Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Balagtas [2022] NSWCATOD 125 Hearing dates: 16-20 May 2022; submissions 13 July, 3 August 2022 Date of orders: 25 October 2022 Decision date: 25 October 2022 Jurisdiction: Occupational Division Before: L Pearson, Principal Member J O'Baugh, Senior Member S Schulz-Robinson, Senior Member J Barker, General Member Decision: (1) The Respondent is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) and professional misconduct as defined in s 139E of the Health Practitioner Regulation National Law (NSW); (2) The matter is to be listed for hearing as to what, if any, protective orders should be made as a consequence of the Tribunal's findings, on a date to be fixed having regard to the availability of the parties and their representatives; (3) The following directions are made: (a) The HCCC is to provide to the Tribunal and the Respondent notice of any protective orders sought as a consequence of the Tribunal's findings, and any further evidence and submissions, on or before 10 November 2022; (b) The Respondent is to provide to the Tribunal and the HCCC any further evidence and submissions in response, on or before 24 November 2022; (c) The HCCC is to provide to the Tribunal and the respondent any further material in reply, on or before 1 December 2022; (d) The matter is listed on 24 November 2022 at 9.15am by AVL to fix a hearing date for the Stage 2 hearing, and to make any further necessary directions; (e) The proceeding will be listed for a stage 2 hearing on a date after 1 December 2022. Catchwords: HEALTH – Professional registration and discipline – registered nurse - allegation of unsatisfactory professional conduct and professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Care Complaints Act 1993 Health Practitioner Regulation National Law Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Francis Bernard Balagtas (Respondent) Representation: Counsel: L Thomas (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent self-represented File Number(s): 2020/113622 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act, publication of the name of the patient set out in the complaint and the Schedule to the complaint is prohibited. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, publication of the name of the individual referred to as "the CNS D&A" is prohibited. Note: A reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to identify the person. REASONS FOR DECISION 1. The Health Care Complaints Commission (HCCC) has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Francis Bernard Balagtas, a Registered Nurse (the practitioner). 2. The proceedings arise from a mandatory notification to AHPRA by the Regional Nurse Manager Metropolitan West reporting that five RNs and one Enrolled Nurse employed by Justice Health and Forensic Mental Health Network (JH&FMHN) at Parklea Correctional Centre (PKA) were involved in the care of an inmate, Patient A, who was found deceased on 7 December 2017. 3. The HCCC has brought a complaint against each of the nurses. At the first listing of Tribunal proceedings 2020/112544 HCCC v Sara Day, 2020/113574 HCCC v Jeremy Nuevo, 2020/113588 HCCC v John Gallagher, 2020/113622 HCCC v Francis Balagtas, 2020/113637 HCCC v Rhondda Stratten and 2020/113651 HCCC v Tania Nguyen, orders were made by consent of all parties that the six matters be joined and heard together, and evidence in each matter be evidence in all of the matters. An order was made prohibiting disclosure of the name of Patient A. The directions included a direction that an Agreed Statement of Facts be provided to the Tribunal. 4. At a subsequent directions hearing the Tribunal noted that pursuant to s 165B(3) of the National Law the panel members to hear the matters involving the five RNs (the registered nurse matters) were to be two RNs; and that transcript of the evidence of the nurses in the registered nurse matters and that of EN Day may be used in the HCCC v Day proceedings. The Tribunal panel constituted for the hearing of 2020/112544 HCCC v Day includes two Enrolled Nurses. 5. Two case conferences were held. The HCCC was represented by counsel and instructing solicitor. Two of the RNs and EN Day were represented by NSW Nurses and Midwives Association (NSWNMA) legal officers, and three of the RNs were self represented. An Agreed Statement of Facts and Issues to be determined by the Tribunal was filed on 30 June 2021. 6. The Complaint against RN Balagtas was amended in February 2021 to amend references to various NSW Health and JH&FMHN policies in the particulars to Complaint One. 7. The Stage 1 hearing of the registered nurse matters and the evidence of EN Day was approved for listing as an in-person hearing in 2021. That listing was vacated when COVID-19 restrictions meant that the hearing could not proceed as an in-person hearing, and the hearing was re-listed for May 2022. At the hearing the HCCC representatives and the RNs and their representatives appeared in person. The HCCC's expert witness and witnesses Correctional Officer (CO) Ravinder Sarin and CO Florence Foisa appeared in person; the other HCCC witnesses, EN Lynda Steele and the CNS D&A, appeared by telephone. EN Day gave evidence by AVL. The two professional members of the Tribunal panel participated in the hearing by AVL. 8. The Tribunal may exercise the disciplinary powers conferred by Subd 6, Div 6 of Part 8 of the National Law if (a) it finds the subject-matter of a complaint to have been proved, or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149. 9. The HCCC bears the onus of proving the complaints against the practitioner, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings: National Law, cl 2, Sch 5D. The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 in the following terms: 52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]). 53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations. 1. The Stage 1 hearing and these reasons relate only to the issue of whether the allegations in the application have been proven to the requisite standard, and whether any conduct found to have occurred constitutes unsatisfactory professional conduct or professional misconduct. A further hearing will be required for consideration and determination of what, if any, protective orders are appropriate, if the allegations are proven 2. As noted above, an order was made pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A. A further order was made during the hearing, by consent, prohibiting the disclosure of the name of the Drug & Alcohol Clinical Nurse Specialist on duty at PKA on 6 December 2017, identified in these reasons as "the CNS D&A", on the basis that it was desirable to do so by reason of information before the Tribunal of a confidential nature regarding her personal relationships. RN Balagtas 1. RN Balagtas was first registered as an Enrolled Nurse in New South Wales on 11 November 2004, and registered as a Registered Nurse on 10 May 2010. At the time of the conduct the subject of these proceedings he was employed as a Level 1 Nursing Unit Manager (NUM) at PKA. On 6 December 2017 he was rostered as the NUM on the afternoon shift, arriving at work at 1.30pm and leaving at 10.00pm. 2. Proceedings under s 150 of the National Law were held by the Nursing and Midwifery Council of NSW (the Council) on 26 March 2018. Conditions were imposed on RN Balagtas' registration including that he practise under supervision, which could be remote, of a registered nurse, and that he be supervised by a nurse manager authorised to notify the Council of any breach of conditions or unsafe practice and to provide a report about his performance at three monthly intervals. In September 2019 RN Balagtas requested a review under s 150A of the National Law, which was held on 14 October 2019. The Council delegates noted the extensive continuing professional education RN Balagtas had undertaken, and that he had provided consistently positive reports from his supervisor, and the conditions on his registration were removed. 3. At the time of the hearing RN Balagtas was employed by JH&FMHN working at Long Bay Hospital, as NUM in the Medical Appointment Unit and Patient Enquiry Line in Integrated Care Service. Background 1. The following summary is based on the Agreed Statement of Facts and on evidence that the Tribunal understands not to be in dispute, and identifies factual issues in dispute. 2. Parklea Correctional Centre (PKA) is located in the north-western suburbs of Sydney and houses approximately 800-900 remand, minimum, and maximum security inmates. In December 2017 PKA was privately managed by The GEO Group Australia Pty Ltd (GEO) on behalf of Corrective Services NSW (CSNSW). Health services at PKA were operated by the Justice Health & Forensic Mental Health Network (JH&FMHN). 3. On 6 December 2017 Patient A, a 37 year old man with a documented medical history of epilepsy, asthma, Crohn's disease, hypertension and opioid dependence, was transferred to PKA from Sydney Police Cells, arriving at about 11.38am. Patient A was placed in a holding cell, and at about 2.07pm was taken to the Processing Area at Reception. Patient A had been in custody previously, most recently in November 2017. 4. The Reception Screening Assessment (RSA) is a medical interview conducted by JH&FMHN staff to identify any potential medical or physical needs of a newly received inmate. EN Lynda Steele was the Reception nurse on the afternoon shift. EN Steele was interviewed as part of the JH&FMHN investigation on 6 March 2018 (ex A1, tab 71), and gave oral evidence to the Tribunal. EN Steele saw Patient A shortly after 2.00pm. She telephoned the CNS D&A and advised her that Patient A was very unwell and vomiting and that she was unable to attend to the RSA. The CNS D&A arranged for her to send Patient A to the Clinic straight away. 5. EN Steele completed a Health Problem Notification Form (HPNF) at 2.36pm (ex A1, tab 125) noting "RSA not completed, Pt in withdrawal, Hx epilepsy HTN", and informing CSNSW/GEO officers: "House in clinic till cleared by D&A". In oral evidence EN Steele confirmed that the HPNF form was completed to notify nursing and correctional staff why she had housed Patient A in the Clinic. 6. Patient A was taken to the Clinic by wheelchair. 7. EN Steele's shift in Reception ended at 10.00pm, and she then went to the Clinic to return the keys. EN Steele stated that while the normal process is for the reception screening nurse to give a handover to the night staff at that time, she did not hand over anything as she had already handed over care of Patient A to the drug and alcohol staff and they had taken over that patient. She was not aware of the treatment plan as she was still in Reception and therefore any handover would not have been relevant. She did not write in Patient A's notes as he was really unwell and she had to get him straight up to see the drug and alcohol team, as the drug and alcohol doctor was about to leave and had stayed back to see the patient. 8. The clinical handover from the morning shift JH&FMHN staff to the afternoon shift staff occurred in the Clinic Meal Room (also referred to as the "lunch room" and the "tea room"). As the morning to afternoon shift handover took place during Patient A's reception, he was not included in the verbal or written handover. 9. The CNS D&A provided a statement as part of the JH&FMHN investigation dated 2 March 2018 (ex A1, tab 68), and gave oral evidence at the Tribunal hearing. In oral evidence the CNS D&A described her role at PKA as being to see anyone entering the Clinic in acute withdrawal or detox daily until they were cleared for transfer into the main area. Her responsibilities included reviewing anyone who came in on treatment such as methadone, there being over 100 on treatments at that point, and organising doctors' appointments and procedures. She first heard of Patient A when she received a telephone call from the reception nurse, EN Steele, who said she had an unwell patient and asked if there was a doctor available who could give an order for an injection because the patient had been vomiting. The CNS D&A and the drug and alcohol doctor were finishing a clinic and the doctor agreed to stay back and assess the patient. The doctor looked the patient up on the computer to get some background information on him, and she went to find someone to give an injection. 10. The CNS D&A located some staff in the lunchroom, where the handover from morning to afternoon shift had just finished. The CNS D&A said words to the effect: "I've got a really unwell patient coming from detox. I need someone out now to give an IM injection." The evidence of the CNS D&A was that there were four people in the meal room, RN Gallagher (Nurse Unit Manager (NUM) for the morning shift), RN Balagtas (NUM for the afternoon shift), RN Nguyen and RN Stratten. RN Nguyen's evidence was that she had left the tearoom before the CNS D&A arrived. RN Stratten's evidence was that she was exiting the room when the CNS D&A arrived. RN Balagtas has denied being present. 11. At approximately 2.45pm RN Gallagher administered IM Stemetil to Patient A, and recorded this on the medication chart. Prior to administration, Patient A's details, the drug, and the dose were checked against Patient A's medication order with RN Stratten. 12. Patient A was reviewed by the CNS D&A and D&A Medical Officer, Dr Lee, in the drug and alcohol review room. Dr Lee and the CNS D&A separately recorded their observations and the treatment plan in Patient A's progress notes (ex A1, tab 129). 13. Dr Lee's note of the treatment plan states: "1.Detox cell 2.Panedeine, Stemetil +Symptomatic 3.Nil Diazepam yet 4.On Valporate 1gm BD 5.Repeat Obs 4/24 -Call ROAMS -If need, benzodiazepam regime 6.Thiamine 7.MO/ROAMS contact tomorrow. 8.Await ROI" 1. The CNS D&A took baseline observations, which she recorded in Patient A's progress/clinical notes. She noted that Patient A was "extremely unwell – in opiate withdrawal. Pt pale, sweating, clammy, rhinorrhea, piloerection", that he gave a history of taking Xanax or diazepam daily and IV heroin, and that he was too unwell for a full history. The CNS D&A recorded the treatment plan: 1.IMI Stemetil & Panadeine for opiate withdrawal 2.to remain in detox & monitored closely 4/24 obs 3.D&A ROAMS to be contacts if concerns regarding pt & if pt displays any signs of benzo withdrawal 4.for GP due to multiple morbidities 5.PHN Clinic nurse given oral handover 6.review by D&A nurse (author) in am 7.further D&A MO review on Friday 8/12/17 1. Patient A's vital signs (observations) were recorded on the Standard Adult General Observation (SAGO) chart (ex A1, tab 131) and on the D&A Substance Withdrawal Monitoring Chart (ex A1, tab 132). The medications ordered by Dr Lee were entered on the medication charts (ex A1, tab 133). The CNS D&A completed a new HPNF form, signed at 3.29pm (ex A1, tab 124), stating: Previous custody. RSA not completed due to pt unwell with substance withdrawal – observe sweating, vomiting, diarrhoea Epilepsy - smacking of lips, disorientated, loss of consciousness, twitching Placed in detox 1. The recommendation was "To remain in clinic until RSA completed and until cleared by drug and alcohol". 2. At approximately 2.46pm, Patient A was taken by wheelchair to Clinic cell 34. 3. At about 4.20pm, as she was leaving for the day, the CNS D&A provided a verbal handover to RN Stratten, who was in the medication room. The CNS D&A stated that she had made the note "PHN clinic nurse given oral handover" in Patient A's progress notes because morning handover had already been completed and she was concerned about the patient and wanted to make sure she was not leaving the Clinic until she had given a handover to the Clinic nurse. She put the notes in the pigeon hole at the Nurses' Station and took the medication chart directly to the Clinic nurse in the medication room. 4. The CNS D&A stated that RN Gallagher was in the Nurses' Station as she put the notes back and she gave him a brief update of what had happened. 5. The evidence of the CNS D&A was that her handover to RN Stratten included that Patient A was in detox and unwell; observations were required every four hours; and she had just performed a set of observations. She went through what the patient presented with, what they had ordered and what had been given, and what the plan was, and that she had done a baseline set of observations. She said he had been given Stemetil, and mentioned that within the 8 hours they would be able to do two more sets of observations, and she discussed medication. She gave the handover directly to RN Stratten; RN Nguyen was on the opposite side of the room packing medication. 6. RN Gallagher's evidence to the Tribunal was that he was present and participated in the handover. The evidence of the CNS D&A, RN Stratten and RN Nguyen was that he was not present for this handover, each accepting that it was possible he was within earshot in the adjacent treatment area. 7. The evidence of the CNS D&A was that she handed RN Stratten Patient A's medication chart. RN Stratten did not recall being given the medication chart, however recalled that the CNS D&A had a piece of paper with her during the handover. 8. RN Nguyen was also rostered on the afternoon shift, and was allocated packing and administering the medications for Areas 1 and 2 and 4 of PKA. RN Stratten was allocated packing and administering the medications for Areas 3 and 5 and the Clinic. 9. Following the morning handover, RN Nguyen and a student nurse she was supervising packed the Areas 1 and 2 medications. After they had finished that task RN Nguyen and RN Stratten agreed that RN Nguyen would also pack the Clinic medications. 10. At about 6.00pm, RN Nguyen and the student nurse accompanied by Correctional Officers went to administer the medications to patients in Areas 1 and 2. When they returned RN Nguyen and RN Stratten agreed that RN Nguyen would also administer the Clinic medications. After returning from the task in Areas 1 and 2, RN Nguyen administered the medications to patients in the Clinic. At about 7.00pm RN Nguyen, the student nurse, Correctional Officer (CO) Ravinder Sarin and CO Florence Foisa attended cell 34 to administer medications to Patient A during the Clinic medication round. 11. RN Nguyen gave Patient A Panadeine and Thiamine, mistakenly telling him that the Thiamine was diazepam. Patient A refused Epilim (valproate), prescribed for his epilepsy. RN Nguyen recorded the administration of Thiamine and Panadeine, and the refusal of Epilim, on Patient A's medication chart, and told RN Stratten that Patient A had refused the prescribed Epilim medication. RN Stratten's evidence was that she told RN Nguyen to document the refusal in Patient A's progress notes; RN Nguyen did not recall RN Stratten asking her to do so. 12. At about 8.30pm RN Nguyen left the Clinic to do the medication round in Area 4, a minimum security complex outside PKA maximum security prison. She completed her shift at about 9.30pm without returning to the Clinic. 13. Between about 9.30pm and about 10.00pm, RN Stratten provided a handover to the night shift staff, RN Jeremy Nuevo and EN Sara Day. The evidence of RN Nuevo and RN Balagtas was that RN Balagtas was present; and RN Stratten and EN Day agreed that was possible. 14. Events during the night shift are disputed. The evidence of CO Sarin was that at about 10.18pm he received a Stenefon (intercom) call from Patient A requesting to see a nurse; that he informed RN Nuevo who asked why Patient A wanted to see a nurse; that he went to cell 34 and spoke to Patient A who verbally abused him, and repeated his request and refused to give a reason; and that he passed that information on to RN Nuevo. RN Nuevo does not agree with CO Sarin's report of this call. It is not disputed that there was a Stenefon call between Patient A and CO Foisa from the Clinic Officers Station, where RN Nuevo was present, in which CO Foisa asked Patient A if everything was OK and he replied "No everything is ok miss", she asked "Are you sure" and he replied "yes". 15. RN Nuevo and EN Day did not have any other interaction with Patient A during the night shift. At about 5.55am, RN Nuevo wrote in Patient A's progress notes: "Nursing: Pt settled overnight. Nil issues raised." 16. At about 6.00am, EN Steele arrived at the Clinic for the morning shift. RN Nuevo provided a handover to EN Steele. In oral evidence EN Steele recalled being told at the handover that Patient A had had a good night, that he was sleeping well; she could not recall who made that remark. 17. Both RN Nuevo and EN Day were scheduled to end their shifts at 7.30am. Both accepted in evidence to the Tribunal that they left around 6.38am. 18. At about 7.11am, EN Steele and CO Stankovski attended cell 34 for the morning medication rounds, where they found Patient A had died. 19. The Tribunal was informed that no decision has been made yet as to whether a Coroner's inquiry will be held. The Main Clinic 1. The Main Clinic is located in Area 1 of PKA. There are 14 cells, described by the CNS D&A as observation cells: eight Clinic cells (A to H) and six numbered cells (34 to 39), with a maximum capacity of 34 patients. At the time of the incident the Clinic housed 14 patients. Clinic Cells A-H were located on both sides of a corridor where the Nurses' Station, the Officer Station, the Drug & Alcohol room, and the Examination & Dispensary (Medication Room) were located. Cells 34-39, referred to by staff as "Detox" cells, were located on both sides of the corridor near the NUM1, NUM2 and Clinical Nurse Educator (CNE) offices. 2. It was not in dispute that patient progress notes and other medical records were kept in the Nurses' Station, in a pigeonhole for each cell. A whiteboard located on the wall of the Officers' Station in the Clinic (ex A1, tab 60) recorded the name and Master Index Number (MIN) for each of the inmates located in the Clinic cells, with comments including "mental health hold", and "GEO placement". RN Balagtas' evidence was that the whiteboard was not always accurate because GEO would shuffle the patients. 3. The roster for Wednesday 6 December 2017 (ex A1, tab 61) had 14 staff on duty between 6.00am-4.30pm on the morning shift, including RN Gallagher as NUM 2, and the CNS D&A (8.00am-4.30pm). The afternoon shift (1.30pm-10.00pm) had five staff rostered, with RN Francis Balagtas as NUM 1. EN Steele was rostered on Reception (2.30pm-11.00pm), RN Stratten on Areas 5, 3 and Clinic pills (1.30pm-10.00pm), and RN Nguyen on Main Clinic and Area 4 supervised (1.00pm-9.30pm). There were two staff rostered on Night Shift (9.30pm-7.30am), RN Nuevo and EN Day, for all areas. 4. The 14 staff rostered on the morning shift for Thursday 7 December 2017 (ex A1, tab 62) included EN Steele (6.30am-3.00pm) as Clinic Nurse and Transfers Out, with RN Grazie Crammond (Clinical Nurse Educator (CNE)) as Nurse in Charge (NIC). 5. It was not in dispute that the clinical handover from the morning to afternoon shift took place in the tearoom, and handover from the afternoon to night shift took place in the Nurses' Station. Clinical handover on 6 December 2017 from the morning to afternoon shift occurred between 2.00pm to 2.30pm, and from the afternoon to night shift between about 9.30pm to 10.00pm. The evidence was that the handover was verbal, with a hard copy handover sheet. 6. The handover sheet in evidence (ex A1 vol 2, tab 108) is headed "Clinic Handover Wednesday 6 December 2017 21:22", and lists cells A-H and 34-39, with columns recording for each patient the name and MIN, Date & Time of Arrival, Reason in Clinic, Date Cleared, and Diagnosis/Comment. Recorded for Cell 34 is the name and MIN of Patient A; 6/12/17 as the Date and Time of arrival; "Detox" as the Reason in Clinic; and for Diagnosis/Comment: RSA yet to be completed. Hx of Crohn's disease, Epilepsy. Currently in Opiate W/D. IM Stemetil 12.5mg given. PRN meds charted. 1. In addition to the 14 Clinic cells, the Handover sheet records under the heading "Hospital" one inmate presently in Westmead Hospital, and two "Patients of Concern", one located in wing 4A and the other in wing 5C. 2. The copy of the Handover sheet in evidence was provided by RN Gallagher to the Council delegates at his hearing under s150 of the National Law on 21 May 2018. RN Gallagher's evidence was that he retrieved this from the records kept in his office. 3. EN Steele's evidence was that the handover document was updated by the nurse in charge of the Clinic each shift electronically; the forms would be printed in a handover book kept in the Nurses' Station, as a reference; and each staff member on the next shift would have a copy of it. 4. It was not in dispute that the handover sheet in evidence was printed at 9.22pm. The evidence as to who updated it and when is unclear. RN Stratten could not recall whether she had put the information for Patient A on the handover sheet. RN Gallagher, RN Nguyen and the CNS D&A gave evidence that they did not. RN Nuevo's evidence was that a different version of the handover sheet, which did not include the information that Patient A was in opiate withdrawal, that he had been given Stemetil, and that PRN medications had been charted, was used in the handover to the night shift. NSW Health and JH&FMHN policy documents 1. The particulars of the complaints against each of the respondent nurses are framed by reference to provisions of a number of NSW Health and JH&FMH policy documents. As noted in the HCCC's opening submissions, the amendments to the complaints in relation to each of the respondent practitioners included amendments to give more particulars of particular policies that are referred to in the evidence. The policies relevant to RN Balagtas are: 1. NSW Health Policy Directives: 1. NSW Health Policy Directive Health Care Records – Documentation and Management (ex A1, tab 123) includes: 2.4 Documentation by nurses and midwives Documentation by nurses and midwives must include the following: (a)care/treatment plan, including risk assessments with associated interventions (b)comprehensive completion of all patient /client care forms (c)any significant change in the patient/client's status with the onset of new signs and symptoms recorded (d)if a change in the patient/client's status has been reported to the responsible medical practitioner documentation of the name of the medical practitioner and the date and time that the change was reported to him/her (e)documentation of medication orders received verbally, by telephone/electronic communication including the prescriber's name, designation and date/time. 2.5. Frequency of documentation The frequency of documentation entries should conform to the following as minimum requirements. … 2.5.3 Non-Admitted Patients/Clients An entry must be made in the health care record for each patient/client attendance (including video conference sessions) and for failures to attend. Entries should reflect the level of assessment and intervention. The results of significant diagnostic investigations and significant changes to the patient/client's condition and/or treatment should be documented. … 1. JH&FMHN policies: 1. JH&FMHN Clinical Handover (Policy number 1.075) (ex A1, tab 117) provides a standard set of principles for all types of clinical handover. Relevant provisions are: Section 2.1 Mandatory Requirements The importance of implementing "safe clinical handover" has been recognised and mandated under NSW Ministry of Health (MoH) policy directive PD2009 060 Clinical Handover – Standard Key Principles. JH&FMHN has developed and implemented the following standard key principles for clinical handover: 1.Leadership – nominate a leader at each clinical handover 2.Valuing Handover -set an expectation that this is an essential part of daily work 3.Handover Participants – identify participants, and involve participants in the handover process 4.Handover Time – set an agreed time, duration and frequency of handover, expect punctuality 5.Handover Place – set a specified location, preferably face to face 6.Handover Process – standardised process, JH&FMHN will utilise the Introduction, Situation, Background, and Assessment and Recommendation (ISBAR) framework. The standard key principles for clinical handover apply to all clinical staff employed by JH&FMHN and offer direction for the shift-to-shift clinical handover of patients, and the handover of patients to other clinicians or facilities. All clinical handover events must meet these requirements. Section 2.2 Implementation – Roles and Responsibilities … Nursing Unit Manager (NUM), Line Manager or delegate is responsible for: ● Implementing the standard key principles of clinical handover, establishing agreed times, durations, processes and frequencies for clinical handovers to occur ● Monitoring and evaluating local clinical handover on a regular basis through an audit process (at least every six months), with feedback of results, risks and any action required to all stakeholders ● Escalating results of auditing including any identified risks and planned actions to the Nurse Manager ● Capturing audits and results of audits in TRIM (TRIM containers to be identified locally) ● Ensuring any handover tools used within the workplace adhere to the ISBAR framework ● Ensuring the standard key principles for clinical handover are included in the local orientation and in service programs for all new and current clinical staff ● Ensuring the After Hours Nurse Manager and Cluster Nurse Managers are provided with a clinical handover of any patients of concern … Nurses are responsible for: ● Ensuring work practices are consistent with standard key principles for clinical handover ● Ensuring any tools used follow the ISBAR framework ● Attending and participating in the handover of all patients that are relevant to them ● Ensuring that they understand the information they are receiving during handover and if not seek clarification from the person who is handing over ● Ensuring any information handed over is documented in the patient's health record ● Escalating any concerns regarding a patient to the NUM and relevant medical officer ● Participating in the monitoring and evaluation of clinical handover. … Section 3.1 Clinical Handover – Standardised Format Clinical handover communication and documentation is improved by a standardised format for communication such as the ISBAR framework. ISBAR provides a framework to outline how a conversation is conveyed between people in a consistent and reliable way. ISBAR is the format that JH&FMHN utilises for clinical handover and is an acronym which stands for: I:Introduction ● Introduce yourself and your role in the patient's care ● State the unit you are calling from when speaking over the phone S:Situation ● Specify the patient's name, diagnosis and current condition or situation ● Explain what has happened to trigger the conversation B:Background ● State the admission date of the patient, his or her diagnosis, and pertinent medical history ● Give a brief synopsis of what has been done so far (e.g lab tests) ● Advise of any safety alerts that staff need to be aware of e.g work health and safety risks, aggression, manual handling risk A:Assessment ● Give a summary of the patient's condition or situation ● Note clearly the trend in patient observations ● Explain what you think the problem is or say "I'm not sure what the problem is, but the patient's condition is deteriorating" ● Expand upon your statement with specific signs and symptoms R:Recommendation ● Explain what you would like to see done (e.g lab tests, treatments, or "I need you to see the patient now") ● State any new treatments or changes ordered (e.g monitoring and frequency or when to re-notify the medical officer if there is no improvement in the patient) … 3.2 Situations where Clinical Handover is Required There are numerous occasions where clinical handover is required as part of everyday work; this may be face to face (preferred), written or via telephone. It is the responsibility of all staff to handover clinical information in a timely and accurate manner that will ensure the best outcome for the patient and staff. It is the responsibility of all staff to ensure they understand what is being handed over to them; this may require staff to repeat back and /or ask questions. Occasions where handover is required include: ● Shift to shift (changeover of staff) ● Patient transfers for a test or appointment ● Patient transfer/discharge to another hospital/facility/unit ● Patient transfer from one unit to another within a hospital ● Multidisciplinary team handover ● Patient transfer to and from and within the community (where appropriate) ● Deteriorating patient All clinical handovers must use the standard key principles and the ISBAR framework as outlined in this policy. 3.2.1 Shift-to-shift Clinical Handover Clinical handover must take place at the end/commencement of each shift in all JH&FMHN clinical sites; this will ensure continuity of information and is vital to the safety of patients and staff. In sites where staff are not rostered on duty 24 hours a day other clinical handover methods must be in place. This could include a written handover, which is easily accessible to the next shift of staff. … 1. JH&FMHN Accommodation – Clinical Recommendation (Adults) (Policy number 1.340) (ex A1, tab 116) provides: It is Justice Health & Forensic Mental Health Network (JH&FMHN) policy to provide clinically based recommendations regarding a patient's cell placement within the NSW correctional system. This must be based on an assessment of the patient's risk of causing harm to self or others, in light of the information available to JH&FMHN at the time of making the health recommendation and the patient's physical and mental health requirements. It is ultimately the responsibility of Corrective Services NSW (CSNSW) staff and the Commissioner to consider the clinical recommendation regarding cell placement made by the JH&FMHN staff and make a determination for cell placement based on this and the security and safety requirements of the inmate as per s 232 of the Crimes (Administration of Sentences) Act 1999. … 3.1 Placement Options … 3.1.7 Detoxification Placement Patients experiencing acute substance withdrawal, or who are expected to develop substance use withdrawal symptoms or who are intoxicated should be considered for placement either in an Assessment Cell or a Clinical Observation bed, depending on the resources at the Centre. Placement facilitates increased access by health staff where there is a need to monitor the overall health status of the patient. Clinical need and judgment will determine how often a patient will require reviewing. However, twice daily must be the minimum. These reviews must be documented in the patient's Health Record…. Clinical staff must specify on the JH&FMHN Health Problem Notification form (Adults)…whether the patient needs an Assessment cell or a Clinical Observation Bed and what observations are needed. 1. JH&FMHN Medication Guidelines (2017) (ex A1, tab 118) includes provisions for Medication Administration. Section 6.2 provides Principles for Safe Medication Administration, which relevantly includes: The objective of safe medication administration is that the correct patient receives the correct dose of the correct medication at the correct time and by the correct route of administration. JH&FMHN promotes the quality and safe use of medication and all persons responsible for administering medications must: … ● Ensure all prescribed and non-prescribed medications are taken in the presence of the administering nurse. The nurse must observe the patient swallowing the medication, with a cup of water, unless the patient is authorised to possess the medication for self-administration … ● Record the administration transaction on the medication chart and/or other appropriate parts of the medical record, including signature and date: records of medication administration must be accurate and include all required details … ● Not administer medications that have been prepared for delayed or advanced administration by another nurse. ● Prepare, administer, and record medication administration: a nurse must never administer a medication prepared by another person (except those prepared by the Pharmacy Department) … ● In circumstances where a medication cannot be administered, record all details on the medication chart and in the patient's medical notes as to why the medication was not given … 6.2.2 Delayed Administration Provision Delayed administration may be defined as the advance preparation of a patient's dose or doses of medication, which are intended for administration to the patient at the next immediate treatment time. Under this provision, medication prepared by a nurse for delayed administration must be administered by the same nurse to the patient within the same shift at the next immediate treatment time. This apply on one dose only (next dose). JH&FMH nurses may package medications for delayed administration to patients in ambulatory settings only. Preparation of medication(s) for delayed administration must not occur in the in-patient setting. Medications prepared for administration under this provision: 1.must be supplied in clear, sealable and hygienic plastic bags. 2.must be clearly labelled with the patient's name and MIN/CIM number 3.must be packed to a maximum of 3 different medications per plastic bag 4.must be prepared and supplied by the same nurse to the patient, and 5.must be issued to the patient with clear dosing instructions. … 6.2.9 When Medication is not Administered In circumstances where a medication is not, or cannot be administered, the details as to why the medication was not administered must be indicated on the medication chart and in the patient's medical notes. In the majority of cases it is the responsibility of the patient to collect his or her medication. If the patient fails to collect their medication, then the nurse should contact the medical officer/nurse practitioner for advice. … 1. JH&FMHN Clinical Observation Beds in Health Centres (Adults) (policy number 1.025) (ex A1, tab 115) applies to Health Centres (Adult Correctional Centres or Police Cells). It states that Clinical Observation beds are non admitted beds located in Adult Health Centres that are used to accommodate patients who require a higher level of observation for Primary Health, Drug & Alcohol, Population Health and Mental Health issues. The policy identifies JH&FMHN Clinical Observation Bed Locations, including 16 Observation beds at PKA, with 24 hour nursing cover. The policy provides: 2.2 Implementation – Roles & Responsibilities Placement on the Advice of a Medical Officer Once a decision has been made by the MO of the respective clinical stream to place a patient in a Clinical Observation bed, the MO must advise nursing staff of: ● the required level of observation ● regularity of clinical measurements ● any further investigations or follow up, and ● any symptoms that may indicate that the patient's condition is deteriorating and any action that may need to be taken in this event. For all other Clinical Observation bed placements, the purpose for placement and level of monitoring required must be documented in the patient's Health Record by the NUM or delegate. NUM or Delegate The NUM or delegate is responsible for the shift by shift overall co-ordination and management of patients placed in Clinical Observation beds and is the initial point of contact for staff with clinical concerns. They must review the treatment plan and co-ordinate any treatment ordered by the treating MO. They are responsible for ensuring the treating MO is informed of any changes in the patient's health condition. 3. Procedure Content 3.1 Placement If placement occurs out of hours, the Remote Offsite Afterhours Medical Services Protocol (ROAMS) must be followed to contact the appropriate on call MO. The MO must provide the appropriate Clinical Director with a handover of the case as per the clinical stream handover protocol to enable continuity of care to be transferred to the appropriate Chief Medical Officer (CMO), Visiting Medical Officers VMO or Staff Specialist covering that Health Centre. All patients placed in Clinical Observation Beds must be reviewed by nursing staff each shift and an entry regarding their clinical condition made in the Health Record. Clinical measurements must also be recorded in the frequency requested by the MO on the appropriate NSW Health Standard Adult General Observation chart (SAGO observation chart). Any discussion of a patient's initial or ongoing care with the on call MO whilst the patient is placed in the Clinical Observation bed must be recorded in the patient's Health Record. If a patient's clinical condition deteriorates while placed in the Clinical Observation bed, the appropriate MO must be contacted by the NUM or delegate and the patient transferred to the local Emergency Department if indicated. The Complaint 1. There are two complaints. Complaint One of the Amended Complaint is that RN Balagtas is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that he has engaged in conduct that demonstrates the judgment possessed or care exercised by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The particulars of Complaint One are: 1. The Practitioner, as the NUM, failed to carry out his duties in that he failed to read the Clinical Notes and Health Records of Patient A, in accordance with: 1. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles and Responsibilities - Nursing Unit Manager); 1. The Practitioner failed to ensure that the 'Afternoon Shift' nursing staff, namely RN Stratten and RN Nguyen and 'Night Shift' nursing staff RN Nuevo and EN Day, were provided with a clinical handover of Patient A, being a patient of concern, in accordance with: 1. JH&FMHN Policy 1.075 Clinical Handover, point 2.1 (Mandatory Requirements); 2. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles and Responsibilities - Nursing Unit Manager); 3. JH&FMHN Policy 1.075 Clinical Handover, point 3.2 (Situation where Clinical Handover is required); 1. The Practitioner failed to ensure that clinical information regarding Patient A's clinical management details were recorded in the written handover, and/or in the 'treatment plan' section/patient notes, in accordance with: 1. NSW Health Policy Directive, Health Care Records - Documentation and Management, point 2.4 (Documentation by nurses); 2. NSW Health Policy Directive, Health Care Records - Documentation and Management, point 2.5.3 (Non-Admitted Patients/Clients); 3. JH&FMHN Policy 1.075 Clinical Handover, point 3.2 (Situation where Clinical Handover is required); 4. JH&FMHN Policy 1.075 Clinical Handover, point 2.2 (Implementation - Roles & Responsibilities - Nursing Unit Manager); 5. JH&FMHN Policy 1.340 Section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement. 1. Complaint Two is that RN Balagtas is guilty of professional misconduct under s 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, 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. 2. The HCCC alleges that each particular of Complaint One justifies a finding of professional misconduct; or in the alternative, when two or more of the particulars of Complaint 1 are taken together, a finding of professional misconduct is justified. 3. RN Balagtas admits particulars 1, 2 and 3 of Complaint One. The Tribunal notes that at the time he provided his Reply to the Complaint on 22 July 2020 RN Balagtas was legally represented. He has since represented himself in the proceedings. Tribunal hearing 1. The HCCC relied on a bundle of documents in four volumes, 133 tabs (ex A1), and tendered the Agreed Statement of Facts (ex A2). Exhibit A1 includes: 1. The Complaint, and certificates of registration status of RN Balagtas (tab 5); 2. Expert report provided by Ms Christine Muller (tab 17); 3. Correspondence between the HCCC and RN Balagtas, including notifications under s 28 and s 40 of the Health Care Complaints Act 1993 (tabs 49, 53); 4. Annotated Clinic floor plan, photograph of whiteboard, and staff rosters for 6 and 7 December 2017 (tabs 59-62); 5. JH&FMHN investigation interviews with the practitioner on 27 February 2018 and 4 April 2018 (tabs 66, 77); 6. Other JH&FMHN investigation interviews, including interviews with the CNS D&A on 2 March 2018, and EN Steele on 6 March 2018 (tabs 68, 71); 7. Reasons for decision and transcript of s 150 and s 150A proceedings (tabs 101, 102, 104, 105); 8. Corrective Services NSW Death in Custody Investigation Report (tab 109), including: 1. Statements by CO Sarin, CO Foisa and other correctional officers; 2. CCTV images and summary; 3. Transcript of interviews with inmates in cells adjoining and close to cell 34; 1. Autopsy report; 2. JH&FMHN and NSW Health Codes of Conduct, Guidelines and Policies; and 3. Patient A clinical records. 1. RN Balagtas relied on: 1. Bundle of documents filed 27 August 2020 (ex FB 1): 1. Statement dated 22 July 2020, annexing curriculum vitae; 2. Education documents; 3. References; 1. Updated educational records (ex FB2); 2. Updated curriculum vitae (ex FB 3). 1. RN Balagtas gave oral evidence. 2. The HCCC provided written opening and closing submissions. RN Balagtas provided written closing submissions in reply. RN Balagtas' evidence 1. In his statement of 22 July 2020 RN Balagtas stated that he has no recollection of, and does not believe he was present, when the CNS D&A told RN Gallagher about a patient "coming from detox". If he was in or near the vicinity he did not hear what was said. His recollection is that after handover he had a brief conversation with the CNE and then went to his office to check emails. If he had been made aware of Patient A and his circumstances as an unwell detoxing patient this would have flagged for him that he was a patient of concern and he would have prioritised following up his management. Before holding the NUM1 position he was an experienced Drug and Alcohol nurse, and he understands the vulnerability of inmates who are in withdrawal. If he had been aware Patient A was in the Clinic and had been given Stemetil at 2.45pm he would have formed the view that he should be kept in the Clinic for observation for a period to assess its efficacy, and have a set of observations done before being transferred to cell 34. He may well have formed the view that he was too unwell to remain at PKA, and made arrangements for him to be transferred to hospital. 2. RN Balagtas stated that with the benefit of hindsight he should have gone directly to the Nurses' Station after handover and prioritised the reading of clinical notes of patients currently in the Clinic. Had he done so he may have become aware of Patient A, however it is possible his notes may not have been at the Nurses' Station at that time. He accepts that it is best practice to access the available clinical notes of all the patients. He acknowledges that patients in the Clinic require closer monitoring. He has since familiarised himself with policy directives and the Code of Conduct released in March 2018, and put into practice stationing himself in the main clinic/nurses' station to allow him to precept, monitor and provide more leadership to nursing colleagues. 3. In his JH&FMNH investigation interview on 27 February 2018 RN Balagtas acknowledged that he looked at some of the notes of patients on 6 December 2017, however he relied on the handover where normally the nurse would identify which patients are medical patients or detox patients requiring monitoring, and follow up on concerns. In that interview he stated that nothing at all was handed over to him about Patient A. Basically he was not aware of that patient and when he asked the nurses if there was anything to report nothing was reported to him. 4. RN Balagtas did not address in his statement the allegation in particulars 2 and 3 that he had not ensured that the afternoon and night shift nursing staff were provided with a clinical handover of Patient A, and had failed to ensure that clinical information was recorded in the written handover and in the progress notes. 5. In oral evidence RN Balagtas was asked about the handover to the afternoon shift. He stated that there was no official NUM to NUM handover with RN Gallagher, the NUM on the morning shift. He could recall sitting in the tearoom after the handover but he was talking to the CNE. Probably RN Gallagher was also there because during that time they were also discussing the staffing level for the following day. He was asked whether RN Gallagher had asked him to go to Reception. Initially he said he had no recollection of RN Gallagher telling him to go to Reception. Part of his normal routine is that after handover and going to his office and checking emails and management, he would go around the complex and check on the patients or the other nurses. It was not until he read the transcripts that refreshed his mind that there were some instructions to go to the Reception area. He could not independently recall RN Gallagher instructing him to go to the Reception area and assist EN Steele until the receptions were over. On further questioning about RN Gallagher asking him to go to Reception, he responded that it could be true. 6. In oral evidence RN Balagtas was questioned about the handover by RN Stratten to the night shift staff, RN Nuevo and EN Day. His evidence was that he was present in the Nurses' Station during the handover, and that he could hear it but did not participate. Asked what he could remember about what was said, RN Balagtas responded that from his recollection they were discussing patients but there were no particular patients of concern reported. There were some handover sheets used, but he was not sure which sheet was used that evening. 7. In the JH&FMHN investigation interview on 4 April 2018 RN Balagtas stated that before the handover to night shift he would normally tell the staff to make sure the handover sheet is printed and given to the night shift. He was unable to say why the sheet was not updated on 6 December 2017, and said that he trusts the RNs that they are able to do it because it is part of their duties; as part of being the NUM in the evening he can tell them to make sure they do it but if they report to him that everything is OK, he trusts everything is complete. He does get a copy of the handover and does sit there; on the evening of 6 December he was standing in the corner waiting for RN Stratten to give handover. Expert evidence 1. The HCCC relied on expert evidence provided by Ms Christine Muller. Ms Muller has been a registered nurse since 1982 specialising in adult mental health. She has a Masters degree in Nursing and was endorsed as a Nurse Practitioner (Adult Mental Health) in 2003. Ms Muller has worked as a mental health nurse, since 2008 with JH&FMHN in NSW adult correctional centres. Ms Muller prepared a report relating to each of the respondents. Ms Muller gave oral evidence addressing thematic issues, including clinical handover, and packing and distribution of medications. She was cross examined by or on behalf of each of the respondent practitioners. Report 15 September 2019 1. In her expert report (ex A1 tab 17) Ms Muller expressed the opinion that if RN Balagtas was present in the room when the CNS D&A announced she had a sick patient coming from Reception he would have been on notice that there was a patient of concern about to be housed in the Clinic and that he should have followed up with the Clinic staff as to his presentation and health care needs. If he did not hear the statement to staff in the meal room, she would expect that as part of his duties as the NUM1 of a busy reception centre he would routinely check with both nursing staff and GEO officers as to whether anyone had been transferred to the Clinic during the shift. In both instances his failure to follow up, or failure of awareness, was significantly below the expected standard. 2. Ms Muller noted the context of the correctional centre, where on any given day patients are received either by transfer from other locations or new receptions to custody who may present with a multitude of clinical concerns, and are housed at several different locations within the complex and it is impossible to review all patients unless alerted via handover. Ms Muller stated that the exception to that would be patients housed in the Clinic in a quasi inpatient bed; those patients should be reviewed at least twice daily in accordance with JH&FMHN policy 1.025. In her opinion it was reasonable for RN Balagtas or any other nurse to rely on clinical handover to identify patients of concern. However she was critical of his practice of only randomly reviewing clinic patient notes, stating that review of all health records for patients housed in the Clinic would provide a safety net for patient care that might have been omitted in clinical handover. It could have occurred at any time during the shift, however she would expect it to be done at the beginning of the shift. Ms Muller noted that gaining access to check on patients in a custodial setting requires negotiation with the security service providers, and it is difficult to actually see the patient through the viewing window. It would be good practice to look in on patients through the viewing window when walking past the cells. The responsibility of managing patients in the Clinic had been delegated to RN Stratten. While critical of RN Balagtas' practice to not physically check on patients unless he had concerns, it did not invite her strong criticism. 3. Ms Muller was of the opinion that RN Balagtas was not required to complete or record any clinical observations of Patient A during the shift; his responsibility was to ensure that it was done. As the NUM, he was responsible for ensuring that RN Nuevo and EN Day received appropriate clinical handover and that the ISBAR framework (see [59(2)(a)] above) was used. She would expect that given his experience working within the D&A specialty he would have identified, based on the information on the handover sheet, that both the new transfers into the Clinic (patient A in cell 34 and another patient in cell H) required specialist D&A monitoring. Ms Muller was of the opinion that RN Balagtas did not take appropriate steps to ensure the oncoming night shift received adequate handover, and that his failure to do so was significantly below the expected standard. 4. Ms Muller was critical of RN Balagtas' responses to the JH&FMHN investigation regarding his role and the accountability of registered nurses with respect to administration of medication, and ensuring that the handover sheet was updated. 5. In summary, Ms Muller considered that RN Balagtas did not ensure that there was adequate clinical handover of Patient A's health concerns to the oncoming shift; or coordinate or review the management plan; or ensure appropriate clinical review or that clinical observations were completed and recorded in the SAGO and Substance Withdrawal Chart. His failure to adhere to the JH&FMHN policy 1.025, points 2.2 and 3.1, and policy 1.340, point 3.1.7 was significantly below the expected standard. Oral evidence 1. In her oral evidence Ms Muller was asked about her experience working in custodial settings, and stated she started work with JH&FMHN in 1998, employed as a reception nurse for three years before accepting a role as a nurse consultant. She worked as a patient safety and clinical risk manager for two years, and since 2008 has worked as a nurse practitioner in mental health, all in a custodial setting. She has worked in PKA on and off over the years, and has experience working in reception prisons. Ms Muller acknowledged that her qualifications are focussed on mental health, and commented that she had worked exclusively in reception because of her skills in drug and alcohol and mental health. She acknowledged that since 2000 her role had focussed on mental health, however in custodial mental health there is a need to look at the whole patient; and she would always do observations and check co-morbidities, and consider physical health as well as mental health and drug and alcohol status, and how medications interact with each other. In custodial mental health managing drug and alcohol problems is core business. 2. Ms Muller commented on expected practice for handover, which she said should be at the beginning and end of a shift, away from distraction, and using the ISBAR process (see [59(2)(a)] above). The nurse in charge or nurse unit manager, as well as all staff on duty in the oncoming and the leaving shifts, should participate. The role of the NUM would be to ensure that the area is free of distractions and that the ISBAR process is followed. The written handover sheet in evidence (ex A1, tab 108) is a tool to prompt the person giving the handover and the person receiving handover that has been used in many organisations. Clinical notes of what needs to happen during the oncoming shift can be made. It should be updated at the end of each shift or as the situation changes. That sheet is not currently used in JH&FMHN, rather a printed handover book is used. 3. Ms Muller was asked about reviewing patient notes, and commented that during clinical handover, particularly for patients who are housed in the Clinic itself, it is a reasonable expectation to open up the file and get more information about what has happened than the few lines written on a handover sheet. That may be recommended treatment plans, what medication had been administered, and a patient's physical observations; or if in fact there is a patient housed in the Clinic by the security service provider for management reasons. 4. Ms Muller stated that a minimum expectation for patients who are in the medical cells is that they are seen at least twice on the shift; for a patient who has just started detox and actively started to withdraw, the minimum would be fourth hourly observations. Depending on their detox score that might increase to second hourly or hourly. The detox score is a set of observations including blood pressure, pulse, respiration, whether there is any piloerection or abdominal pain, whether they have watery eyes or runny nose, nausea, vomiting, diarrhoea, their level of anxiety, or if they are hallucinating. There are withdrawal scale tools routinely used, such as the D&A Substance Withdrawal Monitoring Chart (ex A1, tab 132). While those observations would be recorded there, they would also be recorded on the SAGO chart. Ms Muller stated that the reason a patient is in a medical observations cell is to allow for better access, and the policy says that a patient in a medical observation cell needs to be assessed twice daily at a minimum, for physical observations and a verbal interaction as well as observing. 5. Ms Muller was asked about packaging and administration of medication. She noted that it is against the law for a nurse to administer medications that they had not prepared themselves. The reason is that medications frequently are not in their original package, but are actually put into a bag, and there is no capacity to check what is being administered. The person administering the medication should know what it is because they packed it. The exception would be if a pharmacist has packaged the medication. 6. Ms Muller was asked about the roles of the NUM 1 and NUM 2. She stated that the NUM 1 has a clinical role, where they may need to comment on policy and do some administrative tasks while leading the clinical team, whereas a NUM2 being more senior would have some clinical responsibilities but more strategy involvement. The NUM1 could help out in Reception depending on the workload, whereas the NUM2 has more of a focus on operational issues but still retains responsibility for the care of the patients and to report to the afterhours nurse manager if there are patients of concern who need to be monitored. The nurse in charge (NIC), generally on night duty or weekends or public holidays, assumes overview of everything happening in the Clinic on that day. The NUMs and the NIC have the responsibility to escalate and direct care. 7. Ms Muller was asked about the significance of a patient asking to see a nurse. She stated that her understanding was that patients need to be seen whether or not they are abusing an officer, as it is a health issue. A lot of patients do not like disclosing to the security service provider what is going on with their health, and the security providers are not health professionals. Ms Muller agreed that such a request would be a prompt to review the patient's notes. Ms Muller commented that it was consistent throughout each of the shifts on 6 December 2017 that there was an overall failure to open up a hardcopy file to see what had happened in relation to patient care. Some of the patients would have been in the Clinic the night before, in which case the staff would be well aware of them, but she would expect, at a minimum, a review of the notes of the new patients who had come into the Clinic. 8. Ms Muller was asked about what the term "patient of concern" means in Justice Health, and said that a patient of concern may mean somebody who has a complex health issue, for example as recorded on the handover sheet, a patient who was terminally ill but was being managed in the mainstream population, or patients with an acute mental health issue or at risk of harm to self or others, or who are detoxing. Ms Muller agreed that by that definition all patients within the Clinic are patients of concern, and that patients in the Clinic would not need to be included in the patients of concern section of the handover sheet. Ms Muller clarified that sometimes the security service provider would house people in the health centre for management or non-health issues, which would be specified. 9. Ms Muller commented that in her opinion only three of the Clinic patients listed on the handover sheet in evidence (ex A1, tab 108) were acutely unwell. The rest of the patients were being managed under the Risk Intervention Team (RIT) protocol and it was unlikely they would need anything more than some supervised medications. The "RIT stepdown" patients had been acutely unwell, and were then managed through the day on a RIT management plan, and were there for safety, not medical or detox reasons. 10. Ms Muller commented on the context of custodial health, stating that it is a hybrid between a hospital and a community health setting. Access is limited, as in some instances people are only out of their cell for one hour a day; and by and large security takes priority over health, which is why patients who are unwell are housed in the health centre (clinic) where there is better access. It is a challenging environment, with a need to negotiate with the security service provider to be able to access the patients. Access is less difficult because they are in the health centre, but the doors are locked and the health staff do not have keys and need the security provider to allow access. Ms Muller agreed that that would make reading the files more important. By and large the population is reasonably healthy, and there may be acute health issues such as chest pain. In reception gaols detox is a core business: people are coming in off the street or from police cells, and it is usually 24 hours since they had any unprescribed substances, so the onset of substance withdrawal was expected. In custodial health, syringes and needles are counted and have to be booked out, so it is quite unusual for someone to receive an injection. For someone to require an injection would indicate that they are really quite unwell. Asked whether it is usual for a patient that unwell to stay in the custodial setting, Ms Muller said that Patient A had been assessed by a medical officer and a CNS and they were happy that the patient could be managed, but specified that if not, to call the on call nurse practitioner or medical officer again. Ms Muller's expert evidence 1. The Tribunal is satisfied that Ms Muller's evidence is based on extensive experience in nursing in a custodial setting, informed by her qualifications and expertise in mental health nursing. Her individual reports on each of the respondent practitioners, and responses in oral evidence, reflect her consideration of the admitted and disputed issues of fact, and take into account both the context of the custodial setting and the relative experience and qualifications of each of those practitioners. In making its findings as to whether any of the respondent practitioners is guilty of unsatisfactory professional conduct or professional misconduct the Tribunal is entitled to take into account any admissions made by a practitioner, and to act on the specialist expertise of its professional members in considering whether there has been a departure from the relevant standard of conduct. That task is assisted by relevant and soundly based expert evidence, and in that regard, the Tribunal gives weight to the evidence of Ms Muller. Submissions 1. The HCCC submits that RN Balagtas was, in the main, a witness of truth who was trying to assist the Tribunal to the best he could given his memory of the events of 6 and 7 December 2017. He made appropriate concessions and readily accepted when he could not recall the detail of what had happened, other than an understandable tendency to hesitate in giving evidence that he knew would be contrary to the interests of his colleagues. 2. The HCCC submits that given RN Balagtas' seniority and his responsibilities as the NUM, the Tribunal should be comfortably satisfied that his admitted conduct constitutes unsatisfactory professional conduct and professional misconduct. 3. In his submissions in reply, RN Balagtas repeated his admissions to the particulars. He submits that with the benefit of hindsight he should have gone to the Nurses' Station after handover and prioritised the reading of patients' clinical notes. It is his practice to prioritise reviewing notes and management plans of patients identified as patients of concern, and he acknowledges that patients in the Clinic require closer monitoring in particular those who are detoxing from an illicit substance. He has re-familiarised himself with policy directives and the Code of Conduct. He has put in place a practice to update handover using the ISBAR format. He has completed extensive and relevant CPD and attended training, and has taken part in the safety committee within JH&FMHN and on other projects to enhance and develop safe work practices. He is remorseful and has taken steps to remediate his practice. He does not want to have his nursing registration suspended or cancelled. Consideration Discussion and findings 1. RN Balagtas has admitted that he failed to read the clinical notes and health records of Patient A. Ms Muller was critical of RN Balagtas' practice of only randomly reviewing the clinical notes of patients housed in the Clinic, stating that as NUM he had the responsibility for all patients and health staff on his rostered shift. In her opinion, since patients housed in the Clinic for clinical management rather than custodial management require a minimum of twice daily review, the NUM must be aware of the current clinical presentation and management plans for those patients. The Tribunal agrees. 2. In the Tribunal's view, that required RN Balagtas to read the clinical notes of Patient A, newly admitted to the Clinic. However, in the s 150 proceedings on 26 March 2018 RN Balagtas stated that he only became aware of Patient A during the handover at around 9.45pm, that is, towards the end of his shift. That differs from what he said at the JH&FMHN investigation interview on 4 April 2018, that he found out about Patient A on the following day. As to when RN Balagtas should have become aware that Patient A was in the Clinic, while the evidence of the CNS D&A was that he was one of the four people in the tearoom when she came in to ask for assistance with an IM injection for an unwell patient, RN Balagtas has denied that he was. The CNS D&A stated in her interview on 2 March 2018 that she had been unable to find the NUM to give him the treatment plan or explanation, and the only thing he would have known was when she walked in in the early stages after getting the phone call. 3. The Tribunal is satisfied that RN Balagtas was in the tearoom after shift to shift handover when the CNS D&A came seeking assistance for Patient A, given his oral evidence that he recalled after the shift to shift handover sitting there talking to the CNE, and talking to RN Gallagher about staffing levels. However, there is no indication in the evidence of the CNS D&A that she gave any identifying detail about Patient A, which she would not have known at that stage in any event. The Tribunal considers it likely that RN Balagtas did not realise who the "unwell patient from detox" was until later that evening or the next day. However, even in the absence of identifying detail, even the limited information provided by the CNS D&A should have alerted RN Balagtas, in particular given his drug and alcohol nursing background, that he needed to find out who the patient was, and what the treatment and management plan was for him. 4. If that conclusion is incorrect, the Tribunal is of the view that even if RN Balagtas was not present in the tearoom when the CNS D&A advised that there was an unwell patient coming from Reception, as NUM 1 his role was to provide leadership and manage the delivery of health care services for all patients admitted to the correctional centre; and to do that he needed to ensure that he knew who was housed in the Clinic. The Position Description for Level 1 NUM (ex A1, tab 52) states that the NUM 1 is required to lead, direct and co-ordinate care in the unit. Ms Muller was of the opinion that if RN Balagtas had been present when the CNS D&A alerted staff to the sick patient coming from Reception he had an obligation to follow up; and if he did not hear that statement, as part of his duties as a NUM of a busy reception centre he had a duty to check with nursing and GEO staff as to whether anyone had been transferred to the Clinic during the shift. On both aspects, she was of the opinion that his conduct was significantly below the expected standard. The Tribunal agrees. 5. As to where RN Balagtas was during his shift on 6 December 2017, there is a divergence in the evidence of RN Balagtas and that of RN Gallagher, NUM on the morning shift. In the JH&FMHN interview on 27 February 2018 RN Balagtas said that after the afternoon handover he went to his office and started reading and responding to emails, and later that afternoon he went to the main Clinic to ask if everything was okay. He was asked in his interview on 4 April 2018 whether he spoke to the nurses on his shift and said he would definitely have asked them all, including the nurses in Reception, if everything is OK. He is recorded as saying that he did not actually go down to Reception to speak to the staff on 6 December, and would normally ring them and ask how they were doing there. While the medication was being administered he was mostly in his office responding to emails and other tasks. In oral evidence RN Balagtas could not recall RN Gallagher telling him to go to the Reception on that day to assist EN Steele. He subsequently conceded that it was not until he read the transcripts that there was a recollection of there being some instructions that he needed to go to the Reception area. 6. That evidence differs from the evidence of RN Gallagher, whose oral evidence to the Tribunal was that he had discussed with RN Balagtas the allocation of staff on the afternoon shift, and that as the RN who was rostered on Reception with EN Steele was ill that day, and as RN Balagtas had completed RSA training, he asked RN Balagtas to assist with the reception screening assessments. As the NUM 2 he deployed NUM 1 Balagtas to Reception. 7. That RN Balagtas was in the Clinic rather than assisting in Reception is supported by the evidence of RN Nguyen, who recalled in her interviews on 12 March 2018 and 4 April 2018, and in her oral evidence, seeing RN Balagtas when she went to get a cup of water for Patient A during the evening medication round at about 7.00pm, when she walked past his office and he was sitting in there. It is also consistent with the evidence of EN Steele, who said in her investigation interview on 6 March 2018 and in oral evidence that she could not recall seeing RN Balagtas; and she did not think he came down to Reception at all that evening. 8. The Tribunal does not accept that RN Balagtas was assisting in Reception during his shift, rather, he was in his office. The Tribunal agrees with the HCCC that RN Balagtas was in the main a witness of truth who was trying to assist the Tribunal, and it may be that his oral evidence that perhaps he did go to Reception arose from an understandable desire not to contradict RN Gallagher. His first mention that he could have been in Reception was in oral evidence to the Tribunal. While RN Balagtas conceded in cross examination that "it could be true" that RN Gallagher had asked him to go to Reception, the Tribunal considers that his evidence at the JH&FMHN interviews, closer to the time of the incident, and supported by the evidence of EN Steele, is more reliable. If Reception was short staffed with the absence of one of the two nurses rostered on for that shift, the Tribunal considers it more likely than not that EN Steele would have recalled if anyone had come to assist her. On that basis, the Tribunal concludes that while he may have checked with Reception staff during the shift, RN Balagtas was not located there for the duration of his shift. Accordingly, he had the opportunity to take a proactive role in ensuring provision of care in the Clinic, including reading patient notes. 9. As originally drafted, particular 1 referred to JH&FMHN policy 1.340 section 3.1.7 Accommodation -Clinical Recommendation (Adult) Detoxification Placement, point 2.2 (Implementation – Roles and Responsibilities). On the documents provided by the HCCC, section 3.1.7 of that policy refers to a minimum twice daily review of patients experiencing acute substance withdrawal who are placed in a Clinical Observation bed; and point 2.2 refers to the making of clinically based recommendations to CSNSW staff in relation to cell placement. As amended, particular 1 refers to the identification in point 2.2 in JH&FMHN policy 1.075 Clinical Handover of the responsibilities of the NUM. The responsibilities provided in policy 1.075 do not expressly refer to a requirement to read the clinical notes and health records, rather they address the key issues for clinical handover, and ensuring that it happens. 10. Under s 149 of the National Law, the important aspect of the complaint is its "subject-matter", which "provides the jurisdictional gateway for the Tribunal to exercise its disciplinary powers": Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 (Shuquan Liu), at [34]. Wilson J held: 36. It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint. 37. The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced. 1. The Tribunal is conscious that while at the time he provided his written Reply to the Complaint as originally drafted, RN Balagtas was legally represented, he no longer has representation. As Wilson J held in Shuquan Liu at [43], procedural fairness requires that the practitioner be put on notice if a finding of unsatisfactory professional conduct might be made on a basis other than that advanced by the HCCC. The HCCC's position as stated in opening submissions is that particulars of various NSW Health and JH&FMHN policies that are said to be contravened have been given for each of the particulars, acknowledging that it would open for the Tribunal to find that the factual matter alleged in the opening part of the particular has been proven and that some of the specified policies have been contravened, but not others. 2. The Tribunal is independently satisfied that the evidence supports the conclusion that RN Balagtas failed to carry out his obligation as NUM 1 on the afternoon shift to be aware of the current clinical presentation and management plans for all the patients housed in the Clinic for clinical management, and that that included first being aware of who was housed in the Clinic and in particular reading the clinical notes of Patient A, a new admission to the Clinic. Particular 1 is established. 3. RN Balagtas has admitted that he failed to ensure that RN Stratten and RN Nguyen, and RN Nuevo and EN Day, were provided with a clinical handover of Patient A. As originally drafted particular 2 referred to JH&FMHN policy 1.340 Section 1.3.7 Accommodation – Clinical Recommendation (Adult) Detoxification Placement, and JH&FMHN policy 1.075 Clinical Handover, point 2.2 (Implementation – Roles and Responsibilities – Nursing Unit Manager), and point 3.2 (Situation where Clinical Handover is Required). As amended, it now includes a reference to point 2.1 of that policy, Mandatory Requirements. 4. As NUM on the afternoon shift, under point 2.2 of JH&FMHN policy 1.075 Clinical Handover RN Balagtas was responsible for implementing the standard key principles of handover. A clinical handover was required for the oncoming afternoon shift, in accordance with point 3.2 of that policy. RN Stratten, as Clinic nurse on the afternoon shift, had been given a handover by the CNS D&A; and RN Nguyen was not the primary health care nurse for the Clinic patients on that shift. However, as NUM, RN Balagtas' responsibility was to oversee the care provided by the delegated nurses. To do that, he needed to know the care plans and check with the RNs that they were being followed. He needed to ensure that RN Stratten, allocated as primary health nurse for patients housed in the Clinic, and RN Nguyen, once she assumed that care by administering medication to Patient A, had had an appropriate handover. It is apparent from the evidence of both RN Stratten and RN Nguyen, and RN Balagtas's evidence that he was not even aware of Patient A, that he did not do that. 5. It is clear that RN Balagtas played no active role in the handover from afternoon to night shift. RN Balagtas' evidence was that he was in the Nurses' Station during handover to the night shift staff, however he did not contribute to it. RN Stratten, who was providing the handover, could not recall in her interviews on 6 March 2018 and 4 April 2018 if RN Balagtas was present. In oral evidence to the Tribunal she said that while she could not recall him being in the room, there was every possibility that he was present. RN Nuevo's evidence on 28 March 2018, and in oral evidence, was consistent with that of RN Balagtas, namely that he was there, and that he did not say anything or mention any of the patients. 6. The Tribunal considers that RN Balagtas could not rely on the fact that a handover occurred, led by RN Stratten who accepted that she likely used the handover sheet as at 9.22pm, as being sufficient discharge of his obligations as NUM under section 2.2 of policy 1.075. Ms Muller was of the opinion that RN Balagtas was responsible for ensuring that RN Nuevo and EN Day received appropriate clinical handover and that the ISBAR framework was used. She would expect that given his experience in drug and alcohol work, he would have identified that both the new transfers into the Clinic (namely Patient A and the patient in cell H) required specialist D&A monitoring, and asked during the handover about each patient's management plan, clinical presentation, review the health records and ensure that the oncoming night shift were aware of the clinical observations and management plan for those patients. RN Stratten has conceded that there was no mention of the fact that the required observations had not been done. 7. The Tribunal agrees that the handover to the night shift staff was not adequate: the mandatory requirements of JH&FMHN policy 1.075 include that the key principles be implemented, and that the handover process follow the ISBAR framework. As an experienced drug and alcohol nurse, and a NUM, RN Balagtas' role was to provide clinical leadership. The Tribunal agrees with Ms Muller that the failure by RN Balagtas to take steps to ensure that the oncoming night shift received adequate handover implementing the standard key principles was significantly below the expected standard. 8. The Tribunal is independently satisfied on the evidence that particular 2 of Complaint One is established. 9. As originally framed, particular 3 alleged that RN Balagtas failed to ensure that clinical information regarding Patient A was recorded in "the written handover", and referred to JH&FMHN policy 1.075 Clinical Handover point 3.2 and point 2.2. As amended, particular 3 refers to "…the written handover, and/or in the 'treatment plan' section/patient notes, …". Particular 3 also now includes a reference to NSW Health Policy Directive Health Care Records, point 2.4 and point 2.5.3, and to JH&FMHN policy 1.340 section 3.1.7. 10. RN Balagtas has admitted particular 3. The Tribunal understands the reference to "the written handover, and/or in the 'treatment plan' section/patient notes" in the amended particular to refer both to the clinical/progress notes and other documents in Patient A's health record (discussed above at [27]-[30]), and to the written handover sheet, discussed at [54]-[57] above, which does not form part of the medical records. RN Balagtas was asked at the JH&FMHN investigation interviews about both the clinical notes and the handover sheet. Asked at the JH&FMHN interview on 27 February 2018 why there were no entries in Patient A's health record between 2.30pm on 6 December 2017 and 5.55am on 7 December 2017, RN Balagtas could not respond because he was not sure. He stated that he would normally encourage his staff to put notes in that they had seen the patient or if there were concerns that should be documented; however, he had no idea about this patient. He agreed that he did not even know the patient was there. In the interview on 4 April 2018 he stated that as NUM he would tell nursing staff to make sure the handover sheet was updated and printed. In oral evidence to the Tribunal, RN Balagtas confirmed that he had answered the questions asked on both occasions truthfully to the best of his recollection. 11. Patient A's refusal of his routinely prescribed Epilim occurred on the afternoon shift, and should, in accordance with NSW Health Policy Directive Health Care Records at points 2.4 and 2.5.3, have been documented, including in Patient A's progress notes. If the document at tab 108 was the document used by RN Stratten in her handover at the end of the afternoon shift, that had not been updated to include the refusal of Epilim, and did not include the requirement for four hourly observations. The Tribunal agrees with Ms Muller that as NUM 1, RN Balagtas was responsible for ensuring that the oncoming shift had a sound clinical picture of the patients housed in the Clinic or who were of concern; and that required that the clinical notes and handover document were updated. That did not occur, and the Tribunal is satisfied that particular 3 of Complaint One is established. Whether conduct unsatisfactory professional conduct or professional misconduct 1. Complaint One alleges that the conduct in the particulars constitutes unsatisfactory professional conduct under s 139B(1)(a) 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— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … 1. In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 the Tribunal described the evaluative task required by s 139B(1)(a) in the following terms: 25. Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such. 1. The term "conduct" is defined in s 138(1) of the National Law to mean "any act or omission". 2. The expectations for the "knowledge, skill and care" demonstrated and "care exercised" by a registered nurse working as NUM in a custodial setting are to be determined by reference to the provisions of the various NSW Health and JH&FMHN policies, position statements, and to generally accepted professional standards. RN Balagtas had extensive experience as a drug and alcohol nurse both in the community and at PKA, and at the time of the incident he had been a registered nurse for over seven years. As discussed above, RN Balagtas was present in the Clinic at least for the majority of the afternoon shift, and present at handover to the oncoming night shift. 3. The Tribunal agrees with Ms Muller that RN Balagtas' failure to ensure that he was aware of the clinical presentation and management plans for each of the patients in the Clinic, including by reading the clinical notes and health records of Patient A; his failure to ensure that the required care was being provided by the RNs on the shift, and that the oncoming night shift nursing staff were provided with an adequate clinical handover of Patient A; and his failure to ensure that the handover document was updated and that appropriate record was made of relevant clinical information relating to Patient A's care during the shift, was in each instance conduct that demonstrated that his knowledge, skill and judgment, and care exercised, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 4. Complaint One is established, and RN Balagtas is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law. 5. Complaint Two is that RN Balagtas is guilty of professional misconduct as defined 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 HCCC alleges that each particular of Complaint One justifies a finding of professional misconduct, or in the alternative, when two or more of the particulars are taken together, a finding of professional misconduct is justified. 2. The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [19], Basten JA. The characterisation exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20]. As Basten JA explained: 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 1. The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances". The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264. And as noted in Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35], the seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred. 2. The Tribunal acknowledges the challenges of providing comprehensive nursing care for patients in a custodial setting, clearly identified in the evidence of Ms Muller (see [90] above), not least being the difficulty in accessing patients to carry out review and monitoring both as directed in the patient's treatment and management plan and in response to issues arising during the shift. It is not clear on the evidence before the Tribunal what RN Balagtas actually did for the duration of the shift, other than to work in his office. RN Balagtas was, as NUM 1, the supervisor on the afternoon shift and had a responsibility to both the staff and patients that he did not meet. The Tribunal is satisfied that the conduct established in each of the particulars of Complaint One is conduct that when all are considered together amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. RN Balagtas is guilty of professional misconduct under s 139E of the National Law. Conclusion 1. The finding of unsatisfactory professional conduct as alleged in Complaint One means that it is open to the Tribunal to consider making any of the protective orders specified in s 149A or s 149B of the National Law. As noted above, the finding of professional misconduct as alleged in Complaint Two does not mandate an order of suspension or cancellation under s 149C. The Tribunal is required to consider what, if any, of the protective orders provided in Part 8 of the National Law should be made. Whether it is appropriate to make any such order, and if so, which, is to be determined following a further hearing. 2. Given the Tribunal constitution requirements for that hearing and the Stage 2 hearings in the related matters, the parties are urged to confer on suitable dates and to collaborate to enable the hearings to be listed consecutively, if practicable. 3. The Tribunal orders: 1. The Respondent is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) and professional misconduct as defined in s 139E of the Health Practitioner Regulation National Law (NSW); 2. The matter is to be listed for hearing as to what, if any, protective orders should be made as a consequence of the Tribunal's findings, on a date to be fixed having regard to the availability of the parties and their representatives; 3. The following directions are made: 1. The HCCC is to provide to the Tribunal and the Respondent notice of any protective orders sought as a consequence of the Tribunal's findings, and any further evidence and submissions, on or before 10 November 2022; 2. The Respondent is to provide to the Tribunal and the HCCC any further evidence and submissions in response, on or before 24 November 2022; 3. The HCCC is to provide to the Tribunal and the respondent any further material in reply, on or before 1 December 2022; 4. The matter is listed on 24 November 2022 at 9.15am by AVL to fix a hearing date for the Stage 2 hearing, and to make any further necessary directions; 5. The proceeding will be listed for a stage 2 hearing on a date after 1 December 2022. ********** 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: 25 October 2022