Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dizon [2023] NSWCATOD 49 Hearing dates: 3 April 2023 Date of orders: 26 April 2023 Decision date: 26 April 2023 Jurisdiction: Occupational Division Before: The Hon D Cowdroy AO KC, Principal Member I McQualter, Senior Member J Haines, Senior Member J Sillince, General Member Decision: (1) Pursuant to section 149C(1)(b) of the Health Practitioner Regulation National Law (NSW), the Respondent's registration as a nurse is cancelled with a non-review period of 12 months. (2) Pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Respondent is to pay the Applicant's costs of and incidental to the proceedings as agreed or assessed. (3) Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or disclosure of the name of Patient A listed in the Schedule to the Complaint and referred to in these proceedings is prohibited. Catchwords: HEALTH – professional registration and discipline – unsatisfactory professional conduct – professional misconduct – nurse engaging in unethical conduct – failing to provide appropriate care for patient Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) Health Practitioner Regulation National Law (NSW), ss 3B, 139B(1), 139E, 149C(1)(b), 150(1)(a), 165J(3), Sch 5D cl 13 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 NSW Medical Board v Dinakar [2009] NSWMT 8 Ohn v Walton (1995) 36 NSWLR 77 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Geraldine Lumba Dizon (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (no appearance) File Number(s): 2022/00320363 Publication restriction: Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), an order is made prohibiting the publication or disclosure of the name of Patient A listed in the Schedule to the Complaint and referred to in these proceedings. REASONS FOR DECISION 1. By application filed on 28 October 2022, the Health Care Complaints Commission (the Applicant) seeks the following orders: "1. An order prohibiting the disclosure of the name of the person listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013. In the event the subject matter of the complaint is proved or admitted, the Applicant seeks: 2. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law, with a non-review period of 12 months. 3. An order that the Respondent pay the Commissioner's costs under clause 13 of Schedule 5D of the National Law. …" The Proceedings 1. The Applicant has filed a Complaint against the Respondent (also referred to as "the Practitioner"), which includes four separate complaints. 2. On 16 July 2021, Patient A, an 85-year-old male, was admitted to Nepean Private Hospital with heart and renal failure. On 27 July 2021, Patient A underwent an angiogram and was placed on a heart monitor in the medical ward of the hospital. Patient A was expected to be discharged shortly after 30 July 2021. At about 7:20 AM on 30 July 2021, Patient A was found deceased in the hospital bed. 3. The Respondent is a nurse and was engaged on her night shift on 29 and 30 July 2021. The Complaints arise from the treatment provided by the Respondent to Patient A at the Nepean Private Hospital. Patient A was found in need of additional oxygen and was provided with nasal prongs at 6:00 AM by the Respondent to assist in his breathing. Patient A had an ECG rhythm strip printed out at 6:20 AM on 30 July 2021. The ECG showed irregularities. Subsequently at 7:20 AM on 30 July 2021, in response to an emergency call, a medical practitioner declared Patient A to be deceased. Non-attendance by Respondent 1. The Respondent did not attend a Directions hearing on 25 November 2022. At such hearing, the Tribunal ordered the Applicant to file its material by 13 January 2023 and for the Respondent to serve her Reply and material by 24 February 2023. Liberty was reserved to the Respondent to apply within 14 days to set aside or vary the orders made on 25 November 2022. 2. On 13 December 2022, the Respondent replied to the Tribunal's email attaching the orders made on 25 November 2022 and included the statement: "I do not intend to appear the tribunal [sic] and defend my case. … I beg your good office not to proceed with the hearing as I resign my nursing registration." 1. The Applicant served its material on or about 20 December 2022. On 16 January 2023, the Respondent emailed the Applicant to confirm receipt of the Applicant's material. On 24 January 2023, the Tribunal ordered that the hearing be conducted on a single day, namely Monday 3 April 2023. Thereafter, on 20 February 2023, the Applicant served its additional material and on 27 March 2023 the Applicant served the AHPRA evidentiary certificate. 2. By email dated Sunday 2 April 2023 sent at 7:45 PM, the Respondent provided information which is considered hereunder. She acknowledged receipt of the Applicant's material, but did not state that she would attend the hearing. 3. The Respondent has not attended the hearing on 3 April 2023. In these circumstances, the Tribunal is empowered to proceed, and did proceed, under section 165J(3) of the Health Practitioner Regulation National Law (NSW) (National Law) with the hearing in the absence of the Respondent, the Tribunal being satisfied that the Respondent has been given notice of the hearing of the application. 4. It is convenient to deal with the background to the proceedings before proceeding to deal separately with each individual complaint. Included in the paragraphs hereunder are extracts from an expert, nurse Deborah Armitage (Nurse Armitage). Nurse Armitage has considered each complaint and provided her expert assessment as referred to hereunder. Background 1. In its Complaint, the Applicant sets out the background to all of the four individual complaints as follows: "The practitioner obtained a Bachelor of Science in Nursing from Central Luzon Doctors Hospital in the [Philippines] in March 1997. She was first registered as a nurse in Australia on 28 September 2006. In November 2006, the practitioner commenced full-time employment as a registered nurse at Nepean Public Hospital in the respirator ward. In 2007 the practitioner began working at Nepean Private Hospital via a nursing agency, and accepted a part-time position at Nepean Private Hospital in 2008 which she worked concurrently with her employment at Nepean Public Hospital. On 29 July 2021, the practitioner worked a 10-hour night shift in the medical ward of Nepean Private Hospital, commencing at around 21:30 on 29 July 2021 and finishing at around 07:30 on 30 July 2021." Complaint One 1. Complaint One alleges that the Practitioner engaged in conduct which demonstrated her knowledge, skill or judgment, or the care exercised by her, in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and as such constitutes unsatisfactory professional conduct as provided by section 139B(1)(a) of the National Law. 2. In its updated submissions dated 3 April 2023, the Applicant set out its evidence in support of each of the particulars in Complaint One, including the expert evidence of Nurse Armitage. The Applicant stated, at pars 10-30 of its submissions: "Complaint 1: Particular 1 The practitioner conducted observations of Patient A only once during the shift, at about 06:00 on 30 July 2021, in circumstances where observations should have been recorded at 6-hourly intervals and the patient's last recorded observations had been taken at around 19:30 on 29 July 2021. 10. The evidence for Complaint 1: Particular 1 includes: a. The last recorded observations were taken by another nurse during the previous shift at around 19:30 on 29 July 2021. b. During the night shift, the practitioner was responsible for recording Patient A's observations at 6-hourly intervals. c. At the commencement of the night shift, the practitioner did not conduct comprehensive observations of Patient A, she did not take his pulse or blood pressure. d. The practitioner conducted observations of Patient A only once during the night shift. At approximately 6:00am on 30 July 2021, the practitioner took observations of Patient A on the Standard Adult General Observation (SAGO) chart. e. The expert opinion is that this conduct is significantly below the accepted standard: '(question 2) Please provide your opinion of the adequacy and appropriateness of RN Dizon's care and treatment of Patient A in conducting observations once during her night shift. At her S150 hearing RN Dizon explained she did not take the patient's observations between 1930 and 0600 as he did not have "any signs of distress" when she took over his care. She added that, "We just do it (observations) three times a day because the patient is already cleared for discharge". The medical officer entry in the patient's record on 28 July 2021 states, "Aim for D/C Friday" and the nursing entry on the same day states that the patient was for repeat pathology on 29 July 2021 and "? D/C Friday". Therefore, the patient had not been cleared for discharge as RN [Dizon] believed. Standard 1.4 of the Registered Nurse Standards for Practice requires a nurse to comply with policies and guidelines when making care decisions. NSW Ministry of Health policy PD2020_018 Recognition and management of patients who are deteriorating, which applies to both public and private hospitals, requires vital signs to be attended on adult inpatients at a minimum of 6-hourly intervals. This frequency can only be reduced after an assessment by a medical officer and with the authorisation of the attending medical officer (AMO). Where there is no medical officer on site an RN can reduce the frequency of observations with the authorisation of the AMO. This should be documented in the progress notes. There is no such documentation by any member of the health team for the patient for whom RN Dizon was caring. Therefore, RN Dizon is in breach of this policy and does not meet Standard 1 of the Registered nurse standards for practice. Standard 1 also requires a nurse to think critically and analyse nursing practice. As outlined in Question 1, Patient A was an elderly man with serious comorbidities. RN Dizon's decision not to attend observations as he may be discharged the following day does not demonstrate critical thinking. For the reasons given above I find RN Dizon's actions to be significantly below the acceptable standard.' Complaint 1: Particular 2 The practitioner disconnected telemetry alarm speakers connected to the telemetry monitoring of five patients, including Patient A. 11. The evidence for Complaint 1: Particular 2 includes: a. During the night shift, the practitioner disconnected telemetry alarm speakers connected to the telemetry monitoring of five patients, including Patient A. b. The practitioner did not consult with a medical officer about whether it was appropriate to disconnect the telemetry alarm speakers. c. The expert opinion is that this conduct is significantly below the accepted standard: '(question 7) Please provide your opinion of the appropriateness of RN Dizon's conduct in disconnecting the telemetry speakers. At her S150 hearing RN Dizon explained that she disconnected the telemetry alarm speaker to "keep my confused patient [not Patient A] safe" believing that, if the alarm continued to sound through the speaker and no staff were near the patient with confusion, the patient might get up to "answer my doorbell" and fall and injure herself. While this action was well intentioned it did not consider the possible consequences for the five patients who were on [telemetry]. Without the speaker being connected the staff would need to remain in close vicinity to the monitors to hear the alarm. This is unlikely to be possible on night shift in a busy medical ward. Standard 1 of the Registered Nurse Standards for Practice requires a nurse to think critically in order to make the best and safest decisions about care. The decision to disconnect the speaker does not demonstrate critical thinking in relation to the care of the patients on telemetry and silencing the speaker also does not demonstrate critical thinking in the management of a patient with confusion. Standard 6 requires a nurse to provide safe, appropriate and responsive quality nursing care. The speaker was the safety net for the patients on telemetry, designed to enable a prompt response by staff if needed. Disconnecting the speaker removed that safety net. For the reasons detailed above I find RN Dizon's actions do not meet Standards 1 and 6. I find her actions to be significantly below the expected standard for someone of her experience.' Complaint 1: Particular 3 The practitioner did not reconnect the telemetry alarm speakers, prior to completing her shift. 12. The evidence for Complaint 1: Particular 3 includes: a. During the night shift, the practitioner did not reconnect the telemetry alarm speakers prior to completing her shift. b. [A]t 7:07am on 30 July 2021, the heart monitor showed Patient A was bradycardic (slow heartbeat). Nursing and medical staff could not hear the alarm because the telemetry alarm speakers were still disconnected. c. [A]t 7:14am on 30 July 2021, the heart monitor showed Patient A was [asystolic] (cardiac flatline). Nursing and medical staff could not hear the alarm because the telemetry alarm speakers were still disconnected. d. The expert opinion is that this conduct is significantly below the accepted standard: '(question 8) Please provide your opinion on the appropriateness of RN Dizon's conduct in not reconnecting the telemetry speakers. Once the telemetry speaker was disconnected there was always the risk of forgetting to reconnect it. There is nothing in the documents provided to indicate RN Dizon considered that risk. As detailed in [question 7] this demonstrates a lack of critical thinking (Standard 1) and a failure to provide safe care (Standard 6). For these reasons I find RN Dizon's actions to be significantly below the expected standard.' Complaint 1: Particular 4 The practitioner failed to properly interpret and assess an ECG strip taken in relation to Patient A at about 06:28 on 30 July 2021 ("the ECG strip"). 13. The evidence for Complaint 1: Particular 4 includes: a. [A]t approximately 6:28am on 30 July 2021, the practitioner took an ECG strip in relation to Patient A. b. The ECG strip recorded an abnormal rhythm. c. The practitioner failed to properly interpret and assess the ECG strip. d. The expert opinion is that this conduct is significantly below the accepted standard: '(question 4) Please provide your opinion of the adequacy of RN Dizon's knowledge of ECG and the interpretation of ECG readings. RN Dizon's CPD records show she attended an ECG refresher [course] (0.5 hours) in November 2021. The letter from Jill McEvoy-Williams (DON Nepean Private) dated 6 August 2021 to RN Dizon, indicates RN Dizon attended an 8-hour course in 2020. At her S150 hearing RN Dizon stated that she is "really confused with all of the ECG (rhythms)" because she doesn't work with them every day. While all nurses should be able to differentiate between a normal and abnormal ECG rhythm, interpreting the specific abnormality of a rhythm requires more skill and it is understandable that RN Dizon may not have maintained that skill if she was not using it regularly. Standard 6 of the Registered Nurse Standards for Practice states that nurses must practise within their scope of practice. The Standards define scope as that in which nurses are educated, competent to perform and permitted by law. The actual scope of practice is influenced by the context in which the nurse practises, the health needs of people, the level of competence and confidence of the nurse and the policy requirements of the service provider. RN Dizon's failure to recognise the seriousness of the ECG rhythm taken at 06:28 on 30 July 2021 and her admission that she is confused by ECG readings demonstrates that interpreting these reading[s] is not within her scope of practice. Therefore, she should not have made assumptions about the reading. Standard 2.6 of the Registered Nurse Standards for Practice requires a nurse to use consultation in professional relationships to achieve improved health outcomes and Standard 2.7 requires a nurse to actively foster a culture of safety and learning that includes engaging with health professionals and others. RN Dizon had easy access to colleagues who were more expert in ECG interpretation and yet she did not seek their input or advice, despite recognising the reading was abnormal. In failing to notify her colleagues that ECG interpretation was not within her scope of practice and failing to consult with them when the abnormal ECG reading was taken, I find RN Dizon's actions to be significantly below Standards 6, 2.6 and 2.7 of the Registered Nurse Standards for Practice. … (question 6) Please provide your opinion on the adequacy and appropriateness of RN Dizon's decision not to contact a medical officer about the ECG strip taken at approximately 06:28am on 30 July 2021. During her interview with Jill McEvoy- Williams (DON) RN Dizon said she did not contact the medical officer as the afternoon staff had taken a similar strip to the HDU staff who advised it was a normal rhythm. This was despite RN Dizon acknowledging she knew it was not a normal rhythm. Jill McEvoy-William's letter to RN Dizon notes that no similar rhythm strip was found in the patient notes. Standard 4 of the Registered Nurse Standards for Practice requires nurses to conduct comprehensive assessments and analyse assessment date to inform practice. Standard 2.6 requires the nurse to use consultation and referrals in professional relationships to achieve improved health outcomes. That RN Dizon admitted she was not able to identify the specific ECG rhythm but that she knew it was abnormal should have alerted her to the need for consultation, most appropriately with the medical officer. I find RN [Dizon's] actions to be significantly below Standard 4 and Standard 2.6 of the Registered Nurse Standards for Practice.' Complaint 1: Particular 5 The practitioner failed to notify her colleagues at the time of taking the ECG strip that the interpretation of ECG readings was outside the scope of her practice. 14. The evidence for Complaint 1: Particular 5 includes: a. The practitioner failed to notify her colleagues at the time of taking the ECG strip that the interpretation of ECG readings was outside the scope of her practice. b. The expert opinion is that this conduct is significantly below the accepted standard: '(question 5) Please provide your opinion of the adequacy and appropriateness of RN Dizon's assessment/interpretation of Patient A's ECG reading taken at approximately 06:28 on 30 July 2021. As discussed in Question 4 … RN Dizon failed to acknowledge that interpreting ECG readings was not within her scope of practice and failed to seek advice from other more expert colleagues on the readings. For the reasons outline[d] in Question 4 I find her actions to be significantly below standard.' Complaint 1: Particular 6 The practitioner failed to consult her colleagues in relation to the interpretation of an abnormal ECG reading at the time the ECG strip was taken. 15. The evidence for Complaint 1: Particular 6 includes: a. The practitioner did not escalate the abnormal ECG reading to the medical officer on duty. b. The expert opinion is that this conduct is significantly below the accepted standard: '(question 6) Please provide your opinion on the adequacy and appropriateness of RN Dizon's decision not to contact a medical officer about the ECG strip taken at approximately 06:28am on 30 July 2021. During her interview with Jill McEvoy- Williams (DON) RN Dizon said she did not contact the medical officer as the afternoon staff had taken a similar strip to the HDU staff who advised it was a normal rhythm. This was despite RN Dizon acknowledging she knew it was not a normal rhythm. Jill McEvoy-William's letter to RN Dizon notes that no similar rhythm strip was found in the patient notes. Standard 4 of the Registered Nurse Standards for Practice requires nurses to conduct comprehensive assessments and analyse assessment date to inform practice. Standard 2.6 requires the nurse to use consultation and referrals in professional relationships to achieve improved health outcomes. That RN Dizon admitted she was not able to identify the specific ECG rhythm but that she knew it was abnormal should have alerted her to the need for consultation, most appropriately with the medical officer. I find RN [Dizon's] actions to be significantly below Standard 4 and Standard 2.6 of the Registered Nurse Standards for Practice.' Complaint 1: Particular 7 The practitioner failed to conduct a handover of Patient A's care at the patient's bedside at the conclusion of her shift, in breach of the Healthscope Corporate Policy and Procedure 8.18: Clinical Handover – Departmental and Intra-Unit (October 2020). 16. The evidence for Complaint 1: Particular 7 includes: a. [T]he practitioner did not do a bedside handover. b. The practitioner failed to conduct a handover of Patient A's care at the patient's bedside at the conclusion of her shift, in breach of the Health Scope Corporate Policy and Procedure 8.18: Clinical Handover – Departmental and Intra-Unit (October 2020). c. The expert opinion is that this conduct is significantly below the accepted standard: '(question 1) Please provide your opinion on the appropriateness of RN Dizon's in not conducting a [bedside] handover of Patient A. At the S150 hearing on 23 August 2021 RN Dizon admitted that the handover from night shift to morning shift on 30 July 2021 was conducted at the door of the patient's room and no one went in to check the patient. Healthscope Policy 8.18: Clinical Handover – Departmental and Intra-Unit states handover should occur at the bedside "on as many shifts as possible". It also states that an environmental scan must occur every shift, including "visualisation of the patient". RN Dizon is in breach of this policy by not conducting bedside handover and not visualising the patient. In her letter of response (undated) to the Council she says that no one checked the patient during handover as they "were not thinking he would deteriorate as he was ready for discharge". Nurses have a duty of care to every patient in a ward and that duty of care does not cease because a patient is nearing discharge. The patient was 85 years old with congestive cardiac failure, hepatic dysfunction and recently developed renal failure. His age and complex medical condition meant he was always at risk of deterioration, irrespective of his discharge status. The overarching statement of Standard 1 of the Registered Nurse Standards for Practice (NMBA, 2016) requires nurses to think critically when making decisions. The assumption by RN Dizon that the patient would not deteriorate as he was possibly for discharge does not demonstrate critical thinking and therefore does not meet Standard 1. Standard 1.4 of the Registered Nurse Standards for Practice (NMBA, 2016) requires a nurse to comply with legislation policies and guidelines. In not upholding the Healthscope handover policy RN Dizon does not meet Standard 1.4. For the reasons outlined above I find RN Dizon's actions to be significantly below the reasonably accepted standard.' Complaint 1: Particular 8 The practitioner spent cumulatively over one hour of her shift using her phone for personal use in a ward area of the hospital, in breach of the Nepean Private Hospital Policy and Procedure NPHGOV12.04: Mobile Phone Policy (January 2020). 17. The evidence for Complaint 1: Particular 8 includes: a. [D]uring the night shift, the practitioner spent a total of 66 minutes on her mobile phone for a FaceTime call. b. During the night shift, the practitioner spent cumulatively over one hour of her shift using her phone for personal use in a ward area of the hospital, in breach of the Nepean Private Hospital Policy and Procedure NPHGOV12.04: Mobile Phone Policy (January 2020). c. [A]t 6:40am to 6:51am on 30 July 2021, the practitioner remained at her desk on her phone. d. The expert opinion is that this conduct is significantly below the accepted standard: '(question 9) Please provide your opinion on the appropriateness of RN Dizon's conduct in using her personal mobile phone during her shift. In your response, please consider the Healthscope Mobile Phone Policy and the Nursing and Midwifery Board of Australia Code of conduct for nurses. The Nepean Private Hospital (Healthscope) mobile phone policy is clear that during a shift personal mobile phones are only to be used on designed breaks and are restricted to areas such as tearooms. The policy is clear that mobile phones may not be used in the ward area. The policy also notes the potential malfunction of medical equipment when mobile phones are used in close proximity. In her letter to RN Dizon dated 6 August 2021 Jill McEvoy-Williams (DON) says that CCTV footage shows RN Dizon spent "more than 66 minutes on FaceTime and other items on your phone". When questioned about this at her S150 hearing RN Dizon said that the 66 minutes were "not continuous" and that she uses her phone at work to "check on my family in the Philippines". Irrespective of whether her mobile phone use was continuous RN Dizon has clearly breached the hospital's mobile phone policy. While the potential risk to medical equipment from mobile phones has reduced with newer phones and advances in medical technology (U.S. FDA 2020), RN Dizon's [sic] still posed an element of risk to the patients on telemetry. Standard 1.4 of the Registered Nurse Standards for Practice says that nurse[s] must comply with local policies and guidelines. This is reiterated in Principle 1.2 of the Code of Conduct for Nurses which says nurses must maintain lawful behaviour, including complying with policies. In using her personal mobile phone in the clinical area work [sic] RN Dizon is in breach of the hospital policy and therefore does not meet Standard 1.4 of the Registered Nurse Standards for Practice or uphold Principle 1.2 of the Code of Conduct for Nurses. I find her actions to be significantly below standard.'" (footnotes omitted) 1. The Applicant then set out the evidence in support of Complaints Two, Three and Four as follows: Complaint 2 – failure to act to reduce fatigue due to excessive shifts 19. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that she engaged in conduct which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience because she worked excessive hours and failed to act to reduce the effect of fatigue and stress on her ability to provide safe care. 20. The evidence establishes that during January-July 2021, the practitioner: a. worked four 10-hour night shifts per week at Nepean Public; b. worked three 10-hour night shifts per week at Nepean Private; c. worked about 70-76 hours per week; d. did not take any annual leave from Nepean Private; e. only took annual leave from Nepean Public on 10-12 April, 24 May, 14-16 June 2021. 21. In July 2021, the practitioner worked night shifts at Nepean Public … and night shifts at Nepean Private …. 22. Accordingly, the practitioner worked 70 hours a week or more, over a period of multiple consecutive weeks, including in the seven days prior to her shift on the night of 29 July 2021 and into the morning of 30 July 2021 (Complaint 2: Particular 1). The practitioner breached Clause 7.1(b) of the Code of Conduct for Nurses (March 2018) by failing to act to reduce the effect of fatigue and stress on her health and on her ability to provide safe care (Complaint 2: Particular 2). 23. The expert evidence asserts that this conduct is significantly below the accepted standard: '(question 10) Please provide your opinion of the appropriateness of RN Dizon's conduct in working seven (7), 10 hour night shifts per week for extended periods of time. In your response, please consider the Nursing and Midwifery Board of Australia Code of conduct for nurses. At her S150 hearing RN Dizon stated that each week she worked 4 ten-hour [night shifts] in the public hospital and 3 ten-hour night shifts in the private hospital. She stated that she had received permission from Nepean [P]ublic [H]ospital to take on secondary employment with a nursing agency. The letter dated 12 February 2008 shows this permission was valid only for 12 months and that she was not to work in excess of 8 hours per week with her secondary employer. RN Dizon has not renewed this secondary employment approval since 2008 and, at the time of the incident, had accepted a part time position with the private hospital working 30 hours per week. Much research has been done on fatigue in nurses and the dangers this poses for their own health. Research also shows fatigue increases errors in care and consequently places patients at risk (Di Muzio et al, 2019; Sagherian et al, 2017). The NMBA Code of Conduct recognises the impact of fatigue on nurse and patient safety and explicitly states that nurses have a responsibility to maintain their physical and mental health to practise safely and effectively, including acting to reduce the effect of fatigue (Principle 7.2). Although RN Dizon denies she is fatigued, it is highly likely that working 70 hours of night shift per week has a detrimental impact on her health and performance. RN Dizon has failed to comply with the Nepean [P]ublic [H]ospital requirement to only work 8 hours with her secondary employer and to seek new approval for secondary employment after 12 months. She has also lacked insight into the risks of working 7 ten-hour night shifts in a row and failed to take responsibility for managing possible fatigue as is required by the [NMBA] Code of Conduct.' Complaint 3: failure to make adequate records 24. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that she engaged in conduct which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience because she failed to maintain comprehensive documentation. 25. The evidence establishes that: a. the Standards require a registered nurse to [maintain] accurate, comprehensive and timely documentation of assessments, planning, decision-making, actions and evaluations; b. at approximately 11:40pm on 29 July 2021, the practitioner recorded notes for Patient A, "TOC (transfer of care) of PT (patient) for the night. Alert. Orientated. Assisted to toilet using [walking] stick, voided. SOBOE (shortness of breath on exertion). Used 2L (2 litre oxygen) NP (nasal prong). Kept comfortable in bed. Call bell within reach"; c. at approximately 6:00am on 30 July 2021, the practitioner took observations of Patient A on the Standard Adult General Observation (SAGO) chart. The practitioner recorded the patient's respiratory rate, oxygen saturation, oxygen, blood pressure and heart rate and that the patient's oxygen was via NP (nasal prong); d. at approximately 6:30am on 30 July 2021, the practitioner recorded notes for Patient A: "Sleeping on & off. BNO (bowels not open). Voided. SOBOE. 2L NP PON", printed the ECG strip taken at 06:28 on 30 July 2021 and placed the ECG strip into the medical record; e. the practitioner did not make any other records during the night shift; f. the practitioner failed to record any further assessment she undertook in relation to Patient A's shortness of breath other than to note he was receiving 2L oxygen via nasal prongs (Complaint 3: particular 1a); g. the previous observations completed by the practitioner and other nurses on the SAGO chart recorded that the [patient had been receiving room air]; h. the practitioner failed to record the practitioner's reasons and planning for commencing Patient A on oxygen (Complaint 3: particular 1b); i. the practitioner failed to record any relevant assessments or decisions made in relation to the ECG strip taken at 06:28 on 30 Jul 2021, including why the practitioner did not consult a medical officer about the abnormal reading (Complaint 3: particular 1c). j. The expert evidence is that this conduct is significantly below the accepted standard: '(question 11) Please provide your opinion in relation to the adequacy and appropriateness of the clinical records made by RN Dizon. Standard 1.6 of the Registered Nurses Standards for Practice requires a nurse to maintain accurate, comprehensive and timely documentation of assessments, planning, decision-making, actions and evaluations. Standard 7.3 requires a nurse to determine, document and communicate priorities, goals and actions. The entries made by RN Dizon in the patient's notes mention his mobility and toileting. RN Dizon also notes that the patient is short of breath on exertion (SOBOE). She makes no comment on any further assessment she undertook for this, other than to say the patient is receiving 2L oxygen via nasal prongs. There are no further entries in the preceding two days indicating the patient experienced shortness of breath on exertion or that he required oxygen. His general observation chart shows that until 06:00 on 30 July he was on room air only. This would indicate RN Dizon applied the oxygen. Further details of her assessment, decision to initiate oxygen and further plans should have been documented. At 06:30 RN Dizon placed the rhythm strip in the patient's notes but does not make any documentation relating to this. If, as she told Jill McEvoy-Williams and the S150 panel, she was not concerned [about] the rhythm because it was the same as one taken in the evening, this should have been clearly documented. This would have included why she did not feel the need to contact the medical officer. RN Dizon's documentation is not comprehensive, does not include assessment, planning, actions or [goals]. For these reasons I find her documentation to be significantly below that required by Standards 1.6 and 7.3.' Complaint 4 – professional misconduct 26. This complaint is that the practitioner is guilty of professional misconduct under section 139E of the National Law. The evidence for Complaint 4 is the evidence for Complaints 1-3. 27. The relevant principles include: a. professional misconduct is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation; b. whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment; and c. in assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards. 28. The conduct in Complaint 1 (night shift failings) is conduct that, alone or together with other conduct, is of a sufficient serious nature to justify suspension or cancellation because: a. the practical effect of the failure to take adequate observations (Complaint 1: Particular 1) is that an elderly post-operative cardiac patient (who required 6-hourly observations) did not have any observations taken for over 10 hours; b. the practical effect of disconnecting the telemetry alarm speakers (Complaint 1: Particulars 2 and 3) is that nursing and medical staff did not hear the 7:07am alarm when the patient was bradycardic (so could not render assistance); c. the practical effect of the failure to properly interpret or escalate the abnormal ECG (Complaint 1: Particulars 4, 5 and 6) is that other nursing and medical staff were unaware of the abnormal ECG so were unaware that the patient was deteriorating and could not render assistance (the abnormal ECG went unnoticed until the medical officer reviewed the monitor after death); d. the above failures, coupled with the failure to conduct a bedside handover (Complaint 1: Particular 7) had the practical effect that nursing and medical staff did not hear the 7:14am alarm when the patient was asystolic and did not notice that he had died (the patient's death went unnoticed until other staff found him cold and unresponsive at 7:20am); e. the practical effect of the practitioner's mobile phone use (Complaint 1: Particular 8) is that the practitioner spent over an hour of her shift looking at her mobile phone rather than staying alert to any signs of deterioration; f. the practitioner's conduct placed patient safety at risk. 29. The conduct in Complaint 2 (excessive shifts) is conduct that, alone or together with other conduct, is of a sufficiently serious nature to justify suspension or cancellation because: a. nurses have a responsibility to maintain their physical and mental health to practise safely and effectively; b. the practitioner had only obtained secondary employment approval from Nepean Public to work 8 hours per week, but she was regularly working three 10-hour night shifts per week at Nepean Private; c. the practitioner's secondary employment approval was only valid for 12 months from 12 February 2008, so it had long since expired; d. the practitioner's conduct placed patient safety at risk; e. the expert states that it is highly likely that working 70 hours of night shift per week has a detrimental impact on the practitioner's health and performance; f. the practitioner was working as a registered nurse with vulnerable patients in the medical ward, including two patients with telemetry; g. the practitioner must have known that working 70 hours of night shift per week could impact on her ability to provide safe patient care; h. if the practitioner as unsure whether working 70 hours of night shift per week could impact on her ability to provide safe patient care at any time, she could have sought guidance from her Nepean Private employer, her Nepean Public employer, a nurse unit manager, a senior colleague, an employee assistance program, the Council, her insurer and/or AHPRA; i. the public are entitled to expect that registered nurses manage their working hours to ensure safe patient care; j. the practitioner's conduct placed patient safety at risk. 30. The conduct in Complaint 3 (inadequate records) is conduct that, alone or together with other conduct, is of a sufficiently serious nature to justify suspension or cancellation because: a. the practitioner had been working as a registered nurse for over 14 years, so she must have known the importance of making adequate records; b. the practitioner was first registered in 2006, so she must have been aware of the Registration Standards regarding adequate records; c. the practitioner had been working at Nepean Private since 2007 so she must have been familiar with the Healthscope requirements for adequate records; d. the practitioner had already completed a 1-hour competency [A]ssessment [of] [C]linical [D]ocumentation on 8 December 2020 and reflected on the risks posed by poor documentation in her CPD log; e. the practical effect of the practitioner's conduct is that the practitioner's nursing and medical colleagues would be unable to ascertain why she had commenced Patient A on oxygen (which he had not previously required), noting that increasing oxygen requirement is one "yellow zone" criteria which may warrant repeated/increased observations and consultation with the nurse in charge; f. the practical effect of the practitioner's failure to record any further assessment of the patient's condition is that the practitioner's nursing and medical colleagues would be unable to ascertain the severity of his shortness of breath (which could be of concern in an 85 year old post-[procedure] cardiac patient); g. the practical effect of the practitioner's failure to record any reasons and planning regarding oxygen is that the practitioner's nursing and medical colleagues would be unable to ascertain why she had commenced Patient A on 2L oxygen (which he had not previously required), noting that increasing oxygen requirement is one "yellow zone" criteria which may warrant repeated/increased observations and consultation with the nurse in charge; h. the practical effect of the practitioner's failure to record any assessments or decisions made in relation to the ECG strip is that the practitioner's nursing and medical colleagues would not be alerted to the abnormal cardiac reading (which may be of concern given that the patient had been admitted with heart and renal failure, was recovering from recent [a] cardiac [operation] and had recent diarrhoea) and would be unable to ascertain why she had not escalated it; i. the practitioner's conduct placed patient safety at risk." Proceedings under section 150 of the National Law 1. The Tribunal records that it has been provided with a transcript of the Respondent's testimony provided to the hearing convened under section 150 of the National Law on 23 August 2021. The Tribunal notes an email dated 14 December 2021 forwarded by the Respondent to the Applicant in which the Respondent expresses remorse for her events and for her "lack of professionalism I demonstrated". An email in similar terms was forwarded by the Respondent to the Applicant on 22 May 2022. The Tribunal observes that the section 150 hearing concluded that the current risk posed by the Respondent could not be addressed by the imposition of conditions and accordingly the Respondent's registration was suspended pursuant to section 150(1)(a) of the National Law with effect from 23 August 2021. Standard of Proof 1. The Tribunal must be satisfied that the complaints made against the Practitioner are established. In such assessment, the Tribunal must be satisfied to a high degree that the complaints made against the Practitioner are established. For this purpose, the standard of proof referred to in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 has been traditionally applied by this Tribunal as a guide. That is, the degree of satisfaction which must be held by the Tribunal is the civil standard of proof, but the gravity of each charge requires the Tribunal to be very satisfied that the conduct complained of is established. Respondent's Statement 1. The Respondent's email of 2 April 2023 seeks to explain certain issues raised by the Applicant. The Tribunal will repeat the issue raised by the Respondent and will add its commentary hereunder. 2. As to the disconnection of the telemetry monitoring, the Respondent states: "I disconnected the alarm and set the volume so that it would go to the lowest volume". 1. All the evidence of the Applicant establishes that the alarm was turned off. The Respondent states that she took such action so that an adjoining "confused" patient would not be disturbed. However, in doing so the alarm was turned off with respect to five patients. The Respondent stated there were only two patients on telemetry in the medical ward that night, not five. However, the evidence of the Applicant is that five patients in total were connected, even though there may have only been two patients in the ward where Patient A was located. There is no evidence whether any central monitor was located which would have alerted any problem with any of the remaining four patients. 2. As to the use of the mobile phone, the Respondent acknowledges her conduct in using a phone was wrong. The Respondent does not dispute that she used a phone as alleged. However, she states that she only used her phone after checking and settling all her patients, checking all the charts to see if their observations were stable, and checking to see if any medications were missed from the previous shift. The Respondent stated she checked all the medications from her shift. 3. There is no documentary evidence to verify the Respondent's statement. Further, the Respondent had spent 66 minutes in both FaceTime and telephone calls during her shift. As referred to by the expert, such conduct breached both the requisite standard and policies of the hospital 4. The Respondent states she checked on Patient A "a few times in the night and did not notice anything unusual". 5. There is no evidence by way of a written record to support that such checks were made. 6. The Respondent acknowledges that Patient A "had a lot of co-morbidities. I admit that I did not get the ECG strip reviewed by a medical officer as it was the same as the previous shift". 7. In fact, the ECG strip was not identical to that of the previous shift. 8. The Respondent states that the patient observations in the morning were that the patient was stable "and that he was settled". 9. Patient A's condition was deteriorating and had the Respondent been assessing her patient correctly, the Respondent should have been alerted to the fact of the patient's deterioration, particularly in view of her record that at 6:00 AM the patient required nasal prongs to assist in his breathing. Further, the Respondent wrongly interpreted the ECG which recorded a deterioration. 10. The Respondent states: "I admit that I'm not good at ECG reading, even though I have taken courses for it." 1. The Tribunal considers that the Respondent's admission in this regard demonstrates her lack of critical thinking in her practice of nursing. 2. As to the Respondent's bedside handover, the Respondent states: "Regarding the bedside handover, we did a walk-around handover that morning, but it was our (the AM shift and myself) mistake that we did not check each and every patient inside the room as they might get disturbed in their sleep, so we stood outside some patient's doors and others who are away, we went in and said good morning and that was what I meant when I spoke with the NUM (Nursing Unit Manager) regarding doing a bedside handover." 1. The Tribunal finds that such explanation in relation to the handover demonstrates a significant failure of care. 2. The Respondent states: "I decided to give up my registration. …" 1. There is no evidence that the Respondent has ever surrendered her registration. The Evidentiary Certificate of the Nursing & Midwifery Council records that the Respondent was registered as nurse from 28 September 2006 to 1 July 2010 and had no conditions imposed on her registration. The evidentiary certificate of the Australian Health Practitioner Regulation Agency dated 17 March 2023 records that the Respondent completed a Bachelor of Science in Nursing at Central Luzon Doctors Hospital in the Philippines in 1997; was first registered as a nurse in Australia on 28 September 2006; and remained registered from 1 July 2010 to 24 August 2021. The Respondent's registration was suspended from 24 August 2021 to the present. Principles and Standards 1. Section 3B of the National Law provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. The need to protect the health and safety of the public has been repeatedly referred to. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA said (inter alia) at [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. …" 1. In this application, the conduct relied upon by the Applicant is said to constitute unsatisfactory professional conduct under section 139B(1) of the National Law in respect of the following, namely: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) … (c) A contravention by the practitioner (whether by act or omission) of– (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. In addition, the Applicant submits that the particulars of Complaints One, Two and Three individually, or when considered together, are of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration, so as to amount to professional misconduct as defined in section 139E of the National Law. Consideration 1. The Tribunal has not had the benefit of any explanation which may have been offered by the Respondent, other than the contents of her email dated 2 April 2023 received by the Tribunal on the morning of the hearing. Accordingly, it must determine the issues raised by the complaints relying upon the expert evidence of Nurse Armitage. Having considered all he material before it, the Tribunal finds that in each particular of each complaint the allegations of unsatisfactory professional conduct are established. Further, the Tribunal considers that the Respondent's conduct, as detailed in Complaints One, Two and Three collectively constitute professional misconduct as defined in section 139E of the National Law. Observations Relevant to Sanction 1. The Tribunal notes that: 1. The Respondent has previously had complaints raised against her. In 2020, the Respondent treated her aunt at a hospital and alleged that she was authorised to do so. Upon further investigation, it was found that no such authorisation had been provided. 2. In the letter of termination dated 6 August 2021 from the Nepean Private Hospital addressed to the Respondent, the letter records: "You [the Respondent] agreed you had failed to adhere to hospital policy by attending the clinical handover at the patient's bedside. You also agree that on the night of Friday, 30 July 2021 at 21:09 hours you had assured me [the] handover had occurred at the bedside and admitted you had been dishonest to me. 1. In her email to the Tribunal dated 2 April 2023, the Applicant states: "Regarding not telling my NUM (Nursing Unit Manager) from the public hospital immediately about the incident from the private hospital, it was because I did not know that I was obliged to tell her at once about it." In fact, in her evidence to the section 150 enquiry, the Respondent acknowledges that she did not tell the public hospital of the incident at the Nepean Private Hospital. Further, a file note prepared on 23 August 2021 by the section 150 committee records the details of a telephone call to the Respondent at 15:40 hours on 10 August 2021 where the following advice was provided to the Respondent: "I advised Ms Dizon of her professional responsibility to inform her new employer that there has been a notification raised to the regulator." There is no evidence that the Respondent ever notified the public hospital of the fact that a notification had been made against her. 1. These issues, together with the comments made by the Respondent in her email to the Tribunal, are of concern in relation to the reliability of the Respondent's evidence. The Tribunal is concerned that the Respondent does not seem to accept responsibility for her conduct. Further, it is apparent that the Respondent requires significant education, particularly in understanding ECGs, if she is to practise as a nurse. The NSW Government's Policy Directive PD2020_018 entitled 'Recognition and management of patients who are deteriorating' provides relevant information in relation to the recognition, response to, and the appropriate management of the physiological deterioration of patients. In particular, there is a reference to the minimum number and frequency of vital sign observations of adult patients, namely 4 to 6 times per day at six hourly intervals. If the Respondent conducted any checks on Patient A as she claims, there is no record of such checks. 2. The Tribunal is satisfied that the sanction of cancellation of the Respondent's registration is required. Further, the Tribunal considers that the Respondent should not be able to seek re-registration for a period of 12 months. This period will allow the Respondent, should she so wish, to undertake courses of education and instruction which will assist her to proceed in any application for re-registration and demonstrate that she has a thorough knowledge of the standards required of a registered nurse. 3. The period of suspension is imposed, not by way of punishment, but rather for the protection of the community. Punishment has no part to play in the disciplinary system: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 184; [1968] HCA 20. Costs 1. The Applicant makes an application that its costs be paid by the Respondent. An award of costs is discretionary. However, the New South Wales Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 has held that the usual rule of costs should follow the event, that is that the successful party should be compensated by an award of costs, should apply to proceedings such as disciplinary proceedings before the Tribunal. This principle was established previously in Ohn v Walton (1995) 36 NSWLR 77 where the court, considering the extant Medical Practitioners Regulations, reg 27(1), found that the Medical Tribunal had a discretion to award costs similar to those applied by a court in similar circumstances such that costs should follow the event unless the circumstances of the case required that the exercise of discretion not to do so. Such principle has been followed in other proceedings, such as NSW Medical Board v Dinakar [2009] NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67]. 2. It should be observed that an award of costs is not intended to punish the losing party, but rather the costs are solely compensatory. In Latoudis v Casey (1990) 170 CLR 534 at 543; [1990] HCA 59, Mason CJ said: "… costs were not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings …." 1. As the Applicant has been successful, the Tribunal considers that the usual rule should apply that costs should be paid by the Respondent, and it will accordingly so order pursuant to clause 13(1) of Schedule 5D of the National Law. Orders 1. The Tribunal orders that: 1. Pursuant to section 149C(1)(b) of the Health Practitioner Regulation National Law (NSW), the Respondent's registration as a nurse is cancelled with a non-review period of 12 months. 2. Pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Respondent is to pay the Applicant's costs of and incidental to the proceed as agreed or assessed. 3. Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or disclosure of the name of Patient A listed in the Schedule to the Complaint and referred to in these proceedings is prohibited. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2023