardinia that Patient A had an unwitnessed fall, she was not injured and appeared to be OK. The handover notes made by Mr Singh are to that effect. 2. Mr Singh's denial of this particular appears to be based on his view that his assessment of Patient A was adequate. For the reasons discussed above we disagree. 3. Particular 19 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 in Complaint 1 demonstrates that the judgment possessed and care exercised by Mr Singh fell significantly below the standard reasonably expected of a nurse of Mr Singh's level of training and experience; 2. in addition, the conduct the subject of Particulars 6 (chronic pain), 13 (Monitoring and Falls Policy) and 19 (handover) demonstrate that the knowledge possessed by Mr Singh fell significantly below the standard reasonably expected of a nurse of Mr Singh's level of training and experience; 3. in addition, the conduct the subject of Particular 4 (assessment and examination) demonstrates that the skill possessed by Mr Singh fell significantly below the standard reasonably expected of a nurse of Mr Singh's level of training and experience; 4. the conduct the subject of Particulars 3, 5, 8, 10, 12, 14, 16, 18 and 20, being conduct contrary to the Standards of Practice and/or Code of Conduct, amounts to improper and unethical conduct within the meaning of s 139B(1)(l) of the National Law; 5. the conduct the subject of Particular 9 (inaccurate recording of observations) amounts to improper and unethical conduct within the meaning of s 139B(1)(l). Conduct significantly below 1. Whether the proven or admitted conduct the subject of Complaint 1 amounts to unsatisfactory professional 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 Mr Singh (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 Mr Singh in the practice of his profession fell "significantly below" the relevant standard. 1. By January 2020, Mr Singh had been registered and worked as a nurse for 12 years, and in aged care for eight years. Accordingly, the relevant standard is that of a reasonably experienced nurse. Particulars 3, 5, 8, 10, 12, 14, 16, 18 and 20 1. For largely the reasons given by Ms Armitage we find each particular proven. That does not dispose of the question of whether that conduct amounts to unsatisfactory professional conduct. 2. It falls to the Commission to establish that the conduct described in each of these Particulars, is "conduct ... by [Mr Singh] that demonstrates the … judgment possessed, or care exercised, by [Mr Singh] in the practice of [his] profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience in the practice of [nursing]". Conduct is defined to mean "any act or omission": s 138 of the National Law. 3. Each particular state that the conduct described in other particulars amounts to a contravention of the Standards for Practice and/or the Code of Conduct. For example, Particular 18 states that by the conduct described in Particular 17, Mr Singh acted contrary to Standard 1.6 of the Registered Nurses Standards for Practice ("maintains accurate, comprehensive and timely documentation of assessments, planning, decision-making, actions and evaluations"). Particular 17 relates to Mr Singh's actions in preparing a clinical note, which was deficient in respect of accuracy, level of details and timeliness. 4. While the underlying conduct the subject of Particulars 17 and 18 is the same, the conduct the subject of Particular 18 is the identified contravention of Standard 1.6. In our view, it is misconceived to speak of a contravention of Standard 1.6 (as opposed to the underlying conduct), as demonstrating that the judgment possessed, or care exercised, by Mr Singh fell significantly below the relevant standard. The task posed by s 139B(1)(a) is to evaluate whether Mr Singh's conduct, here the contravention of Standard 1.6, demonstrates that the judgment he possessed and/or the care he exercised, fell significantly below the relevant standard. 5. We are not persuaded that the conduct the subject of Particulars 3, 5, 8, 10, 12, 14, 16, 18 and 20 amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. Particulars 2, 4, 6, 7, 9, 11, 13, 15, 17, 19 Relevant circumstances 1. Determining whether the conduct the subject of each of these particulars falls significantly below the relevant standard, requires us to identify the standard reasonably expected of a nurse in the circumstances in which that conduct occurred. Referred to above, those circumstances include that Mr Singh was: 1. responsible for the care of elderly 47 patients, some with pressing health needs during a busy shift; 2. unfamiliar with the patients and staff; 3. not provided with an induction to the Facility; 4. was assisted by untrained care staff. Transfer to bed: Particular 2 1. At the time of Patient A's fall, Mr Singh had many calls on his time. It was a busy shift. Other patients required his attention. Added to these pressures was the fact that the observations machine needed to assess Patient A's vital signs (body temperature, pulse rate, respiration rate, blood pressure) was not readily accessible and was in another part of the Facility. 2. Nonetheless, for the following reasons we find that Mr Singh's decision to leave Ms Gauntan and Ms Mandandhar unsupervised for part of the transfer, demonstrated that the judgment he possessed and the care he exercised, fell significantly below the relevant standard. While no criticism can be made of Mr Singh's decision to direct care staff to return Patient A to bed using a hoist, his decision to leave them unsupervised while undertaking that task, even for a short period, showed poor judgment. The standard reasonably expected of a nurse of Mr Singh's level of training and experience would be to appreciate that transferring a frail elderly patient, who had just had an unwitnessed fall, carried attendant risks. Mr Singh's absence from the room meant that the care staff were left without supervision and guidance. Second assessment: Particular 4 1. As explained above the second assessment was deficient in several material respects. The standard reasonably expected of a nurse of Mr Singh's level of training and experience would be to conduct a more comprehensive assessment. His failure to do so, demonstrated that the judgment he possessed and the care he exercised fell significantly below the relevant standard. Attribution of Patient A's reports of pain to chronic pain and failure to give pain relief: Particulars 6 and 8 1. As stated above, in circumstances where Mr Singh had failed to conduct an adequate examination of Patient A's lower limbs and had no prior knowledge of her medical history, his opinion that her reports of pain were likely to be chronic in nature and therefore, that additional pain relief was not warranted, lacked a proper basis. 2. The standard of care reasonably expected of a nurse of Mr Singh's level of training and experience would be to undertake a comprehensive examination and to review the patient's medical history before reaching a conclusion that Patient A's report of pain was not attributable to the fall, was likely to be chronic in nature, and that additional pain relief was not warranted. 3. The conduct described in Particulars 6 and 8 demonstrated that the care exercised by Mr Singh fell significantly below the relevant standard. Monitoring of Patient A after the fall: Particulars 11 and 13 1. As explained by Ms Armitage, a nurse of Mr Singh's level of experience should have been aware of the potential for the slow onset of the signs of injury. In those circumstances, Mr Singh's actions in delegating the task of monitoring Patient A to untrained care staff (Particular 11), failing to take any steps to determine whether they had complied with his direction (Particular 13) and failing to undertake any further tests or observations himself apart from a cursory visual observation at about 14:15 (Particular 13), demonstrated poor judgment and a lack of care. 2. The conduct the subject of Particulars 11 and 13, taken individually, demonstrate that the care exercised and judgment possessed by Mr Singh fell significantly below the relevant standard. In reaching that conclusion we have taken into account that there were no suitably qualified members of staff to whom Mr Singh could have delegated the task of monitoring Patient A. Failure to inform Service Manager of fall: Particular 15 1. We understand Mr Singh to contend that his failure to inform the Service Manager of Patient A's fall does not amount to unsatisfactory professional conduct because he had found it difficult to contact the Service Manager throughout the morning, and when he finally managed to make contact, the Manager provided him with little assistance. 2. We accept Mr Singh's claim that throughout his shift he found it difficult to contact and that he received little assistance from the Service Manager. Nonetheless, his decision not to report the fall eliminated the possibility of Patient A being reviewed by another Registered Nurse. Mr Singh's failure to report the fall to the Manager demonstrated poor judgment. His conduct fell significantly below the relevant standard. Failure to make adequate clinical notes and to provide sufficient information to Ms Sardinia in the shift handover: Particulars 17 and 19 1. Mr Singh's actions in failing to make adequate clinical notes (Particular 17) and failing to provide adequate information to Ms Sardinia during the shift handover (Particular 19) demonstrated that the care he exercised fell significantly below the relevant standard. Conclusion 1. The conduct the subject of Particulars 2, 4, 6, 7, 9, 11, 13, 15, 17 and 19 amounts to unsatisfactory conduct within the meaning of s 139B(1)(a) of the National Law. Improper or unethical conduct: Particulars 3, 5, 8, 9 10, 12, 14, 16, 18 and 20 1. It falls to the Commission to establish that the conduct the subject of these particulars was improper or unethical within the meaning of s 139B(1)(l) of the National Law. 2. Commenting on the meaning of the words "improper or unethical conduct" in s 139B(1)(l), in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65, the Tribunal commented at [21]-[26]: 21 The words "improper" and "unethical" in s 139B(1)(l) of the National Law are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 22 The Macquarie Dictionary offers several definitions of both words which include: Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 23 The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. 24 That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 (Boland DCJ presiding) at [53]. 25 The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26 In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or willful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances. Particular 9 1. The substance of Particular 9 is that Mr Singh made a false or inaccurate entry in Patient A's clinical notes by stating that the power in Patient A's legs was "normal", in circumstances where he had not tested the power in Patient A's legs. At best, that conduct could be described as reckless. 2. We find that conduct amounted to improper conduct within the meaning of s 139B(1)(l) of the National Law. Particulars 3, 5, 8, 10, 12, 14, 16, 18 and or 20 1. Each of these particulars relates to Mr Singh's conduct which we have found to be contrary to the Standards for Practice and/or the Code of Conduct. 2. Developed by the Nursing and Midwifery Board of Australia under s 39 of the National Law, the Standards for Practice are evidence of what constitutes appropriate professional conduct or practice for the profession of nursing: s 41 of the National Law. 3. The Standards for Practice consists of seven standards: 1. Thinks critically and analyses nursing practice. 2. Engages in therapeutic and professional relationships. 3. Maintains the capability for practice. 4. Comprehensively conducts assessments. 5. Develops a plan for nursing practice. 6. Provides safe, appropriate and responsive quality nursing practice. 7. Evaluates outcomes to inform nursing practice. 1. Within each Standard are "indicators" said to specify how that Standard is demonstrated. For example, Standard 1 consists of nine indicators: 1.1 Demonstrates knowledge and understanding of commonwealth, state and /or territory legislation and common law pertinent to nursing practice. 1.2 Fulfils the duty of care in the undertaking of EN practice. 1.3 Demonstrates knowledge of and implications for the NMBA standards, codes and guidelines, workplace policies and procedural guidelines applicable to enrolled nursing practice. 1.4 Provides nursing care according to the agreed plan of care, professional standards, workplace policies and procedural guidelines. 1.5 Identifies and clarifies EN responsibilities for aspects of delegated care working in collaboration with the RN and multidisciplinary health care team. 1.6 Recognises own limitations in practice and competence and seeks guidance from the RN and help as necessary. 1.7 Refrains from undertaking activities where competence has not been demonstrated and appropriate education, training and experience has not been undertaken. 1.8 Acts to ensure safe outcomes for others by recognising the need to protect people and reporting the risk of potential for harm. 1.9 When incidents of unsafe practice occur, reports immediately to the RN and other persons in authority and, where appropriate, explores ways to prevent recurrence. 1.10 Liaises and negotiates with the RN and other appropriate personnel to ensure that needs and rights of people in receipt of care are addressed and upheld. 1. Also developed under s 41 of the National Law, the Code of Conduct "sets out the legal requirements, professional behaviour and conduct expectations for all nurses, in all practice settings, in Australia". The Code consists of seven "domains": 1. Legal compliance 2. Person-centred practice 3. Cultural practice and respectful relationships 4. Act with professional integrity 5. Professional behaviour 6. Teaching, supervising and assessing 7. Research in health. 1. Each domain is divided into several "principles". 2. The Commission contends that if Mr Singh's conduct is found not to be in conformity with the standards of professional conduct and practice, it can properly be characterised as improper conduct within s 139B(1)(l) of the National Law. We are troubled by the suggestion implicit in that submission, that to act contrary to a particular Standard necessarily amounts to "improper conduct". We note that each Standard and its accompanying indicators, are expressed in broad language and potentially capture a wide range of conduct. Whether acting contrary to a particular Standard can properly be described as improper conduct will turn on the facts of each case, including the extent to which the conduct represents a departure from the relevant Standard, the reason for that departure, whether that conduct was deliberate, reckless or accidental, and any mitigating factors. 3. In support of the submission that the conduct the subject of these particulars amounts to improper conduct, the Commission points to the opinion expressed by Ms Armitage. With respect to each particular, Ms Armitage identified the particular Standard Mr Singh is said to have contravened. However, she did not address whether those contraventions can be described as "improper". 4. The Commission may well be correct in contending that these particulars evidence improper conduct. However, our role is not to second guess the basis for that contention. It is for the Commission to explain the basis for that contention, especially in circumstances where the respondent practitioner is self-represented. 5. While there is no neat distinction between conduct found to amount to a breach of the Code of Conduct and Standards of Practice, in our view it can more readily be found that a contravention of the former amounts to improper conduct, in part because of the prescriptive language used by the Code of Conduct. 6. For these reasons we find that those Particulars which were pleaded in the alternative as evidencing conduct contrary to the Code of Conduct, amount to improper conduct by Mr Singh: Particulars 8, 12 and 14. We are not satisfied that the conduct the subject of Particulars 3, 5, 16, 18 and 20 amounts to improper conduct. Summary 1. Each particular in Complaint 1 is proven or admitted, except Particular 1. 2. The conduct the subject of Particulars 2, 4, 6, 7, 11, 13, 15, 17 and 19 amounts to unsatisfactory conduct within the meaning of s 139B(1)(a) of the National Law. 3. The conduct the subject of Particulars 8, 9, 12 and 14 amounts to unsatisfactory conduct within the meaning of s 139B(1)(l) of the National Law. Complaint 2: 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 found by us to amount to unsatisfactory professional conduct (the impugned conduct) 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 judgment: 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. The conduct found by us to amount to unsatisfactory professional conduct was objectively serious. This is not a case of a practitioner who made a single error of judgment or on a single occasion failed to exercise proper care, but a case where the practitioner made a series of significant errors of judgment and failed to exercise proper care on numerous occasions. Taken overall, that conduct was sufficiently serious to justify suspension or cancellation of Mr Singh's registration. 5. Mr Singh is guilty of professional misconduct. Complaint 2 is established. 6. Following the conclusion of the hearing, Mr Singh sent the Tribunal material which we understand he relies upon to support his submission that his registration should not be cancelled. We have not taken that material into account in making our decision because it is irrelevant to the issues to be decided at this stage of the hearing. However, at the next stage of the hearing, when we decide what, if any, disciplinary order should be made, we will take the material submitted by Mr Singh into account. In addition, we will give the parties the opportunity to make further submissions and provide evidence. Orders 1. Mr Singh is guilty of professional misconduct. 2. The proceedings are listed for directions in respect of the conduct of a Stage 2 hearing at a date to be determined by the Registrar. ********** 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: 26 November 2021