Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nguyen (No 2) [2023] NSWCATOD 28 Hearing dates: 30 January 2023 Date of orders: 14 March 2023 Decision date: 14 March 2023 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 issued a caution under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). 2) The respondent is to pay 40% of the costs of the Health Care Complaints Commission, as agreed or assessed. Catchwords: HEALTH – professional registration and discipline – registered nurse – finding of unsatisfactory professional conduct – appropriate protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Lord [2019] NSWCATOD182 Health Care Complaints Commission v Nguyen [2022] NSWCATOD 127 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Tania Ngoc Lam Thy Nguyen (Respondent) Representation: Counsel: L Thomas (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self represented) File Number(s): 2020/113651 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. On 25 October 2022 the Tribunal published reasons for its finding that the respondent Registered Nurse, Ms Tania Nguyen, is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law): Health Care Complaints Commission v Nguyen [2022] NSWCATOD 127 (Nguyen Stage 1). 2. The HCCC submitted that the appropriate protective order to make in all the circumstances is to caution RN Nguyen. RN Nguyen did not oppose that order. The HCCC sought an order that RN Nguyen pay 75% of its costs; RN Nguyen did not oppose an order for costs. 3. The Tribunal decided to caution RN Nguyen, and order that she pay 40% of the HCCC's costs as agreed or assessed. Our reasons follow. Background 1. The proceedings against RN Nguyen were commenced in the Tribunal in April 2020 by the Health Care Complaints Commission (the HCCC) in relation to a mandatory notification made on 4 March 2018 that she and four other RNs, and one Enrolled Nurse, employed by Justice Health and Forensic Mental Health Network (JH&FMHN) at Parklea Correctional Centre (PKA) were involved in the care of an inmate, Patient A, who was found deceased on 7 December 2017. 2. The background to the proceedings against RN Nguyen and the other five nurses is set out in Nguyen Stage 1. That decision includes discussion of the agreed and disputed facts, the evidence of RN Nguyen and each of the other nurses, and expert evidence provided on behalf of the HCCC, and identifies the various NSW Health and JH&FMHN policies relevant to the complaints. The detail is not repeated in these reasons, and these reasons assume familiarity with those earlier reasons. 3. In summary, 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 on 6 December 2017, arriving at about 11.38am. In December 2017 PKA was privately managed by The GEO Group Australia Pty Ltd (GEO) on behalf of Corrective Services NSW (CSNSW). PKA houses approximately 800-900 remand, minimum and maximum security inmates. Health services at PKA were operated by JH&FMHN. 4. At about 2.07pm Patient A was taken from a holding cell to the Processing Area at Reception. Patient A was too unwell for reception screening assessment to be undertaken, and he was taken to the Main Clinic where he was assessed by the Drug & Alcohol Medical Officer (MO) and the Clinical Nurse Specialist D&A (CNS D&A). 5. The CNS D&A recorded baseline clinical observations, noting in Patient A's clinical/progress notes that he was "extremely unwell – in opiate withdrawal". The treatment plan recorded by the MO and the CNS D&A in the progress notes was that Patient A was to remain in detox, with four hourly observations, with Panadeine and Stemetil for opiate withdrawal, and to be reviewed in the morning. 6. RN Nguyen was rostered on the afternoon shift (1.00pm-9.30pm), allocated to the Main Clinic and PKA Area 4 supervised. RN Balagtas was Nurse Unit Manager (NUM) on the afternoon shift, rostered 1.30pm-10.00pm. RN Stratten, rostered 1.30pm-10.00pm, was allocated Areas 3, 5 and Clinic pills on the afternoon shift. The clinical handover from the morning shift JH&FMHN staff to the afternoon shift took place in the Clinic tearoom between 2.00pm to 2.30pm, when Patient A was in Reception, and he was not included in that handover. Just after the shift handover concluded the CNS D&A asked for someone to come and give an intramuscular (IM) injection. RN Gallagher, NUM on the morning shift, administered IM Stemetil to Patient A at approximately 2.45pm, recording that in Patient A's medication notes. 7. At approximately 2.46pm Patient A was placed in Cell 34, one of 14 observation cells in the Main Clinic. Cells 34-39 are "Detox" cells. 8. At approximately 4.20pm as she was leaving for the day, the CNS D&A provided a verbal handover of Patient A to RN Stratten, who was in the medication room packing medications. The handover provided to RN Stratten included the information that Patient A was detoxing and was unwell and that four hourly observations were required and that the next set was due at approximately 7.00pm: see discussion in Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [135]. RN Nguyen was also in the medication room packing pills, together with a student nurse she was supervising. 9. In the circumstances discussed in Nguyen Stage 1, RN Nguyen packed and administered the Clinic medications. She and the student nurse were accompanied by two Correctional Officers when at 7.00pm they attended Cell 34 to administer medications to Patient A. RN Nguyen administered Panadeine and Thiamine, mistakenly telling Patient A that the Thiamine was diazepam. Patient A refused Epilim which was prescribed for his epilepsy. She recorded the administration of Panadeine and Thiamine and the refusal of Epilim on Patient A's medication chart, and subsequently told RN Stratten that Patient A had refused the prescribed Epilim. As discussed in Health Care Complaints Commission v Stratten [2022] NSWCATOD 126 at [138], the Tribunal was satisfied that RN Nguyen was not aware of the need for observations, nor asked to complete them as part of the medication round that she undertook on behalf of RN Stratten. 10. RN Nguyen left the Clinic at approximately 8.30pm to do the medication round in Area 4, a minimum security complex outside PKA maximum security prison, and completed her shift at about 9.30pm without returning to the Clinic. 11. The clinical handover from the afternoon shift to RN Nuevo and EN Day, the night shift staff rostered on from 9.30pm to 7.30am the following morning, took place between 9.30pm and about 10.00pm. RN Stratten provided a handover. It was not in dispute that neither RN Nuevo nor EN Day had any interaction with Patient A during the night shift. After his assessment by the MO and CNS D&A on being brought to the Clinic, the last recorded interaction by nursing staff with Patient A was the administration of medication by RN Nguyen at approximately 7.00pm on 6 December 2017. 12. Patient A was found deceased in his cell at approximately 7.11am on 7 December 2017. It was not in dispute that none of the nursing staff on duty on the afternoon or night shifts on 6 December 2017 had read Patient A's progress notes in which the treatment plan, which included the requirement for four hourly clinical observations, was recorded. It was not in dispute that no clinical observations were taken after the baseline observations by the CNS D&A at approximately 2.30pm on 6 December 2017. 13. The HCCC commenced proceedings against the five RNs (RN Nguyen, RN Nuevo, RN Balagtas, RN Gallagher and RN Stratten) and EN Day on 7 April 2020. An order was made by consent on 8 May 2020 that the six matters would be heard together with evidence in each evidence in the others. At a subsequent directions hearing the Tribunal noted that transcript of the evidence of the RNs and EN Day in those matters may be used in the proceedings concerning EN Day, which, pursuant to s 165B(3) of the National Law required a differently constituted Tribunal panel. The HCCC was represented by counsel and a solicitor; three of the respondents were represented by NSW Nurses and Midwives Association (NSWNMA) legal officers; and three, including RN Nguyen, were self represented. The six proceedings were the subject of case management, and by consent an Agreed Statement of Facts and Issues to be determined by the Tribunal was provided. 14. The Stage 1 hearing of the five RN matters, including the evidence of EN Day, was initially listed for two weeks in September 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. Transcript was provided in July 2022. 15. Following the Stage 1 findings, a further hearing was held in relation to the appropriate protective orders for each of the respondent practitioners. The HCCC did not tender any further evidence in relation to protective orders proposed for RN Nguyen, and provided written and oral submissions on protective orders and costs. RN Nguyen provided a statement dated 25 January 2023 in which she acknowledged and accepted the protective orders proposed by the HCCC. RN Nguyen gave further oral evidence and responded to questions from the Tribunal, and made oral submissions. Summary of Stage 1 Decision 1. The Complaint against RN Nguyen was that she had engaged in conduct that demonstrates that the judgment possessed or care exercised by her was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. There were two particulars, (1) that she failed to accurately document the administration of medication to Patient A in accordance with JH&FMHN Medication Guidelines, and (2) that she failed to ensure that clinical information regarding Patient A's clinical management details was recorded in the written handover or in his clinical notes in accordance with specified NSW Health and JH&FMHN policies. 2. RN Nguyen admitted the particulars of the complaint of unsatisfactory professional conduct, admitting that she failed to accurately record the administration of Thiamine and Panadeine to Patient A and that she failed to read his clinical notes or update his clinical notes or the handover sheet. The Tribunal found on the evidence that the particulars were established, and that that conduct was unsatisfactory professional conduct. In reaching that conclusion, the Tribunal noted (Nguyen Stage 1 at [106]-[108]) that at the time of the incident RN Nguyen had had only limited experience as a registered nurse and at best only three months experience working in custodial health. The Tribunal accepted that RN Nguyen administered the medication for Clinic patients including Patient A in order to assist a busy colleague. However the Tribunal agreed with the expert evidence that medication administration and therefore documentation is a basic skill and competency of a registered nurse. 3. The HCCC did not press its original further complaint of professional misconduct. Protective Orders: legislation and principles 1. The Tribunal's powers on finding "the subject matter of a complaint against a practitioner" to have been proven are set out in Part 8, Division 3, Subdivision 6 of the National Law. Having found the complaint of unsatisfactory professional conduct proven, the Tribunal may, under s 149A(1) of the National Law: 149A General powers to caution, reprimand, counsel etc [NSW] (1) … (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. … 1. The power to make any of these orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards. 1. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a): to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A. 2. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order". Protective orders sought 1. The HCCC submitted that the appropriate order is to caution RN Nguyen, based on the relatively confined scope of the proven particulars that were the basis for the finding of unsatisfactory professional conduct; the fact that the relevant conduct occurred in the first year of her registration when she had at best three months experience working in custodial health and was practising under the direction and supervision of others; and that she appears to have good insight into the ways in which her practice fell short of that expected of an RN and appears to have taken steps to improve her practice. 2. RN Nguyen did not oppose the proposed order. Consideration 1. In applying the principles relevant to determination of an appropriate protective order, the Tribunal takes into account the following matters: 1. Seriousness of the misconduct: The admitted failure to accurately record on Patient A's medication chart the fact, and time, of administration of medication, and to record his refusal of Epilim in his clinical notes, was a failure in basic skills and competency of a registered nurse. Relevant to the objective seriousness of that failure is the fact that at the time RN Nguyen was relatively inexperienced; that this was her first shift in the Clinic in addition to being allocated cell areas; and that her actions in packing and administering the medications to Clinic patients were undertaken in order to assist a busy colleague. 1. What has occurred since December 2017: RN Nguyen has continued to work as an RN at PKA, since April 2019 as an employee of St Vincent's Correctional Health which now delivers health care at PKA. She is working part-time, while completing a postgraduate certificate in specialist nursing care which is supported by a scholarship from St Vincent's. RN Nguyen now works as a senior nurse in Reception, and has been allocated to mentor newly qualified nurses in their Reception training. She is generally the nurse in charge on each shift. The Clinic has been extended with another 10 beds since 2017, and patients can be assessed visually and physically, as nurses attend each cell in the Clinic. The nurses work closely with the D&A team, and ED doctors from St Vincent's rotate through PKA. 1. Insight: RN Nguyen admitted the particulars in the Complaint in her Reply, accepting and apologising for her failures. In her Reply, and in oral evidence to the Tribunal throughout these proceedings, RN Nguyen has stated that she acknowledges that her practice should have been better; that she has taken steps to better familiarise herself with handover policies; that her self awareness has become better; and that she believes that she has become a better, and safe, practitioner. 1. Character: RN Nguyen has provided references from the Operations Manager St Vincent's Correctional Health, and two colleagues. All attest to her professionalism, and her sound clinical judgment when undertaking her duties. Her colleagues refer to her willingness to learn and gain new skills, strong communication skills and empathy, and her mentoring of other nurses. 1. It is not in issue that RN Nguyen has demonstrated insight and remorse for her conduct, which she has admitted throughout the proceedings. There is no suggestion that the conduct is likely to be repeated, and no suggestion that she is not a fit and proper person to be a registered nurse. In the five years since the incident the subject of the complaint RN Nguyen has demonstrated continuing development of her skills and commitment as a health practitioner. She has continued to work in the challenging environment of custodial health, in a senior position in Reception and mentoring more junior colleagues. The central issue for the Tribunal is to determine what is the appropriate protective order that meets the objectives as stated in Do, which include the maintenance of professional standards, deterrence both for the practitioner and the profession, and emphasising the unacceptability of the conduct involved. 2. In Health Care Complaints Commission v Lord [2019] NSWCATOD182 (Lord) the Tribunal considered at [41]-[42] the difference between a caution and a reprimand: Difference between a caution and a reprimand 41. In Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 (Dowla (No 2)), the Tribunal considered at [42] the difference between a caution and a reprimand under s 149A(1)(a) of the National Law and cited with approval the decision of the Victorian Civil and Administrative Tribunal in Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (Coleman), in which the Tribunal explained at [14]: [T]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences. In Peeke v Medical Board of Victoria (unreported, Marks J. 19 January 1994). His Honour commented on a view that had been expressed to the effect that to impose a reprimand was to trivialise a serious lapse in professional standards. His retort was succinct - I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications. 42. As noted by the Tribunal in Dowla (No 2) at [44], a reprimand, if imposed, will appear on the record of a practitioner's registration maintained by the Australian Health Practitioner Regulation Agency (AHPRA): s 225(j). In contrast, the National Law does not require AHPRA to record a caution on practitioner's record. 1. The Tribunal agrees with the observations made by the Tribunals in Dowla and Lord as to the significance of a caution, and agrees with the HCCC that in the circumstances of this case a caution is the appropriate protective order. While there is a material difference between a caution and a reprimand, both reflect, and signal to the profession, the unacceptability of the conduct. Acknowledging that the bringing of the proceedings themselves is denunciatory in part, the decision to caution RN Nguyen is also denunciatory, albeit to a lesser extent than a reprimand. The Tribunal is satisfied that to issue a caution sufficiently denounces the conduct, while taking into account the objective and subjective features of the case. Costs 1. The HCCC seeks an order that RN Nguyen pay 75% of its costs of the proceedings, acknowledging that as a consequence of the five RN matters being heard together the costs of preparing for and attending the five day hearing will be apportioned between the five matters. 2. The HCCC relies on the general principle that costs follow the event, and the principles stated by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 and Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182. The HCCC submits that relevant matters are that RN Nguyen admitted both particulars to the complaint; and while the complaint of unsatisfactory professional conduct was proven, the complaint of professional misconduct was not. The HCCC acknowledges that a complaint of unsatisfactory professional conduct could have been brought before a professional standards committee, which is a no costs jurisdiction; however submits that it was appropriate to bring all five complaints in the Tribunal and to seek to have them heard together. That course resulted in a substantial reduction in the total hearing time and inconvenience for each of the respondents, who may otherwise have been required to give evidence multiple times. 3. RN Nguyen made no submission on costs, and did not oppose an order. 4. The Tribunal's power to make an order for payment of costs is conferred by Sch 5D, cl13 of the National Law. As a general rule costs of proceedings before the Tribunal are intended to compensate a successful party, and should follow the event: Philipiah at [44]. Relevant factors to the exercise of the discretion in this matter are that RN Nguyen admitted the conduct as particularised in the complaint; and that the Tribunal made a finding of unsatisfactory professional conduct but not professional misconduct as originally alleged: Philipiah at [42]. While in closing submissions the HCCC did not press the complaint of professional misconduct, and the Tribunal noted (Nguyen Stage 1 at [110]) that it would not on its assessment of the evidence have made such a finding, the underlying factual basis for each complaint was the same: Lucire at [49]. There was no disentitling conduct on the part of the HCCC. The Tribunal agrees with the HCCC that the decision to bring all five RN matters before the Tribunal and hear them together avoided the need for each respondent to give evidence multiple times had any one or more been determined before a professional standards committee, and resulted in a substantial reduction in the total hearing time. While there was a significant delay due to COVID-19 restrictions on in-person hearings in the Tribunal, the hearing ultimately proceeded with the assistance of the Agreed Statement of Facts and Issues. 5. The Tribunal is satisfied that it is appropriate to make an order for costs, noting the proposed apportionment between each of the five RNs to reflect the fact that all five RN matters were heard together. However, in circumstances where RN Nguyen admitted the conduct as particularised in the complaint, and where the HCCC did not ultimately press its complaint of professional misconduct, Tribunal considers that an order for payment of 75% of the HCCC's costs is not warranted, and that an appropriate order is that RN Nguyen pay 40 % of the HCCC's costs, as agreed or assessed. Orders 1. The respondent is issued a caution under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). 2. The respondent is to pay 40% of the costs of the Health Care Complaints Commission, as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2023