Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gallagher [2022] NSWCATOD 128 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); (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 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) 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) John Leslie Gallagher (Respondent) Representation: Counsel: L Thomas (Applicant) Solicitors: Health Care Complaints Commission (Applicant) K Doust, NSW Nurses and Midwives Association (Respondent) File Number(s): 2020/113588 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 John Leslie Gallagher, a Registered Nurse (the practitioner). 2. The proceedings arise from a mandatory notification reporting that five Registered Nurses 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 Gallagher was amended in February 2021 to delete the reference to s 139B(1)(l) of the National Law, and 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, the panel including two RNs. The hearing proceeded with the HCCC representatives, and the RNs and their representatives, in person. The HCCC's expert witness and 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 is 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 Gallagher 1. RN Gallagher was first registered as a nurse in New South Wales on 16 January 2003. At the time of the conduct the subject of the complaint he was employed as a Level 2 Nursing Unit Manager (NUM) at PKA. He was rostered as the Level 2 NUM on the morning shift on 6 December 2017, from 8.00am to 4.30 pm. 2. Proceedings under s 150 of the National Law were held by the Nursing and Midwifery Council of NSW (the Council) on 21 May 2018. The Council delegates determined that conditions on registration were not necessary, and that the matter remain with the HCCC for investigation. 3. At the time of the hearing RN Gallagher was employed as NUM with a regional NSW Local Health District. 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 that 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, 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 Officers' 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, 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. 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, 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 Gallagher 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 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 against RN Gallagher. Complaint One of the Amended Complaint is that the practitioner 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 failed to ensure that the 'Afternoon Shift' Nurse Unit Manager, namely NUM Balagtas, and nursing staff, namely RN Stratten and RN Nguyen, 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 and Responsibilities - Nursing Unit Manager); 5. JH&FMHN Policy 1.340 Section 3.1.7 Accommodation - Clinical Recommendation (Adult) Detoxification Placement. 1. Complaint Two of the Amended Complaint is that RN Gallagher 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 Gallagher provided a Reply to the original Complaint on 28 August 2020 (the Reply), and an Amended Reply to the Amended Complaint on 14 May 2022 (the Amended Reply). The Amended Reply is as follows: 1. Particular 1 (a): RN Gallagher admits that he did not ensure a clinical handover of Patient A was provided to NUM Balagtas and RN Nguyen. He denies that RN Stratten was not provided with a clinical handover. He repeats his responses at paragraphs 28-32 of the Reply, as follows: "28.The clinical handover from [the CNS D&A] and I included the following standard key principles: (a) Leadership – delegated to [the CNS D&A], (b) Handover participants – myself, [the CNS D&A] and RN Stratten who was allocated to care for Patient A; (c) It was my clinical decision that this was the best outcome for Patient A and the staff. During handover I recalled RN Stratten asking questions; (d) Handover time – given in a timely and accurate manner post assessments and documentation of plan of care; (e) Handover place – face to face in the medication room; (f) Handover process – [the CNS D&A] utilised the ISBAR framework; 29. The handover of Patient A included the following information: (a)Unique identifiers name and MIN (b)Medical diagnosis - opiate withdrawal (c)Medical history- Crohn's disease, epilepsy (d)Medications given – IMI 12.5mg Stemetil, primary health nurse to monitor (e)Medications charted – Panadeine, thiamine (f)Required level of observation – to remain in detoxification placement (g)Regularity of clinical measurements – fourth hourly (h)Any further investigations or follow up – GP and D&A nurse to review 7 December 2017 (i)Any symptoms that may indicate that the patient's condition is deteriorating and any action that needed to be taken in this event – call D&A ROAMS if signs & symptoms of benzodiazepine withdrawal present; 30. During this handover process RN Stratten asked "Will I give him some Gastrolyte". [The CNS D&A] agreed with the suggestion despite not seeing him vomit; 31. The clinical handover of Patient A was uninterrupted throughout the process; 32. At the conclusion of the handover to RN Stratten I noted that the written clinical handover sheet had been updated"; 1. Particular 1(b): RN Gallagher admits that he did not ensure a clinical handover was provided to RN Balagtas and RN Nguyen in accordance with point 2.2. He denies that he did not ensure that RN Stratten was provided with a clinical handover in accordance with point 2.2. He repeats his response at paragraphs 17-32 of the Reply, as follows: "17.The sequence of events concerning Patient A's transfer from reception and admission to the main clinic commenced with EN Steele receiving Patient A in reception at approximately 2.07pm; EN Steele then rang [the CNS D&A] and informed her Patient A was detoxing; 18. [The CNS D&A] discussed Patient A with D&A Medical Officer (MO) Lee; MO Lee agreed that Patient A should be transferred to the Main Clinic for assessment; 19. RN Sutcliffe attended reception and transferred Patient A to the Main Clinic, where she placed him in a holding cell adjacent to the entrance of the Main Clinic at approximately 2.47pm; 20. At approximately 2.30pm RN Balagtas and I remained in the meal room of the Main Clinic. [The CNS D&A] entered the meal room and informed NUM Balagtas and I that she had received a telephone call from EN Steele in Reception and that Patient A was being transferred to the Main Clinic because he was detoxing, was unwell and she required assistance with the administration of Stemetil; 21. At approximately 2.43pm Patient A was wheeled from the holding cell into D&A MO Lee's room for assessment; 22. At approximately 2.45pm I administered Stemetil in accordance with D&A MO Lee's order; 23. At approximately 2.46pm Patient A was placed in cell 34 at the direction of MO Lee and [the CNS D&A]; 24. D&A MO Lee and [the CNS D&A]'s plan of care for Patient A included: (a)Medical diagnosis - opiate withdrawal (b)Required level of observation – to remain in detoxification placement (c)Regularity of clinical measurements – fourth hourly (d)Any further investigations or follow up – GP and D&A nurse to review tomorrow (e)Any symptoms that may indicate that the patient's condition is deteriorating and action that needed to be taken in this event; 25. At approximately 4.25pm [the CNS D&A] attended the Nurses' Station with the medical record. We had a brief discussion regarding Patient A while I read entries made by both MO Lee and [the CNS D&A] in Patient A's clinical record. [The CNS D&A] and I decided that we would provide handover to RN Stratten as she was allocated to care for Patient A until 10.00pm; 26. As [the CNS D&A] had participated in Patient A's transfer, assessment and placement I delegated her to lead the clinical handover to RN Stratten as she: (a)Took the phone call from EN Steele; (b)Relayed the information to D&A MO Lee; (c)Was present during Dr Lee's assessment; (d)Was present during the administration of Stemetil; (e)Documented the plan of care; 27. The [CNS D&A] had the medication chart with her and together we attended the medication room and located RN Stratten and gave her a clinical handover. During the handover I informed RN Stratten that I had administered Stemetil in accordance with D&A MO Lee's order; 28. The clinical handover from [the CNS D&A] and I included the following standard key principles: (a)Leadership – delegated to [the CNS D&A], (b)Handover participants – myself, [the CNS D&A] and RN Stratten who was allocated to care for Patient A; (c)It was my clinical decision that this was the best outcome for Patient A and the staff. During handover I recall RN Stratten asking questions; (d)Handover time – given in a timely and accurate manner post assessments and documentation of patient care; (e)Handover place – face to face in the medication room; (f)Handover process – [the CNS D&A] utilised the ISBAR framework; 29. The handover of Patient A included the following information: (a)Unique identifiers name and MIN (b)Medical diagnosis - opiate withdrawal (c)Medical history- Crohn's disease, epilepsy (d)Medications given – IMI 12.5mg Stemetil, primary health nurse to monitor (e)Medications charted – Panadeine, Thiamine (f)Required level of observation – to remain in detoxification placement (g)Regularity of clinical measurements – fourth hourly (h)Any further investigations or follow up – GP and D&A nurse to review 7 December 2017 (i)Any symptoms that may indicate that the patient's condition is deteriorating and action that needed to be taken in this event – call D&A ROAMS if signs & symptoms of benzodiazepine withdrawal present; 30. During this handover process RN Stratten asked "Will I give him some Gastrolyte" and [the CNS D&A] agreed with the suggestion despite not seeing him vomit; 31. The clinical handover of Patient A was uninterrupted throughout the process; 32. At the conclusion of the handover to RN Stratten I noted that the written clinical handover sheet had been updated." 1. Particular 1(c): RN Gallagher admits that he did not ensure a clinical handover of Patient A was provided to RN Balagtas and RN Nguyen. He denies that RN Stratten was not provided with a clinical handover. He repeated his responses at paragraphs 9-14 of the Reply, as follows: "9. At approximately 2.30pm and after the completion of the clinical handover from the morning shift to the afternoon staff, NUM Balagtas and I remained in the meal room and had a NUM to NUM handover. We discussed the following: (a)The outstanding administrative duties that he was required to complete that evening (b)The staffing levels and requirements for the next day and the need for agency staff (c)The number of new receptions and the need for NUM Balagtas to be deployed to reception to assist in the completion of (14) RSAs with EN Steele; 10. An RSA can take up to 45 minutes to complete and it was my clinical decision that EN Steele would require assistance with this task. As RN Stratten, RN Nguyen and I had not completed our RSA training that duty fell to NUM Balagtas; 11. At approximately 2.30pm and while NUM Balagtas and I were having the NUM to NUM handover [the CNS D&A] attended the Main Clinic meal room and informed us that a very unwell patient who was detoxing was being brought directly from Reception to the Main Clinic and needed an injection of Stemetil. After we were provided with this information I went and assisted with the administration of Stemetil 12.5mg IMI to Patient A; 12. It was my honest belief that NUM Balagtas had gone to Reception to assist EN Steele attend to the large number of patients (14) in reception as I had asked him to do. In accordance with usual practice, it was my understanding that RN Stratten would attend to Patient A's observations in NUM Balagtas' absence; 13. It was my understanding that when NUM 1 Balagtas returned from reception he would ensure he followed up on Patient A by going to see Patient A, speaking to RN Stratten about Patient A's progress while he had been in Reception and reviewing the entries made in the clinical record by D&A MO Lee and [the CNS D&A] so he could provide handover to the afterhours NUM at 8.00pm and then night shift during the shift to shift handover; 14. In hindsight he should have phoned Reception to give NUM Balagtas a telephone handover in accordance with the entries made by D&A MO Lee and [the CNS D&A] in the clinical record. I regret not doing this"; 1. Particular 2(a): RN Gallagher denies that he did not comply with NSW Health Policy Directive Health Care Records – Documentation and Management point 2.4 (Nurses). The clinical management details were recorded in Patient A's clinical notes by [the CNS D&A]. Prior to completing his shift he checked Patient A's clinical record. There was a detailed assessment and detoxification management plan, including his placement in the Main Clinic; 2. Particular 2(b): RN Gallagher denies that he did not comply with NSW Health Policy Directive Health Care Records – Documentation and Management point 2.5.3 (Non-admitted Patients/Clients). The clinical management details were recorded in Patient A's clinical notes by [the CNS D&A] and Dr Lee. Prior to completing his shift he checked Patient A's clinical record. A detailed assessment and detoxification management plan, including his placement in the Main Clinic had been recorded; 3. Particular 2(c): RN Gallagher denies that he did not comply with JH&FMHN policy 1.075 Clinical Handover point 3.2. He ensured a face to face handover was provided to RN Stratten. RN Gallagher stated: 1. At approximately 4.25pm [the CNS D&A] attended the Nurses' Station with the medical record. They had a brief discussion regarding Patient A while he read entries made by both MO Lee and the CNS D&A in Patient A's clinical record. The CNS D&A and he decided that they would provide handover to RN Stratten as she was allocated to care for Patient A until 10.00pm; 2. As [the CNS D&A] had participated in Patient A's transfer, assessment and placement he delegated her to lead the clinical handover to RN Stratten as she: 1. Took the phone call from EN Steele; 2. Relayed the information to D&A MO Lee; 3. Relayed the information to himself, RN Balagtas, RN Stratten and RN Nguyen in the meal room; 4. Was present during Dr Lee's assessment; 5. Undertook a D&A assessment; 6. Was present during the administration of Stemetil; 7. Documented the plan of care; 1. [The CNS D&A] had the medication chart with her and together they attended the medication room and located RN Stratten and gave her a clinical handover. During the handover he informed RN Stratten that he had administered Stemetil in accordance with D&A MO Lee's order; 2. The clinical handover from the CNS D&A and himself included the following standard key principles: 1. Leadership – delegated to the CNS D&A as she was the predominant provider of the assessment and care, 2. Handover participants – himself, the CNS D&A and RN Stratten who was allocated to care for Patient A; 3. It was his clinical decision that this was the best outcome for Patient A and the staff, during handover he recalled RN Stratten engaging in the clinical handover by asking questions; 4. Handover time – given in a timely and accurate manner post assessments and documentation of patient care; 5. Handover place – face to face in the medication room; 6. Handover process – CNS D&A used the ISBAR framework; 1. The handover of Patient A included the following information: 1. Unique identifiers name and MIN 2. Medical diagnosis – opiate and benzodiazepine withdrawal 3. Medical history- Crohn's disease, epilepsy 4. Medications given – IMI 12.5mg Stemetil, primary health nurse to monitor 5. Medications charted – Panadeine, Thiamine 6. Required level of observation – to remain in detoxification placement 7. Regularity of clinical measurements – fourth hourly 8. Any further investigations or follow up – GP and D&A nurse to review 7 December 2017 9. Any symptoms that may indicate that the patient's condition is deteriorating and action that needed to be taken in this event – call D&A ROAMS if signs & symptoms of benzodiazepine withdrawal present; 1. During this handover process RN Stratten asked "Will I give him some Gastrolyte" and [the CNS D&A] agreed with the suggestion despite not seeing him vomit; 2. The clinical handover of patient A was uninterrupted throughout the process; 3. At the conclusion of the handover to RN Stratten he noted that the written clinical handover sheet had been updated to include Patient A; 4. The clinical management details were recorded in Patient A's clinical notes by both D&A MO Lee and the CNS D&A. Before completing his shift he checked Patient A's clinical record and there was a detailed assessment and detoxification management plan, including his placement in the Main Clinic; 1. Particular 2(d): RN Gallagher denies that he did not comply with his responsibility in accordance with JH&FMHN policy 1.075 Clinical Handover point 2.2 with respect to ensuring clinical information regarding Patient A's clinical management details were recorded in his clinical record. After the CNS D&A and Dr Lee had completed their assessment and clinical management plan he reviewed Patient A's clinical records. He noted the standard key principles for documentation, as stated in NSW Health Policy Directive Health Care Records – Documentation and Management 2.3 and 2.4 were evident in both the CNS D&A and D&A MO Lee's entries in the clinical records. He ensured the key critical points were recorded on the clinical handover sheet; 2. Particular 2(e): RN Gallagher denies that he did not comply with his responsibility in accordance with JH&FMHN policy 1.340 section 3.1.7 with respect to ensuring clinical information regarding Patient A's clinical management details were recorded in his clinical record. After the CNS D&A and Dr Lee had completed their assessment and clinical management plan he reviewed Patient A's clinical records. He noted the standard key principles for documentation, as stated in NSW Health Policy Directive Health Care Records – Documentation and Management 2.3 and 2.4 were evident in both the CNS D&A and D&A MO Lee's entries in the clinical records. The CNS D&A completed a HPNF and issued this form to GEO staff recommending Patient A be housed in the Main Clinic. The HPNF also included the clinical concerns for the requirement of this placement. 1. In response to Complaint Two RN Gallagher relied on the responses he had given to Complaint One and its particulars. 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 Gallagher (tab 6); 2. Expert report provided by Ms Christine Muller (tab 19); 3. Correspondence between the HCCC and RN Gallagher, including notifications under s 28 and s 40 of the Health Care Complaints Act 1993 (tabs 54, 58); 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 6 March 2018 and 29 March 2018 (tabs 70, 74); 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 proceedings (tabs 106, 107); 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 Gallagher relied on: 1. Bundle of documents (ex JG 1): 1. Reply dated 28 August 2020; 2. Statement dated 28 August 2020; 3. Curriculum vitae; 4. Continuing professional development 1 July 2017 – 31 May 2020; 5. References; 1. Amended Reply dated 14 May 2022 (ex JG 2); 2. Self reflection (JG 3); 3. Continuing professional development record 1 June 2021 – 31 May 2022 (ex JG 4). 1. RN Gallagher gave oral evidence. 2. The HCCC provided written opening and closing submissions. RN Gallagher provided written closing submissions in reply. RN Gallagher's evidence 1. In his statement dated 28 August 2020 RN Gallagher states that he started work at JH&FMHN as a Health Service Manager in April 2016, in a state-wide non clinical integrated care role. From November 2017 he was seconded to the position of acting NUM level 2 at PKA and at the time of the incident was 3 weeks into this 6 week secondment. He obtained a temporary full-time PKA NUM 2 position in January 2018, until March 2019. He resigned his position at JH&FMHN in August 2018. 2. RN Gallagher summarised the events of 6 December 2017. After morning to afternoon shift handover, chaired by RN Balagtas, was completed he and RN Balagtas had a NUM to NUM handover in the meal room, and he directed RN Balagtas to work in Reception with EN Steele until all the RSAs were completed. He stated that at approximately 2.30pm while he and RN Balagtas were engaged in the NUM to NUM handover the CNS D&A entered the meal room and asked for assistance to administer Stemetil. As he had asked RN Balagtas to go to Reception he said he would come and give Stemetil to Patient A, which he did at approximately 2.45pm. At approximately 4.20pm while he was in the Nurses' Station the CNS D&A gave him a brief update of the care given to Patient A, before they gave a detailed verbal handover to RN Stratten who was the Main Clinic nurse for the evening shift. At para 27 and 28 of the statement dated 28 August 2020 RN Gallagher stated: At approximately 1620 hours I was present in the medication room when [CNS D&A] gave RN Stratten a face to face verbal clinical handover informing her of Patient A's condition, diagnosis, medications given and ordered, the frequency of observations, what to observe for and the treatment plan which had been recorded in the clinical record by [the CNS D&A] and Dr Lee. I contributed to the handover informing RN Stratten of the Stemetil I had administered. I recall RN Stratten listening and asking questions regarding Patient A. At approximately 1630 hours I completed my shift and left the Main Clinic and PKA. 1. In oral evidence RN Gallagher stated that RN Nguyen did not receive a face to face handover before he finished his shift at 4.30pm because at the time the handover was given to RN Stratten, RN Nguyen was allocated to care for other patients and he did not deem it relevant to RN Nguyen at that time in accordance with the clinical handover policy. 2. RN Gallagher was asked why he denied particular 2(a), that he failed to ensure that clinical information regarding Patient A's management was recorded in the written handover and/or in the treatment plan section/patient notes in accordance with NSW Health Policy Directive Health Care Records-Documentation Management 2.4 (Documentation by Nurses). He said that before ending his shift he checked the medical records and noted the entries by MO Lee and the CNS D&A as well as the clinical handover sheet. He effectively ensured that the policy in point 2.5.3 (Non-admitted Patients/Clients) was complied with by checking those records before the end of his shift. The clinical records included the entries by MO Lee and the CNS D&A and the clinical handover sheet was updated, and so JH&FMHN policy 1.075 Clinical Handover point 3.2 was complied with. RN Gallagher agreed that the part of point 2.2 of the JH&FMHN policy 1.075 Clinical Handover relating to the NUM, line manager or delegate, applied to him; and he ensured that the clinical management plan and the entries by Dr Lee and the CNS D&A were present in the medical records as well as on the handover sheet, and on the medication chart. JH&FMHN policy 1.340 section 3.1.7 was complied with because the HPNF was completed with the recommendation that Patient A be housed in the clinical observation cell in the Main Clinic. MO Lee and the CNS D&A had also written that, and it was evident also in the written handover sheet that Patient A was housed in the Clinic. 3. RN Gallagher was asked about the handover given to RN Stratten and stated that when he and the CNS D&A had the brief conversation in the Nurses' Station he obtained the notes from the pigeonhole and read those notes. It was decided that as RN Stratten was allocated to care for Patient A they attended the medication room where they located her. RN Stratten stopped packing medications, and faced the CNS D&A, and the CNS D&A used the ISBAR framework and gave her the handover. The CNS D&A also used the medication chart. RN Stratten engaged in the handover by asking questions specifically about Gastrolyte, and the CNS D&A agreed that would be a good idea despite not seeing the patient vomit. At the time of the handover the area was quiet, it was uninterrupted, it was free from distraction. RN Gallagher was asked about the clinical handover sheet, and said that at the time he saw the handover sheet it was electronic, and he viewed it on the computer located in the Nurses' Station. 4. RN Gallagher was asked why he had said in the JH&FMHN interview on 29 March 2018 that he had no need to discuss Patient A with RN Balagtas, NUM on the afternoon shift; he responded that in hindsight he did have a need and he got it wrong at the time. 5. In cross examination RN Gallagher was asked about the roster for 6 December 2017 (ex A1, tab 61) and stated that it is only indicative; the NUMs discuss what the issues are. At the time a nurse rostered on to do Reception screening was ill and not on duty. As a consequence he and RN Balagtas had a discussion about the allocations, and deemed RN Stratten to be allocated to the main Clinic, and he asked RN Balagtas to assist with the RSAs as EN Steele was the only staff member down there. The allocation to the main Clinic was communicated to RN Stratten after the shift handover, in the meal room. 6. In cross examination RN Gallagher was questioned about discrepancies between the level of detail provided in his evidence to the Tribunal, and his earlier responses when interviewed as part of the JH&FMHN investigation. RN Gallagher was taken to the transcript of the JH&FMHN interview on 6 March 2018, where he is recorded as saying in relation to the verbal handover given by the CNS D&A to RN Stratten that he was present "and again my exact contribution to that I am unsure of…"; and that "I made some contribution to that and that was my total input that evening". RN Gallagher did not agree that his statements closer to the time of the incident would be a more accurate record of what he could independently recall about the handover from the CNS D&A to RN Stratten. He stated that it was an emerging situation on the day, and that as things had come to light he had recalled things. He had reflected more and recalled events that occurred. RN Gallagher acknowledged that by the time his original reply to the application for disciplinary findings was prepared in August 2020 he had reviewed medical records in relation to Patient A; he could not recall whether at that time he had reviewed transcripts of interviews given by other people who were involved in the events, including the CNS D&A, but accepted it was possible that he had. 7. RN Gallagher denied that the statement at paragraphs 25-32 of the Reply dated 28 August 2020 (see para [63(2)] above) was a reconstruction of events with the benefit of having read documents served on him in the proceeding. He accepted that his statement that he and the CNS D&A decided that they would provide a handover to RN Stratten differed from the evidence given to the Tribunal by the CNS D&A, stating that he accepted that the CNS D&A gave a different version based on her recollection of an event four and a half years ago. The brief discussion in the Nurses' Station included that he and the CNS D&A decided together that together they would provide a handover. RN Gallagher accepted that his evidence that he delegated to the CNS D&A to lead the handover to RN Stratten was not consistent with the evidence the CNS D&A gave to the Tribunal, stating that that was his truthful answer, and that the CNS D&A had forgotten it. He was present at that handover and therefore they gave it together. 8. RN Gallagher maintained his position that the CNS D&A's handover followed the standard key principles and ISBAR framework (see para [59(2)(a)]), with details of her assessment, the observations required and frequency, and the need for a D&A ROAMS follow up. While he could not recall the exact words used, those were the details given. He maintained that the handover had included the patient's MIN, because the CNS D&A went through the medications with the medication chart present. RN Gallagher stated that his reference to RN Stratten asking about giving Patient A some Gastrolyte was his reference to her engaging with the handover and asking questions, and that was something he could recall independently. He did not agree that when he prepared his statement of 28 August 2020 he had read the transcript of the CNS D&A's interview on 2 March 2018 in which the same words appeared. RN Gallagher confirmed that he had checked the clinical handover sheet before the end of his shift. He noted it on the computer in the Nurses' Station, that it had been updated. 9. RN Gallagher was asked about the handover sheet in evidence, and confirmed that he had produced that document at his s 150 hearing in May 2018. He stated that at the end of each shift when the handover document is printed and taken to the shift to shift handover, a physical copy is always provided to the NUM. He agreed that the copy in evidence was not given to him at the end of his shift, because his shift had finished well before the time recorded on that document, 9.22pm. He had that copy because it was placed in his office. RN Gallagher was asked if he entered the details for Patient A in cell 34, and stated that he could not be certain that he did, and so his truthful answer was that he did not. 10. RN Gallagher confirmed his evidence that when the CNS D&A came into the tearoom he and RN Balagtas immediately got up. RN Balagtas was to proceed, at his direction, to Reception; and he went and obtained the Stemetil. He did not have any further communication regarding Patient A with RN Balagtas before the end of his shift. RN Balagtas would not have come back to the Clinic before the end of his shift, as it was his expectation that when he deployed RN Balagtas he would work in Reception and remain there until all RSAs were completed, at around the 8.00-8.30pm mark. 11. RN Gallagher stated that the plan for Patient A was communicated to him in the brief discussion with the CNS D&A in the Nurses' Station, and by him reading the notes. That was just prior to clinical handover being given to RN Stratten, at approximately 4.20- 4.25pm. 4.30pm is the end of his shift. Taken to the document at tab 108, RN Gallagher agreed that there was no information regarding the plan for Patient A. He agreed that he had checked the note in the handover sheet before becoming aware of what the plan was for Patient A. 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 report Ms Muller stated that while there was an initial information handover in the meal room provided by the CNS D&A to RN Gallagher and RN Balagtas, the focus of that interaction was on seeking assistance to administer IM medication rather than assuming ongoing clinical care. At that time the CNS D&A had not yet seen or assessed the patient. In her opinion that was not a clinical handover of patient care in keeping with JH&FMHN Clinical Handover policy. RN Gallagher's statement at his interview on 29 March 2018 that the information provided by the CNS D&A to him and RN Balagtas was a clinical handover and as such he did not need to provide the afternoon NUM an update was inappropriate, and significantly below what would be reasonably expected. RN Gallagher should have ensured that RN Balagtas was provided with an updated clinical handover as care of the patient was being handed over to the afternoon shift, RN Balagtas was in charge of the shift, and he was therefore responsible for staff and clinical care of the patients. That could have occurred in person, by phone, or even email, but it should have occurred. RN Gallagher's failure to ensure that RN Balagtas received an updated clinical handover of the patient was significantly below the expected standard. 2. Ms Muller considered the handover provided to RN Stratten. In her opinion RN Gallagher was responsible for ensuring adequate handover in keeping with the ISBAR framework was provided to the oncoming shift, but was not required to actually provide the handover. The CNS D&A provided the majority of the handover to RN Stratten. In her opinion RN Gallagher did not ensure that clinical handover was provided to the NUM or NIC or relevant clinical staff of the oncoming shift in keeping with ISBAR framework, and he did not ensure that handover took place in an area free of distractions. His failure to ensure adequate clinical handover regarding the required management of a deteriorating patient was provided in keeping with the JH&FMHN policy 1.075 Clinical Handover was significantly below the expected standard. 3. In oral evidence Ms Muller stood by that opinion, stating that while RN Gallagher did not provide the care, he was responsible for all patients in the Clinic and it was his job to make sure that the handover was provided and that it be free of distraction. In further questioning, Ms Muller accepted that if it was the case that RN Stratten stopped packing the pills and had directed her attention to the CNS D&A and accepted the handover, then that would not be a problem. 4. Ms Muller considered that RN Gallagher was responsible for ensuring that clinical information regarding Patient A's clinical management was recorded in the clinical handover sheet. His failure to do so was significantly below the expected standard. 5. Ms Muller did not consider that RN Gallagher was responsible for completing physical observations of Patient A, as the CNS D&A was actively managing the patient; and she had the responsibility for reviewing the response to the IMI medication. 6. Ms Muller was of the opinion that RN Gallagher should have documented in Patient A's medical records that he had administered the IMI Stemetil; that would be consistent with a significant change in the patient's clinical condition or treatment and should be documented in the clinical record. His failure to do so was below the expected standard, but not significantly below. In oral evidence Ms Muller clarified that that was because the medication chart does make up part of the health record. Personally she would have written in the notes that she had given IM medication, because it is something that is unusual. On further questioning Ms Muller agreed that the CNS D&A and the MO had written the management plan in the clinical record, and said that she was critical that RN Gallagher did not write in the clinical notes that he had administered the stat medication. She would expect a registered nurse administering a stat IM medication in a custodial context would write a clinical entry. 7. In summary Ms Muller concluded in her report that RN Gallagher's actions to ensure that Patient A was managed were in keeping with JH&FMHN policies 1.340 Accommodation – Clinical Recommendation (Adults) section 3.1.7 and 1.025 Clinical Observation Beds in Health Centres (Adults). She noted that based on the NUM2 position description provided to her, the primary purpose of the role was to provide leadership and manage delivery of health care services for all patients. Ms Muller was of the opinion that RN Gallagher did not provide adequate leadership to the staff and did not ensure that the delivery of health care to Patient A was managed, with particular reference to failing to communicate adequately with the NUM and staff of the oncoming shift, clinical documentation, and ensuring an appropriate environment for updated clinical handover that was free from distraction. Ms Muller was of the opinion that when those issues were considered together rather than on a singular basis, RN Gallagher's performance was significantly below the expected standard. Oral evidence 18 May 2022 1. 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 NUM 2 being more senior would have some clinical responsibilities but more strategy involvement. The NUM 1 could help out in reception depending on the workload, whereas the NUM 2 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 HCCC submissions 1. The HCCC submits that the Tribunal should prefer the account of events given in RN Gallagher's interviews during the JH&FMHN investigation in early 2018 over evidence given to the Tribunal that is inconsistent with those interviews, or which appears to be a recent invention in light of those earlier interviews. On that basis the Tribunal should reject much of the evidence given by RN Gallagher, who in oral evidence refused to accept the proposition that his memory of the events would have been better in March 2018 than in August 2020, and denied that his version of events that appears in his Reply is a reconstruction based on the documents served by the HCCC, even though he gave evidence that he had read at least some of the HCCC's documents when he prepared the Reply. RN Gallagher's evidence that he could recall in 2020 and 2022 the specific words of RN Stratten's question during handover about Gastrolyte, which was identical to the words that appear in the transcript of the interview of the CNS D&A on 2 March 2018, is not plausible, and should be rejected. 2. The HCCC submits that the Tribunal should accept that the handover to RN Stratten took place in the medication room where RN Nguyen was also present but did not participate, and occurred as stated in the evidence of the CNS D&A. The HCCC submits that the Tribunal should not accept the very detailed account of the handover provided by RN Gallagher in his Reply, and that to the extent that his evidence in that Reply and in oral evidence was to the effect that he directed or participated in the handover, that evidence should be rejected. That account is not consistent with what he said in his interview on 6 March 2018 when asked if he heard the handover and said "I was present and again my exact contribution to that I am unsure of". The very detailed account in his Reply appears to be a recent invention designed to best answer the complaint. 3. In relation to particular 1 of the complaint against RN Gallagher, the HCCC submits that it is correct that RN Stratten received a handover of Patient A from the CNS D&A. The evidence of the CNS D&A, RN Stratten, and RN Nguyen was that as far as they were aware, RN Gallagher was not present for that handover, but each accepted that it was possible that he was nearby. The HCCC submits that the Tribunal should find that RN Gallagher did not himself take any steps to ensure that RN Stratten received a handover of Patient A, and did not himself participate in the handover, but was aware that a handover from the CNS D&A to RN Stratten occurred. The HCCC submits that the Tribunal should not accept RN Gallagher's evidence that he had asked RN Balagtas to go to the Reception to assist EN Steele and that he believed that RN Balagtas had done so, and submits that that evidence appears to be a recent invention designed to explain why RN Gallagher did not provide RN Balagtas with a handover of Patient A. The HCCC submits that it is clear that RN Balagtas did not go to Reception at any time: he was specifically asked that on 4 April 2018 and said he did not, and EN Steele could not in her interview on 6 April 2018 recall him doing so. 4. In relation to particular 2, the HCCC notes that Ms Muller was critical of RN Gallagher for failing to ensure that the clinical handover document included relevant information about Patient A, and for failing to document in Patient A's medical record that he had administered stat medication. The HCCC submits that RN Gallagher's failure to ensure that the afternoon staff in particular RN Balagtas, received a complete handover of Patient A, and his failure to ensure that the handover sheet included sufficient information regarding the management plan for Patient A, contributed to a break down in the implementation of Patient A's management plan, in particular because apart from RN Stratten none of the staff that cared for Patient A became aware of the need for four hourly observations. In her opinion, as the NUM on shift when Patient A arrived in the Clinic, RN Gallagher bears particular responsibility for that break down in Patient A's care. RN Gallagher's submissions 1. RN Gallagher submits that particular 1(a) of Complaint One can only partly be made out, as he ensured a clinical handover was provided to RN Stratten, and the requirement for RN Nguyen to receive a handover for Patient A had not yet arisen up to the time that he completed his shift. Patient A was a patient relevant to RN Stratten because she was allocated to care for him, and before the completion of his shift RN Gallagher was "present/participated" in the clinical handover that the CNS D&A gave to RN Stratten. RN Gallagher submits that point 3.2 of JH&FMHN policy 1.075 Clinical Handover makes a general statement that it is the responsibility of "all staff to handover clinical information in a timely and accurate manner", and broadly sets out "situations" where clinical handover is required. He submits that the Tribunal should be cautious in its interpretation of point 3.2 with respect to the apportioning of responsibility to a particular practitioner. In light of that general statement, RN Gallagher admits he did not ensure a handover was given to RN Balagtas, and denies he did not ensure a handover was given to RN Stratten, and while he admits a handover was not given to RN Nguyen at the time he finished his shift the requirement for her to receive a handover had not yet arisen. 2. RN Gallagher submits that there was no failure on his part to ensure that clinical information regarding Patient A's clinical management details was recorded in the written handover and/or in the patient notes: he viewed the electronic handover sheet on the computer screen, and before he completed his shift he reviewed Patient A's health care record and those details had been entered by the CNS D&A. The entries by the CNS D&A and Dr Lee were a comprehensive assessment and treatment plan including cell placement and the requirement for four hourly observations, and adhered to the ISBAR framework. While he agreed he could have made an entry in Patient A's clinical notes about the administration of Stemetil, he notes that his failure to do so did not invite Ms Muller's strong criticism. 3. In response to the HCCC submission that the Tribunal should rely on RN Gallagher's evidence to the JH&FMHN interviews and the Council s 150 hearing where it differs to his evidence to the Tribunal, RN Gallagher submits that after the incident with Patient A had occurred he was extremely distressed that Patient A had been found deceased. The three interviews were very distressing causing him to be anxious at the time he was interviewed. The JH&FMHN interview on 6 March 2018 was brief and the questions relating to the handover to RN Stratten were minimal, and there were missed opportunities on the part of the interviewers to properly explore RN Gallagher's recollection of what was said in the handover. The second interview on 29 March 2018 was also brief, and no direct question was put to him concerning the handover to RN Stratten. In the s 150 hearing RN Gallagher was not asked what he heard at the handover or if he contributed to it in any way. It was not until he received the HCCC Application for Disciplinary Orders in April 2020 that he was required to recollect the events and issues raised by the HCCC in conjunction with the policies referred to in the complaint. RN Gallagher submits that he swore an oath before giving his evidence, and that the main issues of concern were not put to him before the complaint was served; he responded truthfully and to the best of his recollection. 4. RN Gallagher submits that he was new to the NUM 2 position, being three weeks into a 6 week secondment to the role of acting NUM 2 at PKA. The CNS D&A correctly approached him in the Nurses' Station to inform him that she had completed an assessment and treatment plan for Patient A, and even though it was nearing the end of his shift and he was preparing to leave, RN Gallagher went with her and "listened/participated" in the handover she gave to RN Stratten. He submits that in his conversation with the CNS D&A and his "presence/participation" in the handover given to RN Stratten, he ensured or made certain that a handover was provided to RN Stratten. He submits that he did contribute to the handover by stating that he gave the Stemetil, and he did recall hearing RN Stratten say "Will I give him some Gastrolyte", wording that is not so unusual that the CNS D&A would recall this similar wording. 5. RN Gallagher submits that his comment in the JH&FMHN interview on 6 March 2018 that he did not believe that RN Balagtas was around at that time, and "he may have been in reception", and the comment in the s 150 hearing that he "delegated that he should go to reception because of the volume" of receptions they were going to receive, give credence to his evidence that he asked RN Balagtas to go to assist EN Steele in Reception. 6. RN Gallagher submits that it is a matter for the Tribunal to determine whether his admitted conduct in not providing RN Balagtas with a clinical handover and not recording that he administered Stemetil in Patient A's clinical notes reaches the threshold of unsatisfactory professional conduct. In relation to the complaint of professional misconduct, there is no evidence of a deliberate departure from or indifference to accepted standards of practice. RN Gallagher submits that while there was a departure from accepted standards of practice and the Tribunal may determine that that conduct reaches the threshold of unsatisfactory professional conduct, that conduct does not reach the threshold of professional misconduct. Consideration Discussion and findings 1. The Tribunal is required to determine whether it is satisfied, to the requisite standard, that the "subject matter" of the complaint is proven, if not admitted. In Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 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. As Wilson J held 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 allegations against RN Gallagher in Complaint One are framed in terms of an alleged failure first, to ensure that the afternoon shift NUM, RN Balagtas, and staff RN Stratten and RN Nguyen were provided with a clinical handover of Patient A; and secondly, to ensure that clinical information relevant to Patient A's clinical management was recorded. Particular 2 refers to "the written handover, and/or in the 'treatment plan' section/patient notes". The Tribunal understands that to be a reference to both the written handover sheet used in shift to shift handover (discussed above at paras [54]-[57]), and to Patient A's progress/clinical notes and related documents in his file including the SAGO chart, the Substance Withdrawal Monitoring Chart, the HPNF and the medication charts (discussed above at paras [27]-[30]). In her oral evidence Ms Muller was careful to distinguish between information in the clinical record and in the handover document. Both particulars reference specific provisions of the NSW Health and JH&FMHN policy documents. 3. In considering the allegation in particular 1 of Complaint One, the Tribunal must first consider whether RN Gallagher was required to ensure that a clinical handover was provided to each of the identified staff on the afternoon shift, and if so, whether any handover that each was provided met the requirements specified in the relevant policy. 4. Considering first RN Balagtas, who was NUM on the afternoon shift and therefore had responsibility for the co-ordination and management of care of patients in the Clinic on that shift, the Tribunal notes that the PKA NUM 2 Task List (ex A1, tab 56) includes "Handover to PM NUM". The NUM 2 position description (ex A1, tab 57) included "provide leadership and manage the delivery of health care services for all patients admitted to the Correctional Centre". Patient A had been brought into the Clinic after the morning shift handover, and assessed by the CNS D&A and Dr Lee before being moved to cell 34 at around 2.46pm. While not specifically included in the list at point 3.2 of JH&FMHN policy 1.075, Patient A's placement in the Clinic in accordance with the HPNF, and subject to a treatment plan formulated by Dr Lee and the CNS D&A, was in the Tribunal's view an occasion where clinical handover was required to ensure that he received appropriate ongoing care. The comprehensive documentation of the clinical observations and the treatment plan in Patient A's clinical notes was not complete until around 4.20pm. While RN Balagtas was present in the meal room when the CNS D&A had earlier sought assistance with administration of Stemetil, he was not aware of the patient's identity; and he was not present when the CNS D&A located RN Gallagher in the Nurses' Station at around 4.20pm. Neither were RN Stratten or RN Nguyen. 5. As NUM on the morning shift RN Gallagher was responsible under section 2.2 of the JH&FMHN policy 1.075 for implementation of the standard key principles of clinical handover, which included at section 2.1 identifying participants and involving them in the handover process. The Tribunal agrees with Ms Muller that RN Gallagher should have ensured that RN Balagtas was provided with an updated clinical handover of Patient A, as his care was being handed over to the afternoon shift. RN Balagtas was in charge of that shift and therefore responsible for staff and clinical care of the patients. 6. RN Gallagher has acknowledged that he did not give RN Balagtas a verbal handover. He explains in the Amended Reply that it was his belief that RN Balagtas had gone to Reception to assist EN Steele and that RN Stratten would attend to Patient A in his absence; and that when RN Balagtas returned to the Clinic he would ensure that he followed up on Patient A by going to see him, speaking to RN Stratten, and reviewing the entries in Patient A's clinical notes so that he could provide handover to the after hours NUM and the night shift. 7. The Tribunal does not accept RN Gallagher's evidence, as expressed in his Reply and Amended Reply and confirmed in oral evidence, that he had directed RN Balagtas to go to Reception to assist EN Steele. First, that position is inconsistent with the evidence given by RN Gallagher in the JH&FMHN interviews shortly after the incident. In his interview on 29 March 2018 RN Gallagher stated that as a result of the assessment and documented care plan, and the handover provided by the CNS D&A to RN Balagtas and himself at around 2.30pm that there was a patient brought from reception detoxing who had been assessed and required Stemetil, he had no need to discuss Patient A with RN Balagtas; there was no mention in that interview of RN Balagtas being elsewhere after that time. As acknowledged by the CNS D&A, that was not a clinical handover, but a brief exchange in which the CNS was requesting assistance; and occurred in any event before the comprehensive assessment of Patient A by Dr Lee and the CNS D&A. At the earlier interview on 6 March 2018 RN Gallagher had stated that he had not handed over to RN Balagtas the information provided some two hours later by the CNS D&A because he did not believe that RN Balagtas was around at time, "he may have been in reception"; a statement that does not indicate that a clear direction or delegation had been given by him as NUM 2 to RN Balagtas as NUM 1. 8. Secondly, that RN Balagtas was not in Reception for the duration of the shift is supported by the evidence of RN Balagtas, RN Nguyen and EN Steele. In his JH&FMHN interviews, RN Balagtas stated first on 27 February 2018 that after handover he was in his office reading and responding to emails and later went to the main Clinic to see if everything was ok, and later on 4 April 2018 that he was mostly in his office responding to emails, and did not actually go down to Reception to speak to the staff. RN Nguyen recalled seeing RN Balagtas in his office when she walked past at around 7.00pm during the Clinic medication round. EN Steele could not recall seeing RN Balagtas, and did not think he came down to Reception at all that evening. If, as RN Gallagher stated, Reception was short staffed with the absence of one of the rostered nurses, EN Steele would have recalled receiving assistance from RN Balagtas. The fact that she did not lends strong support to the conclusion that while he may have checked with Reception staff, RN Balagtas was not located there for the duration of his shift. 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, supported by the evidence of EN Steele, is more reliable. 9. For those reasons, the Tribunal considers it more likely than not that RN Balagtas was in the Clinic for the duration of the afternoon shift. If, as NUM on the previous shift, RN Gallagher was aware that the treating MO and the CNS D&A had completed their assessment and formulated a comprehensive treatment plan for Patient A, and that details of that plan had been handed over by the CNS D&A to RN Stratten, he was required to ensure that the NUM on the afternoon shift was also aware of those details. That is so regardless of the independent responsibility imposed on RN Balagtas as NUM for overall co-ordination and management of patients on the afternoon shift, including to review the treatment plan and co-ordinate treatment ordered by the treating MO. The requirement to provide a clinical handover to RN Balagtas could, as Ms Muller indicated, have been done with a telephone call. 10. RN Gallagher relies on what he submits was, and what is described in his closing submissions as, his "presence/participation" in the clinical handover given by the CNS D&A as compliance with any requirement that he ensure that RN Stratten was provided with a clinical handover of Patient A. In his Reply and Amended Reply, and oral evidence to the Tribunal, RN Gallagher asserts not only that he was present at the handover, but that he delegated to the CNS D&A the task of providing handover to RN Stratten, that the handover was consistent with the key standard principles and used the ISBAR framework, that the information provided was detailed, and that he informed RN Stratten that he had administered Stemetil to Patient A. 11. The HCCC submits that the Tribunal should not accept the very detailed account of the handover given by the CNS D&A to RN Stratten given by RN Gallagher in his Reply dated 28 August 2020 and repeated in the Amended Reply. That account and his oral evidence to the effect that he directed or participated in the handover is not consistent with what he said in the interview on 6 March 2018. In response, RN Gallagher submits that he was anxious at the time of that interview and the subsequent JH&FMHN interview on 29 March 2018 and the s 150 hearing on 21 May 2018, and that he was not asked detailed questions relating to the handover. 12. The Tribunal accepts that the incident, and the subsequent JH&FMHN investigation and the Council proceeding, would have been distressing. The first JH&FMHN interview was described as a "fact finding" interview, and RN Gallagher was asked a number of questions about the handover in the medication room. He stated: Q: Were you aware that [the CNS D&A] had developed a substance withdrawal plan? A: Yes, I was aware of [the CNS D&A]'s notes in the file. I was aware that [the CNS D&A] informed Rhondda explicitly that he was on four hourly obs. I recall [the CNS D&A] being worried. I recall [the CNS D&A] informing Rhondda what to watch out for. But no, I don't recall my verbal input to that but I did have some level of contribution predominantly because [the CNS D&A] had provided the care to the patient and given a handover to Rhondda. 1. There is no suggestion in that response, or in the earlier statement that "Yes, I was present and again my exact contribution to that I am unsure of ..", that it was at RN Gallagher's direction that the CNS D&A gave a handover, or that it included the detail stated in the Reply and confirmed in the Amended Reply (see above at para [63(2)]). 2. The second JH&FMHN interview on 29 March 2018 was described as an "Allegation" interview. Two allegations were put to RN Gallagher: that he failed to conduct a verbal handover of Patient A to RN Balagtas, and failed to update the patient notes after he administered Stemetil to Patient A. On that occasion RN Gallagher was accompanied by a NSWNMA advocate, and read a statement which included the following: On 6th of December 2017 I provided a handover of [Patient A] to Ms Rhondda Stratten RN with [the CNS D&A] present. Given this my actions were consistent with JH policy 1.075 Clinical Handover; the JH Code of Conduct 2.010; and the NSW Health PD 2015_49 Code of Conduct. 1. RN Gallagher refused to answer further questions about the handover of Patient A, and referred to his statement. 2. RN Gallagher was asked in the Council's s 150 hearing about the handover to RN Stratten, stating: A: It was after I had administered the Stemetil, myself and [the CNS D&A] gave a verbal clinical handover to the afternoon registered nurse. Q: Was that the person that … A: That was Ms Rhondda Stratten who was the afternoon registered nurse. Q: This is not the person who has gone off to reception? A: No. When I left the patient, I left the patient in the care of the drug and alcohol staff specialist and the D&A nurse. I gave a verbal handover. Again, upon reflection, I could have – with [the CNS D&A], I should have shown the leadership, I should have stopped that and stopped the nurse doing what she was doing, taken them to the nurses station and used visual prompts off the medical record and the medication chart. I could also have taken her to the observation cell along with the medications, et cetera. 1. The Tribunal does not accept that RN Gallagher was hindered in any way in those interviews in explaining in detail what occurred in the handover to RN Stratten. He expressly declined the opportunity to elaborate on his statement in the interview on 29 March 2018. The Tribunal does not accept that his recollection to the level of detail stated at [63] above, would have been better in August 2020 and at the time of the Tribunal hearing than it was in early 2018, some 4 months after the incident. That is so particularly given his concession in cross examination that he had likely been served Patient A's medical records and that it was possible he had also reviewed the CNS D&A's transcripts by the time he prepared the 2020 Reply. 2. The Tribunal considers that the most reliable indication of what occurred during the handover to RN Stratten is the account given by the CNS D&A in her JH&FMHN interview on 2 March 2018. In that interview the CNS D&A described the administration of Stemetil, which she thought was at around 2.50-2.55pm, that she did a set of observations, and that she was trying to make sure she could get Patient A on the Drug and Alcohol ROAMS wait list. Her evidence continued: I was in the room next door so I kept running between the rooms. So I was trying to get whatever charts we could have. I was trying to make sure the patient was put on whatever waitlists I could put him on. I was just trying to cover as much as I could for him at that point in time. Q: At some stage you see Rhonda Stratten. A: Yes. I was concerned because after I left the room I couldn't find the evening NUM, the NUM1. I could not find him. Q: Francis? A: Yes. I could not find Francis and I could not find the folder that was the written handover folder so I was concerned about that because I went up and down the clinic a few times looking and I couldn't find either. So once I did the obs, did as much as we could with the patient, and we really couldn't get as much as we would've from the patient because he was unwell, so then we did as much as we could and it was about getting the patient down to where he could just lie down and rest. And so after that I double checked my wait list, double checked what I'd done, spoke with the doctor about the plan, wrote my notes and pretty well got it all together with the medication chart and I still couldn't find the written handover form and so what I did was I had the medication chart and the notes so when I went up to the top nurses' station I'm pretty sure John was there. I just said, we've got the patient, he's unwell and I sort of gave John a very quick update but he'd already sighted the patient so he knew how unwell the patient was. I put the notes in the top where the nurses' station is and I walked in and I found Rhonda and she was in the medication room and I gave her a verbal handover of who the patient was, what he presented with, his medical history. I gave her a verbal handover. I handed her the medication chart, let her know that he'd had some stat maxolon/stemetil and I said to her that at this point the most presenting problem we could see was opiate withdrawal. So we (Drug and Alcohol) wanted to give the stemetil time to settle and could they (Primary Health) then go back and try, in the shift there was enough time to get two lots of panadeine to give the patient, as panadeine because of the codeine would assist with some of the opiate withdrawal and also give some of the other symptomatic meds that had been charted. Rhonda said to me "Will I give him some Gastrolyte?" And I said "Well that's actually a good idea because I haven't seen him vomit but reports are that he has been vomiting". I'm sure it was Tania that was across the room in the medication room but she was doing pills. I don't really think she was listening to that. Then I handed Rhonda the medication chart and I said "Can you do two sets of obs on him? Mine's been the base line set of obs", and I talked about the panadeine. Q: Did you give her the SAGO chart as well that you'd put the obs on? A: The SAGO chart was with the notes and so when anyone's in detox I always put the withdrawal monitoring chart first and the SAGO chart second. I just standard do that when they're detox people. Q: And that's in front of the medical file? A: Yes. ….. Q: Can you remember roughly what time you would have spoken to Rhonda? … A: That was on my way out so that was closer to when I was going out at 4.15, 4.20pm. Q: Oh okay. A: It was the last thing I did before I went out. Q: Was see Rhonda? A: Yes. Q: So 4.20pm. A: Yeah, it would've been probably 4.20pm. Because I made sure I wrote all my notes. I put as much together as I could before I gave her the handover and I put the notes up and as I was putting the notes in the nurses' station John was in that room so I just quickly gave him a quick verbal of sort, brief of what we were doing and I made a point of handing Rhonda the medication chart when I found her. 1. There is no mention in that detailed account of RN Gallagher directing the CNS D&A to provide the clinical handover to RN Stratten. The CNS D&A's oral evidence did not suggest that that had occurred. Her oral evidence concerning the handover to RN Stratten was that she had included in the treatment plan in the clinical notes which she was writing as she went along the reference to "PHN nurse given oral handover" because she was concerned about the patient and was going to make sure she was not leaving the Clinic that day until she had given a handover to the Clinic nurse. In oral evidence the CNS D&A stated: Q: Can you tell the tribunal what you remember about that? A: In the handover I remember I had put the notes into the pigeon – we had some notes of the doctor's and I had put what I could together, put it in the pigeon hole in the nurses' station where the patient had been roomed. But I know that I took the medication chart directly to the clinic nurse who was in the medication room in the clinic, and I had that medication chart. I went through the patient – what he had presented with, what we had already ordered and what had been given, and what the plan was for that patient. And I had said that I had done a baseline set of observations, that he had been given stemetil because he had been unwell – I had not seen him vomit – and that I know that I mentioned that within the eight hours they would be able to do two more sets of obs and give him two lots more of – we discussed medication as well. 1. The CNS D& A confirmed that she gave the handover directly to RN Stratten, that RN Nguyen was on the opposite side of the room packing pills, and that they were the only people present in the room. In cross examination the CNS D&A confirmed that she had given RN Gallagher a brief update when she put the notes back in the Nurses' Station, which she would not call a handover. She did not recall RN Gallagher following her to the medication room and participating in the handover and contributing by saying he had administered Stemetil, stating that he was not in the room. She agreed it was possible he was near and heard the conversation. 2. RN Stratten's recollection of the handover in her JH&FMHN investigation interviews on 6 March 2018 and 4 April 2018 was limited. At the first interview she stated that after she checked the order for Stemetil she continued to pack medications, and her next recollection was the CNS D&A coming in and saying that they believed Patient A was in some sort of detox situation and he was not well, four hourly observations were required and she had just done a set and he was due at 7.00pm. RN Stratten then stated "Which I acknowledged in amongst all the rest of the stuff that was going on". In the second interview RN Stratten was aware that Patient A was a patient of concern only based on what the CNS D&A had said "but it was a very brief in a crowded room with lots of noise". In oral evidence RN Stratten accepted that the information provided by the CNS D&A was possibly more detailed that the abbreviated version she gave at the time, however the matters stated on 6 March 2018 were at least covered in what she said. She could not recall RN Gallagher participating in the handover in any way. 3. The Tribunal does not accept that RN Gallagher directed or participated in the handover given by the CNS D&A to RN Stratten, or that its content was as detailed as stated at [63] above, for the following reasons. The Tribunal accepts that the CNS D&A's evidence to the Tribunal was frank and straightforward, and consistent with her statements close to the time of the incident, and that in her oral evidence she made appropriate concessions on matters on which she was unsure, including her acceptance that RN Gallagher may have been nearby in the treatment room when she gave the handover. There is no suggestion in the detailed evidence of the CNS D&A, provided in early 2018 as to the steps she took to ensure before she finished her shift that there was a proper handover of the treatment plan and management needs of Patient A, that RN Gallagher was involved in either the location and timing of that handover, or its content. The Tribunal considers it unlikely that RN Gallagher's independent recollection of the events would have improved over time, in particular where it may have been influenced by having had access to the recollections of others in the form of the documents served by the HCCC. The Tribunal considers that his recollections provided some 4 months after the incident are more likely to be accurate than his later version of events. 4. The handover provided to RN Stratten took place at around 4.20-4.25pm, at the end of shift for both the CNS D&A and RN Gallagher. The timing alone makes it unlikely that the content of the handover was as detailed as stated by RN Gallagher. None of the CNS D&A, RN Stratten or RN Nguyen was aware that RN Gallagher was present, although all accepted that it was possible that he was nearby. In oral evidence RN Stratten explained that the medication room was divided into two parts, and that once through the main door there are two separate entrances and a wall between the dispensary area where the Schedule 8 medications are kept, and the treatment and medication packing area. The Tribunal accepts, having regard to that evidence which was not disputed, that it would be possible for a person to be out of sight, but able to hear, in the separate area of that room. The Tribunal concludes that RN Gallagher did not himself take any steps to ensure that RN Stratten received a handover of Patient A and did not participate in the handover; and that at its highest, he was aware that a handover had occurred, and may have heard it. 5. Based on the evidence of the CNS D&A and RN Stratten, the handover to RN Stratten included the information that Patient A had been assessed by the medical officer and herself, that he was in opiate withdrawal and was not well, that he had had some Stemetil, and that he required four hourly observations, having had a baseline set of observations done. The handover took place in the medication room, and while the CNS D&A was confident that RN Stratten had stopped what she was doing to pay attention, the area was not free from distractions. As RN Gallagher acknowledged in his s 150 hearing, he should have shown leadership and stopped RN Stratten doing what she was doing and taken them to the Nurses' Station; had he done so, the complete clinical notes would have been available to supplement the information handed over verbally. 6. At the time that RN Gallagher's shift ended at 4.30pm, RN Stratten had been allocated care of the Clinic patients and Areas 3 and 5 for the afternoon shift, and RN Nguyen had responsibility for care of the patients in Areas 1, 2 and 4. The Tribunal agrees with RN Gallagher that at that time there was no requirement for him to ensure that a clinical handover was provided to RN Nguyen. 7. The Tribunal concludes that RN Gallagher failed to ensure that RN Balagtas, as NUM on the afternoon shift, and RN Stratten, as the nurse with primary care of Patient A on that shift, were provided with a clinical handover of Patient A. There was no handover to RN Balagtas, and the handover to RN Stratten did not meet the requirements of JH&FMHN policy 1.075. Particular 1 of Complaint One is established. 8. Particular 2 concerns the recording of clinical information relating to Patient A in the written handover document and in his clinical notes. NSW Health Policy Directive Health Care Records – Documentation and Management requires documentation of the care/treatment plan (section 2.4(a)), and an entry in the health care record for each patient attendance (section 2.5.3). JH&FMHN policy 1.075 Clinical Handover point 3.2 requires clinical handover (which may be face to face, written or by telephone), using the standard key principles and the ISBAR framework, in circumstances that include shift to shift change and patient transfer or discharge. Shift to shift handover could include a written handover which is easily accessible to the next shift or staff. Point 2.2 of that policy requires the NUM or delegate to ensure that any handover tools used adhere to the ISBAR framework. Point 3.1.7 of JH&FMHN policy 1.340 Accommodation – Clinical Recommendation (Adults) specifies that detoxing patients should be housed in an assessment cell or a clinical observation bed, and reviewed twice daily at a minimum; and that reviews must be documented in the patient's health record. 9. RN Gallagher relies on the recording of Patient A's clinical management details, including a detailed assessment and detoxification management plan, by the CNS D&A and the treating MO in Patient A's clinical notes. He states that he checked Patient A's clinical record before completing his shift, and accordingly he effectively ensured that the policy requirements were complied with. He ensured that the key critical points were recorded on the clinical handover sheet, and at the conclusion of the handover to RN Stratten he noted that the written handover sheet had been updated to include Patient A. 10. Patient A's progress notes are comprehensive. Dr Lee's notes are recorded at 2.30pm, and those of the CNS D&A at 2.35pm. The CNS D&A's evidence as that in fact she was writing things as she went along, and she did not write every single time that she actually did something. The Tribunal accepts the evidence of the CNS D&A that the notes were complete by the time she put them into the pigeonhole in the Nurses' Station at about 4.20pm. If, as he has stated in evidence, RN Gallagher reviewed them at that time, the assessment and treatment plan had been recorded, as had the administration of "stat IM stemetil". However he had not made an entry in the progress notes of his attendance on Patient A some two hours earlier to administer that injection. The Tribunal agrees with Ms Muller that RN Gallagher should have documented in the clinical records that he had administered stat medication. 11. The use of the written handover sheet, and what is recorded in the copy of that document in evidence, is discussed above at paras [54]-[57] above. The information provided in that document reflects the position as at the time the CNS D&A provided her handover to RN Stratten. However it does not include the requirement for four hourly observations, information that had been handed over to RN Stratten in the CNS D&A's verbal handover. 12. The Tribunal is unable to make a finding on the evidence available as to who entered the information recorded on that document, or when that occurred. It would have been consistent with regular practice as described by EN Steele that it was updated by the Clinic nurse at the end of the afternoon shift, and printed so it was available for handover to the night shift. However while she assumed she would have been the person who printed the handover sheet, RN Stratten could not recall whether she was the person who had entered the details of Patient A into the electronic system. RN Gallagher stated in his Amended Reply that he had noted at the conclusion of the handover to RN Stratten that the written handover sheet had been updated to include Patient A, and that he ensured that the key critical points were recorded on the clinical handover sheet. In oral evidence he stated that he checked the document on the computer in the nurses' station. However, RN Gallagher stated that he could not be certain that it was he who had entered the text for Patient A. 13. Regardless of which nurse entered the information recorded on the handover sheet, in the Tribunal's view it was RN Gallagher's responsibility to ensure that the handover document as at the end of his shift included sufficient information to alert the oncoming shift as to Patient A's presentation and the treatment plan, including the requirement for 4 hourly observations. He was the NUM and still on duty, and had not handed over to RN Balagtas, the NUM on the oncoming shift, and on his evidence had read the clinical notes in which that requirement was recorded. However, as he acknowledged in cross examination, RN Gallagher checked the handover sheet before he became aware of what the treatment and management plan was for Patient A. 14. The Tribunal concludes that RN Gallagher failed to ensure that clinical information regarding Patient A's clinical management details were recorded in the clinical notes, and in the written handover sheet, in accordance with NSW Health Policy Directive Health Care Records – Documentation and Management and JH&FMHN policy 1.075 Clinical Handover, as alleged in particular 2 of Complaint One. Particular 2 is established. Whether 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 Tribunal has found that as alleged in particular 1 of Complaint One, RN Gallagher failed to ensure that RN Balagtas and RN Stratten were provided with a clinical handover of Patient A: there was no handover to RN Balagtas, and the handover to RN Stratten did not meet the requirements of JH&FMHN policy 1.075. The Tribunal agrees with Ms Muller that the failure to handover to RN Balagtas fell significantly below what is reasonably expected of a registered nurse of equivalent experience and qualification. As RN Gallagher acknowledged in oral evidence, in not giving a handover to RN Balagtas, he had reduced the safety net. The Tribunal agrees with Ms Muller that RN Gallagher was responsible for ensuring that an adequate handover in keeping with the ISBAR framework was provided to RN Stratten, even if it was not his responsibility to actually provide the handover. The CNS D&A provided the handover, however it did not take place in an area free from other distractions. In failing to ensure that an adequate clinical handover was provided RN Gallagher's conduct was significantly below the standard reasonably expected of a registered nurse of equivalent training and experience. 2. RN Gallagher has admitted, and the Tribunal finds established, that he failed to record his administration of IM Stemetil in Patient A's clinical notes. Ms Muller acknowledged that the administration was recorded in the medication chart, and while critical of the omission did not consider that the failure to make the entry was significantly below the expected standard. The Tribunal agrees with Ms Muller that given the rarity of an IM injection in a custodial setting, that should have been documented in Patient A's progress notes; and that the medication chart forms part of the clinical record. While also critical of the failure to document that IM injection in the clinical record, the Tribunal does not regard that as conduct significantly below the expected standard. While it was included in the handover sheet, the requirement for four hourly observations was not. If RN Gallagher was aware of the content of the handover by the CNS D&A, that should have been recorded. 3. The Tribunal acknowledges that Patient A arrived in the Clinic shortly after the shift to shift handover had finished, with reception screening not having been completed; and that it was not until around 4.20pm, close to the end of RN Gallagher's shift, that the assessment by the MO and the CNS D&A and documentation of his current clinical presentation and the treatment and management plan was complete. The CNS D&A took appropriate steps to ensure both that the documentation was complete and that nursing staff were provided with the information they required to provide care for Patient A, before she finished her shift. 4. As NUM on the morning shift, it was RN Gallagher's responsibility to ensure that a handover of all that relevant information was provided to the afternoon shift NUM and primary care nurse. RN Gallagher has admitted that he did not provide an appropriate handover to RN Balagtas, and the Tribunal has not accepted his explanation that in part that was because RN Balagtas was not in the Clinic at the relevant time. The Tribunal has, as discussed above, not accepted RN Gallagher's evidence as to the extent of his involvement in the handover provided by the CNS D&A or the detail provided in that handover. While the Tribunal accepts that the CNS D&A was able to provide detail as to the management plan for Patient A, including the critical information that he was in opiate withdrawal and required four hourly observations, that handover did not meet the requirements of JH&FMHN policy 1.075. 5. The conclusion that the failure to ensure that RN Balagtas and RN Stratten were provided with an adequate clinical handover, and the failure to ensure that the clinical handover document included relevant information about Patient A's clinical presentation, needs and management plan, was conduct significantly below the standard reasonably expected of a registered nurse of an equivalent level of training or experience, means that RN Gallagher is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law. Complaint One is established. 6. Complaint Two is that RN Gallagher 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 has significant concerns as to the evidence provided by RN Gallagher and his attempt to justify or rationalise what was, objectively, a failure to provide the leadership required of the NUM on the morning shift on 6 December 2017. While the pressures of providing nursing care in the custodial context were real, and the timing of Patient A's arrival at PKA and assessment in the Clinic may have had a bearing, RN Gallagher failed to provide appropriate leadership and management of delivery of clinical care. Notwithstanding those observations, the Tribunal is not persuaded to the requisite standard that the unsatisfactory professional conduct as found in relation to each of particulars 1 and 2 either individually or when taken together, is of a sufficiently serious nature to justify suspension or cancellation of his registration. The Tribunal does not find RN Gallagher guilty of professional misconduct. Conclusion 1. The Tribunal has found RN Gallagher guilty of unsatisfactory professional conduct. That 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. 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); 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