Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Farley [2024] NSWCATOD 148 Hearing dates: 6 and 7 August 2024 Date of orders: 17 September 2024 Decision date: 17 September 2024 Jurisdiction: Occupational Division Before: S Dunn, Senior Member J Haines, Senior Member R Shaban, Senior Member A Gray, General Member Decision: (1) Pursuant to s 149C(4)(a) of the National Law the NSW Civil and Administrative Tribunal (Tribunal) decides that if the Respondent were still registered the Tribunal would have cancelled her registration. (2) Pursuant to s 149C(4)(b) of the National Law the Tribunal decides that the Respondent is disqualified from being registered in the nursing profession for two years from the date of these orders. (3) Pursuant to s 149C(4)(c) of the National Law the National Board is required to record the fact that if the Respondent were still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board. (4) Pursuant to s 149C(7) of the National Law an application for review of Order 1 may not be made for a period of two years from the date of these orders. (5) Under clause 13 of Schedule 5D of the National Law, the Respondent is to pay the HCCC's costs as agreed or assessed. Catchwords: HEALTH – professional registration and discipline – nurse – unsatisfactory professional conduct – professional misconduct – was the conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration - appropriate protective orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Gayed v Walton [1997] NSWCA 121 Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 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 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Melinda Gai Farley (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2023/00312443 Publication restriction: On 15 December 2023 an order was made pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the publication of the names of the persons listed in the schedule to the Complaint. REASONS FOR DECISION Introduction 1. This is an application to the Tribunal by the Health Care Complaints Commission (HCCC) for disciplinary findings and orders against the Respondent, Melinda Farley, following a determination by the Director of Proceedings of the HCCC to prosecute Complaints against her. Ms Farley was first registered as a nurse in 1994 and was registered under the Health Practitioner National Law (National Law) as a registered nurse from 1 July 2010 until 1 July 2023 when her registration lapsed. 2. The Complaints against Ms Farley are that she is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and s 139B(1)(c) and/or s139B(1)(l) of the National Law and that she is guilty of professional misconduct under s 139E of the National Law. The Complaints largely relate to Ms Farley's conduct as the nurse in charge of the care of Patient A on 10 September 2015. Patient A was admitted to hospital on 11 September 2015 and died later that day. 3. The HCCC bears the onus of proof of the Complaints. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made, which is recognised as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24]. 4. If the Tribunal finds the Complaints against Ms Farley to have been proved the HCCC seeks an order under s 149C(4)(a) of the National Law that if Ms Farley were still registered the Tribunal would have cancelled her registration, an order under s 149C(4)(b) of the National Law that she be disqualified from being registered in the nursing profession for a period of one to two years from the date of this decision, an order under s 149C(4)(c) of the National Law that the National Board is required to record the fact that if Ms Farley were still registered the Tribunal would have cancelled her registration, and an order under s 149C(7) of the National Law that Ms Farley may not seek review of the order under s 149C(4)(a) for a period of one to two years from the date of this decision. 5. In these reasons the Applicant is referred to as the Applicant or the HCCC and the Respondent is referred to as the Respondent or Ms Farley. Material before the Tribunal 1. The HCCC relied on four bundles of documents filed in the Tribunal on 13 March 2024, 9 April 2024, 18 July 2024 and 23 July 2024 respectively. 2. The materials relied upon by the HCCC included statements provided by: 1. a colleague of Ms Farley's, an Endorsed Enrolled Nurse, who was also on duty on 10 September 2015, Colleague A, which was made on 21 January 2023. This person will be referred to in these reasons as Colleague A or the EEN; 2. another colleague of Ms Farley's, an Assistant in Nursing, who was also on duty on 10 September 2015, Colleague B, which was made on 4 April 2024. This person will be referred to in these reasons as Colleague B or the AIN; 3. An expert, Ms Deborah Armitage, made on 20 January 2022 and 1 March 2023. 1. The materials also included an investigation report prepared by an expert, Ms Eunice Gribbin, made on 11 February 2016 and a further report of Ms Gribbin's dated 26 September 2016. 2. The AIN and EEN each also gave some further short evidence at the hearing by audio visual link and were cross-examined by Ms Farley. 3. Ms Farley relied upon two statements made by her previously on 9 January 2017 and 17 April 2019 and the transcript of her interview at a s 150C hearing held on 15 July 2019 which were included in the HCCC's bundle, as well as an email from her to the HCCC dated 11 April 2024 which she tendered at the hearing. 4. Ms Farley also gave evidence by audio visual link and was cross-examined. 5. The HCCC provided the Tribunal with written submissions on the afternoon of day two of the hearing. The Tribunal, therefore, gave Ms Farley an opportunity to consider those submissions and to provide her own written submissions by 28 August 2024. Ms Farley did not file written submissions. Relevant Legislative Provisions 1. It is convenient to set out below those provisions of the National Law relevant to this application. 2. Section 3 of the National Law provides, relevantly: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; … … (2) The objectives of the national registration and accreditation scheme are— (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; … 1. Section 3A of the National Law, which is an additional provision for NSW, relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows— … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3B of the National Law, which is also an additional provision for NSW, relevantly 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. A "NSW provision" is defined in s 5 of the National Law as: 5 Definitions (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. 1. Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 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. … (c) Contravention of conditions of registration or undertaking 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) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E of the National Law, which is an additional provision for NSW, provides: 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. Section 144, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— … (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. 1. Section 149, which is an additional provision for NSW, provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if— (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal. 1. Section 149C, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (b) the practitioner is guilty of professional misconduct; … (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. The Complaints 1. The Particulars of the Complaints against Ms Farley are detailed and a full copy of the Complaint is attached as Schedule One to these reasons. 2. Complaint One is that Ms Farley is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that she has: 1. engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by Ms Farley in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper and/or unethical conduct relating to the practice or purported practice of nursing. 1. The Particulars of Complaint One, in summary, are that on 10 September 2015 Ms Farley: 1. did not provide appropriate care to Patient A when she failed to undertake an appropriate assessment of her; 2. did not monitor and/or address Patient A's insufficient fluid intake as required by the bowel management plan in Patient A's progress notes; 3. did not recognise that Patient A was unwell and required a medical review; 4. did not provide an appropriate clinical response in relation to Patient A when she disregarded Colleague A's concerns and assessment of Patient A; 5. did not respond appropriately to Colleague A when Colleague A expressed her concerns about Patient A's deteriorating health to her; 6. did not provide an appropriate clinical response in relation to Patient A by dismissing Colleague B's concerns; 7. did not respond appropriately to Colleague B when Colleague B expressed her concerns about Patient A's deteriorating health to her; 8. did not accurately have regard to Patient A's clinical situation in that she failed to recognise that Patient A's oral intake was significantly less than what was required, recognise potential indicators that Patient A was unwell and required medical attention and did not escalate Patient A's condition to a CMO during the shift; 9. inappropriately removed Patient A's name from the communication book for a medical review the following day; 10. did not provide an adequate and accurate clinical handover in relation to Patient A to the night shift; 11. failed to recognise and/or respond appropriately to Patient A's clinical deterioration; 12. failed to escalate Patient A's clinical care to a medical officer, contrary to organisational policy; 13. incorrectly presumed that Patient A was reviewed by the Career Medical Officer on 9 September 2015 without holding any real basis for that opinion; and 14. inappropriately delegated completing Patient A's clinical notes to Colleague A. 1. Complaint Two is that Ms Farley is guilty of unsatisfactory professional conduct under section 139B(1)(c) and/or (l) of the National Law in that she has: 1. contravened a condition to which her registration was subject, and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. 1. The Particulars of Complaint two are that: 1. On 18 November 2019, Ms Farley contravened Condition 2 of her registration in that she: 1. failed to complete a performance assessment by performance assessors approved by the Nursing and Midwifery Council of New South Wales (Council); 2. failed to comply with any instructions provided by the Council in relation to her performance assessment. 1. Complaint Three is that Ms Farley is guilty of professional misconduct under section 139E of the National Law in that she has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, and/or 2. 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 her registration. 1. The Particulars of Complaint Three are that: 1. Complaint One justifies a finding of professional misconduct. 2. In the alternative, Complaints 1 and 2 taken together justify a finding of professional misconduct. 1. Ms Farley did not file a Reply to the Complaint notwithstanding an order having been made by the Tribunal that she do so. The evidence 1. The following facts emerge from the evidence. 2. Ms Farley obtained a Diploma of Health Science (Nursing) from the University of Newcastle in August 1994. She was first registered as a Registered Nurse on 30 December 1994. Ms Farley commenced working at the Stockton Centre in Newcastle in 1995 and worked there in various different roles until May 2017. The Stockton Centre comprised a series of units for people living with disability. Over the course of her time working at the Stockton Centre Ms Farley had worked extensively with people with developmental disabilities and challenging behaviours. 3. Patient A was a 49-year-old long-term resident of the Stockton Centre, having lived there since she was a child. She had a severe intellectual disability, but communicated verbally. Patient A lived in Unit 17, which provided residential care for 20 people living with disability. 4. Ms Farley had worked with Patient A at the unit "on and off" for many years and knew her well. 5. Ms Farley was rostered on as the Nurse in Charge of the Unit for the "B" shift between 3 pm and 11 pm on 10 September 2015. At that time Ms Farley had not worked in Unit 17 for a period of some months (Ms Farley suggests in her 2017 statement a period of three months, in her 2019 statement a period of seven months, and in her 2024 statement a period of five months). 6. Also rostered on Unit 17 on this date were the EEN, Colleague A, from 3pm to 11pm and the AIN, Colleague B, from 1.30pm to 9pm. 7. An Acting Residential Unit Nurse Manager (ARUNM) had been rostered on for Shift "A". He finished his shift at 3.30pm. There was no Residential Unit Nurse Manager rostered on for the "B" shift. Patient A's recent medical history 1. In the preceding months, Patient A had suffered from a number of health issues including constipation and episodes of abdominal distention. 2. In Patient A's health care plan completed in July 2015 it was noted that Patient A suffered from constipation. Under the heading "How does it affect [Patient A]", it was noted "Abdomen will distend. Mood will change and will be less co-operative". Under the heading "How best to support [Patient A]" it was noted: "Administer Medication as prescribed. Report any changes, deterioration in condition immediately to RN/ Manager. Refer to Medical Officer as required. Encourage extra fluids [increase] fibre in diet. Increase exercise". 3. On 13 August 2015 Patient A was reviewed by a doctor, Dr Evans. In the Medical Client Progress Notes Dr Evans recorded: Review of abdominal distension (↑ing)… only small amounts of watery soft faeces…Difficult to examine. Won't allow staff to touch her or take observations. … Body habitus and relative size of abdomen (easily equivalent to a full term pregnancy). Audible wheeze at times. No cyanosis. Wouldn't let me examine her. Hits me forcefully if I approach… Assessment Issues include: - ↑ abdominal distension – acute or chronic… Pattern of abdomen reducing size overnight in past. - ? trigger to this ante episode ? constipated - unlikely to have bowel obstruction but need to be aware of possibility of eg volvulus – wheeze most likely to be due to compression of lung capacity… - Really very difficult to manage given that [Patient A] refuses examination. Will need to treat presumptively. Plan: -Assuming constipation/faecal loading is a trigger then ↑ Movicol to maximum dose … Continue until gets diarrhoea (not overflow) then back off dose to regular … -Try and do abdominal girth (if she'll let you) -If she develops nausea/food refusal/vomiting must contact [Career Medical Officer] asap to ensure not a bowel obstruction -Ideally would do [Abdominal x-ray/Chest x-ray] but could not do this without [sedation] so cannot justify at this point in time. 1. On 4 September 2015, Patient A was again reviewed by Dr Evans who recorded in the Medical Client Progress Notes the following: [Patient A] approached me complaining of sore ears and sore belly. Staff report explosive watery pale [bowel movements], [abdomen] firm, refuses auscultation (looks same size as 9 months [pregnancy], girth 100cm Assessment … overflow again [secondary] to impaction plan … - ↑ Movicol … - Daily girth measurement (standing [twice a day], first thing in the morning and last thing at night before bed) - Please set up girth log sheet (using columns on bowel chart) - Try to ↑ fluid intake. Aim for > 3 litres/day (new [fluid balance chart]) - Try to ↑ walking every day (if staffing levels allow) - Try to get [Patient A]'s bowels open every day to avoid impaction - If [bowels not open] Day 1 then give pr aperients in this order (ie a therapeutic ladder of increasing effectiveness): … If any concerns [with] above or if [Patient A] unwell, call CMO to [review] please. 1. After this, and before 10 September 2015: 1. A girth measurement log sheet was prepared. It indicates that Patient A's girth was measured in the morning on 5, 6, 7 and 9 September and in the evening on 5 and 7 September. Her girth measurement taken on the evening of 8 September 2015 was recorded in the Unit Report (the Unit Report was a report on incidents which took place in the unit overall over a 24 hour cycle to be reported to Nursing Administration by 8am the next morning and serves a different purpose to Nursing Client Progress Notes which are patient specific); 2. Patient A's bowel chart records that she opened her bowels once a day on 5, 6, 8 and 9 September 2015 and twice on 7 September 2015; 3. No fluid balance chart appears to have been prepared. Patient A's fluid intake was recorded for 5 September and 7 September only in the Unit Reports prepared for those days, on each occasion as being over 3000mls; 4. The Nursing Client Progress Notes (the observations in respect of an individual patient) for Patient A record that on 5 September 2015 Patient A's "monthly weight" and "monthly observations" comprising blood pressure, temperature, pulse, oxygen saturation and urinalysis observations were taken. 5. There were no Nursing Client Progress Notes for Patient A for 6,7,8 or 9 September 2015. 10 September 2015 1. On 10 September 2015 Patient A appears to have gone on an outing with an external service provider. It is not clear from the records available to the Tribunal what time Patient A returned to unit 17 that day. Ms Farley's recollection is that it was at approximately 3.40pm, at the same time as she was receiving a handover from the ARUNM who was completing his shift. 2. Ms Farley says that there were no concerns raised in respect of Patient A by the ARUNM on hand-over. That is consistent with Colleague A, the EEN's, evidence. No Nursing Client Progress notes were made in respect of Patient A and no notes were included in the Unit Report in respect of Patient A by the "A" shift on that day. 3. Ms Farley says that she was given receipts for Patient A's lunch for that day and that no issues were reported to her by the external service provider who had accompanied her on her outing. 4. This was the first time in a number of months that Ms Farley had seen Patient A. She said she noticed that Patient A had put on weight and looked tired, she had dark bags under her eyes. Her evidence as to whether she noticed Patient A's fingers were cyanosed at that time is inconsistent and we will return to that below. 5. Ms Farley says that having noticed Patient A's distended abdomen, she spoke to the "regular staff", namely the EEN and other casual staff who had cared for Patient A regularly recently, and was told that Patient A had been diagnosed with "something" and her appearance was "normal" and that she had "been like that for several months". 6. Ms Farley noticed that Patient A refused her usual can of coke at afternoon tea and refused chocolate cake for dessert at dinner time, which was also unusual for her. 7. Both the AIN, Colleague B, and the EEN, Colleague A, have given evidence that Patient A's behaviour that afternoon was out of character. 8. Colleague B made a statement on 25 July 2016 (confirmed by her statement made on 4 April 2024) in which she stated: On returning from a community outing with clients, I entered Unit 17 and noticed [Patient A] lying on her side on one of the lounges in the lounge room. [Patient A] had her hands between her legs and was rocking from side to side; this behaviour is out of character for [Patient A]. I then asked the OIC "what is wrong with [Patient A]"? The OIC (B. Farley) informed me "[Patient A] could be self stimulating". I then located EEN [Colleague A] and informed her what the OIC has said. I asked [Colleague A] would she come and check on [Patient A] with me, as she has a good rapport with [Patient A]. I then left the area to attend other clients. The next time I saw [Patient A] she was at the dining table, refusing to eat or drink and felt she was in an agitated state. [Patient A] proceeded to run around the dining area, pulling at her fingers, [Colleague A] tried to calm her down so she could take some obs. [Patient A]'s behaviour was such that [Colleague A] was unable to complete the obs. [Patient A] eventually calmed down and sat down on the lounge. At some stage I recall talking to the OIC and discussed if an ambulance should be called because [Patient A] was more likely to go with [Colleague A] to the hospital. [Patient A] had not taken any food or fluids for some time, [Colleague A] was encouraging [Patient A] to hold a container of ice coffee. [Patient A] was shaking but managed to drink a little. 1. Colleague B had been interviewed by Ms Gribbin as part of her investigation. In her 26 September 2016 report, Ms Gribbin summarised a telephone conference she had had with Colleague B on 23 July 2016. In that summary Ms Gribbin reported that Colleague B told her that the suggestion that an ambulance be called "was dismissed [by Ms Farley] and they were told [Patient A's] name was in the medical diary to see the doctor in the morning". 2. In her evidence at the hearing Colleague B confirmed that she had said this to Ms Gribbin, she did recall suggesting an ambulance be called, and said that she felt disheartened by Ms Farley's reaction to her suggestion. 3. Colleague A's evidence is: When I came onto my shift there was nothing on the handover from the day shift indicating any issues or anything unusual about [Patient A]. While I was showering another resident, I distinctly recall AIN [Colleague B] came down to see me. We walked down to the lounge room where I saw [Patient A] not as she usually was. She was lying on her side on the 3-seater lounge, rocking back and forth. She had sunken black eyes, was tense and grimacing in the face. She was also swearing more than normal. Her fingers were cyanosed, but this was not unusual. At this point RN Farley was sitting in the lounge and did not appear concerned. AIN [Colleague B] had told RN Farley that something was not right with [Patient A]. RN Farley reportedly replied that she was sexually stimulating herself. I said to both AIN [Colleague B] and RN Farley that she never does that. I found RN Farley's demeanour to be standoffish. I approached [Patient A] who recognised me but told me to 'piss off'. I was able to feel her abdomen which was hard and distended. This was not unusual. I offered her afternoon tea, asking if she wanted a drink, offering tea or coffee. She refused everything. I then asked if she wanted a spa bath or a shower which may give her some relief. She said no. She followed me and stood outside the bathroom while I tended to other residents. I asked if she wanted a shower a few times, but she kept saying no. I noticed that she was agitated and was pacing back and forth. I then showered other residents and took my break around 4.30pm. At some point that afternoon I distinctly recall sitting round a table with RN Farley and AIN [Colleague B]. At that point I said to RN Farley 'she looks shit' referring to [Patient A]. AIN [Colleague B] said that if we were to call an ambulance, [Patient A] (would be compliant) and go with me to the hospital. RN Farley's response was dismissive of both of us and our opinions, and she said that it was in the doctor's diary for tomorrow. I did not check if this was the case. Tea was then served around 5.30pm, and again [Patient A] refused everything offered to her. However, I got her to take her medicine. She wouldn't take water, so I gave her a Milo drink which she spilt all over herself as her hands were shaking. … [Patient A] refused supper at around 7.30pm, saying to staff words to the effect of 'piss off, I don't want it.' I later tried to take her blood pressure reading, but she pushed me away. I was also unable to take her temperature. I started to write progress notes (including [Patient A]'s) at approximately 9pm after all residents were settled in bed. At this point RN Farley asked me 'why I was writing all that'. I said to her 'because this happened'. I last saw [Patient A] in bed around 10.30pm lying awake. She was easily disturbed, and I could not take any observations. The night staff then came in around 11pm. RN Farley handed over to [an EN and an AIN] that [Patient A] had refused all her meals and drinks but did take her medications. I also told them she had refused food and fluids, but had accepted medication. I again said to them 'she looks shit'. 1. In her evidence at the hearing Colleague A confirmed that Patient A's bowels had not opened during the "B" shift and staff had been unable to take Patient A's girth measurement that evening. 2. Colleague A was taken to a note made by Ms Gribbin of an interview with her on 21 July 2016. Ms Gribbin's note of that interview states: During the interview, EEN [Colleague A] said that during their break time another staff member [Colleague B] said words to the effect "if you call the ambulance now [Patient A] would go with [Colleague A]. This was because she had a very good rapport with Patient A…[Colleague A] stated that RN Farley's response was to inform [Colleague A] that "it's in the MO's diary for [Patient A] to see the doctor in the morning". [Colleague A] felt that she could not question her any further as her response was very blasé, she stated "I can't remember what her exact response was but she was very curt, and I felt I had been put in my place and there was nothing else I could do." 1. Colleague A confirmed that this was consistent with what she told Ms Gribbin. She said she felt she had been put in her place by Ms Farley and said she didn't feel like she had been heard. 2. Under cross-examination by Ms Farley, Colleague A said that Colleague B's reference to her trying to give Patient A iced coffee, was likely a reference to the milo she recalled trying to give her. She said that Patient A ate a minimal amount of banana that evening and a minimal amount of yoghurt, just sufficient for Patient A to take her medication. She said that Patient A's distended stomach was "normal" for her at that time, but that it was not normal for it to be distended and hard. 3. The EEN's notes entered in Patient A's Progress Notes read as follows. The EEN said that these notes were made by her at approximately 9.30 or 10pm that evening. She had recorded the notes as "1600" hours as that was when she had first observed Patient A's behaviour. 10.9.15 1600 [Patient A] refused A/Tea despite all options offered even refusing a drink of coke. Abdomen noted to be distended, fingers cyanosed & laying on lounge chair rocking to & fro. Eyes glazed. Variety of fluids offered throughout the shift. A set of obs attempted [with] no success – became agitated & refused all attempts. Girth measurement refused. All food & fluids at evening meal refused. Accepted a banana (mashed). [Bowels not opened] this shift. Refused supper – accepted her medications [with] yoghurt & returned to bed. Obs attempt while in bed became agitated once more. 1. When asked by the Panel why she had not recorded the suggestion that an ambulance be called in Patient A's Client Progress Notes, Colleague A said she only wrote in the Progress Notes observations as to what she had observed and the things she was doing, such as offering Patient A drinks. 2. Patient A's bowel chart records that she opened her bowels during the "A" shift that day. There is no record in the bowel chart of her having opened her bowels on the "B" shift that day. 3. Patient A's girth management chart records that her girth was measured in the morning on that day but does not record it having been measured in the evening on 10 September 2015. 4. Ms Farley entered her notes for the shift in the Unit Report as follows: Routine medications given by RN Farley and EEN [Colleague A]. [Patient A] refused fluids and food. Took tablets. Layed (sp) rocking on lounge and pacing on the spot majority of shift. 1. These are the only notes Ms Farley made of her observations, assessment and management of Patient A for that shift. 2. Ms Farley's evidence was that she read Patient A's notes after tea. 3. Ms Farley's evidence as to exactly which notes relating to Patient A she read was inconsistent, at first saying that she "took the file and read the whole file for 15 or 20 minutes", later agreeing that she read the Nursing Progress Notes and the Unit Reports but later again saying that she did not read the Nursing Client Progress notes, and that she only read the Medical Client Progress Notes and the Unit Report for 9 September 2015. She said that she does not read all the Nursing Client Progress Notes for every client as there is no reason to do so. Ms Farley did not think it odd that there were no Nursing Client Progress Notes for Patient A between 5 September 2015 and 10 September 2015. She said that it was not unusual for there to be gaps in Nursing Client Progress Notes as there was only a need to report observations which had been made. 4. Ms Farley was clear that she did read Dr Evans' Medical Progress notes of 4 September 2015. However, she said that the need to aim for fluid intake of more than 3 litres did not "stand out" to her. She said she was not aware of the need to try and have Patient A drink 3 litres of fluid a day. There was no fluid balance chart and she was not made aware of that requirement. 5. Ms Farley said that she was not concerned that Patient A had not eaten her tea. She said Patient A had arrived home from her outing not long before and had already had lunch. She said Patient A often refused a meal and would often throw her food on the floor or at staff if she was not interested in it or did not like it, but that she did like dessert. 6. She noted that there was a plan for a suppository "due to her condition" (ie constipation) but that the EEN had informed her that Patient A had gone to the toilet and had loose bowels which was common for her. She said that she had been told by Colleague A, or other staff on the shift, that Patient A had opened her bowels three times on the B shift, (although in her 2017 statement and later in her evidence she said she had been told she had opened her bowels twice during the shift.) When asked why that was not recorded in Patient A's bowel chart she said that she did not know, and that perhaps it was because there were "agency" staff on shift or that maybe it had not been significant enough to warrant putting it on the chart. She said that given that Patient A had opened her bowels that morning it also didn't matter if she did not open her bowels on the "B" shift. She had no real concern during her shift that day that Patient A was constipated. 7. In her statement dated 17 April 2019 Ms Farley said staff had attempted to take Patient A's girth measurement but Patient A had made it very difficult for them to do so. She said "circumference was finally obtained after around 20 attempts and was not more extended than the normal range." Under cross-examination she was asked if this was the case why her girth measurement had not been charted and again she said she did not know. She said that Colleague A had told her that the circumference measure was not "over the range it should be", so in her view there was no cause for concern. She said Colleague A offered to write up the progress notes and she assumed Colleague A would have written up the girth measurement in the notes. 8. In her statement dated 17 April 2019 Ms Farley stated "No time did her fingers appear cyanosed or I was informed of any cyanosis". However, in her evidence at the hearing Ms Farley said that she did notice that Patient A had a "bit of cyanosis" but was told by the regular staff that that was normal for Patient A. Later in her evidence at the hearing she said that the cyanosis was present at the beginning of the shift but had gone by the end of the shift. She agreed that part of her answer in the transcript of the s 150C hearing namely that statement that "there were no signs of cyanosis" was not right. She denied that she said that at the s 150C hearing. She could not explain why she had said in her 2019 statement that at no time did her fingers appear cyanosed. 9. In cross examination Ms Farley was taken to Dr Evans' notes of 4 September 2015 which stated that if staff had any concerns or Patient A was unwell, they should call the CMO. Ms Farley's explanation for not doing so, which was repeated in similar terms numerous times throughout the hearing, was as follows. 10. Ms Farley said that when she first saw Patient A she consulted with "regular staff", namely Colleague A (the EEN) and other casual staff who had worked recently with Patient A, and was told that it was normal for Patient A to have a large stomach and dark around her eyes and a bit of cyanosis. The "A" shift had not reported any problems at handover. When Patient A returned from her outing no problems had been reported to her. She said Patient A had eaten when she was out and drank and had had breakfast because no one had told her that she hadn't. She said as Patient A's bowels had opened in the morning and during the shift and she had accepted some fluid (and had access to a water machine) and staff had told her she had yoghurt with her tablets, milo and eaten some banana, she "didn't see a problem". Patient A was often moody. She asked Patient A if she had a headache and Patient A said no. She said Patient A would usually say if she had pain. (Later her evidence was that she in fact did ask Patient A if she had any pain and Patient A said "no".) She said if Patient A's stomach was sore, she would motion to the area. She does not believe Patient A was in any abdominal pain. She said she was not showing any signs of it. She put Patient A's behaviour down to her normal mood swings. She said Patient A was pacing after tea, but she often followed her around. Patient A was in the appointment book to see the doctor the next morning, however as Patient A had taken some fluids and eaten some food, she took her out of the appointment book to see the doctor in the morning. At handover to the night shift, she told the nurses on the next shift that Patient A had not eaten much so if she wanted something to eat or drink they should give it to her because Patient A might get hungry. When she did the walk around with the "C" shift at handover, Patient A was "fine, asleep in bed". She told the next shift to "keep an eye on her" as she thought Patient A might be getting the flu. She says she told them that if Patient A did not eat breakfast she may need to be "checked out". She said she does not recall hearing Colleague A say to the "C" shift that Patient A looked terrible or "like shit". 11. She said that she assumed Patient A had seen a doctor the day before because there was a medication rechart that day and Patient A's name had been crossed off the list. She assumed Patient A had seen the doctor and a line had been put through her name once that had occurred. Ms Farley appeared to accept in the s 150C hearing, however, that Patient A may only have had a medication rechart the day prior and not a thorough review by a doctor. 12. She said she does not remember Colleague B asking her what was wrong with Patient A after observing her rocking back and forth on the lounge or saying that something was not right with her or that her behaviour was out of character. She does not remember saying that Patient A could have been masturbating. She does recall Patient A being agitated after staff attempted girth measurements but that that was not unusual for Patient A. She said it was not unusual for Patient A to rock back and forth and pace around and she did not think that was an indication Patient A was in pain. 13. She said that she does not recall Colleague A saying to her that Patient A "looks like shit" although conceded that she may have said she didn't look well. 14. She said she did not recall anyone suggesting to her that an ambulance be called. She said that if they had said that she would have listened and she would have called the Nursing Manager to see if they should call the after hours doctor. 15. She said that she had been able to feel Patient A's stomach and that it was not "rock hard", she could impress her fingers into it, so she was not concerned. 16. She said she was not concerned about Patient A's food refusal because she hadn't refused breakfast or lunch and Patient A quite often refused tea and drinks. In her 17 April 2019 statement Ms Farley said "I put her name down for the next day due to her not eating my shift then she ate 2/3 banana crossed her off the list." 17. She said that she does not accept that there was any need to get urgent medical help for Patient A during her shift on 10 September 2015. She said there was no reason to do so. She said Patient A was not grabbing at her stomach, did not appear in pain, had gone to bed, had eaten on the shift, had had lunch and it was common for her not to eat tea. Ms Farley was not "overly concerned" about her. 18. Ms Farley was also interviewed by Ms Gribbin as part of her investigation. Ms Gribbin's note of her conversation with Ms Farley on 21 July 2016 noted: 29. I enquired if there was any consideration of calling an ambulance the evening 10 September [2015]? 30. MF: "no, why would you ring an ambulance because she didn't eat chocolate cake, and she had eaten some banana and had been out during the day so she could have eaten while she was out, she wasn't 100% but I didn't think she was really unwell. It was just a little bit of a concern". 1. Ms Farley was asked whether she had said that to Ms Gribbin and she accepted that she had. She said that she only had had a concern originally because of Patient A's physical changes since she had last seen her, but staff had said she had looked the same way for three months. 2. Ms Farley was asked whether there was anything about her conduct on the shift that day that she would now do differently and her answer was "no". 3. The Unit Report for 10 September 2015 notes that as of midnight on 10 September 2015 Patient A's fluid intake for the past 24 hours was 1750mls. It is unclear how this could have been calculated in the absence of a fluid balance chart or any notes as to Patient A's actual fluid intake from the "A" or "B" shifts. Relevant Guidelines 1. The Stockton Centre Health Care Procedural Guidelines which were in force at the time provided: 1. All staff are responsible for observing and responding to changes in client health and communicating information to the client and relevant supervisory staff and staff working in the unit. When a client appears ill or in pain, or when there is an observable change in the client's health, staff are to assist the client to access appropriate health or medical services as soon as possible. 2. Indicators that a client is unwell may include, but are not limited to: Change in behaviour … Change of skin colour … Change of eating or drinking patterns … Facial expressions or body actions which could indicate pain … 4. Responsibility of the Officer in Charge in the absence of the Residential Unit Nurse Manager • Read all apartment reports, assess, follow up as required and sign as evidence. • … • Contact the Medical Officer or After Hours Nurse Manager to report a client is unwell … • Gather all information for the Medical Officer, i.e. clinical observation results, client's normal baseline information, client's bowel charts, food logs, fluid balance charts, medication charts and client progress notes, client's behaviour over the last 24 - 48 hours as well as any medical test results, including radiology and pathology. • … • Document information on shift changeover checklist. Findings with respect to Ms Farley's conduct on 10 September 2015 1. As can be seen from the above there are a significant number of inconsistencies between Ms Farley's earlier statements and her evidence given at the hearing as to what occurred on 10 September 2015. There are a number of aspects of Ms Farley's evidence which we do not accept or where we prefer the evidence of Colleague A or B whose evidence we accept. They are as follows. 2. Ms Farley said she was not concerned about Patient A's food refusal because she had eaten breakfast and lunch. There is nothing in the Client Progress Notes to confirm what Patient A ate on "A" shift, and little in the Unit Reports leading up to 10 September in this regard (although we note that it is likely that Ms Farley did not read those notes, other than the notes for 9 September 2015, in any event). While it may be reasonable for Ms Farley to assume that she would have been told at handover if Patient A had not eaten breakfast and there was nothing in the Client Progress Notes for that morning to suggest she hadn't, Ms Farley cannot have known what, if anything, Patient A ate or drank at lunchtime. We reject her assertion that Patient A had eaten at lunchtime. It simply cannot be known whether she did or she did not. Even if Ms Farley was provided with a receipt for Patient A's lunch, that does not establish that she ate. 3. We do not accept Ms Farley's evidence that she was told that Patient A had opened her bowels two or three times during the "B" shift. This is not consistent with Patient A's bowel chart and not consistent with Colleague A's (the EEN's) Client Progress Notes which clearly record that Patient A's bowels did not open. 4. Ms Farley's evidence at the hearing (which was inconsistent with earlier statements made by her and her evidence at the s 150C hearing) was that Patient A did have cyanosed fingers. We find that she did. It is recorded in the Client Progress Notes. We do not accept Ms Farley's evidence that Patient A's fingers were no longer cyanosed by the end of the shift. Again, this is inconsistent with the Client Progress Notes and appeared to us to be a last-minute invention of Ms Farley's to seek to explain away the inconsistencies in her various different statements in this regard. 5. We do not accept Ms Farley's evidence that she was told that Patient A's girth measurement had finally been taken and that she was within the "normal range". Dr Evans had not specified in her notes what might be a "normal range". The girth measurement chart does not record a measurement having been taken and this is again inconsistent with the contemporaneous Client Progress Notes made by Colleague A. 6. We find that Colleague A and Colleague B did express concerns to Ms Farley about Patient A, and that Colleague B said to Ms Farley that Patient A's behaviour was out of character for her. We also find that Colleague B did, in the presence of Colleague A, suggest to Ms Farley that an ambulance be called so that Patient A might travel to hospital with Colleague A. We find that Colleague A did say to Ms Farley that Patient A "looked like shit". We find that Ms Farley dismissed these concerns, saying that Patient A was in the diary to see the doctor the following morning. 7. We accept that Ms Farley asked Patient A whether she had a headache. Ms Farley's evidence has been consistent in that regard. We do not accept Ms Farley's evidence at the hearing, however, that she asked Patient A whether she was in pain and she said "no". That was the first time Ms Farley had suggested that. In her 2017 statement Ms Farley does state "she [Patient A] was asked and didn't indicate she was in pain" but she does not say that Patient A said that she was not in pain. Had she done so, in the circumstances, we believe that Ms Farley would have mentioned that much earlier. Expert evidence 1. Ms Armitage has provided an opinion on the adequacy and appropriateness of Ms Farley's care and management of Patient A on 10 September 2015. Her evidence is referred to in our consideration of Complaint One below. 2. Ms Farley did not accept any of the criticisms made by Ms Armitage of her conduct on that day. Events following Patient A's death 1. An investigation was undertaken by Ms Gribbin into the circumstances leading up to Patient A's death and Ms Gribbin provided her first report with recommendations for steps which should be taken by the Stockton Centre on 11 February 2016. Following this report, Ms Farley was placed on non-client duties. 2. Ms Gribbin provided a further report in September 2016 and, following that, the Deputy Secretary Disability Operations of the Department of Family and Community Services (FACS) wrote to Ms Farley on 12 December 2016 advising her that, having considered Ms Gribbin's report, she had formed the opinion that Ms Farley had engaged in misconduct because she had failed in her professional capacity as a registered nurse to appropriately care for Patient A on 10 September 2015, contributing to the deterioration in her health. 3. Ms Farley provided a response to that letter which is her statement dated 9 January 2017. 4. On 14 March 2017 FACS wrote to Ms Farley advising that they had decided to terminate her employment. On 23 March 2017 Ms Farley resigned from the Stockton Centre. 5. In June 2018 FACS made a complaint to the HCCC and in July 2018 FACS made a complaint to the Council. The Council held a s 150 hearing on 29 October 2018 which Ms Farley did not attend. The Council determined at that hearing to impose a condition on Ms Farley's registration that she was not to work as a registered nurse until reviewed by Council. 6. The HCCC wrote to Ms Farley on 1 April 2019 requesting information and documents relevant to its investigation of the complaint against her. 7. Ms Farley provided a response to that request which is her 17 April 2019 statement. 8. The matter was referred back to the Council for management and on 24 May 2019 the Council resolved to refer Ms Farley for s 150C (Review) proceedings to determine what steps should next be taken. 9. The Council held a s 150C hearing on 15 July 2019 which Ms Farley attended by Skype. 10. At the s 150C hearing Ms Farley told the Council delegates that she had experienced some very significant difficulties since resigning from her position at the Stockton Centre including that one of her children had passed away, she had separated from her partner, the bank had foreclosed on her house, she was suffering from some significant health issues and, as a result of all of these things, was also experiencing some mental health issues. 11. The Council resolved at that meeting to vary the conditions on Ms Farley's registration to include a further condition that Ms Farley was to complete a performance assessment by assessors approved by the Council and comply with any instructions provided by the Council in relation to the performance assessment. 12. The Council explained the rationale for imposing that condition as follows: [W]e're doing that because you haven't worked for two years and we just don't know where you're at, you know, in terms of being a safe nurse. So we're going to send you for a performance assessment…. it's just a way of you showing … that you're safe to practise…. usually you come into a lab and you're given scenarios and there's two assessors that look at certain areas. So the areas that we've considered that need to be included in this are things like identifying a deteriorating patient, between the flags, teamwork, communication, all the things that were brought up… 1. The Council explained the need to comply with the condition as follows: You've got to comply with the conditions on your registration. Noncompliance may result in a review by the council and possible further restrict[ion]s or a suspension being imposed on your registration and we view noncompliance with conditions as a very serious matter which have significant risks to the patient safety … You will receive correspondence about the decision in the next week and the written reasons for decision will be provided in about a month. So you're going to need to keep a very close contact. It's going to be up to you to contact Stephanie or whoever your case manager is because if you're moving, we won't know where you are. 1. Ms Farley was sent a letter dated 15 July 2019 from the Council confirming the condition imposed on her registration to complete a performance assessment. 2. On 12 August 2019 the Council emailed Ms Farley reminding her to comply with the conditions on her registration and again attaching the notice of conditions. 3. On 17 October 2019 the Council sent Ms Farley an email attaching a letter dated 17 October 2019 providing details of the performance assessment scheduled for 18 November 2019 and a copy of that letter was also personally served on Ms Farley by a process server on 23 October 2019. 4. On 14 November 2019 a copy of a further letter dated 17 October 2019 was personally served on Ms Farley. That letter enclosed a copy of the assessment plan which noted the date of the assessment as 18 November 2019, the venue as being St Vincent's Hospital Clinical School in Darlinghurst, identified the assessors and set out a timetable of the assessments to be undertaken. 5. Ms Farley did not attend the performance assessment on 18 November 2019. 6. Ms Farley said that she often experienced difficulties with her email which she only accessed on her phone as she does not have a computer. She said that about this time (October/November 2019) she was in the middle of moving house and that she only received the letter advising her of the performance assessment in the first week of December 2019. She said that she actually did go to St Vincent's Hospital for the purposes of undertaking the assessment but that she went on 18 December 2019 because she had mis-read the letter. She assumed, because she only received the letter in December, that it said the assessment was scheduled for 18 December, not 18 November. She said when she got to St Vincent's the training facility worked out that there had been a miscommunication and she was told that that they would get in touch in February to reschedule the assessment. She said, however, that the next year Covid started and she did not hear further from them. She said that since the end of 2019 her own health has declined and that she is extremely unwell and that she is now "medically retired" from working in any capacity. 7. Given the affidavits of personal service which are in evidence, we cannot accept Ms Farley's evidence that she only received notification of the assessment in December 2019. Indeed, when she was cross-examined on this point and taken to those affidavits she said that it must have been a different letter that she received in December and that she must have misread the letters personally served on her in October and November. She did not recall receiving those letters and said she was receiving a lot of documents around this time because she was also involved in another court case. Complaints – consideration Complaint One – unsatisfactory professional conduct under s 139B(1)(a) of the National Law 1. Particular One of Complaint One is that on 10 September 2015 Ms Farley did not provide appropriate care to Patient A when she failed to undertake an appropriate assessment of her in the circumstances particularised in the Complaint which is attached as Schedule One. 2. There are certain aspects of the circumstances particularised which we do not find the HCCC has proved to the Briginshaw standard. 3. As to Particular One paragraph (e), while we find Patient A was rocking back and forth (indeed Ms Farley's notes in the Unit Report are that she did so for much of the shift), we do not consider that the HCCC have established that Patient A was rocking back and forth "as though she were in pain". Ms Farley's evidence was that Patient A often rocked back and forth, so that while it may have been a sign that Patient A was in pain, it was not necessarily so. We do not find Particular One paragraph (e) has been established in this respect. 4. As to Particular One paragraph (j), Colleague B's evidence was that she asked Ms Farley "what is wrong with [Patient A]", not that she said to Ms Farley that she felt Patient A was "clearly in pain". We do not find Particular One paragraph (j) has been established in this respect. 5. We find that all of the other circumstances particularised in paragraphs (a) to (n) of Complaint One Particular One have been established on the evidence. 6. Ms Farley did not at any time during her shift on 10 September 2015 attempt to undertake an appropriate assessment of Patient A. Ms Armitage's opinion is, and we find that, in the circumstances particularised, her failure to do so was conduct significantly below the standard reasonably expected of a nurse of Ms Farley's experience. 7. Particular Two is that Ms Farley did not monitor and/or address Patient A's insufficient fluid intake as required by the bowel management plan in Patient A's progress notes. Ms Farley clearly did not monitor or address Patient A's fluid intake as required by the Bowel management plan. Her evidence was that, notwithstanding that she read Dr Evans' notes of 4 September 2015 which included an instruction to aim for more than 3 litres/day and to create a fluid balance chart, that did not "stand out" to her and she was unaware of that instruction. There was no record of Patient A's fluid intake from the "A" shift that day so Ms Farley could not have known what Patient A's fluid intake had been before she commenced her shift. Ms Farley did not record Patient A's fluid intake at any stage on her shift. Ms Farley was aware that Patient A had refused a coke (coca-cola) which was unusual for her. In her evidence Ms Farley mentioned several times that Patient A had access to a water machine. However, the issue was not access, but intake. Ms Farley's attitude was that as she had been told or observed that Patient A had had some fluids (some milo/iced coffee and some sips of water) that was sufficient, and because she had also had some yoghurt and banana, sufficient even to remove Patient A's name from the list to see the doctor in the morning. The Unit Report for 10 September 2015 notes that as at midnight Patient A's fluid intake was 1750mls. It is unclear how that could have been calculated in the absence of notes from the earlier shifts. Nonetheless, even if that is accurate that is significantly below the 3 litres/day Dr Evans had recommended. We find that Ms Farley's failure to monitor and address Patient A's fluid intake was conduct significantly below the standard reasonably expected of a nurse of Ms Farley's experience. 8. It is convenient to consider Particular Three (failure to recognise Patient A was unwell and required a medical review), Particular Eight (failure to accurately have regard to Patient A's clinical situation), Particular Eleven (failure to recognise or respond appropriately to Patient A's clinical deterioration) and Particular Twelve (failure to escalate Patient A's clinical care to a medical officer contrary to organisational policy) together. 9. Each of the circumstances particularised in the Complaint with respect to those particulars other than in one minor respect has been established on the evidence. 10. Particular Eleven paragraph (f) is that Colleagues A and B told Ms Farley that Patient A was cyanosed. The evidence did not establish that Colleagues A and B told Ms Farley that Patient A was cyanosed. However, Ms Farley's evidence at the hearing was that Ms Farley observed for herself Patient A's cyanosis. 11. It is clear on the evidence that Patient A's records which Ms Farley read showed a history of constipation and there was in place a bowel management plan requiring careful monitoring of the patient. However notwithstanding Patient A looked tired, had dark eyes, had cyanosis, refused her favourite food and drink, ate and drank very little over the shift and was rocking back and forth for some time, all potential indicators that she may be unwell, and further notwithstanding the concerns expressed to her by Colleagues A and B and the suggestion that an ambulance be called, Ms Farley did not recognise that Patient A required a medical review and did not escalate Patient A's care to a medical officer as Dr Evans' notes and organisational policy required. 12. We find each of Particulars Three, Eight, Eleven and Twelve have been established and that Ms Farley's conduct in this regard fell significantly below the standard expected of a nurse of her experience. 13. Particulars Four and Six are that Ms Farley did not provide an appropriate clinical response in relation to Patient A when she disregarded Colleague A's and Colleague B's concerns in relation to Patient A. Particulars Five and Seven are that Ms Farley did not respond appropriately to Colleague A and Colleague B when they expressed their concerns to her. 14. As with Particular One paragraph (j), we find that one of the circumstances particularised in Particular Six, paragraph (a), has not been established on the evidence. That is, the HCCC has not established that Colleague B said to Ms Farley that she felt Patient A was clearly in pain. 15. Each of the other circumstances particularised in those Particulars has been established. 16. In dismissing the concerns of her colleagues who had recently regularly cared for Patient A and knew her well, particularly in circumstances where Ms Farley had not herself seen the patient for a period of some months, Ms Farley clearly did not respond appropriately and clearly did not provide an appropriate clinical response in so far as Patient A was concerned. Ms Armitage's opinion is, and we find that, her conduct in this regard was significantly below the standard that would be expected of a registered nurse. 17. Particular Nine is that Ms Farley inappropriately removed Patient A's name from the communication book for a medical review the following day. 18. Ms Farley's own evidence is that she did remove Patient A's name from the communication book. This was because, she said, she no longer thought it necessary as Patient A had had some fluids, some yoghurt and some banana. 19. Ms Armitage's evidence was that in doing so Ms Farley did not make any connection between the indicators of Patient A's condition, namely Patient A's refusal to eat, changed behaviour, cyanosis and low fluid intake. Ms Armitage refers to the National Competency Standards for Registered Nurses, Standard 5.3 which requires a nurse to analyse and interpret data accurately and recognise that clinical judgments involve consideration of conflicting information and evidence. In Ms Armitage's opinion, which we accept, in removing Patient A's name from the communication book for medical review, Ms Farley did not accurately interpret data or consider conflicting information in her clinical decision making. Ms Armitage's opinion was, and we find that, Ms Farley's conduct in this regard was significantly below acceptable standards. 20. Particular Ten is that Ms Farley did not provide an adequate and accurate clinical handover because she failed to communicate to the staff on the night shift the deterioration in Patient A's condition. 21. At the handover Ms Farley's evidence was that she told the nurses on the next shift that Patient A had not eaten much so if she wanted something to eat or drink they should give it to her because Patient A might get hungry. She told the next shift to "keep an eye on her" as she thought Patient A might be getting the flu. She says she told them that if Patient A did not eat breakfast she may need to be "checked out". She did not say anything about the fact that Patient A had been rocking to and forth (although she did put that in her Unit Report), had cyanosis or dark bags under her eyes or suggest, because she did not in fact recognise that this was possible, that Patient A might be in pain. She did not say that Patient A had had insufficient fluid intake. She did not say that Colleague A and B had expressed concerns about Patient A. Nothing in Ms Farley's handover would have raised particular concerns for the night shift or alerted them to the need to more closely observe Patient A that night. 22. Ms Armitage's view was that Ms Farley's failure to adequately communicate the events of the evening to night shift placed Patient A at risk and for that reason her opinion was, and we find, that Ms Farley's conduct in this regard significantly below acceptable standards. 23. Particular Thirteen is that Ms Farley incorrectly presumed Patient A had been reviewed by the Career Medical Officer on 9 September 2015 without holding any real basis for that opinion. 24. There was nothing in the Medical Client Progress Notes, Nursing Client Progress Notes or Unit Report of 9 September 2015 suggesting that Patient A had been reviewed by Career Medical Officer or any other doctor on that day. Ms Armitage's opinion is that with no medical entry it would have been clear to Ms Farley that Patient A's condition had not been reviewed and at most her medications had been recharted. Her opinion is, and we find, that Ms Farley's assumption that Patient A had been reviewed by the Career Medical Officer on 9 September 2015 had no real basis and was conduct significantly below the accepted standard. 25. Particular Fourteen is that Ms Farley inappropriately delegated completing Patient A's clinical notes to Colleague A in circumstances where Ms Farley had concerns about Patient A's abdominal distention, had concerns about Patient A's refusal of food and drink and was aware of Colleague A's and/or B's concerns about Patient A including behavioural changes, rocking and pain. 26. We do not find that Ms Farley had concerns about Patient A's abdominal distention or refusal of food and drink. Her evidence was that having been told by others that Patient A's abdominal distention was "normal" she was not concerned by it. Similarly, notwithstanding the bowel management plan's instruction that staff aim to ensure that Patient A had at least 3 litres of fluid a day, she was not concerned about Patient A's refusal of food and drink. She was satisfied that Patient A had had some fluids, some yoghurt and some banana. She assumed that Patient A had eaten lunch. Ms Farley should have been concerned about Patient A's refusal of food and drink but we find that, unfortunately, she was not. 27. Nonetheless we do find that her delegating completion of Patient A's clinical notes to Colleague A in circumstances where she knew Colleague A and B had concerns about the patient, was inappropriate. Conclusion Complaint One 1. We find Complaint One has been proved, other than in respect of those aspects of the circumstances particularised which we have identified above. 2. Ms Farley's conduct as established demonstrates that the care exercised by her in her care for and management of Patient A on 10 September 2015 was wholly inadequate and very significantly below the standard reasonably expected of a nurse of an equivalent level of training or expertise caring for a vulnerable patient such as Patient A. 3. As such, we find Ms Farley is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law. 4. In those circumstances we do not need to consider whether her conduct in this regard was improper or unethical for the purposes of s 139B(1)(l) of the National Law. Complaint Two – unsatisfactory professional conduct under s 139B(1)(c) and/or (l) of the National Law 1. Complaint Two relates to Ms Farley's failure to attend her scheduled performance assessment on 18 November 2019. 2. We accept that it may well be the case, especially given the very difficult circumstances Ms Farley was in at the time, that Ms Farley did not carefully read the letters personally served on her in October and November advising her of the performance assessment scheduled for 18 November 2019. Nevertheless, at the s 150C hearing in July 2019 the Council had advised Ms Farley that she would be receiving information about the assessment and clearly stressed to her the importance of her complying with the condition to attend the performance assessment and staying in touch with her case manager. In the circumstances, Ms Farley should have read those letters carefully, which were quite clear in their terms, and her failure to do so does not excuse her failure to attend the assessment. 3. We find Ms Farley failed to complete the performance assessment and failed to comply with the instructions provided by Council in relation to the assessment in contravention of a condition to which her registration was subject. 4. As a contravention by Ms Farley of a condition to which her registration was subject has been established, it follows that we must find that she is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law. The Tribunal has no discretion in that regard. 5. In the circumstances we do not need to consider whether her conduct in this regard was improper or unethical for the purposes of s 139B(1)(l) of the National Law. 6. We find Complaint Two has been proved. Complaint Three – professional misconduct 1. Complaint Three is that Ms Farley is guilty of professional misconduct under s 139E of the National Law. The question we must then determine is whether the conduct we have found to be unsatisfactory professional conduct amounts to professional misconduct. 2. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19]-[20], Basten JA explained: "19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 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. …" 1. In assessing the seriousness of the conduct, it is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638; [1997] NSWCA 264. 2. Ms Farley's conduct on 10 September 2015 was extremely serious misconduct and departed very significantly from proper standards. While the records before the Tribunal (in particular the absence of any Client Progress Notes for the period 6 – 9 September just after a bowel management plan had been put in place) suggest that other staff may well also have failed in their care of Patient A in the days leading up to her death, it is clear that Ms Farley's care of Patient A on 10 September 2015 was wholly inadequate. 3. Ms Farley was a registered nurse with approximately 20 years' experience. She was experienced at caring for patients with challenging behaviours. She was the officer in charge of the unit. 4. Patient A was a vulnerable patient showing clear signs that she may be experiencing pain and yet Ms Farley did not undertake a comprehensive assessment of her. 5. The procedure, which was well known to Ms Farley, was to contact the medical officer if a patient was unwell. Patient A's management plan which had been written by Dr Evans on 4 September 2015, and which Ms Farley had read, clearly stated that if she was unwell, staff were to call the medical officer. While it seems Ms Farley did put Patient A into the book to see a doctor the next day, she later took her back out again. 6. Ms Farley's attitude towards Patient A's care on that day was completely slap dash. Having seen the bowel management plan of 4 September 2015 which called for fluid intake and bowel movements to be monitored and documented and girth measurements taken, Ms Farley was unconcerned that there were no Client Progress Notes at all from 6 to 9 September recording monitoring of the patient. In our view that should have been cause for alarm. Ms Farley said that she would not have read them anyway. 7. Ms Farley's view appears to have been that because it had not been reported to her that Patient A had not eaten on her outing, she could simply assume that she had, and because Patient A had had a small amount of fluids and a small amount to eat, that was sufficient even though the management plan called for staff to aim to have Patient A have at least 3 litres of fluids a day. She says she was told that Patient A had opened her bowels during the shift, but that is not what had been written in the Progress Notes - quite the contrary. 8. It is clear that Ms Farley was dismissive of concerns raised by Colleague A and Colleague B. 9. What is of further significant concern is that Ms Farley remains dismissive. 10. Her position remains that she did nothing wrong at all. While she says she feels terrible about Patient A's death, she says she has no regrets about what happened on her shift. She says there is nothing about her conduct on that shift that she would do differently. 11. This demonstrates a very disturbing lack of insight by Ms Farley into the very significant shortcomings in her care for Patient A on that day. 12. We find that Ms Farley's conduct on 10 September 2015 as particularised in Complaint One is sufficiently serious to justify the suspension or cancellation of her registration and, as such, Ms Farley is guilty of professional misconduct under s 139E of the National Law. 13. We do not consider that Ms Farley's failure to comply with the condition on her registration to attend a performance assessment would, of itself, amount to professional misconduct, particularly given the explanation Ms Farley has proffered. However, in light of our finding above nothing turns on that. Appropriate Protective orders 1. The Complaints having been proved to the extent as set out above, it falls then to determine whether, and if so how, the Tribunal should exercise its disciplinary powers. 2. As Ms Farley is no longer registered, we must decide whether, if she were still registered, we would have suspended or cancelled her registration and, if so, whether we consider that she should be disqualified from being registered for a period. 3. Under s 149C(1)(b) the Tribunal may suspend or cancel a practitioner's registration if the Tribunal is satisfied that the practitioner is guilty of professional misconduct. Disciplinary orders - principles 1. Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing 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. 2. The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. However, that is not to deny that such orders may be punitive in effect: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], [31]. 3. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA gave the following explanation 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. 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 the exercise of its protective jurisdiction, the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153. 2. As we have found Ms Farley guilty of professional misconduct, it would have been open to us to cancel her registration under s 149C(1)(b) of the National Law if she was still registered. However, that outcome is not automatic: Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 at [4]. 3. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA noted at [101]: The 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. 1. There may be circumstances where, although a practitioner has been found guilty of professional misconduct, it is nonetheless not necessary for the proper protection of the community to make a cancellation order. This is not such a case. 2. Ms Farley says that she "feels terrible" that Patient A died but has expressed no remorse in respect of her own conduct that day. She takes no responsibility for having played any part in Patient A's deterioration. She has demonstrated no insight whatsoever into the fact that what she did, or failed to do, may have contributed to Patient A's demise. She would not do anything differently in the same situation again. 3. In those circumstances we would be concerned that Ms Farley would pose a risk to the health and safety of the public if she were permitted to return to practice. 4. While Ms Farley says that her own health problems now prohibit her from returning to nursing (or any work) in any event, a very clear message also needs to be sent to other nursing practitioners that careless behaviour such as Ms Farley demonstrated on 10 September 2015 will not be tolerated. 5. In the circumstances, if Ms Farley were still registered, it would have been appropriate and necessary to cancel the Respondent's registration as a nurse pursuant to s 149C(1)(b) of the National Law. 6. We are satisfied that it would have been necessary and appropriate to make an order cancelling Ms Farley's registration to publicly condemn her conduct. A cancellation order would also serve to act as a general deterrent, to protect the public from similar misconduct by other practitioners, to uphold the standards of the nursing profession and to preserve public confidence in the profession. 7. We also consider that Ms Farley should be disqualified from being registered in the nursing profession for a period of time. In our view, a period of two years before Ms Farley could again seek registration or a review of our decision that, if she were still registered, we would have cancelled her registration, is appropriate. Conclusion on Appropriate Protective Orders 1. For the above reasons, we agree that it is appropriate to make the protective orders sought by the HCCC against Ms Farley. Costs 1. The HCCC also seeks an order that the Respondent pay its costs as agreed or assessed. 2. This is a costs jurisdiction, and ordinarily costs should follow the event. While there is a discretion not to award costs to the successful party it must be exercised judicially "according to proper fixed principles and rules of reason and justice": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]-[44]. 3. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 at [9]. 4. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, the Court of Appeal identified factors that might militate against the HCCC recovering all its costs as including a lack of success in obtaining findings against the practitioner, or the HCCC's failure to establish the particulars pleaded, or some oppressive conduct on the part of the HCCC in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing. 5. While there are some particulars pleaded which the HCCC has failed to establish, the HCCC has established the overwhelming majority of the particulars pleaded against Ms Farley and on the material before the Tribunal, we do not consider there has been any disentitling conduct by the HCCC in this case that would warrant a departure from the general rule. While it has taken a considerable time for these proceedings to come before the Tribunal we are satisfied that the HCCC has adequately explained that delay. 6. In light of the above the orders we make are as follows. Orders 1. Pursuant to s 149C(4)(a) of the National Law the NSW Civil and Administrative Tribunal (Tribunal) decides that if the Respondent were still registered the Tribunal would have cancelled her registration. 2. Pursuant to s 149C(4)(b) of the National Law the Tribunal decides that the Respondent is disqualified from being registered in the nursing profession for two years from the date of these orders. 3. Pursuant to s 149C(4)(c) of the National Law the National Board is required to record the fact that if the Respondent were still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board. 4. Pursuant to s 149C(7) of the National Law an application for review of Order 1 may not be made for a period of two years from the date of these orders. 5. Under clause 13 of Schedule 5D of the National Law, the Respondent is to pay the HCCC's costs as agreed or assessed. ******** SCHEDULE (157684, pdf) 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: 17 September 2024