Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mediavillo [2022] NSWCATOD 39 Hearing dates: 21 March 2022 Date of orders: 12 April 2022 Decision date: 12 April 2022 Jurisdiction: Occupational Division Before: G Furness SC, Senior Member L Campbell, Senior Member J Haines, Senior Member J Kearney, General Member Decision: 1. Pursuant to s149A(1)(a) of the National Law the practitioner is reprimanded. 2. Pursuant to s149A(1)(a) of the National Law the following conditions are imposed on the practitioner's registration: a. To advise the Nursing and Midwifery Council of NSW in writing at least seven (7) days prior to changing the nature or place of practice. b. Not to undertake agency nursing. c. Not to work as the sole practitioner on any shift, ward or unit. d. Not to have supervisory responsibility for any other health practitioner or student whether registered or not. e. Not to work night duty (between 10.00 pm and 6.00 am). f. Within seven (7) days of the end of each calendar month, the practitioner to provide the Nursing and Midwifery Council of NSW with a copy of all nursing/midwifery rosters for the preceding calendar month. g. To only administer any medications under the direct supervision of a registered nurse (division 1) who has no conditions on his or her registration. h. To practice under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. (a) to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. (b) to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. i. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of commencing employment that the practitioner has provided a copy of full conditions to his nursing employer/s and/ or employment agencies through which he provides professional services. j. The practitioner is to forward evidence to the Nursing and Midwifery Council of NSW within seven days of the publication of these reasons that he has provided a copy of the Tribunal decision to his nursing employer/s. k. The practitioner is to authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse/midwife in Australia, regarding any issues arising in relation to compliance with these conditions. l. The practitioner must only be employed as a nurse/midwife in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions. m. To satisfactorily complete within 6 months of the date of this decision, education approved by the Nursing and Midwifery Council of NSW and that has the following characteristics: i. Obligations under the Nursing and Midwifery Board of Australia Code of Conduct for Nurses, the ICN's Code of Ethics for Nurses and the Nurses and Midwifery Board of Australia's Registered Nurse Standards for Practise; ii. Medication safety; and iii. Reporting adverse events. n. Within one month of completing the approved courses, the practitioner is to provide documentary evidence of satisfactory completion to the Council. o. To bear responsibility for any costs incurred in meeting this condition. p. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Nursing and Midwifery Council of NSW when the practitioner has a principal place of practice in NSW. q. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the practitioner's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. 3. The practitioner is to pay the HCCC's costs as agreed or as assessed. Catchwords: HEALTH – admissions - finding professional misconduct - finding unsatisfactory professional conduct - Registered Nurse - medication error - falsifying progress notes - delayed reporting - improper and unethical conduct - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Akhurst [2016] NSWCATOD 70 Health Care Complaints Commission v Dudhela [2021] NSWCATOD 59 Health Care Complaints Commission v Fisher [2016] NSWCATOD 62 Health Care Complaints Commission v Ford [2021] NSWCATOD 20 Health Care Complaints Commission v Konigson [2021] NSWCATOD 186 Health Care Complaints Commission v Litchfield (1997) NSWLR 630; [1997] NSWSC 297 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 Health Care Complaints Commission v McLean [2016] NSWCATOD 111 Health Care Complaints Commission v Philpiah [2013] NSWCA 342 Health Care Complaints Commission v Phung (No 1) [2012] NSWDT 1 Health Care Complaints Commission v Picones [2018] NSWCATOD 56 Health Care Complaints Commission v Shipley [2020] NSWCATOD 128 Health Care Complaints Commission v Vergara [2010] NSWNMT 11 Health Care Complaints Commission v Willis [2018] NSWCATOD 136 Category: Principal judgment Parties: Health Care Complaints Commission (applicant) Kim Zen Mayor Mediavillo (respondent) Representation: Solicitors: E Bayley, solicitor (applicant) Self-represented (respondent) File Number(s): 2021/00251118 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names of the persons and patients listed in the Schedule to the complaints the subject of the application is prohibited. REASONS FOR DECISION 1. The Health Care Complaints Commission (the HCCC) filed an application for disciplinary proceedings and orders in the Tribunal against Kim Zen Mayor Mediavillo, a Registered Nurse, on 1 September 2021 (the application) under the Health Practitioner Regulation National Law (NSW) (the National Law). 2. This decision deals with the first and second stage of the proceedings because Mr Mediavillo admitted his guilt with respect to the two complaints forming the basis of the HCCC's application and admitted unsatisfactory professional conduct and professional misconduct. 3. At the hearing, the HCCC tendered one volume of documents and a bundle of additional materials. The documents included witness statements, documents generated in the course of processes under the National Law initiated by the Nurse and Midwifery Council, relevant medical records and policies, guidelines and codes of conduct. 4. Mr Mediavillo did not tender any documents. 5. The hearing took one day and Mr Mediavillo gave oral evidence at the request of the HCCC. There were no other witnesses. Non-publication orders 1. The HCCC sought a direction that the name and address of the witnesses listed in the Schedule to the Complaint not be disclosed under clause 7 of Schedule 5D of the National Law / an order prohibiting the disclosure of the names of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013 (CAT ACT). 2. There was no objection to the non-publication order sought. We are satisfied that it is appropriate to make the non-publication order. The persons listed in the Schedule are the two patients mentioned in the complaints who were injected by Mr Mediavillo. Their privacy should be protected. The objects of open justice will not be compromised by the non-publication of the names of the persons in the schedule. The Complaints 1. The HCCC provides the following background to the complaints Between 2005 and 2011, the practitioner obtained a Bachelor's degree and a Master's degree respectively in nursing in the Philippines. Between 2011 and 2017, the practitioner worked as a registered nurse in the Philippines. In 2018, the practitioner completed a bridging program for overseas registered nurses and on 1 February 2019, the practitioner was registered as a nurse in Australia. In March 2019, the practitioner commenced work through the agency Programmed Health Professionals on a casual basis with St Vincent's Public Hospital Darlinghurst Sydney (the Hospital). On the afternoon of 5 March 2020, the practitioner was working in the Gorman unit of the Hospital. At 4.18pm, that day, the practitioner, while accompanied by another registered nurse, administered a Hepatitis B vaccination by intra-muscular injection to Patient A. In Patient A's progress notes, the practitioner entered at a recorded time of 4.19pm the words: "Hepa B vaccine administered via IM Deltoid" and placed the lot label (AHBVC871AF) for the vaccine within the entry. 1. Complaint one is as follows: The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. 1. At approximately 5.15pm on 5 March 2020, the practitioner became concerned that he had mistakenly administered the hepatitis B vaccine to Patient A but did not inform his superiors or other staff that he believed he had erred. 2. At approximately 8.20pm on 5 March 2020, the practitioner: a) knowingly administering water to Patient B by intra-muscular injection in circumstances where there was no clinical indication to administer the injection; b) falsified the progress notes of Patients A and B when he crossed through the entry in Patient A's notes which recorded the administration of the vaccine to Patient A; c) removed the lot label (AHBVC871AF) which he had previously placed in Patient A's notes and inserted above it the words: "WRONG PATIENT"; d) wrote in Patient B's progress notes, entered at a recorded time of 4.19pm the words: "Hepa B vaccine administered via IM Deltoid"; e) placed the lot label (AHBVC871AF) within the entry and signed the entry; f) failed to inform other staff or superiors of his actions. 3. Around 7-8pm on 6 March 2020, after Patients A and B advised other staff that they had been vaccinated and checks had been undertaken, the practitioner was questioned by another nurse and he admitted that he had vaccinated Patient A and had given water to Patient B. The practitioner did not mention that he had altered the progress notes for Patients A and B. 1. Complaint two relies upon the particulars of Complaint One and complains that: The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 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 Proceedings under s 150 National Law 1. On 1 June 2020, an urgent hearing under s 150 of the National Law was held. The following conditions were imposed on the practitioner's registration as of 1 June 2020: 1. To advise the Nursing and Midwifery Council of NSW in writing at least seven (7) days prior to changing the nature or place of practice. 2. Not to undertake agency nursing. 3. Not to work as the sole practitioner on any shift, ward or unit. 4. Not to have supervisory responsibility for any other health practitioner or student whether registered or not. 5. Not to work night duty (between 10.00 pm and 6.00 am). 6. Within seven (7) days of the end of each calendar month, the practitioner to provide the Nursing and Midwifery Council of NSW with a copy of all nursing/midwifery rosters for the preceding calendar month. 7. To only administer any medications under the direct supervision of a registered nurse (division 1) who has no conditions on his or her registration. 8. To practice under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. 1. to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. 2. to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. 1. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of commencing employment that the practitioner has provided a copy of full conditions to his nursing employer/s and/ or employment agencies through which he provides professional services. 1. On 17 August 2020 Mr Mediavillo made an application under s 150A of the National Law for a review of the Council's decision to impose conditions on his registration (the review hearing). The review hearing was held on 17 September 2020. Since the s 150 proceedings on 1 June 2020, Mr Mediavillo advised the Council that he had undertaken two online courses 'Reporting adverse events with medicines and vaccines' on 12 June 2020 and the online course 'Medication Safety 2020 on 6 June 2020. He further advised that in a written reflection that he had reviewed the Standards of Practice for Registered Nurse and the Code of Conduct for Nurses. 2. The review hearing affirmed the decision of 1 June 2020. Reasons given for the decision included, first that Mr Mediavillo had only undertaken 7.5 hours of CPD, secondly, he had advised that he had limited capacity to undertake further education due to currently undertaking his Masters and thirdly, his response failed to adequately address patient safety and action strategies to implement in the workplace to mitigate risk. 3. Mr Mediavillo did not appeal that decision. Relevant legislation and legal principles 1. The complaint in relation to unsatisfactory professional conduct refers to s 139B (1)(l) of the National Law: 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— (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Complaint Two alleges professional misconduct under s 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 standard of proof required to establish these complaints is the civil standard. By reason of the seriousness of the allegations and the gravity of their consequences, the Tribunal must have "a reasonable satisfaction" that the particulars of the complaint have been proved (see Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34). 2. The Court of Appeal in Health Care Complaints Commission v Litchfield (1997) NSWLR 630; [1997] NSWSC 297 said, in determining what is reasonable conduct by a professional: The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. 1. In professional disciplinary proceedings, orders are made for the protection of the public and not for the purpose of punishing the practitioner: see Clyne v New South Wales Bar Association (1960) 104 CLR 186. 2. The Tribunal is in all matters before it under the National Law guided and informed by s 3A. Section 3A provides as follow: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Complaints One and Two 1. The documentary evidence in support of the particulars are the medical records which reveal the changes set out in particular 2(b), (c), (d), (e). 2. In addition, the progress notes for 7 March 2020 record that 'Patient B refused the Hepatitis vaccine offered by RN Amata and RN Wells on 6 March 2020. 3. Further, after the medical practitioner discussed the incident on 7 March 2020 with Patient B, Patient B felt on edge and was given diazepam and olanzapine for anxiety and agitation and then, later that evening, agreed to have the Hepatitis B vaccine. 4. The evidence supporting the particulars 2(f) and 3 is the statement of Simranjit Kaur, the RN who worked the shift with Mr Mediavillo on 5 March 2020 and the statement of Sophie Wells RN. 5. On 5 March RN Kaur stated that she administrated the Hepatitis B vaccine to Patient A with Mr Mediavillo. 6. On 6 March 2020, RN Wells spoke to Patient A and Patient B, each of whom told her they had received a Hepatitis B vaccine on 5 March 2020. Patient B said he was given the vaccination at about 8.30pm. 7. RN Kaur rang Mr Mediavillo on 6 March 2020, after being informed by RN Wells of the discrepancy. She states that Mr Mediavillo told her that he had administered water to Patient B. Mr Mediavillo's evidence 1. Mr Mediavillo created two undated 'reflection in retrospect' letters addressed to St Vincent's Public Hospital. He gave evidence that he wrote the first letter after he knew that RN Kaur had complained about him. He did not refer to altering the progress notes in that letter, because he did not know whether the Hospital knew that he had done so. He wrote the second version for the s 150 hearing. 2. The first version is set out below unbolded. In the second version, Mr Mediavillo added the words in bold. I have administered the medication at exactly 16:10hrs to the best of my memory to the right patient and returned to the nursing station in full complacency. I have checked my handover sheet at around 17:17hrs to review the things I must do and realized that I might have committed a mistake. I was second guessing whether to speak-up or not at the time but ultimately, I decide to do the error of administering water as to the other patient which requires the same vaccine at around 20:15hrs and pampered (sic) with the medical files in panic. These are the sequence of events to the best of my knowledge at that time, this happened due to my lapse in judgement on that event and seeks understanding on my part. In the process of writing the sequence of events above and reviewing my curriculum vitae and about myself. I forgot that I championed for communication which I did not do at that time. So, instead of facing the responsibility and informing immediately my co-workers I decided to keep it to myself, committed the mistake and harmed a patient. I have breached the principles that the council promotes which are Cooperation, Openness, Respect and Empowerment. After realizing my mistake, I lost my confidence in rendering care at the Hospital level and decided to join an agency dealing with COVID-19 just to ease my conscience. I have also realized the value of communication and transparency in my profession as well as the importance of trusting others surrounding me instead of keeping it all in. I decided to join a professional group now and open myself more to the possibilities offered by the council and my profession. I am regretful of the things I made, specially doing further harm than good to my patient. I ask for the council's understanding of the events that time and express again my remorse on my actions. 1. Mr Mediavillo said he added the reference to the medical records because he realised he hadn't mentioned them. He added the additional paragraphs because, after writing the first letter, he had read Health's Core Values statement. 2. Mr Mediavillo gave evidence that his reference to 'harm' to his patient was to the psychological effect on Patient B after being informed that he had been injected with water, as recorded in the medical records. Mr Mediavillo was visibly upset when giving this evidence. 3. Mr Mediavillo explained that he may have been confused which patient needed which vaccination. Further, he did not know Patient B's medical history. He accepted that he had access to the medical records of Patient A and Patient B and that he had attended handover during which the need to inject Patient A with the Hepatitis B vaccine had been handed over. 4. In relation to Patient B, Mr Mediavillo gave evidence that he went into the patient's room alone and injected him with water. He said he did so as a 'placebo effect'. He said it was the first time he had injected water to a patient and he did not know what effect it would have. He hoped it would not cause damage. 5. He gave evidence that he knew that he needed a second Registered Nurse present when he injected medication and he knew that he needed to obtain informed consent from the patient before injecting. 6. Mr Mediavillo said he told Patient B that he was giving him Hepatitis B vaccination. 7. When taken to the records for Patient B, Mr Mediavillo agreed that he recorded that the vaccine was administered at 16.19 so as to record the same time that he administered Patient A. He accepted that that was wrong. He said he did it on purpose so it looked like Patient B had been vaccinated. 8. When taken to the medical records for Patient A, he agreed that he had signed his name in the blank space where the sticker had been removed (to be placed on Patient B's records) and written 'WRONG PATIENT'. Mr Mediavillo said he did not think about what might happen if Patient A had received two doses. 9. Mr Mediavillo said he realised during the shift that it was wrong to inject Patient B with water. He agreed he could have mentioned it at handover or spoken to RN Kaur, the Nurse Unit Manager or the doctor on call. 10. Mr Mediavillo said he was not confident to speak up because he thought that he would be judged as not competent and 'get into trouble'. 11. Mr Mediavillo said that on 6 March RN Kaur rang him and that he told her about administering the water to Patient B and 'everything else'. He was then taken to RN Kaur's statement which did not state that Mr Mediavillo had told her about altering the medical records. 12. Mr Mediavillo gave evidence that he 'assumed she knew something was wrong with the notes'. He said he told her about the sticker. He reiterated that he assumed that 'they' would check the notes. He ultimately accepted that he did not mention that he had altered the progress notes. 13. In his evidence Mr Mediavillo said he knew he needed to comply with the Nursing and Midwifery Board of Australia Code of Conduct for Nurses and Standards of Practice. He said he was well aware of the St Vincent's Health Network Medication Handling and Medication Administration Procedures and the NSW Health Medication Handling policy and Health Care Records – Documentation and Management policy. HCCC submissions 1. The HCCC seeks findings that the subject matter of the complaint is proven and that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct. Complaint 1 Particular 1 1. It submits that the practitioner could have, but did not inform other colleagues and superiors about his presumed error. 2. The HCCC submits that the practitioner's admissions about not informing his co-workers about his presumed error are consistent with his subsequent actions in attempting to conceal his presumed error. Particular 2 1. In relation to administering water to Patient B, the HCCC submits that the practitioner introduced himself to Patient B and told Patient B that he was administering the Hepatitis B vaccine. The practitioner did not tell Patient B that he was administering water. Accordingly, Patient B did not consent to the practitioner administering water. 2. The HCCC submits that the conduct is improper and unethical because administering water by injection was: 1. contrary to the Nursing and Midwifery Board of Australia's "Code of Conduct for Nurses" clause 1.2 (because it was unlawful), clause 2.1 (because it was not person-centred or safe) and clause 2.3 (because he did not have informed consent); 2. contrary to the ICN's "Code of Ethics for Nurses" clause 1 (because he did not provide accurate information to Patient B on which to base consent and he did not demonstrate respectfulness and integrity); 3. contrary to the Nursing and Midwifery Board of Australia's "Registered Nurse Standards for Practice" clause 1 (because he did not provide safe, quality nursing practice within person-centred and evidence-based frameworks); 4. without any medication order or any second person check was inconsistent with clauses 7.6 and 7.7 of NSW Health's "Medication Handling in NSW Public Health Facilities". 1. In relation to alterations to Patient A's progress notes, the HCCC submits that that posed a risk that Patient A would subsequently be administered an unwarranted second dose of the Hepatitis B vaccine. 2. The HCCC submits that the conduct is improper and unethical because the practitioner's alterations to Patient A's progress notes were contrary to: 1. clause 2.2(a), (k) and (s) of NSW Health's "Health Care Records - Documentation and Management" because they were not accurate, they did not enable other members of the health care team to assume care of the patient and they were not appropriate corrections; 2. the Nursing and Midwifery Board of Australia's "Code of Conduct for Nurses clause 1.2 (because they were dishonest and unethical) and clause 1.2 (because they were dishonest and unethical); 3. the Nursing and Midwifery Board of Australia's "Registered Nurse Standards for Practice" clause 1.6 (because they were not accurate). 1. In relation to the additions to Patient B's progress notes, the HCCC submitted that that conduct is improper and unethical because the practitioner's additions to Patient B's progress notes were contrary to 1. clause 2.2(a) and (k) of NSW Health's "Health Care Records - Documentation and Management" because they were not accurate and they did not enable other members of the health care team to assume care of the patient. 2. The Nursing and Midwifery Board of Australia's "Code of Conduct for Nurses clause 1.2 (because they were dishonest and unethical). 3. to the Nursing and Midwifery Board of Australia's "Registered Nurse Standards for Practice" clause 1.6 (because they were not accurate and were not timely). 1. In relation to failing to inform of actions, the HCCC submits that the practitioner had ample opportunity to inform staff or superiors of his actions before he finished his shift at about 10pm. 2. The Commission submits that the conduct is improper and unethical because: 1. The practitioner's failure to report any part of the incident at any time during his shift was contrary to NSW Health's "Health Care Records - Documentation and Management" clause 2.4 (because he did not report the incident, did not abide by the principles of open disclosure and did not seek advice) and clause 3.3 (because he did not clearly and accurately communicate relevant and timely information to his colleagues); 2. The practitioner's conduct was contrary to the ICN's Code of Ethics for Nurses clause 2 (because he did not promote ethical behaviour and open dialogue) and clause 4 (because he did not sustain a collaborative and respectful relationship with co-workers); 3. The practitioner's conduct was contrary to the Nursing and Midwifery Board of Australia's "Registered Nurse Standards for Practice" clause 1.5 (because he did not use ethical frameworks when making decisions), clause 2.7 (because he did not engage with other health professionals to support person centred care) clause 3.4 (because he did not accept accountability for decisions) and clause 6.6 (because he did not report potential risk). Complaint 2 1. The Commission submits that the conduct amounts to professional misconduct because it is of a sufficiently serious nature to justify suspension or cancellation of his registration: 2. the conduct occurred in several deliberate steps: 1. at the time, the practitioner actively considered whether to do the right thing, then decided not to "I was second guessing whether to speak-up or not at the time but ultimately, I decide to do the error of administering water as to the other patient'. 2. the practitioner's oral evidence to the effect that he was "hoping" the water would have a placebo effect but he did not actually know what effect it could have on Patient B and he did not think about what could happen if Patient A later received two doses; 3. Patient B was vulnerable: 1. he was an in-patient at the Gorman Unit (a medically supervised alcohol and drug short stay unit that provides five to seven days of inpatient withdrawal management), 2. he was being treated for crystal methamphetamine drug withdrawal, 3. the Hepatitis B vaccine (Engerix-B Adult 1ml) is a syringe for active immunisation against Hepatitis B virus infection; 4. the vaccine is recommended for persons at substantial risk of the Hepatitis B virus, including injecting drug users; 5. there is an imbalance of power implicit in any dealings between patients and health practitioners, 6. Patient B was reliant on nursing staff to correctly administer any necessary medication; 7. Patient B was reliant on nursing staff to provide accurate information about any necessary injections; 1. the extent to which the practitioner deceived Patient B (by concealing that he was injecting water and allowing Patient B to believe that he was vaccinated); 2. the extent to which the practitioner placed his patients at risk (in that Patient A may have received a second vaccination and Patient B may have remained unvaccinated); 3. the extent to which the practitioner's conduct hampered his colleague's ability to provide continuity of care and open disclosure (RN Wells was confused why both patients were adamant they had been given the vaccine and the medical practitioner who later apologised to Patient B was unclear who had been given the Hepatitis B vaccine); 4. the capacity of the practitioner's conduct to bring the profession of nursing into disrepute. Mr Mediavillo's submissions 1. Mr Mediavillo affirmed that he pleaded guilty to unsatisfactory professional conduct and professional misconduct. He submitted that pleading guilty should be considered positively by the Tribunal. 2. In relation to the outcome submitted by the HCCC he submitted that a suspension would be quite difficult for him as would be not to undertake agency nursing. He had no submissions as to the costs order sought by the HCCC. Consideration Improper or unethical conduct 1. Complaint One against Mr Mediavillo is that he engaged in improper or unethical conduct. The words "improper" and "unethical" are not defined in the National Law. The Macquarie Dictionary defines improper as follows: 1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular. 1. Unethical is defined as follows: 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 1. In HCCC v Liu [2016] NSWCATOD 133 at [54-56], the Tribunal said: Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term "impropriety" in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: 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. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. … We adopt the discussion of the principles set out in Office of Local Government v Toma. 1. We agree with that conclusion and also adopt the discussion of those principles. Consideration Unsatisfactory professional conduct and professional misconduct 1. We find that Mr Mediavillo is guilty of the conduct set out in the particulars to Complaint One and it follows, Complaint Two. That finding is based on the evidence tendered by the HCCC, in particular, the notes Mr Mediavillo wrote, the statements of the two RNs and the medical records of Patient A and Patient B. It is also based on the oral evidence of Mr Mediavillo. As noted, Mr Mediavillo does not dispute the particulars. 2. The next question is first, whether that conduct is unsatisfactory professional conduct under s 139B(1)(l) of the National Law and secondly, is professional misconduct under section 139E of the National Law. 3. There can be little doubt that the conduct of Mr Mediavillo, in deliberately falsifying medical records and not disclosing his actions when the issue was first raised with him and only admitting it when it was clear that others knew what he had done, was improper and unethical. It was quite simply wrong; an egregious error of judgement that potentially placed the health of two patients at risk. 4. We are of the view that it is not necessary for the HCCC to adduce expert evidence to make a finding under s 139B(1)(l) of the National Law in circumstances where the Nursing and Midwifery Board of Australia: Code of Conduct for Nurses, the international Code of Ethics for Nurses are in evidence and have been breached: see for example HCCC v Livermore [2021] NSWCATOD 48 at [43], HCCC v Shipley [2020] NSWCATOD 128 at [64], HCCC v Ford [2021] NSWCATOD 20 at [45]-[47]. 5. We accept the submissions of HCCC that Mr Mediavillo's conduct contravened the various provisions of the Codes and policies set out in the HCCC submissions. Accordingly, we find that Mr Mediavillo is guilty of unsatisfactory professional conduct in that his conduct was unethical and improper. 6. We also accept the HCCC's submissions that that conduct amounts to professional misconduct because it is of a sufficiently serious nature to justify suspension or cancellation of his registration. 7. We are also of the view that Mr Mediavillo 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. 8. Mr Mediavillo's conduct occurred over two days and involved several deliberate steps. Those steps include injecting Patient B with water, altering Patient A's medical records, altering Patient B's medical records, not advising anyone of his actions on 5 March and not telling the truth to RN Kaur when she telephoned on 6 March 2020. 9. Further, Mr Mediavillo deceived Patient B as to what he was injecting. He potentially placed Patient A and Patient B's treatment at risk by falsifying the medical records. 10. Finally, his subsequent conduct hampered his colleague's ability to provide continuity of care and open disclosure. HCCC submissions as to Orders 1. The HCCC submits that it is appropriate for the Tribunal to make: 1. An order under section 149C(1)(b) of the National Law suspending the practitioner's registration for a period of three months; 2. An order under section 149A(1)(b) imposing the attached conditions on the practitioner's registration from the date the suspension period expires. 3. In the alternative to (a) and (b): 4. a reprimand under section 149A(1)(a) of the National Law; 5. an order under section 149A(1)(b) imposing the attached conditions on the practitioner's registration from the date of the Tribunal's decision. 6. An order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed. Suspension 1. The HCCC submits that the relevant principles for determining the appropriate orders include: * the Tribunal has a discretion to suspend or cancel a practitioner who is guilty of professional misconduct; * whether the professional misconduct is sufficiently serious to warrant suspension or cancellation * the jurisdiction is primarily protective however it is unavoidable that protective orders may be incidentally punitive; * deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession. * protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession. 1. The Commission submits that a three month suspension period is appropriate because of the experience of the practitioner, his knowledge of the various Codes and policies, the vulnerability of the patients, his extremely poor judgment, that his conduct was difficult to detect and the impact on the patients, nursing and medical staff. 2. HCCC submits that the seriousness of the conduct warrants denunciation and the conduct (particularly injecting Patient B with water while pretending that he was injecting the Hepatitis B vaccine) has the capacity to bring the profession into disrepute. 3. The HCCC referred to a number of cases in which RN's registration was cancelled or a suspension imposed for administering medications wrongly and/or not disclosing it and/or not making proper records: see Health Care Complaints Commission v Akhurst [2016] NSWCATOD 70, and Health Care Complaints Commission v McLean [2016] NSWCATOD 111, Health Care Complaints Commission v Dudhela [2021] NSWCATOD 59, Health Care Complaints Commission v Konigson [2021] NSWCATOD 186. 4. In the alternative, the HCCC submits that if the Tribunal does not exercise its discretion to impose suspension, a reprimand plus practice conditions may be appropriate, but only if the Tribunal is satisfied that the practitioner has demonstrated genuine remorse and has undertaken relevant remediation steps. 5. The HCCC referred the Tribunal to Health Care Complaints Commission v Willis [2018] NSWCATOD 136, in which a registered nurse was reprimanded and conditions imposed following conduct, including administering medication without sighting a prescription. While there was no evidence of any actual harm to patients, the Tribunal was concerned that the practitioner's conduct, including not following nursing policies and guidelines in relation to medication safety and failings in health care records, had the potential to expose patients to risk and was improper. In framing appropriate protective orders, the Tribunal noted that the practitioner had consistently made admissions throughout her correspondence with the Commission and the Council, was remorseful, demonstrated insight, had not sought to minimise the seriousness of her involvement and undertook remedial educational courses. 6. The HCCC also referred us to the Health Care Complaints Commission v Vergara [2010] NSWNMT 11 at [36-37], in which a registered nurse was reprimanded and conditions imposed following conduct including removing medication prescribed to two patients (3 Oxycontin tablets and 5 Endone tablets), replacing the missing medication with other tablets then falsifying the medical records to conceal her conduct. The practitioner initially denied her conduct but then made admissions to her employer the following day. Although there was no evidence of any actual harm to either patient, the former Tribunal accepted that the conduct had the potential to do harm and stated: the Tribunal wants to make it clear to both members or the nursing and midwifery professions and the general public that Ms Vergara's judgment was unacceptably awry. She failed in her care of her patients and acted both improperly and unethically by stealing the tablets. Her deceptions in replacing the tablets and making false entries about them also showed serious lacks judgment and care as well as improper and unethical conduct. This is a serious example of professional misconduct. 1. In framing appropriate protective orders, the Tribunal noted that the practitioner was in great pain when she engaged in the conduct, made full admissions, withdrew her access to Schedule 8 drugs, informed her employer, undertook remedial treatment to overcome her pain, was clearly remorseful and was able to articulate how her conduct had been improper. 2. In its submissions, the HCCC acknowledges that the practitioner has mentioned remorse in his response to the Commission, in his reflection to the Council and his reply to the Tribunal. 3. It submits that the Tribunal will need to assess whether the practitioner has demonstrated genuine remorse. The Commission acknowledges that the practitioner's oral evidence appropriately mentioned the risk of harm to his patients, the psychological breakdown of Patient B and the importance of communicating with other nurses. The practitioner elected not to provide any further submissions to the Commission and not to file any material at the Tribunal so it is unknown whether he has undertaken any relevant remediation steps. The practitioner's application to review his conditions was unsuccessful for reasons including that the practitioner had only undertaken 7.5 hours of CPD and had limited capacity to undertake further education and his application failed to adequately address patient safety and actionable strategies to implement in the workplace to mitigate risk. The Commission notes the practitioner's conflicting oral evidence that he has a "fear" about medication administration and would "often succumb to second guessing myself" versus his asserted "full confidence" in medication administration. 1. The HCCC submits that the Tribunal will need to be satisfied that the practitioner understands the importance of compliance. The Commission notes that the practitioner has previously had some difficulties complying with conditions: On 1 June 2020, the Council informed him of the conditions and asked him to return his signed acknowledgement by 5 June 2020 but he was late to comply (23 June 2020); On 3 August 2021, the practitioner informed the Council that he proposed to start work as a registered nurse at the Cosmos Clinic on 10 August 2021 but he failed to nominate a supervisor for approval within 14 days of commencing work (as required by condition 8) and failed to provide evidence to the Council that his employer was aware of his conditions (as required by condition 9); On 13 September 2021, the Council reminded the practitioner about his conditions, informed him that he was currently non-compliant with condition 9 then the practitioner submitted the conditions signed by his employer the following day; On 14 September 2021, the practitioner submitted his roster for August (late to comply with condition 6) suggesting that he worked 13 shifts that month; On 20 September 2021, the Council advised that the practitioner's proposed supervisor was not approved, on 24 September 2021 the Council officer had a "long discussion" with the practitioner regarding compliance then on 29 September 2021 the practitioner advised that he would cease working as a registered nurse at the Cosmos Clinic (without an approved supervisor as required by condition 8); On 1 October 2021, the practitioner submitted his roster for September (complying with condition 6) but suggesting that he worked 11 shifts that month, including his final four shifts after the Council informed him that his proposed supervisor was not approved. In his oral evidence, the practitioner said that he "assumed" that his nominated supervisor would be accepted. 1. The Commission also notes that the practitioner has not filed any evidence from his current employer or any character evidence. Asserted reformation of a practitioner's character is exceptional and requires clear proof. Conditions 1. The Commission seeks the attached proposed conditions, to be effective either from the expiry of the suspension period, or, if the Tribunal does not exercise its discretion to suspend, effective from the date of the Tribunal's decision. 2. Conditions 1-9 are the conditions currently in place on the practitioner's registration. Conditions 10-12 allow the Council to ensure that the practitioner's employer/s are aware of the Tribunal decision and assist in monitoring the practitioner's compliance with conditions. Conditions 13-14 allow the conditions to be reviewed, including if the practitioner elects to move interstate. 3. The Commission acknowledges that the practitioner has completed some education since after his conduct: On 22 March 2020, training on communication and medication safety. On 6 June 2020, online course "Medication Safety. On 12 June 2020, online course "Reporting adverse events with medicines and vaccines." 1. The HCCC submits that it is open to the Tribunal to impose an additional order that the practitioner complete any appropriate specified educational course. Consideration What orders should be made 1. The Tribunal is satisfied that the conduct of the practitioner was totally unacceptable and constitutes serious failings as a registered nurse. There was a real potential for harm to the two patients, although no actual harm was apparently occasioned. It was deliberate and he knew what he was doing was wrong. He then sought to cover it up by falsifying the medical records of two patients. He did not reveal the false medical records until he believed that it had already been discovered. 2. However, we also take into account the remorse which he has consistently expressed including to the Hospital, to the Council, to the HCCC and to this Tribunal. We are of the view that his remorse is genuine, particularly in respect of deceiving and potentially harming Patient B. We take into account his evidence that he is undergoing counselling in respect of his 'fear' in relation to administering medication. 3. We are satisfied that Mr Mediavillo has demonstrated insight, has not sought to minimise his conduct and has undertaken some remedial educational courses. 4. We take into account that there has not been perfect compliance with the conditions which have been placed on Mr Mediavillo's registration. We adopt the language used by the HCCC: he has had difficulties. However, we are not persuaded that he is incapable or will not comply with any conditions imposed on his registration. 5. We accept that that the seriousness of the conduct warrants denunciation and that his conduct has the capacity to bring the profession into disrepute. 6. However, we are of the view to impose a period of suspension on Mr Mediavillo in circumstances where he has not worked since September 2021, would be largely punitive rather than protective. 7. We are satisfied that a reprimand and the imposition of conditions will be sufficiently protective and will operate to denounce his conduct. 8. Mr Mediavillo has undertaken training in the areas particularly relevant to his conduct: that is, communication, medication safety and reporting incidents. However, because of the length of that training, and that it is now two years since it occurred, we are of the view that he should undertake further training in those areas as well as his obligations under the Codes of Conduct. 9. The Tribunal agrees with what was said in Health Care Complaints Commission v Picones [2018] NSWCATOD 56: The ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals. Mistakes happen. Covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions and services because of the real and present danger that such behaviour poses to the safety of patients. Without candid admissions and the provision of assistance to peers and superiors from a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented. A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in any and every health services setting. 1. We are satisfied that the conditions imposed on the practitioner following the s 150 process together with the additional conditions proposed by the HCCC are appropriate. In addition, we are satisfied that an additional condition should be imposed in the following terms: To satisfactorily complete within 6 months of the date of this decision, education approved by the Nursing and Midwifery Council of NSW and that has the following characteristics: Obligations under the Nursing and Midwifery Board of Australia Code of Conduct for Nurses, the ICN's Code of Ethics for Nurses and the Nurses and Midwifery Board of Australia's Registered Nurse Standards for Practice Medication safety and Reporting adverse events Within one month of completing the approved courses, the practitioner is to provide documentary evidence of satisfactory completion to the Council To bear responsibility for any costs incurred in meeting this condition. Costs 1. The HCCC seeks an order that the practitioner pays the Commission's costs as agreed or assessed for the following reasons: * the Court of Appeal has affirmed that costs are awarded to compensate the successful party and accepted that as a general rule, costs of proceedings before the Tribunal should follow the event; * the presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party; * there was no disentitling conduct by the Commission to warrant a departure from the general rule; * the Commission took a number of steps during the matter to minimise costs and progress the matter, including serving proposed agreed facts to attempt to limit the facts in dispute and not briefing counsel. * The Tribunal has the power to order the practitioner to pay costs under clause 13(1) of Schedule 5D of the National Law. 1. The practitioner made no submissions in reply as to whether a costs order should be made. 2. In Health Care Complaints Commission v Philpiah [2013] NSWCA 342 at [42-44] , Emmett JA with whom Meagher JA, Beech-Jones J agreed, said As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. 1. We are satisfied that there has been no conduct by the HCCC which disentitles a costs order in its favour. We have no specific evidence as to the financial circumstances of Mr Mediavillo. 2. In any event, we follow the Court of Appeal's decision that hardship is not an appropriate basis for the exercise of our discretion. 3. We will order that the practitioner pay the HCCC's costs as agreed or as assessed. Orders 1. Pursuant to s149A(1)(a) of the National Law the practitioner is reprimanded. 2. Pursuant to s149A(1)(a) of the National Law the following conditions are imposed on the practitioner's registration: 1. To advise the Nursing and Midwifery Council of NSW in writing at least seven (7) days prior to changing the nature or place of practice. 2. Not to undertake agency nursing. 3. Not to work as the sole practitioner on any shift, ward or unit. 4. Not to have supervisory responsibility for any other health practitioner or student whether registered or not. 5. Not to work night duty (between 10.00 pm and 6.00 am). 6. Within seven (7) days of the end of each calendar month, the practitioner to provide the Nursing and Midwifery Council of NSW with a copy of all nursing/midwifery rosters for the preceding calendar month. 7. To only administer any medications under the direct supervision of a registered nurse (division 1) who has no conditions on his or her registration. 8. To practice under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. (a) to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. (b) to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. 9. To forward evidence to the Nursing and Midwifery Council of NSW within seven (7) days of commencing employment that the practitioner has provided a copy of full conditions to his nursing employer/s and/ or employment agencies through which he provides professional services. 10. The practitioner is to forward evidence to the Nursing and Midwifery Council of NSW within seven days of the publication of these reasons that he has provided a copy of the Tribunal decision to his nursing employer/s. 11. The practitioner is to authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse/midwife in Australia, regarding any issues arising in relation to compliance with these conditions. 12. The practitioner must only be employed as a nurse/midwife in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions. 13. To satisfactorily complete within 6 months of the date of this decision, education approved by the Nursing and Midwifery Council of NSW and that has the following characteristics: 1. Obligations under the Nursing and Midwifery Board of Australia Code of Conduct for Nurses, the ICN's Code of Ethics for Nurses and the Nurses and Midwifery Board of Australia's Registered Nurse Standards for Practise; 2. Medication safety; and 3. Reporting adverse events. 1. Within one month of completing the approved courses, the practitioner is to provide documentary evidence of satisfactory completion to the Council. 2. To bear responsibility for any costs incurred in meeting this condition. 3. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Nursing and Midwifery Council of NSW when the practitioner has a principal place of practice in NSW. 4. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the practitioner's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Nursing and Midwifery Board of Australia. 1. The practitioner is to pay the HCCC's costs as agreed or as assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2022