Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bousfield [2014] NSWCATOD 57 Hearing dates: 26, 27, and 28 March, 2013 Decision date: 02 June 2014 Jurisdiction: Occupational Division Before: J Hughes (Principal member) C Sharp (Nurse Member) Dr. G Tolhurst (Nurse Member) D Rosen (Lay Member) Decision: The practitioner's registration is cancelled. The Australian Health Practitioner Regulation Agency ("AHPRA") is requested to remove the practitioner's name from the register of Health Practitioners maintained by AHPRA on behalf of the Nurses and Midwives Board of Australia; that a period of not less than one year must elapse before the practitioner may again apply to the Tribunal for re-instatement of her registration; a non-publication order was made; no costs order was made. Catchwords: Amendment of Complaint; complaint against a nurse; competence; conduct; costs; discretion as to costs; form of pleadings; further and better particulars; impairment; ; non-publication order; procedural fairness; performance assessments; professional misconduct; protective orders; unsatisfactory professional conduct Legislation Cited: Health Practitioner Regulation National Law (NSW) (the "National Law"); Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Qidwai v Brown (1984) 1 NSWLR 100; Pillai v Messiter (No 2) (1989) 16 NSWLR 97; Briginshaw v.Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Clyne v. NSW Bar Association (1960) 104 CLR 186; Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666; Dare v Pulham (1982) 148 CLR 658; Cropper v Smith (1884) 26 Ch D 700; HCCC v. Litchfield (1997) 41 NSWLR 630; HCCC v. Gillett [2007] NSWNMT 7; NSW Bar Association v. Hamman (1999) NSWCA 404; Re Dr Parajuli [2010] NSWMT 3; Byrne v. Kinematograph Renters Society Ltd [1958] 1 WLR 762; Bruce v. Oldhams Press Ltd [1936] 1 KB 679; Goldsmith v. Sandilands [2002] HCA 31; Stewart v. Secretary, Department of Health (unreported, NSWCA 6 August, 1986; Etherton v. Public Service Board (1985) 3 NSWLR; King v. HCCC [2011] NSWCA 535; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; Johnson v. Miller (1937) 59 CLR 467; HCCC v. O'Connor [2012] NSWNMT 6; Kazar (Liquidator) v. Kargarian [2012] FCAFC 136; Lindsay v. HCCC [2010] NSWCA 194; Tung v. HCCC [2011] NSWCA 219; HCCC v. Boyd [2010] NSWNMT 19; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 70; A Solicitor v. Council of the Law Society of New South Wales [2004] HCA 1, (2004) 216 CLR 253 Category: Principal judgment Parties: Health Care Complaints Commission, (Applicant) Representation: Counsel B Mulqueeney, (Applicant) Health Care Complaints Commission -S King, Solicitor,(Applicant) NSW Nurses and Midwives Association P Robinson, (Respondent) File Number(s): 1420002 Publication restriction: NON PUBLICATION ORDERS APPLY reasons for decision What the Tribunal decided 1On 2 June, 2014 the New South Wales Civil and Administrative Tribunal, Occupational Division (Health Practitioner Division List) ("the Tribunal") published reasons for decision in respect of an Amended Complaint, amending the original Complaint which was dated 14 September, 2012 brought by the Health Care Complaints Commission ("the HCCC") and lodged with the then NSW Nursing and Midwifery Tribunal ("the NMT"). The Tribunal found two of the four complaints alleged against Alison Bousfield ("the practitioner") set out in the Amended Complaint to be proved, being Complaints Three and Four. 2The Tribunal made protective orders pursuant to s.149C(1)(a) of the Health Practitioner Regulation National Law (NSW) 86a ("the National Law") that the practitioner's registration as a registered nurse be cancelled. 3That Australian Health Practitioner Regulation Agency ("AHPRA") is requested to remove the practitioner's name from the register of Health Practitioners maintained by AHPRA on behalf of the Nurses and Midwives Board of Australia. 4The Tribunal further ordered that a period of not less than (1) one year elapse before the practitioner may apply for a review under s163A of the National Law of the orders concerning registration to practise nursing, and .the Civil and Administrative Tribunal (NSW) ("NCAT") is the appropriate review body. 5The Tribunal also made a non-publication order. This order precludes publication of the name of the four patients referred to in the schedule to the Complaint before the Tribunal. 6The Tribunal did not make an order as to costs, such that each of the parties should bear their own costs. 7These are the Tribunal's reasons for the orders made. Persons referred to in Reasons for Decision Alison Bousfield, the Practitioner Delmar Private Hospital Staff RN Lynley Butler, Education Facilitator RN Jenny Cross, Nurse Unit Manager RN Sinead Mayer, Registered Nurse RN Vicki Eaton, Registered Nurse RN Ruth Ryburn, Hospital Rehabilitation RN Ingrid Statis, Hospital Director AIN Rowena Wood, Assistant in Nursing Expert Evidence Rebekkah Middelton, Registered Nurse Dr Pauline Langeluddecke, Clinical Psychologist Dr Peter Whetton, Consultant Psychiatrist Other RN Crispin, Independent Assessor, Registered Nurse, Nurse Educator Table of abbreviations and acronyms AIN: Assistant in Nursing AHPRA Australian Health Practitioner Regulation Agency ANMC: Australian Nursing and Midwifery Council BLS: Basic Life Support BSL: Blood Sugar Level IV: Intra venous RN: Registered Nurse "the Board": Nurses and Midwives Board of NSW "the Hospital: Delmar Private Hospital NMC / "the Council": Nursing and Midwifery Council of NSW PRP Professional Review Panel HCCC/ "the Commission" / "the Complainant": Health Care Complaints Commission "the Practitioner, the Respondent": Alison Bousfield Procedural Matters 8Directions hearings and the main hearing. The following documents were tendered into evidence without objection: * Complainant's Volume, Exhibit CV, Tabs 1-38 * Respondent's Volume, Exhibit RV, Tabs 1-3 * Exhibits A- D 9The Complaints (without Particulars) Ms Alison Bousfield ("the practitioner") of ... being a Registered Nurse (RN) under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration COMPLAINT THREE is not competent to practise nursing in that she does not have the sufficient mental capacity, knowledge and/or skill to practise nursing within the meaning of section 139(a) of the National Law. COMPLAINT FOUR Suffers from impairment within the meaning of section 5 of the National Law. Introduction 10The practitioner is a 44 year old woman who, at the time of the events leading to this Complaint, was employed as a registered nurse at Delmar Private Hospital ("the Hospital"). She completed her Diploma of Health Science (Nursing) in 1992 and was thereafter registered. At the relevant time in this matter she had been registered for around seventeen years, and was classified at the highest categorisation of registration - that is, as an 8 year Registered Nurse ("RN"). The practitioner's Resume (RV, Tab 1, Annexure A) revealed that between her initial registration as a nurse and 2010 she had been employed or engaged by fifteen organisations / agencies. Her employment at Delmar Private Hospital commenced in January 2007. She customarily worked night duty at the Hospital. The substance of this complaint involves a raft of allegations which flowed after the practitioner failed to achieve a satisfactory result in a routine basic life support examination ("BLS") on 17 March, 2010. It is agreed that on or around 17 March, 2010 RN Lynley Butler, Education Facilitator at the Hospital, advised staff that she was available to conduct the regular BLS testing for anyone who wanted to do theirs that day, and that the practitioner, after completing night duty, came to RN Butler's office around 8am and advised that she would like to be tested before she went home. The nature of the examination was that it was an annual test of emergency life support procedures, and the Hospital required all manner of staff to pass the examination, from nurses through to cleaning staff. It was the unsatisfactory result in that examination that began the chain of events that resulted in this Complaint by the HCCC. 11The practitioner's deficiencies in the BLS examination caused the hospital to immediately contact the then NSW Nurses and Midwives Board ("the Board"). The advice was that the Hospital could either engage in an education programme with the practitioner, or make a formal complaint to the Board. The latter course of action would result in the Board requiring the practitioner to submit to performance assessments, to be conducted by the Nursing and Midwifery Council. The decision was made that day by the Hospital Director, Ms Ingrid Statis, to follow the route of formal complaint to the Board, and to immediately suspend the practitioner from duties (with pay), effective from 17 March, 2010. In the weeks and months following her suspension, the Hospital made enquiries of staff as to whether they had observed any problems or irregularities in her clinical practice. Those enquiries unearthed a number of allegations of clinical concerns. It is noted that there had not been any formal complaints made to the Hospital administration concerning the practitioner prior to this time. Particulars 1-30 of the Complaint upon which these proceedings are based, comprise information gathered from staff concerning the practitioner. The information was gathered, for the most part, months and years after the alleged events. Many of the allegations were staff memories of purported clinical practice irregularities by the practitioner which had not been recorded or investigated at the time. A number of the allegations were without reference to particular patient names or specific times, which meant that the evidence was, at best, the distant memories of those involved without the benefit of medical records or other documentation. Most of these particulars are denied by the practitioner. 12Further performance and competency assessments were conducted by both the Hospital and later, as foreshadowed, by an independent assessor, for the Nursing and Midwifery Council of NSW. In addition to the 'not yet competent' result for the BLS test on 17 March, 2010, the practitioner was assessed by the Hospital Education Facilitator as 'not yet competent' in both Oral Medication and Intravenous Medication competency tests on 31 March, 2010. On 7 October, 2010 the independent assessor, using the Australian Nursing and Midwifery Council ("ANMC") Competency Standards for the Registered Nurse (December 2005) ("the Standards"), rated her as not competent in three areas - Medication / Intravenous Therapy Assessment; Infection Control; and Clinical Assessment of the Patient. This resulted in a finding by the assessor of the practitioner being 'not competent' in five out of the ten standards, her report concluding "... I do not consider Alison Bousfield safe to practice as a Registered Nurse unless she is under the direct supervision of another Registered Nurse. I am unable to recommend a suitable education program as a result of this assessment." 13The practitioner was assessed by Consultant Psychiatrist, Dr Peter Whetton on 26.05.2010. Dr Whetton, in his report dated 27.05.2010 (CV, Tab 24) drew the conclusion that she did not have a mental illness. No diagnosis was made on the basis that there was no clinical evidence upon which a firm diagnosis could be made. No evidence of mental illness was advanced during the hearing. 14The Nursing and Midwifery Council ("NMC") suspended the practitioner's registration on 12 October, 2010 pursuant to s.150(a) of the National Law. Her registration to practise expired on 31.01.2011. 15The Performance Review Panel ("PRP") convened on 18 January, 2011 to conduct a review of the practitioner's performance at the request of the NMC. The Panel recommended the NMC make a complaint against the practitioner. (CV, Tab 30, Nurses and Midwifery Performance Review Panel Reasons for Decision dated 23 February, 2011.) 16Dr Pauline Langeluddecke, Clinical Psychologist, conducted neuropsychological assessment on the practitioner on 24 November, 2011. Dr Langeluddecke concluded in her report dated 25 November, 2011 (CV, Tab 27, at p.10) "I doubt that Ms Bousfield has sufficient cognitive resources to competently perform higher level nursing duties/roles which involve supervising other nursing staff or the independent care of patients whose medical issues are acute, complex and /or rapidly changing." Dr Langeluddecke provided a supplementary report dated 7 November, 2012. This report was not prepared with the benefit of the practitioner attending Dr Langeluddecke, but rather in consideration of the earlier testing and with the view of answering specific fresh questions put by the NSW Nurses and Midwifery Council on behalf of the Respondent. These reports will be considered later in these reasons for decision. In her Statement dated 10.12.2012 the practitioner accepted Dr Langeluddecke's opinion as expressed in the reports as it relates to Complaints 3 and 4. In written submissions concerning Complaints 3 & 4, Ms Robinson states that "the respondent understands that she suffers from a cognitive impairment within the meaning of section 5 of the Health Practitioner National Law NSW". 17At the time of the hearing the practitioner's nursing registration had been suspended. The registration expired on 31 January, 2011. The issues 18The issues fall broadly into four categories. (1)Firstly, whether there is sufficient evidence that the practitioner's clinical practice fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, thereby amounting to unsatisfactory professional conduct under s.139B of the National Law. If so, was the conduct sufficiently serious, either singularly or cumulatively, to amount to professional misconduct under s.139E of the National Law? (Complaints One and Two) (2)Secondly, whether there is compelling evidence as to whether Ms Bousfield lacks the capacity, knowledge and/or skill to practise nursing within the meaning of section 139(a); and /or whether she suffers from impairment within the meaning of s.5 of the National Law. (Complaints Three and Four) (3)Thirdly, and as raised by Ms Robinson for the Respondent, whether the HCCC provided sufficient particulars concerning alleged clinical irregularities to allow the practitioner to answer the case against her (and whether requests for further and better particulars had been properly met), or whether the complainant should have been characterised purely as an impairment matter. The outcome of this issue will additionally inform the question of the parties' liability for costs. (4)Finally, of course, depending on the findings, lies the question of what, if any, are the appropriate protective orders. The Law 19The hearing of this matter and the handing down of the decision traverses the enactment of the Civil and Administrative Tribunal Act 2013 (NSW), ('the NCAT Act'). The Nursing and Midwifery Tribunal was abolished by the NCAT Act, effective 31 December, 2013, whereby the functions of the Tribunal were assumed by the NSW Civil and Administrative Tribunal ('NCAT'). These proceedings are accordingly determined "pending proceedings" under Schedule 1, Part 2, Division 3, Clause 6 of the NCAT Act. As such, Clause 7(3)(b) of the NCAT Act deems that the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had the Act and the relevant amending Acts not been enacted, continue to apply. Therefore, the Health Practitioner Regulation National Law (NSW) No.86a remains the relevant legislation. The Health Practitioner Regulation National Law (the National Law) 20The Tribunal is charged under s.4 of the National Law to exercise its functions having regard to the objective and guiding principles of the national registration and accreditation scheme set out in section 3. For the purposes of ease and clarity the relevant objectives and guiding principles are extracted below: Section 3: (1) The objectives of the national registration and accreditation scheme are: (a) to provide for the protection of the public by ensuring that only practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and ... (b) to facilitate access to services provided by health practitioners in accordance with the public interest; and (2) The guiding principles of the national registration and accreditation scheme are as follows- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ... (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 appropriate quality. 3A Objectives and guiding principle [NSW] In the exercise of functions under NSW provision, the protection of the health and safety of the public must be the paramount consideration. 21The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession. (HCCC v. Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at [637D and F]; HCCC v. Gillett [2007] NSWNMT 7). The protection of the public encompasses deterring the individual practitioner from repeating the misconduct, as well as acting as a general deterrent to others from behaving similarly (see, for example, NSW Bar Association v. Hamman (1999) NSWCA 404 at [77]). 22In Re Dr Parajuli [2010] NSWMT 3 the Tribunal extrapolated that in exercising its functions under the Act for the paramount purpose of protecting the health and safety of the public, it may consider five matters concerning such protection: (a) Any need to protect the public against further misconduct by the practitioner; (b) The need to protect the public through general deterrence (of other practitioners); (c )The need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) The maintenance of public confidence in the profession; (e) The desirability of making available to the public any special skills possesed by the practitioner. Meaning of 'Professional Misconduct' and 'Unsatisfactory Professional Conduct' 23A finding of unsatisfactory professional conduct will be made when the Tribunal is comfortably satisfied that the conduct made out demonstrates one of the deficiencies or inadequacies contained in s.139B of the National Law. Complaint One alleges that the conduct particularised constitutes unsatisfactory professional conduct under s.139B(1)(a) of the Act, namely, s.139(a) 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. 24The process adopted by the Tribunal is to firstly consider whether conduct particularised in the Complaint has been made out in point of fact. Then the Tribunal must evaluate whether, if established, the conduct amounts to unsatisfactory professional conduct within the meaning of the Act. 25A finding of professional misconduct will be made when the Tribunal is comfortably satisfied that the conduct made out satisfies s.139E of the Act, namely, (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." 26If comfortably satisfied that the particulars of the complaint are made out for unsatisfactory professional conduct, then Tribunal must then consider whether the unsatisfactory conduct amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 27Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters. The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely: "[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency." The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105: "...whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence..." 28It can be a vexed question to determine what type of conduct creates a bridge from the lesser finding of unsatisfactory professional conduct to the more serious one of professional misconduct. Kirby P, in a case concerning a medical practitioner, considered the question in Pillai v Messiter (No 2) (1989) 16 NSWLR 97 at 200-201: "Departures from elementary and generally accepted standards of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct ... But the statutory test is not met by mere professional incompetency or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner ..." 29Once determinations have been made by the Tribunal as to the categorisation of the conduct under the Act as either unsatisfactory professional conduct or professional misconduct, it is then incumbent upon the Tribunal to consider the appropriate consequential order(s). 30Section 139(a) deals with a practitioner's competence to practise, being the subject of Complaint Three: s.139 A person is competent to practise a health profession only if the person- (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession 31"Impairment", the subject of Complaint Four, is defined in section 5 of the National Law: "impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or (b) for a student..." 32The Tribunal has the power under s.149C of the National Law to suspend or cancel registration to practise if, among other things, it is satisfied that the practitioner is not competent to practise their profession (s.149C(1)(a)), or the practitioner is guilty of professional misconduct (s.149C(1)(b)). The onus and standard of proof 33The burden of proof is upon the Complainant to the civil standard of proof. That is, the Complainant must prove on the balance of probabilities that the subject matter of the complaints against the Respondent are established. Due to the seriousness of the allegations and the gravity of the consequences, the relevant standard of proof is that enunciated in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that is, that the Tribunal must be comfortably satisfied that the matters in the complaint have been established: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which a civil issue may, not must, be based upon a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained." per Dixon J at 362-36 34The requirement for the Tribunal to be 'comfortably satisfied' does not import a third standard of proof hovering somewhere between the civil and criminal standards. It does not imply requirement of proof to a higher standard than the balance of probabilities: Gianoutsos v. Glykis (2006) 65 NSWLR 539 at 547-9, applied by the Medical Tribunal in In re Dr Suman Sood [2006] NSWMT 1 at 10. The standard referred to in Briginshaw is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard, rather than creating heightened standard of proof. 35In accordance with authority, the Tribunal must make findings for each particular, and then determine whether those findings amount to proof on the balance of probabilities of the complaint (Lucire v.HCCC [2011 NSWCA per Basten JA at [43]). Complaint One, Particulars, Evidence and Findings 36Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 37Complaint One, Patient A, Particulars 1-5 At all relevant times the nurse was employed as a Registered Nurse at Delmar Private Hospital (the Hospital). Patient A (1)On or about 11 February 2009 the practitioner simultaneously administered Panadeine Forte tablets and 1 Panadol tablet to Patient A "as per phone order" (2)The MIMS product information for Panadeine Forte provides that one tablet contains Paracetamol 500mg and codeine phosphate 30 mg. (3)The MIMS product information for Panadol tablets provides that one table contains Paracetamol 500mg. (4)The practitioner therefore administered 1.5 g of Paracetamol to Patient A simultaneously. (5)The NSW Health Recommended Paracetamol dosage for adults in 2010 (and currently) is 0.5-1g every 4 to 6 hours, up to a maximum of 4g in 24 hours, as set out in NSW Health Policy Directive PD2009_009. 38Evidence and Findings for Complaint One, Patient A, Particulars 1-6 The relevant medication chart (CV, Tab 15) of Patient A shows two entries on 11.02.09 at 0600 hours. The medications administered were two Panadeine Forte and one Panadol, as per phone order. The chart is initialled by "AB" (Alison Bousfield). The Commission, as particularised, essentially argued that Ms Bousfield administered 0.5 mg over the NSW Health recommended adult Paracetamol dosage at 0600 hours on 11.2.09. 39In oral testimony, RN Ingrid Statis, Hospital Director, stated that in the same situation she would have questioned a doctor's order that exceeded the recommended dose of Paracetamol (Hearing Transcript p.107, line 38). It was put to RN Statis that the doctor had twice before ordered these medications together at these dosages. This was borne out by the medication chart which contained an entry on 10.02.09 ordering 2 panadeine forte with one panadol Q.I.D., p.r.n (four times a day, as required). This dosage had not only been ordered, but administered to the patient on previous occasions. On cross examination RN Statis conceded that doctors may prescribe as they wish and in excess of recommended dosages where clinically indicated (Hearing Transcript p.108, lines 11-16). 40The practitioner was asked in evidence as to whether she would ever question a doctor's order (Hearing Transcript p.154, lines 39ff). Her response was that she would, but not in these circumstances as the doctor had twice before made the same medication order. 41The practitioner gave vague evidence as to a possible conversation with the prescribing doctor, stating that she had rung the doctor: "I think I discussed it with the doctor. He didn't know what to do either. She was in a lot of pain...he asked me, "What would you do?" (Hearing Transcript, lines 7-39). The practitioner stated under examination in chief that her recall of that conversation "came back to me right now". The Tribunal notes that this claim was not in her statement, and is not convinced by this testimony. 42However, the Tribunal cannot be comfortably satisfied that these particulars have been proved if the administration of the paracetamol to Patient A is to be considered a failure in clinical practice. 43Technically, the particulars are proved on the evidence. However, the gravamen of the complaint concerning Patient A is that the practitioner administered paracetamol in a manner that amounted to overdosing the patient according to the NSW Health recommendation, thereby amounting to conduct demonstrating knowledge, skill or judgment possessed, or care exercised, that fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 44The medication chart shows that on 10.02.09 the patient was given 2 Panadeine Forte plus one Panadol, amounting to a paracetamol dosage of 1.5mg. On 11.02.09 Ms Bousfield administered the same medication in the same dosage. This amounts to three grams of paracetamol in a ten hour period. On considering this in light of the NSW Health Recommended Paracetamol dosage the limit was not breached within the twenty-four hour period - that being a recommended limit of no more than 4mg in a twenty-four hour period. 45Further, it has to be acknowledged that a doctor is at liberty to prescribe beyond NSW Health's recommendations if it is clinically indicated. It is clear from the medication chart that this dosage regime had been prescribed and administered to the patient before. 46We are not satisfied that there is reliable evidence that the practitioner questioned the doctor about the dosage, but consider that of little relevance given the clinical picture, the degree of patient pain, and the other circumstances already considered. 47The Tribunal disagrees with the contention of the HCCC that proof of merely Particulars 1-5 amounts to evidence of a clinical practice departure which could be accrued to a finding that the practitioner, on this occasion, demonstrated knowledge, skill, judgment or care significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 48Complaint One, Patient B, Particulars 6-9 Patient B (1)On or about 18 December 2009 the practitioner provided a verbal handover of Patient B, an insulin dependent diabetic patient, to RN Ruth Ryburn. (2)The practitioner informed RN Ryburn that Patient B's Blood Sugar Level was low (3.9mmol/L). (3)The practitioner also informed RN Ryburn that she had allowed Patient B to self-administer insulin. (4)Shortly after handover, Patient B went into a hypoglycaemic state and collapsed in the shower. 49Evidence and Findings for Complaint One, Patient B, Particulars 6-9 (1)The practitioner responded thus in her Statement to the claims concerning patient B: "... I was working as a casual registered nurse on night shift during this period. My best recollection is that I finished night shift at approximately 0730 hours. I do not recall being made aware of this incident." (2)The HCCC argued that the practitioner had, in breach of clinical protocols, allowed Patient B to self-administer insulin in circumstances when her blood sugar level ('BSL') was at such a low level that should have precluded this. That is, that Ms Bousfield should not have allowed Patient B to self-administer insulin at that time and in that manner. (3)The Respondent's counter argument was twofold - firstly, that the she was not the nurse in charge of Patient A at the relevant time as she had completed her night duty, and secondly, that Patient A's BSL was within normal range at 3.9mmol/L, and, in fact, she had been allowed to self-administer insulin by other nurses when her BSL was lower than 3.9mmol/L. (4)The entry of the practitioner in the Blood Glucose Level chart of Patient B (CV, Tab 16, p.8) indicated that at 0600 on 18.12.09 Patient A's BSL was 3.9mmol/L. (5)An entry in the Integrated Notes (incorrectly written as 17.12.09, but established on the evidence to properly refer to the morning of 18.12.09) at 0810 states "...collapse in shower. ..Took own insulin prior to breakfast arriving (has not had yet)..." (CV, Tab 16, p.12) (6)The following entry of 0850 states: "NURSING: As above, pt ["patient"] found in shower at 0810 collapsed on floor. Cardiac arrest button pushed. Pulse rate satisfactory but pt unresponsive. BSL @ 0830 reading low on machine. Glucose given & commenced IV dextrose. 0840 SBVL 302mmol/Lm 0850 BSL 406mmol/L Approx 200mls IV dextrose administered. Pt responsive. When asked if she had any pain, pt responded no. Ambulance officers arrived. Pt settled and responsive at time of transfer...." The file entries at 0810 and 0850 were not made by Ms Bousfield. (1)Patient B was transferred to Manly Hospital by Dr Haran at 0850 on 18.12.2009. (RV, Tab 16, p. 3 "Patient Transfer to Another Hospital for Acute Care") (2)An incident form was completed over one month later on 22.01.2010 by Jodie Burns. The form notes that the patient was found collapsed in the shower. "Low BSL" was the answer to the question "What was the object, substance directly involved in the inflicting the injury?"( RV, Tab 15, p.1). The Medical Officer's (Dr Mark Haran) brief summary report (two lines) on the form (22.1.10) referred to "hypoglycaemic loss of consciousness in shower." 50The section on the form to be completed by the supervisor or manager was done by RN Lorraine Armstrong on 25.01.19 and reads thus: "Reviewed all processes. Nil further required at this time." The form contained a section for evaluation by the Hospital Director, which was to be completed within one day of an incident. Completion of the form a month after the incident would appear a serious departure from hospital protocol. Curiously, the Hospital Director, RN Ingrid Statis, who gave evidence in this hearing, signed off on the form on 21.01.13, a day before the form was said to be created (CV, Tab 16, p.2). The practitioner is not mentioned anywhere in the documentation concerning the patient incident. 51When questioned in the hearing about the incident form RN Statis stated: "...Well, actually, let me clarify that. If there was reason to be concerned, if my clinical services manager had come to me and said 'I've investigated this I believe there is an issue that needs to be investigated further,' then I would call for all the notes. Being this case, Lorraine Armstrong had signed off that all processes were covered and she was comfortable. She signed off on that so I have taken her at that, which is what I - unless there is something specific that stands out, I don't investigate further otherwise I'd be at work 24.7..." (Hearing Transcript, p.110, lines 12-18). 52RN Statis conceded in oral testimony that the form gave no indication of anything untoward in relation to this matter or the need for any follow up (Hearing Transcript, p.109, lines 26-28). 53RN Ruth Ryburn, Rehabilitation Co-ordinator, referred to the incident surrounding Patient B in her statement of 20 September, 2011 (CV, Tab 9, [5(b)]) and also gave oral evidence on this matter during the hearing (Hearing Transcript, from p.13). Her written statement says: "On one occasion on 18 December, 2009, RN Bousfield verbally handed over that an Insulin Dependent diabetic's Blood Sugar Level was low (3.9mmol/L) and that she had allowed the patient to self-administer insulin. Shortly after handover, the patient went into a hypoglycaemic state and collapsed in the shower..." (CV, Tab 9, [5(b)]) 54During examination in chief RN Ryburn stated that her understanding was that the healthy range for BSL was 5-7mmol/L (Hearing Transcript, p.13, line 37). The Expert Witness (Nurse), Rebekkah Middelton, gave evidence that the normal range for BSL is 3.5 to 6.5mmol/L (Hearing Transcript, p.144, line 3). The Tribunal notes that, on the expert testimony of RN Middleton, the BSL of Patient B at the time in question (3.9mmol/L) was arguably within normal range. 55The medication chart of Patient B indicated that she had consistently self-administered her 8.00am insulin from 03.12.2009 until the day in question, 18.12.2009 (CV, Tab 16, p.9). 56On the records available to the Tribunal it is evident that Patient A's morning BSL fluctuated. In the preceding six days the BSL had been below 3.9mmol/L. The day before the incident it was at its lowest for that period at 3.1mmol/L. So, in fact, the BSL of 18.12.2013 of 3.9mmol/L was the highest morning reading seen in the records available to the Tribunal. On each of these days the patient had been allowed to self-administer insulin. 57The parties were in dispute as to whether it was Ms Bousfield who, in fact, observed the patient self-administer her insulin on the morning of 18.12.2013. The evidence of RN Ryburn and RN Middleton (expert) was that it would be appropriate protocol for the patient to have their insulin close to breakfast time. 58The medical records do not indicate that Ms Bousfield sighted the administration of the insulin. Dr Haran's entry in the integrated notes at 0810 (incorrectly dated 17.12.2009, but clearly meant to refer to the morning of 18th December) say that the patient had taken her own insulin before breakfast, and she hadn't yet had breakfast at the time of her collapse (CV, Tab 16, p.12). 59Ms Ryburn's evidence is that the practitioner told her during the night to morning shift handover (7.00-7.30am) that Patient A had already self-administered her insulin (Hearing Transcript, p.19, lines 4-10). The practitioner denies this. 60It is not clear from the medication chart who sighted the administration of the insulin, but only that it was checked off as administered in the column for the 8.00am medications (CV Tab 16, p.9). 61It was conceded by RN Ryburn that the practitioner would not be responsible for the clinical care of Patient B after 7.00am, handover from the night to the morning staff being from 7.00-7.30am. It was also acknowledged that, despite RN Ryburn's clear statement that the practitioner told her at handover that Patient B had self-administered her insulin, in normal circumstances of hospital routine the practitioner would not have been responsible for supervising Patient B taking her insulin or having her breakfast (Hearing Transcript, p.20, lines 17-38). 62On cross-examination RN Ryburn conceded that she had not made any complaint or alerted anyone to her concerns about the practitioner's conduct with respect to Patient B on 18.12.2013, but that at some time in January 2010 she had mentioned to RN Statis that she had some concerns over clinical issues with the practitioner, which included the Patient B incident, but that she could not remember the content of that conversation (Hearing Transcript, p21, line 30-47, p.22, line 1-38). "...Q: ...what did Ms Statis say to you about... the blood sugar incident? A: I don't recall. Q. Did you show her the incident form? Did you discuss the incident form? A. I'm sorry, I don't remember that either. Q. You don't recall? A. No. Q. It would have been important to do that wouldn't it, in hindsight? It would have been important to show Ms Statis what you're actually complaining or concerned about? A. Yes. Q. The reason I raise that is because the blood sugar level was usually very low in the morning. In fact, on the four or five incidences on the mornings before Ms Bousfield took it at 3.9 it was very low. In fact, the morning before it was 3.1. A. The difference on the morning bit I was concerned about was that I was told by the registered nurse looking after the patient that she had allowed the patient to have her insulin much earlier than breakfast was arriving. Q. I put it to you that it's highly unlikely that she said that because it should have been given closer to 8 o'clock. A. That part of the recollection I am 100% clear on because I can remember asking the question back to check. Q. What did you do when you knew that - you perceived that she told you that, were you concerned about that? A. I was surprised but I knew that it was Protaphane which is not a fast-acting insulin. With hindsight, I should have done something. Q. So there was an opportunity for you, if that's what Ms Bousfield - If that's what you perceived Ms Bousfield to tell you then you, as a registered nurse with the experience you have, would have gone to check the patient and you probably would have ensured that the patient would have had breakfast, wouldn't you? A. I did check the patient. At that stage and she appeared fine and that was after the handover and it was as you said, 8.10 that she was found in the shower." (Hearing Transcript 26.03.2013, p22, lines 21-47, p.23, lines 1-17) 63In oral testimony the practitioner confirmed her statement - that is, that she had no recollection of the incident (Hearing Transcript, p.156, lines 24-26). 64The HCCC essentially relies on the hospital records of Patient B and the statement of RN Ryburn, and asks the Tribunal to find the matters proved. Ms Robinson, for the practitioner, essentially submits that there is no evidence that the practitioner was in any way responsible for Patient A at the relevant time, and that the concerns of RN Ryburn about the incident were not raised at the time. 65In sum, the Tribunal agrees that there is nothing in the documentation that supports the contention that the practitioner observed or allowed Patient B self-administer insulin on the morning of 18.12.2009. Further, the incident form does not mention the practitioner and indicates that processes had been reviewed and there were no issues to be followed up. If contemporaneous investigation of the incident did not yield evidence of clinical departures by the practitioner, it would require strong evidence to persuade the Tribunal otherwise. 66Hospital protocol is that insulin should be given close to breakfast. The practitioner was not clinically responsible for Patient B from around 0700 hours, whereas breakfast time would be somewhere near 0800 hours. 67There is insufficient evidence to support the HCCC's argument that the practitioner allowed Patient B to self-administer insulin prior to 0700 hours, albeit that this is the recollection of RN Ryburn. Further, the evidence of the nursing expert, RN Middleton, was that for a long-acting insulin such as that taken by Patient B, "they would have, you know, half hour or so to eat something before they, you know, before you would start to see evidence of a decrease in the blood glucose level." (Hearing Transcript, p.144, lines 26-28). Given that Patient B was found collapsed in the shower at 0810 hours there is a suggestion that the insulin had been self-administered around a half hour before, which would be at a time when the practitioner was not responsible for the patient. 68Secondly, there is the question as to whether it was clinically inappropriate for any nurse to allow Patient B to self-administer insulin with a BSL reading at 0600 hours of 3.9mmol/L. It is noted that this was the highest BSL reading in six days, and on all preceding days the patient had self-administered insulin with a BSL as low as 3.1mmol/L without incident. 69On the question as to whether it was inappropriate on the day of 18 December, 2009, the Tribunal notes that Patient B received large doses of medication in the early hours of that morning. The practitioner made an entry into the progress notes at 0500 hours on 18.12.2013 that Patient B had right knee pain at 0300 hours and 5mg of Endone was given "with good effect." A further entry by the practitioner that morning at 0630 hours indicates that 100mg of Oxycontin was given at 0600 hours "as per medication chart." 70The Tribunal questioned the HCCC's expert witness, RN Middleton, on this point, noting an objection from the Respondent. RN Middleton, did not feel confident to comment on whether a registered nurse of a diabetic patient who had had the amount of heavy pain medication that had been given to Patient B, and with a 0600 hours BSL of 3.9mmol/L, should be cautious about allowing the patient to self-administer her insulin. Although RN Middleton said that the patient would most likely be drowsy, and that she, herself, would be cautious, she did not have the full medical records to inform a proper opinion on this point (Hearing Transcript, p.143, lines 20-44). The Tribunal cannot, therefore, draw any conclusions about the clinical prudence of a registered nurse allowing Patient B to self-administer insulin in the context of having recently taken two heavy pain medications and having a BSL of 3.9mmol/L. It is further noted that the Complainant did not particularise the administration of high doses of medication to give context to the alleged inappropriateness of allowing Patient B to self-administer insulin on this particular day. 71In any case, the inability to be comfortably satisfied on the balance of probabilities that the practitioner was, in fact, the nurse who allowed / observed Patient A self-administer insulin prior to 0700 hours and without breakfast being close, means that The Tribunal finds the Complainant has not proved this matter on the balance of probabilities. 72Complaint One, Patient C, Particulars 10-15 Patient C (1)(On or about 18 January 2010, Patient C was prescribed Panadol 1g to be orally administered QID (4 times per day) at 0600, 1200, 1800 and 2200 hours. This order also stated "NOTE PRN DIGESIC ORDER." (2)On or about 18 January 2010, Patient C was prescribed Digesic tablets to be orally administered TT QID (2 tablets, 4 times per day), maximum 8 tablets in 24 hours. (3)The MIMS product information for Digesic tablets provides that one tablet contains Dextropropoxyphene HCI 32.5 mg and Paracetamol 325 mg. (4)The MIMS product information for Panadol tablets provides that one tablet contains Paracetamol 500 mg. (5)The NSW Health recommended Paracetamol dosage for adults in 2010 (and currently) is 0.5 - 1g every 4 to 6 hours, up to a maximum of 4g in 24 hours, as set out in NSW Health Policy Directive PD2009_009. (6)On or about 20 January 2010, the practitioner administered 2 Digesic tablets and 2 Panadol tablets, that is, 1.65g of Paracetamol in total to Patient B in less than 2.5 hours, at 0345 and 0600 hours respectively. 73Evidence and Findings for Complaint One, Patient C, Particulars 10-15 (1)At paragraph 23 of her statement of 10 December, 2012 (RV, Tab 1, p,5, [25]) Ms Bousfield admits the substance of the complaint concerning Patient C: "Re: Particulars 10-15. I have reviewed Patient C's medication chart and I note that I have administered Digesic x 2 tablets at 0345 hours on 20 January 2010 and Panadol x 2 tablets at 0600 hours on 20 January. I accept that I should have withheld the 0600 hours dose of Panadol." (2)The medication charts of Patient C (CV, Tab 17, pp.1-2) bear this out, and the Tribunal is comfortably satisfied that Particulars 10-15 concerning Patient C have been admitted and also are proved on the balance of probabilities by the evidence. 74Complaint One, Patient D, Particulars 16-21A Patient D (1)(On or about 21 January 2010, Patient D was prescribed Panadol 1g to be administered orally QID (four times per day) at 0600, 1200, 1800 and 0220 hours. (2)On or about 25 January 2010, Patient D was prescribed Panadeine Forte, T - TT (1 to 2 tablets) to administered orally every four hours. (3)The MIMS product information for Panadeine Forte provides that one tablet contains Paracetamol 500 mg and codeine phosphate 30 mg. (4)The MIMS product information for Panadol tablets provides that one tablet contains Paracetamol 500 mg. (The NSW Health recommended Paracetamol dosage for adults in 2010 (and currently) is 0.5 - 1g every 4 to 6 hours, up to a maximum of 4g in 24 hours, as set out in NSW Health Policy Directive PD2009_009. (5)On or about 26 January 2010 at 2345 hours the practitioner administered 2 Panadeine Forte tablets and on or about 27 January 2010 at 0200 hours the practitioner administered 2 Panadol tablets, that is, 2g of Paracetamol in total to Patient D within two and a quarter hours. half an hour, at 0130 and 0200 hours respectively. 21A. The practitioner incorrectly recorded the administration of 2 Panadol tablets as having been administered on 26 January 2010 at 0200 hours when they were in fact administered on 27 January 2010 at 0200 hours. 75Evidence and Findings for Complaint One, Patient C, Particulars 16-21A (1)It has to be said at the outset that investigation of the evidence concerning Patient D caused a great deal of confusion during the hearing, ultimately resulting in an amendment of the Complaint after the HCCC had closed its evidence. It is noted, however, that during the course of evidence the Complainant reserved its position with respect to amending the complaint. After the close of its evidence the HCCC, upon instructions, acted on its earlier foreshadowed and reserved position of making application to amend the Complaint. (2)Specifically, the Complainant sought leave to amend Particular 21 of Complaint 1, and to add a further particular to Complaint 1, that is, Particular 21A. The proposed amendments are as indicated in the Particulars above concerning Patient D. (3)These reasons for decision will not elucidate the reasons for the ongoing confusion with the medication chart at the heart of the particulars concerning Patient D, but rather will attempt to bring clarity to the final factual picture. 76The Law on Amending the Complaint (1)The function of pleadings, and, in turn, particulars, is, of course, twofold - to define the issues and to put the respondent on notice of the case to be met. The Tribunal is at liberty, at any stage of the proceedings, on application by any party or of its own motion, to order that either party be given leave to amend the complaint. Having said that, caution must be exercised in amending a complaint after the parties have completed their evidence. That is not to say that this cannot be done, but care must be taken to ensure that procedural fairness is afforded to the respondent. (2)With the consideration of procedural fairness as a priority, amendments may be made for the purpose of determining real questions raised by the proceedings or to correct defects or errors in the proceedings, or to avoid multiplicity of proceedings. It is doubtful that the proposed amendments to the complaint would have the function of avoiding a multiplicity of proceedings as the subject matter of the proposed amendment is not likely to be the cause of a separate fresh Complaint by the HCCC against the Complainant. (3)If there emerges at the conclusion of the evidence facts which, if accepted, establish a factually different Complaint, then such issue must be considered by the trier of fact and the pleadings should be amended in order to make the facts alleged and the particulars precisely conform to the evidence which has emerged (Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 at 668). In the case of particulars, amendment, although desirable, is not essential (Dare v Pulham (1982) 148 CLR 658 at 664). In short, amendments should only be permitted for the purpose of resolving real issues in dispute between the parties (Cropper v Smith (1884) 26 Ch D 700 at 710). (4)The High Court indeed raised the bar for parties wishing to amend pleadings late in proceedings in High Court's treatment in Aon v Australian National University (2009) HCA 27. The decision is an undeniable shift away from the more lenient position taken in Queensland v J L Holdings (1997) 189 CLR 146, and it is clear that costs alone cannot remedy erroneous late amendments to pleadings (Aon v. Australian National University at [111]-[112]). Absent of a legislative entitlement, late leave to amend pleadings is discretionary, and certainly not as of right (at [96]). In their joint judgment, Gummow, Hayne, Crennan, Kiefel, and Bell, JJ stated: "...All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend..." 77Ruling on application to amend the Complaint (1)The application to amend the pleadings arose after the course of evidence on day two of the hearing disclosed errors in an entry made by Respondent in the medication chart of Patient D (CV, Tab 18, Medication Charts). (2)The HCCC contended that the Complaint was drafted upon the basis of the medical records of Patient D at this point. That is, the Complaint was incorrectly particularised on the basis of records incorrectly completed by the Respondent. As a result the particulars concerned, as originally drafted, could not possibly have been proved because they included times and dates that were later proved to be incorrect entries by the practitioner. (3)To her credit, the practitioner made a correction to her statement (RV, Tab 1, p.5, [26]) on the first day of the hearing with respect to matters referred to in the particulars concerning Patient D. It transpires with the unfolding of the evidence that her corrected statement did not represent the accurate position with respect to the medication chart entry in question, however, the Tribunal accepts that the correction was given in good faith and on the practitioner's understanding of what had occurred. The medication charts concerned were very cramped and messy and the form provided very small spaces for entries, making interpreting the them extremely difficult. (4)The matter of what medications were administered by the practitioner and when was ultimately resolved by the production of the Respondent's time sheet (Exhibit D) by Ms Ingrid Statis during the course of cross examination. This clarified that the interpretation given by the practitioner of the dates and times of administration of the medications in question could not be correct. It was this timesheet that ultimately proved that the practitioner was not actually working at the date and time of the incorrect entry. However, the entry had clearly been made by the practitioner, which gave rise to the interpretation that she had recorded the medication administration using the incorrect date - that is, that when the clock passed midnight on 26 January, 2010, the practitioner continued to write the same date when in fact, it was 27 January, 2010. (5)It would seem onerous that the HCCC should be expected to issue a summons to produce all of the practitioner's timesheets to verify the time and date accuracy of every medical note entry that she had made. By this logic, the practitioner was the one best positioned to advise the HCCC of the inaccuracy of the entry upon which the Complaint was particularised. It was the practitioner who, working on set days each week, should have identified the date on the charts was a date when she was not working. (6)Ms Robertson argued for the Respondent that she had sought further and better particulars concerning Particular 21 by way of a letter dated 26.10.2011 (CV, Tab 32, p.2, Item 12). Ms King, for the Complainant, states that requests for further and better particulars were made prior to service upon the Respondent of the Complainant's brief of evidence, which was then served in December, 2012. On serving the brief the covering letter (not sighted by the Tribunal, yet not disputed) indicated that if there were any requests for further and better particulars that still needed resolution after considering the brief of evidence they should be made to the Complainant. Such requests were not made by the Respondent until the week before this hearing, and documentation was supplied by the Complainant in response. The Tribunal is satisfied that, all things considered, the Respondent was given ample opportunity to unearth the defect in the medication entries concerned. (7)With respect to the proposed amendment and addition to the Complaint, the HCCC submitted that the Complaint traverses both impairment and clinical practice. It contended that medication errors are a matter of public concern and fall within the purview of this protective jurisdiction, and ought to be properly heard. (8)The Respondent submitted that the proposed amendment was punitive. Considering that this jurisdiction is concerned with protection of the public it should not act in a punitive manner. It is the Complainant's responsibility, it argues, to put before the Tribunal all relevant documents, including a full picture of the medical records. (9)The Tribunal sought advice of the Respondent's legal representative as to what would discharge the dictates of procedural fairness if the Complaint were to be amended. The answer was that it would be necessary to allow the Respondent to give further evidence to answer any changes to the Complaint. It I noted that the Respondent did not make any application for costs in relation to the amendment. (10)The Tribunal, after duly weighing the relevant issues, was minded to allow the Complainant to amend its Complaint in the manner requested. Given the considerations outlined, and the fact that the proceedings amount to an inquiry rather than an adversarial process, the Tribunal was satisfied that it was proper to allow the amendments to the Complaint as sought. The amendments flowed from what was essentially the Respondent's own admissions and the interests of the inquiry process outweigh any perceived prejudice to the Respondent. (11)It was not foreseen that in this particular instance an amendment to the Complaint would cause undue delay. The practitioner was be given the opportunity to address the matters in the amended complaint by way of retaking the witness stand and giving further oral evidence. (12)The HCCC accordingly amended Complaint in the form above. 78The evidence for Particulars 16-21A (1)The confusion was largely because the medication charts contained very small boxes for nursing staff to indicate the administration of patient medications. It would have to be said that some of the entries are barely legible. (2)The "As Required 'PRN' Medications" chart in question for patient D contained an entry on 26.01.2010 at 23.45hours (11.45pm) of administration of two Panadeine Forte tablets by "AB" (Alison Bousfield). (3)The "Regular Medication" chart for the patient in the same time period had an entry on 26.01.2010 at 02.00 hours of two Panadol tablets. (4)It was initially contended by the Ms. Robinson that the Respondent could not have administered these medications because she was not working at the relevant time. It was put that she only commenced work on the night shift at late in the evening of the 26.01.2010, and therefore couldn't have administered the dose indicated in the chart as having been given at 2.00am on that day, as she didn't commence work that day until almost twenty hours later. (5)It transpired in evidence that the entry for the Panadol dose at 2.00am on 26.01.2010 was an incorrect recording by the practitioner of the Panadol she gave Patient D at 2.00am the following morning, that is, on 27.01.2010 (Hearing Transcript, p.127, lines 42-47; pp.128-131). It was clarified by oral evidence from RN Ingrid Statis in producing a time sheet that the practitioner indeed rostered on at the relevant time (Exhibit D). (6)The nursing file integrated notes, which are separate entries to those on the medication charts, read: "27.1.10 - 03:00 Hrs NURSING; ...bilateral knee pain @ 23:45 hrs. Two Temazepam & two Panadeine forte given upon Pt's ['patient's'] request. Pt also requested to ice packs. Slept soundly after having the abovementioned treatment. AB (Bousfield) RN. 27.1.10- 04:00Hrs ... bilateral knee pain @ 0300Hrs. Two endone 5mg tabs given. AB (Bousfield) RN 27.1.10 - 06:30 Hrs; oxycontin 60mg given at 06;00 Hrs as per med ['medication'] chart...AB (Bousfield) RN." (CV, Tab 18, Integrated Notes) 79Particulars 16-20 are objective factual matters not related to the conduct of the practitioner, and are proved by the evidence (Regarding Particular 16 - "Regular Medications" Chart, 2nd medication entry, dated 21.01.2010, marked p.2; Regarding Particular 17 - "As Required 'PRN' Medications' Chart, 1st medication entry 25.01.2010 marked p.1; Regarding Particulars 18 and 19, verified by Tribunal). 80In its submissions the HCCC notes that, while the practitioner should be commended for being forthright with the Tribunal, it remains that the particulars were amended by the practitioner's own admissions. The allegations in Particulars 21 and 21A - that is, that the practitioner administered an excessive dosage of paracetamol to Patient D and incorrectly recorded the administration of medications - flow from the practitioner's admissions. 81With respect to Particular 21A, the HCCC asserts that the incorrect recording of the administration of medications can have very serious consequences for a patient as other practitioners rely on the clinical records as an accurate record of, in this case, the administration of medications. Inaccurate records can lead to the over or under administration of medications. 82The Tribunal is comfortably satisfied on the evidence that Particular 21A is proved on the balance of probabilities, that is, that the practitioner incorrectly recorded the administration of two Panadol tablets as having been administered on 26 January 2010 at 0200 hours when they were in fact administered on 27 January 2010 at 0200 hours. 83Ms Robinson, for the Respondent, states in her submissions that on or around 26 January 2010 at 23:45 hours the practitioner administered two Panadeine Forte tablets and on or about 27 January 2010 at 0200 hours the practitioner administered two Panadol tablets. That is, 2 grams of paracetamol in total to Patient D within two and a quarter hours. During the hearing the HCCC handed up to the Tribunal enhanced copies of Patient D's medication charts (CV, Tab 18). The HCCC also handed up additional medication charts and integrated notes for Patient D. The practitioner then gave evidence in relation to the Amended Complaint and acknowledged that she had administered two Panadeine Forte at 23:45 hours on 26.1.2010 and also administered two Panadol at 0200hours on 27.01.2010. The additional medication charts handed up to the Tribunal on 28.03.2013 show that Patient D had only received 4 grams of paracetamol, from 0200 hours on 26.01.2010, which, it was submitted, does not exceed the recommended dosage over a twenty-four hour period under the NSW Health Policy PD 2009_009. 84Further, Ms Robinson draws to the Tribunal's attention that Patient D was administered two Panadeine Forte with two Panadol, which is 2 grams of paracetamol, on the following dates: 21.01.2010 12:00 - 2 x Panadeine Forte and 2 x Panadol 18:00- 2 x Panadeine Forte and 2 x Panadol 22.01.2010 22:00- 2 x Panadeine Forte and 2 x Panadol 23.01.2010 10:36- 2 x Panadeine Forte; and 12:00- 2 x Panadol 24.01.2010 11:15- 2 x Panadeine Forte; 12:00- and 2 x Panadol 25.01.2010 1800- 2 x Panadeine Forte and 2 x Panadol (Medication Charts, CV, Tab 18) 85The Ms Robinson further notes an entry in the integrated notes made by RN Ryburn on 26.01.2010 which states: "Extensive time spent discussion analgesia regime. Lahney is keen to try to reduce Panadeine Forte and use Panadol only but would like to have the option of Panadeine Forte if needed. Please wake at 24:00 hours for Temazepam & Panadol. RYBURN RN" (CV, Tab 18, Integrated Notes, entry 26.01.2010) 86Ms Robinson submitted that this entry shows that RN Ryburn was fully aware that Patient D was regularly receiving large doses of paracetamol well in excess of the recommended dosage. Based on the evidence, it was submitted, that the Tribunal will not be satisfied that the Respondent's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 87By the practitioner's admission, the medication was administered as particularised. However, the gravamen of the particulars 16-21 as they relate to the complaint is that the practitioner, in error, administered a dose of paracetamol in excess of the NSW Health Policy Directive, such that it amounted to conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 88The Tribunal cannot be comfortably satisfied that this is so. This conclusion is made preferring the submissions of Ms Robinson for the practitioner that a Panadeine Forte and Panadol combination had been routinely prescribed and administered since, on the records available, 21 January, 2010. OTHER CLINICAL PARTICULARS 89Particulars 22-30: The Respondent's objections to the particulars: (1)The Respondent submits that particulars 22-30 are insufficiently / inadequately particularised to allow her to meet the allegations contained therein. Ms Robinson claims that procedural fairness has not been afforded the practitioner, and minds the Tribunal that it is bound by the rules of natural justice. 90In essence, the objection is that, these particulars, most of which allege serious departures in clinical practice by the practitioner, do not contain sufficient details. Complaints were made variously through the hearing that there was no detail of patient names, dates or even the year of alleged events, and no complaints made contemporaneous to the alleged event. This meant that there was no possibility of resorting to medical notes or incident reports to even jog the memory of the practitioner, let alone for examination and scrutiny to test the strength of the allegations. 91Ms Robinson's submissions with respect to the particulars began with reference to the fundamental principle "that a person accused should know the accusation made." (Byrne v. Kinematograph Renters Society Ltd [1958] 1 WLR 762 at 784). 92The function of particulars, it is submitted, is to fill out the claim with information sufficiently detailed to put the respondent on guard as to the case to be made and to enable proper preparation for the hearing (Bruce v. Oldhams Press Ltd [1936] 1 KB 679 AT 712-713; Goldsmith v. Sandilands [2002] HCA 31). Conduct that a party is called upon to explain should be "formatted with precision" (Stewart v. Secretary, Department of Health (unreported, NSWCA 6 August, 1986). 93It is no answer, it is submitted, to a request for particulars to say that the answer can or may be found in the evidence (Etherton v. Public Service Board (1985) 3 NSWLR at 432). 94At the outset it must be said that in drafting its pleadings the HCCC does not sit under the stringent standard required for criminal pleadings (King v. HCCC [2011] NSWCA 535 per McCall JA at [5-6]). Rather, in the absence of a statutory directive to formulate complaints in a pleading, the formulation of the complaint should be guided by the dictates of procedural fairness: "Notwithstanding the absence of a statutory directive to formulate complaints in a pleading, it cannot be gainsaid that a complaint should, for reasons of procedural fairness, be formulated in appropriate terms: Lucire v Health Care Complaints Commission [2011] NSWCA 99 (at [45]) per Basten JA (McColl JA and Sackville AJA agreeing). The nature of that obligation can be discerned from SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs ((2006) 228 CLR 152 at [32]) where the High Court quoted with approval the following statement in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (at 590 - 591): "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." 95Naturally, it is not news to the Tribunal that the Respondent is entitled to procedural fairness, which includes an entitlement to sufficient information to meet the case alleged against them. Clearly "[t]he purpose of particulars in a case before the Tribunal is to put the practitioner on reasonable notice of the accusations made and the case to be met." Johnson v. Miller (1937) 59 CLR 467. 96Appropriating those principles to the present case, the question is whether particulars 22-30 are appropriately formulated such that the practitioner was aware of the case she had to meet. 97As detailed elsewhere in these reasons for decision requests for further and better particulars were made to the HCCC on 23.12.2010 and 26.10.2011. The evidence in the hearing was that the requests were made prior to the full brief being served. When the full brief was served it was sent in December 2012 under cover of a letter (not sighted by the Tribunal, but not disputed) which stated that if, after reading the full brief the Respondent still required further and better particulars, they should be made afresh to the Complainant. Requests for further and better particulars were not made by the Respondent until the week before the hearing. At that time the Complainant supplied additional documentation to the Respondent in answer to those requests. 98The Tribunal considers that there are problems with a number of the particulars in this group. The difficulties relate to the lack of specificity with respect to dates, times, and identities of persons concerned or affected by the alleged conduct. However, the Tribunal also considers that the Respondent has been tardy in making its requests for further and better particulars after receipt of the brief of evidence. 99The approach ultimately taken by the Tribunal was to consider the dictates of procedural fairness in determining whether each particular was sufficiently specific to allow the Respondent to meet the case alleged. We determined not to, as the Respondent requested, make a wholesale finding that Particulars 22-30 are not proved, but rather to consider the merits of each particular and the evidence individually. 100Particulars 22-30 (1)PARTICULAR 22 (a)In or around 2009, the practitioner displayed poor practice for dispensing medications. The practitioner dispensed tablets directly from her pocket to patients. The medications were carried loose by the practitioner, having been popped from the blister packs. RN Vicki Eaton spoke to the practitioner about this practice and was advised it was unsafe. (b)Following the occasion in 22(a) above the practitioner displayed poor practice dispensing medications, dispensing them directly from a spectacles case to patients. 101For ease the allegations that the practitioner dispensed medication directly from her pocket and from her spectacle case will be dealt with concurrently. The main evidence for these matters came from RN Vicki Eaton, the registered nurse who, at the relevant time, worked with Ms Bousfield on night duty. The statement of 20 September, 2011 (CV, Tab11, p.1, [5(a)]) of RN Eaton reads, "...On one occasion I witnessed her dispensing a variety of S8 medications directly from her pocket to patients. The medications were loose and popped out from their blister packs. I explained to her that it was not acceptable and that I was not prepared to sign S8 book when the medications were dispensed in this way. I discussed the incident with the ADON, who I believe spoke to RN Bousfield about the matter. The next time I worked with RN Bousfield, she dispensed the medication from her glasses case - it was quite apparent that she had not understood the problems associated with her method of dispensing S8 medication." 102Similar content is found in Ms Eaton's statement of 4 April, 2010 (CV, Tab 11, p.3, [2-3]): "She would take all the drugs that she determined were needed for her a.m. pill round, ie, actually pop them from the foil, and carry them all loose in her pocket. Needless to say I was horrified, she argued that there wasn't a problem as they were all different colours and she knew what was what! I raised the issue with Leone that same morning and believe she spoke to Allison. However, on the next occasion that I went to check her drugs she again reached into her pocket, laughing and then saying, "No they are not in my pocket. I knew you'd think that. You should see your face." "They are in here". She then proceeded to open her glasses case which contained the S8 pills. I said that is virtually no different to carrying them in her pocket. I walked away in anger and disgust and when I pulled myself together enough to confront her she had already dispensed the pills. I refused to sign the DD book and again referred the matter to Leone. Most Night Staff including myself probably didn't always give these drugs as described in the procedure manual, mainly due to the lack of staff available for the checking procedure. Therefore, the usual method employed by myself and others was to take the packs and the Drug Book and check off as we went around and then ask our colleague to co-sign the book. We all know this is not the prescribed method, nor was it ideal, but under the circumstances and until Allison's arrival, resulted in very few if any errors ..." 103Ms Eaton's evidence was not as confident on oral examination. She responded as follows under examination-in-chief: "Q. ...Could you describe to the Tribunal your recollections of Ms Bousfield dispensing loose medication from her pocket? I have trouble remembering exactly seeing her take it from a pocket. I remember that incident and I remember reporting the incident and I remember her getting them out of her glasses case, vividly. Q. Could you describe the glasses case? A. Yes, I was sitting at the incident with the pocket had happened already. I don't remember specific details. In fact I may have been told that, about the pocket. We sat down - I sat down at the desk at the nurses' station, she was standing to my left. I presumed we were going to do the procedure to write out the in the drug book and the medication charts checking the drugs and she put her hand into her pocket and she just looked at me and she said, "You should see your face. I just shook my head and she said, "They're not in my pocket, they're in my glasses case." I just stared at her and said, "You don't get it do you? It's the same thing." ... Q. Sorry, what's in the glasses case? A. The tablets because we were there to check drugs, that was the reason I was there. Q. So what's the usual method of dispensing drugs? A. The usual method - well what we were doing there is we were checking the drugs - the other registered nurse and myself would come and we would check the medication charts, write it up, we'd probably do it around midnight, whenever it was quiet so that we had the time to do it and pre-dispense them. The only thing we didn't do which was not in accordance with the policy, we didn't go to the bedside, but we double checked the order, the drug, wrote it up appropriately, put it in a sealed container and locked it in the S8 cupboard." (Hearing Transcript, p.29, lines 35-47; p.30, lines 1-10). 104Ms Robinson submitted for the Respondent that by this testimony RN Eaton recanted under oath from her previous evidence in the signed statements of 20.09.2011 and 04.04.2010. Accordingly the she submitted that that Tribunal should treat RN Eaton's overall evidence with caution, especially concerning Particulars 22(b), 23, 24, 25 and 26. Contrarily the HCCC submitted that although RN Eaton had difficulty at the time of the hearing remembering the dispensing of medications from the pocket, she reiterated her clear recollection about the practitioner taking medications from her glasses case. The HCCC further submits that RN Eaton's recollection of the practitioner saying words to the effect, "They're not in my pocket, they're in my glasses case", infers that there was in fact an earlier incident of the practitioner dispensing medications from her pocket. 105The HCCC urges the Tribunal to accept what it describes as RN Eaton and RN Wood's clear recollections. (1)The evidence of Ms Rowena Wood in her statement as follows: "On several occasions I noticed RN Bousfield dispensing medication directly from her pocket. I am not aware of what medication she was dispensing, but the medication was loose in her pocket." (CV1, Tab 10, p.1, [6(c)]) (2)During examination in chief AIN Rowena Wood confirmed her statement, adding that the medications were "still within the blister pack, but not within the box" when she saw the practitioner dispensing them from her pocket. (3)The practitioner denied both particulars 22a) and 22b) in her statement (RV, Tab 1, p.5, [27]) and on cross examination (Hearing transcript, p.157, lines, 7-18), adding in cross examination that she had not owned a glasses case at the time, although she did wear glasses. (4)It is clear that the methods for administering medications on the night shift at Delmar Private Hospital were not in accordance with the required procedures under law. This was conceded by RN Eaton in her statement of 4 April, 2010 and in her oral evidence "...Most Night Staff including myself probably didn't always give these drugs and described in the procedure manual, mainly due to the lack of staff available for the checking procedure. Therefore, the usual method employed by myself and others was to take the packs and the Drug Book and check off as we went around and then ask our colleague to co-sign the book. We all know this is not the prescribed method nor was it ideal but under the circumstances and until Allisons arrival, resulted in very few if any errors..." (Hearing Transcript, pp.36-37) 106On balance, the Tribunal prefers the evidence of RN Eaton and AIN Wood, and is swayed by the fact that the practices were observed by two parties individually. Whether dispensing from the pocket or spectacles case, the gravament of the particulars is that the practitioner did not adhere to correct practices with respect to the physical administering of medications. The Tribunal finds particulars 22a) and 22b) proved on the balance of probabilities, within the context of a systemic culture of poor drug dispensing habits at Delmar Private Hospital, at least on the night shift. 107PARTICULAR 23. In 2009, the practitioner attended a male patient with a suspected bladder perforation in Hospital Ward 7A. The practitioner: (i)reconnected IV tubing which had been administering antibiotics after it had been found in a pool of liquid on the floor; (ii)failed to appreciate the implications of recording zero urine output and nil urine bladder volume on ultrasound for two hours; (iii)failed to report the observations referred to in (ii) to the senior RN or doctor on duty; (iv)failed to investigate the observations at (ii). Following investigation by the senior RN, the patient's catheter was found to be disconnected. 108The practitioner denies these allegations. Her statement says that she first became aware of the allegation in a letter from the Nursing and Midwifery Council on 27 September, 2011, and that she was not made aware of the complaint in 2009 (RV, Tab 1, [28]). In oral evidence the practitioner confirmed that she could not remember the incident, but offered the following: "...Is it saying that I reconnected IV tubing that was on the floor? I wouldn't' do that. That's not aseptic. You don't do that with IVs. It goes directly into a cannula, into the patient's vein, so I wouldn't do that. But I don't remember that happening or - who said that?..." (Hearing Transcript, p.172, lines 18-21) 109The HCCC relied on the evidence of RN Vicki Eaton for support of these allegations - indeed they flowed from her statements. RN Eaton's statement of 20 September, 2011 read thus: "...c) A situation with a very ill patient whose IV antibiotic tubing had somehow become disconnected and was found lying on the floor in a pool of liquid. RN Bousfield simply reconnected the tubing without showing any concern for the ramifications, including infection and the amount of antibiotic which the patient had not received. d) On one occasion, before going on a break, I specifically asked RN Bousfield to perform observations on a specific patient in the HDU. On returning from my break, I noticed that no observations had been performed. On confronting RN Bousfield, she stated that she had performed the observations but that I [had] not told her to write the observations down." (CV 1, Tab 11, p.1, [5c), d)]) 110A slightly more detailed account was given by RN Eaton in her statement of 4 April, 2010 (CV1, Tab 11, p.3, [5]; p.4, [2]), and confirmed in her oral testimony (Hearing Transcript, p.31, lines 4-47, p. 32, lines 1-5). 111The HCCC's nursing expert witness, RN Rebekkah Middleton, was questioned by the Tribunal in general terms as to the level of seriousness of the matters referred to in particular 23 ii), iii), and iv). "Q. If a patient has an intravenous infusion running and an indwelling catheter and you found that or a nurse found that there was no urine output the first hour, the second hour, should the nurse be concerned and find out why? Yes. Q. What would you expect them to do? A. Yes, I would be concerned if there was no urine output. If it was just inserted then I would be extremely concerned but if it had been in longer term I would still expect a small volume of urine per hour. So if there was nothing coming out then, yes, I would be concerned. So I would check the patient, I would check observations, I would check the catheter site, I would check input versus output." 112The HCCC submits that RN Eaton's evidence should be accepted given, what it describes as her 'clear, detailed and unchallenged recollection of the incident." The Respondent argues the particular must fail for lack of particulars. 113The difficulty in the final analysis is twofold. The allegations themselves rely on the evidence of one person. The practitioner does not recall the event and denies Particular 23. That, of itself, is not fatal. However, not only is there no secondary corroboration from another witness, there is not sufficient detail in the particulars for the patient to be identified, such that the practitioner might reasonably respond to the allegations. There are no incident reports, no patient name, no file notes to examine, no investigation contemporaneous to the event. In the absence of any of these things, the practitioner is not in a position to answer the allegation. For these reasons, Particular 23 fails. This is not to suggest that the allegations themselves are not serious, but simply that the Tribunal cannot be comfortably satisfied on the balance of probabilities to find the matters proved. 114PARTICULAR 24 In or around 2009, the practitioner used her own padlock and key on the medication trolley, instead of the lock and key provided to all RNs, preventing other staff from being able to access the medications. 115The Tribunal is satisfied that this particular is proved, relying on the statement (CV, Tab 11, p.1, [5(b)]) and oral evidence (Hearing Transcript, p.30, line 15; p.31, line 2) of RN Vicki Eaton, and the admission of the particular by the practitioner in her written statement (RV, p.5, [29) and oral evidence (Hearing Transcript, p. 158, lines 1-47.) The practitioner explained in her oral evidence that she used her own padlock and key for the trolley as she did not have a place to safely store her handbag, and she locked her handbag in the trolley. 116Further, the practitioner acknowledged that there was "an issue with patient safety" in this practice, but justified it by claiming that, although she thought about the potential patient consequences, there was another trolley where drugs could be obtained if needed by staff, and if it was an emergency she was "around anyway, with the key, my own key" (Hearing Transcript, p. 158, lines 25-46). Particular 24 is clearly proved on the evidence and by the practitioner's admissions, and demonstrates a level of judgment below what would be expected of a practitioner of similar training and experience. 117PARTICULAR 25 In or around 2009, the practitioner turned off machines, including IVs, epidurals, and PCA infusions which had alarmed, with no attempt to investigate, remedy or report the situation to other staff. 118The practitioner denies this allegation, and submits that the complaint is so vague that it must fail for lack of particulars. 119The HCCC relied on the statement (CV, Tab 11, p.4, [1]) of RN Vicki Eaton with respect to these particulars and submits that RN Eaton's evidence should be accepted given her unchallenged recollection of the incident. The statement reads: "If an IV went through on any of my allocated patients she'd simply turn it off, epidural or PCA alarming, turn it off, no attempt to remedy these situations or on most occasions even tell me." 120The matter was not addressed by the parties in their oral examination of RN Eaton. The Tribunal agrees with the submission of the Respondent that the particulars are too vague and insufficiently detailed. Requests for further and better particulars were made on 23.12.2010 and 26.10.2011. The Complainant did not furnish such further and better particulars beyond referring the Respondent to the full brief. There is no further material in the Complainant's materials beyond the sentence in the statement of Ms Eaton. 121Without any corroborating evidence from colleagues or any documentary evidence of complaints concerning such conduct by the practitioner, the particular not only fails for lack of good evidentiary support, but is particularised in such a way that the practitioner could not have any way of responding in her own defence. 122PARTICULAR 26 In or around 2009, the practitioner displayed confusion over the paracetamol and codeine content of `Panamax Co', indicating that there should not be any codeine in Panamax Co. The practitioner removed all the Panamax Co from the medication trolleys. 123The practitioner says in her written statement (RV, Tab 1, p.6, [31]) that she does not recall this incident. She makes the point that she recalls this question always being in the annual medication assessment, and that she always passed her annual medication assessments. The practitioner has not proffered any evidence of content of medication assessments, or her alleged consistent successful assessment results. 124The evidence for this particular is vague. RN Eaton's statement says: "She made bizarre observations that are difficult to explain in this document such as why some Panadol have Paracetamol and Codeine in it! I tried to tell her that this was actually Panadeine which is a combination of these two drugs but she simply could not understand even when shown the MIMS. She went around to all 3 trolleys and removed the Panamax Co because they were not really Panadol!" (CV, Tab 11, p.4, [1]) 125Similar oral evidence was given by RN Eaton at the hearing, the essence of which being the Ms Bousfield had displayed confusion about the contents of Panadol and Panadeine. Ms Bousfield was not questioned on this matter. The Complainant submits that Ms Eaton's evidence should be accepted "given her clear, detailed and unchallenged recollection of this incident." The Tribunal did not find the evidence to be clear on this matter. There was no time frame, no corroborating evidence, and no record of any complaint being made by Ms Eaton to management. On balance, the Tribunal finds that there is insufficient evidence to that prove this particular. 126PARTICULAR 27 In 2009 the practitioner was asked by RN Vicki Eaton to perform observations on a patient in the High Dependency Unit while RN Eaton went on a break. The practitioner failed to record any observations in the patient notes for that time. 127The HCCC relies on the statement of RN Eaton concerning these particulars (CV, Tab 11, p.1, [5(d)], and p.3, [5]). 128The Respondent states that she cannot recall this incident, and that two requests for further and better particulars were unmet by the Complainant (RV, Tab 1, p.6, [32]). 129As particularised and on the evidence given, this complaint must fail. Without the identity of the patient or even the year in which this allegedly occurred, the Respondent is not able to meet the claims with any evidence. 130PARTICULAR 28 In or around 2009 to 2010, the syringe driver of a PCA machine for a patient in the East Wing (surgical wing) failed to function. The practitioner failed to contact the doctor on call to obtain telephone orders for alternative pain relief, instead attempting to get the syringe driver functioning, leaving the patient distressed and without pain relief for approximately one hour. 131The Complainant relies on the statement (CV, Tab 10, [6(a)]) and oral evidence (Hearing Transcript, p.56, line 13; p.57, line 30) of Rowena Wood, an Assistant in Nursing (AIN) at Delmar Private Hospital. The practitioner stated that she cannot recall this incident (RV, p.6, [33]). AIN Wood's statement reads: "6. I recall the following instances in which I was concerned at RN Bousfield's work practices: (a)Leaving a patient without pain relief in East Wing (surgical wing) - the patient's PCA machine had run out; RN Bousfield was unable to get the next syringe driver working. I suggested that she contact the doctor on call to obtain an order for alternative pain relief. RN Bousfield ignored my suggestion and continued to try to get the syringe driver working. The patient was probably without pain relief for around an hour and was clearly in a lot of pain and in tears..." (CV,Tab 10, [6a)]) 132AIN Wood explained in oral evidence that the Patient Care Analgesia ("PCA") machine allows a patient to control self-administration of analgesia for pain relief by pressing a button, and that when it runs out of medication the machine alarms so it can be refilled (Hearing Transcript, p.54, lines 43-47; p.55, lines 1-8). In evidence in chief AIN Wood described a scene wherein another registered nurse, an agency nurse, had refilled the PCA machine, but that neither the practitioner nor the agency nurse was able to get it working again, guessing that it was possibly an hour of trying to get the machine working while the patient was "most distressed" (Hearing Transcript, p.55, lines 10-29.). There was no evidence advanced as to whether or not it had transpired that the machine was faulty. 133The Respondent submitted that the credit of AIN Wood was questionable, based on the fact that she had not mentioned the presence of the agency nurse in her statement. The Tribunal did not accept that there was an issue as to credit with this witness, who was clear on cross examination that this was not an intentional omission (Hearing Transcript, p. 56, lines 13-47; p.57, lines 1-30.). 134Once again, the particular has difficulties in terms of evidentiary support. It would seem that although another registered nurse was present, that person was not identified and no evidence was obtained from them. 135In response to the Tribunal's question as to whether there was a process for an AIN to report departures from appropriate clinical care in relation to the patient having no pain relief, AIN Woods answered: "It would be my responsibility to let the RN on duty know, the in-charge RN on duty." (Hearing Transcript, p.57, lines 34-8). 136There is no evidence before the Tribunal of any report being made by anyone about the alleged incident. AIN Wood, when pressed on examination in chief for her "best guesstimate" of the time taken to get the PCA machine working was "possibly an hour" (Hearing Transcript, p.55, lines 20-26). This would seem a very long, and perhaps unlikely, time for two registered nurses on a busy fifty-five bed hospital to spend devoted to remedying a PCA machine problem / difficulty, especially when the evidence before the Tribunal is that there would routinely only be two registered nurses on duty for the night shift for the approximately fifty-five patients, it not being unusual on the night shift for there to only be three nurses (including one AIN) in total (Hearing Transcript, p.46, lines 46-47). 137The resolution of the matter is not known - was the machine faulty, did it eventually work, or did the staff resort to another means of administering medication? The identity of the patient is not known, and therefore there are no medical records available to investigate the allegations. If the patient records were available the Tribunal may have had some answers to these sorts of questions. As it stands, in the context of the practitioner having no recall of the incident, the Tribunal determines that this particular must fail, as it cannot be comfortably satisfied to the requisite standard that the alleged incident occurred as particularised. 138PARTICULAR 29 In or around 2009 to 2010, the practitioner failed to respond to a cardiac emergency buzzer for a patient who had collapsed at their bedside. The practitioner only attended when fetched by AIN Rowena Wood. Once the practitioner arrived, she attempted to leave to fetch a basin to clean the patient, who had been incontinent, instead of assisting to get the patient into bed in order to commence recovery. 139The evidence for this particular derives from RN Sinead Mayer (Statement at CV, Tab 13, and Hearing Transcript, p.44, lines 16-47; p.45-49) and the practitioner (Statement at RV, Tab 1, p.6, [34], and Hearing Transcript, p.159, lines 17-47; p.160, lines 1-6). Her statement says: "[34] Re: Particular 29. I recall that I attended the cardiac arrest buzzer as soon as I could. I do not recall the exact details of this incident. I have previously requested further and better particulars regarding this complaint on 23 December 2010 and 29 October 2011." 140Firstly, RN Mayer outlined in oral evidence the significance of the sounding of the emergency buzzer. That is, that upon the sounding of an emergency buzzer, which is heard everywhere in the hospital, the expected response is that everyone attends incident, including non-nursing staff. This takes priority over everything. Staff know which location to attend because there is a panel which can be viewed that indicates the area (Hearing Transcript, pp.44-5). 141The oral evidence of RN Mayer is that, in response to a patient manifesting symptoms indicating a possible cardiac arrest, she pressed the emergency buzzer at the patient's bed. AIN Wood attended first and began assisting RN Mayer with the patient. The practitioner did not attend immediately, and AIN Wood went to get her and tell her to come and help. The Tribunal notes it is odd that in an emergency situation one member of staff would leave to search for other staff members. 142On cross-examination RN Mayer conceded that it was possible that the practitioner had been on the other ward, the 'West Wing', and may have been doing something else at the time the buzzer sounded. 143RN Mayer's claim in her written statement that Ms Bousfield had not recognised the emergency buzzer was in based on what she had been told by AIN Woods, and she could not say whether the practitioner was in fact on her way to the emergency call when met by AIN Woods. That is, her conclusion that the practitioner had not recognised the buzzer was based on hearsay, rather than things she had observed (Hearing Transcript, p.48, lines 3-33). 144The evidence of RN Mayer continues that when the practitioner presented at the patient's bed it appeared that her priority was to clean the results of the patient's incontinence, rather than to focus on getting the patient into the recovery position and getting oxygen to them. This conclusion was based on the practitioner allegedly saying she was going to get some water (Hearing Transcript, p.45, lines 7-22). 145The clinical priority of attending to immediate recovery protocols adds to the Tribunal's view that it was strange for RN Mayer and AIN Wood to prioritise searching for the practitioner before attending to the most pressing priority of 'recovering' the patient, particularly when the evidence was that the patient had to be lifted to the bed, and this required two people (Hearing Transcript, p.46, lines 32-34). 146The versions of events given by the practitioner and RN Mayer differ. On cross examination it was put to RN Mayer that the practitioner actually left to get the oxygen. RN Mayer did not recall who obtained the oxygen (Hearing Transcript, p.46, lines 30). 147It was, however, the practitioner's oral evidence that the she went to get the oxygen, which was not located above the patient's bed, but rather some distance away: "A. I had to go back down the corridor that I came along initially to go into the room and then turn off and cut through the middle of the hospital. The oxygen was in the Courtyard in a cupboard. I don't think it was padlocked, no. Outside in the Courtyard. Q. There was no oxygen above the bed where the patient was? A. No. Q. Or not even in that ward? A. No." (Hearing Transcript 27.03.2013, p.170, lines 24-33) 148In response to questioning from the Respondent's representative as to whether she had made a complaint or raised this matter with anybody, RN Mayer replied that she "spoke to the nursing unit manager [Jenny Cross] about issues, but she did not recall getting any feedback on that (Hearing Transcript, p.48, lines 35-46). The evidence before the Tribunal from the Hospital Director, RN Statis, was that prior to the unsatisfactory result on the Basic Life Support test on 17 March, 2010, there had been no complaints, written or otherwise, made to Delmar Private Hospital management concerning the practitioner (Hearing Transcript, p.123, lines 21-25). 149It would seem that in the days after 17 March, 2010 when the practitioner failed to achieve a satisfactory result on the BLS test, a meeting took place and between RN Butler (Education Facilitator) and RN Sinead Mayer. The draft minutes were tendered and admitted into evidence (Exhibit B). 150At this meeting RN Butler questioned RN Mayer about the incident and she reported in the general terms later particularised in the HCCC's Complaint. RN Butler asked about this incident based on her earlier meeting with AIN Woods. RN Mayer also commented that "there was a lot of hearsay amongst the staff and she had heard some stories that had been embellished." (Exhibit B, p.2, [7]) 151The practitioner offered her view of events in cross-examination: "Q. That's to do with an allegation that you failed to respond to a cardiac emergency buzzer for a patient who had collapsed at their bedside and evidence has been given that you only attempted [attended] when fetched by AIN Rowena Wood? Mm. Q. You've said in your statement that you recall that you attended the cardiac arrest buzzer as soon as you could. When you say as soon as you could, what do you mean by that? A. Well, I was with another patient. Q. What were you doing with the other patient? A. I think I was discussing pain relief, probably, I think. Like, I had her chart in my hand and I was in the middle of the conversation, and I just had to say, "Look, I've got to go." But - and then I did go there, I was in the room, and then I went to get oxygen and then I went back, and then I helped put the patient to bed. But I go there as soon as I could. Q. So when you say as soon as you could, I'm assuming emergency buzzer means drop everything and run to that room? A. Yeah, I did. Q. Do you recall Ms Wood going and getting you? A. Well, no, unless when I went to get oxygen she wanted me for something else. Q. No, when it first alarmed, do you remember her getting you to bring you back to the room? A. No. Q. You're saying that you didn't then leave to go and fetch a basin to clean the patient? A. No. Q. But you agree that the first priority in whatever you're doing in a hospital if [is] that emergency buzzer goes is to respond to the buzzer? A. Yes. That's why it's an emergency buzzer." (Hearing Transcript, p.159, lines 17-47; p.160, lines 1-6) 152On balance, the Tribunal finds that the evidence for the Complainant is not sufficiently clear or certain to be comfortably satisfied that the particular 29 is proved. The incidents are capable of more than one interpretation. The version put by the HCCC does not have sufficient evidentiary basis to allow the Tribunal to find the matter proved on the balance of probabilities. 153PARTICULAR 30 In or around 2009 to 2010, the practitioner failed to closely observe a young patient who had recently undergone a tonsillectomy and was making a `gurgling' sound when he breathed, despite being requested to do so by RN Sinead Mayer. 154The practitioner does not recall this incident, and repeats in her statement that she twice made unmet requests for further and better particulars (RV, p.7, [35]). On examination in chief the practitioner was asked hypothetically about observing a young patient post-tonsillectomy with a gurgling sound when breathing. "Q. But to you, if a young patient that has recently undergone a tonsillectomy is making a gurgling sound when he breathes, what does that indicate to you? A. Well, they're having breathing difficulties so there's something wrong there. That's what it would mean. They're challenged with their breathing. Q. So what should you do in that situation? A. I would tell whoever is in charge of that patient straight away. Q. Say it's your patient? A. If it was my patient, I would seek - check them out. Q. What do you mean, check them out? A. Completely. Check their - Q. Just so you know, some of us aren't nurses, so just so we know what you mean. A. You know, check their breathing, look in their mouth and see if there's something blocking their breathing, and if there is, clear it out. But if they're still having trouble breathing check their consciousness, look at their colour, just see what their pulse is and - Q. So if another nurse notices something like that in your patient and they tell you, "Closely observe that patient," what would you do after that advice? A. Well, I wouldn't leave the room, and check them out and do everything I said. If there's anything wrong write it down and let her know straight away if that happened, but it didn't - luckily for me, it never happened." (Hearing Transcript, p.160, lines 19-44) 155RN Mayer alleged in her statement: "...b) On another occasion while doing an initial round of the patient, I had noticed one of RN Bousfield's patients, a young child with a tonsillectomy, had a 'gurgle' when he breathed. I asked RN Bousfield to keep a close eye on him as I was concerned about the ramifications of the sound. On return from my rounds, around an hour and a half later, I asked her how the young child was doing; RN Bousfield replied with words to the effect of 'He has not buzzed.'" (CV, Tab 13, [5b)]) 156RN Mayer was questioned directly by the Tribunal, which established that the normal protocol would be to at least record the pulse and saturations on the post-operative sheets until 8am on the day following the surgical procedure (Hearing Transcript, p.49, lines 34-47; p.50, lines 1-14). RN Mayer stated that normally parents stayed with a small child in the room, including overnight. Further, she opined that a compromised child wouldn't be able to comprehend that they needed to use the buzzer for help, especially if they were bleeding, and that she would keep a close eye on such a child. 157Ms Robinson addressed further questions to RN Mayer, the answers to which established that although RN Mayer would have known the identity of the child at the time, she did not recall it at the later time when she made her statement (20.09.2011, some eighteen months after the practitioner was suspended). RN Mayer answered that she would have made the identity of the child known to Jenny Cross at the time she discussed the incident (Hearing Transcript, p.50, lines 32-47; p.51, lines 1-47; p.52, lines 1-23). 158The Complainant submits that RN Mayer's evidence is unchallenged and should be accepted given her clear and detailed recollections of the incident, and that the Tribunal should therefore be satisfied that the particulars are proved. 159The Respondent submits that there is no evidence before the Tribunal that the practitioner did not observe the patient in accordance with the post-operative requirements of conducting observations at least hourly all through the night, at least the pulse rate and saturation. 160It was further submitted that the alleged 'off handed' response of "he hasn't buzzed" does not constitute conduct. The Tribunal does not deem it necessary to determine whether such statement amounts to conduct as defined in Part 8 Division 1 of the National Law. 161Particular 30 simply refers to a failure to observe the patient as requested. The Respondent further submits that the record of the meeting where this matter was discussed reports "Sinead said the patient was OK" (Exhibit B). Accordingly, the Respondent submits that the Tribunal should find the Particulars not proved. 162Once again, the Tribunal is faced with an incident reported a great length of time after the event, such that it cannot be said with any certainty even the year in which it occurred. The patient identity is not known, and there was not investigation of the alleged incident when it was brought to the attention of management at some time after the practitioner was suspended on 17 March, 2010. 163 It was a matter which flowed from staff interviews as to any concerns with the conduct of the practitioner in the practice of nursing. As there was not contemporaneous investigation of the alleged incident, the Tribunal has no real evidence apart from RN Mayer's statement that the practitioner's response to the question of how the child was going was "he didn't buzz". The age of the child is not known, nor anything about the child's condition at the time except that there was purportedly some 'gurgling'. For these reasons and what amounts to an absence of clear and cogent evidence, Particular 30 is not proved on the balance of probabilities. 164Particulars 31-38 Hospital and Competency Assessments Particulars 31-38 deal with various hospital and competency assessments. There is no dispute between the parties that the assessments were conducted on or around the dates particularised, or that the findings or results of each assessment are any different to those listed in the particulars. To that extent they are not disputed, although the Respondent contended some ameliorating matters in submissions and evidence. In accordance with authority they will be considered in these reasons for decision. 165Evidence and Findings for Hospital and Competency Assessments March 2010 Competency Assessments PARTICULAR 31. On or about 17 March 2010 the practitioner attended the annual Basic Life Support competency assessment conducted by a Hospital Education Facilitator. The practitioner was assessed as `not yet competent.' 166With respect to Particular 31, the Respondent made issue of the fact that the Basic Life Support ('BLS') competency assessment was conducted after she had finished a ten hour night shift. The evidence of RN Butler (Education Facilitator) was that a general offer had been made to staff to conduct the BLS assessment that day if it suited, and that the practitioner had attended her office at the completion of the night shift to request doing the exam then. The practitioner was questioned as to whether she would be too tired but replied that she was fine (Hearing Transcript, at p.61, lines 46-47; p.62, lines 1-2.). RN Middleton, the expert nursing witness for the HCCC, gave evidence that it was very concerning that a registered nurse level 8 could not be marked competent in a basic life support assessment: "I think that it's just basic knowledge and principles of practice that every registered nurse - every student registered nurse and every registered nurse should certainly know and be able to just iterate without thought, really." (Hearing Transcript, p.137, lines 19-21) 167The practitioner herself, conceded this in cross-examination: Q. Do you agree that if you had been heading for a door - you've come off your shift, you're leaving the hospital and a patient collapses, be it a long shift and whatever has happened on that shift, you should be able to perform basic life support on that patient? A. Yeah. Definitely. (Hearing Transcript, p.161, lines 32-36) 168Ms Robinson submitted, that, as asserted in the practitioner's Statement, note should be taken of the comments in the performance assessment report prepared for the Nursing and Midwifery Council of NSW dated 7 October, 2010. This report states that the practitioner was, on assessment, "able to correctly describe management of an unconscious patient consistent with Australian Resuscitation Council Guidelines and other aspects of care in similar situations consistent with acceptable standards of care." (CV, Tab 25, p.4, Report of Charmaine Crispin N. Ed, detailing the results of the Performance Assessment on 7 October, 2010,) While it is pleasing to see that this later assessment, which was based on a discussion with the practitioner about recognition and management of the deteriorating patient, had a better outcome, it must be found that the Particular 31 is both factually proved and admitted. 169PARTICULAR 32. On or about 31 March 2010 the practitioner attended an Oral Medication competency assessment conducted by a Hospital Education Facilitator. The practitioner was assessed as `not yet competent.' The Oral Medication assessment was indeed conducted by RN Lynley Butler, the Delmar Private Hospital Education Facilitator, on 31 March, 2010 (CV, Tab 26, Annexure C; RV, Tab 1, Annexure C). The assessment decision was that the practitioner was 'not yet competent'. The fact of this assessment having taken place, as well as the 'not yet competent' result, is proved to the comfortable satisfaction of the Tribunal. 170PARTICULAR 33. On or about 31 March 2010 the practitioner attended an Intravenous Medication competency assessment. The practitioner was initially assessed as `competent,' however, following a discussion between the practitioner's manager and the Hospital Education Facilitator, this was amended to `not yet competent' to reflect the practitioner's: (1)failure to check patients' allergy status; and (2)failure to initiate hand hygiene at appropriate times. 171As with Particular 32, the evidence is clear that the Intravenous Medication competency assessment took place on the stated date, and that the final assessment was that the practitioner was not yet competent (RV, Tab 1, Annexure C, "Intravenous Medication Competency", dated 31.03.2010). As such, the particular is factually proven. 172Comments concerning hospital assessments (Particulars 31-33) RN Butler created a document entitled "Recollections of Medications and IV Competency Assessment - 31.03.10". It is unclear whether this document was created contemporaneously, or a period of time after the assessments were conducted. The document indicates a number of concerning departures from best clinical practice during the assessment. These included the following: * Pouring medication onto her hand, and then placing it into the medicine cup; * Inconsistent attention to hand hygiene between patents; * Failure to check expiry dates on medications, and not knowing where to check expiry dates on blister packs; * Requiring prompting to check the patient arm band several times and to confirm with the patient, and to check allergy status; * Failure to check Fentanyl patches and document, even when prompted and despite recent RN education on the matter. 173The HCCC relies on the statement and oral evidence of RN Butler, and the documentary evidence of the assessments themselves. The Tribunal has no cause to dispute this evidence. Although during the course of the hearing much time in cross examination was given to questioning about the hospital processes which took place around these competency assessments, the Tribunal agrees with the submission of the HCCC that it was not relevant to the Complaint and the issues for determination. 174As submitted by the HCCC, the occurrence and results of the assessments themselves are unchallenged. The Respondent did not make any submissions in relation to the Hospital and Performance assessments. The Tribunal is comfortably satisfied by the evidence that Particulars 31-34 are proved on the balance of probabilities. 175Evidence and Findings for Particulars 34-38 Performance Assessment - 7 October 2010 (1)PARTICULAR 34. On or about 7 October 2010 the practitioner attended an independent performance assessment which had been required by the Nursing and Midwifery Council of NSW (the Council) pursuant to section 154 of the National Law. (2)PARTICULAR 35. The independent performance assessment was conducted by an independent assessor using the Australian Nursing and Midwifery Council (ANMC) National Competency Standards for the Registered Nurse (December 2005) (the Standards). (3)PARTICULAR 36. During the Performance Assessment the independent assessor rated the practitioner as `not competent' in the following areas: (i)Medication/Intravenous Therapy Assessment (5 `not competent' ratings). (ii)Infection control (1 `not competent' rating) and; (iii)Clinical assessment of the patient, identification of need, care planning and implementation (1 `not competent' rating). (4)PARTICULAR 37. The independent assessor therefore found the nurse to not be competent in 5 out of the 10 Standards as follows: (i)ANMC Competency Standard no. 1: Practises in accordance with legislation affecting nursing practice and health care; (ii)ANMC Competency Standard no. 2: Practises within a professional and ethical nursing framework; (iii)ANMC Competency Standard no. 4: Participates in ongoing professional development of self and others; (iv)ANMC Competency Standard no. 7: provides comprehensive, safe and effective evidence-based nursing care to achieve identified individual/group health outcomes; (v)ANMC Competency Standard no. 9: Establishes, maintains and appropriately concludes therapeutic relationships. (5)PARTICULAR 38. The independent assessor concluded that "As a result of this assessment and the evidence provided by the Delmar Private Hospital I do not consider Alison Bousfield safe to practice as a registered Nurse unless she is under the direct supervision of another Registered Nurse. I am unable to recommend a suitable education program as a result of this assessment." 176For ease, Particulars 33-38 are dealt with concurrently. It is common ground that the assessments were undertaken on the given date and that the findings are as particularised. (1)The assessment was the consequence of the Hospital notifying the Nurses and Midwives Board on 17 March, 2010, the date upon which the practitioner was found 'not yet competent' in the Basic Life Support test, this being the event that triggered all ensuing investigations. (2)The independent assessor was RN Crispin, who gave a written statement accompanying the report (CV, Tab 26). The statement provides some helpful context. In that statement RN Crispin cites her qualifications and experience for conducting such performance assessments, and notes that she has completed hundreds of undergraduate and postgraduate skills assessments in the field of nursing. The Tribunal has no question as to her independence or qualification and expertise to conduct the assessment of the practitioner. (3)The Report (CV, Tab 25) itself details the assessments and points of competency, and those where competency was not achieved. It notes that prior to the assessment RN Crispin had a telephone conversation with the practitioner to outline the skills and knowledge that would be observed and assessed. This had also been confirmed in the Nursing and Midwifery Council of NSW correspondence to the practitioner dated 13 September, 2010). (4)In terms of the context, firstly Ms Crispin notes that she was not aware of the clinical performance details which had led to the need for the assessment. Secondly, she notes that the ANMC competency standards, which were developed in 2002 to establish baseline standards of care within the nursing profession, are routinely used for assessment of practitioners, particularly where reported incidents and public and patient safety concerns have been raised. As explained in the report, they are organised into four overarching domains: (a)Professional practice; (b)Critical thinking and analysis; (c)Provision and co-ordination of care and collaborative; and (d)Therapeutic practice. 177However, as RN Crispin reports, they do not "take into consideration the context of nursing practice. For example, a registered nurse with many years' experience and competency in a surgical ward would not be considered competent if sent to operating theatres as a scrub nurse for one day. The performance assessment on 7th October 2010 took into consideration both the context of nursing practice and clinical currency of both the assessor and Alison Bousfield." RN Crispin highlighted in her Statement (CV, Tab 26) (additional to her report) some critical matters of non-competence. Firstly, that at 0745 hours she "directly observed Alison Bousfield omit standard checking procedures ie checking expiry dates, patient identification, allergies and drug dosage on the medication package against the medication order during administration." Medication administration errors are recognised as a significant source of patient harm for inpatients. Secondly, the practitioner made statements to RN Crispin during the assessment that she had never had a medication assessment, even as an undergraduate (p.3, [22]). However, RN Crispin later found this dubious statement to be incorrect when, at some time after conducting the assessment she was given copies of a medication competency assessment (CV Tab 25, Appendix C ) dated 31.03.2010 that the practitioner had signed. This assessment had found the practitioner 'not yet competent' in medication administration. Further, RN Crispin highlighted her concern that the practitioner "did not demonstrate insight into some critical aspects of non-compliance with recognised safety standards nor did she acknowledge, which questioned about this non-compliance, her accountability as a registered nurse in these matters." (CV Tab 26, p.4 at [14]). For these reasons Ms Crispin found herself unable to recommend an education plan for the practitioner to remedy problems identified in the performance assessment. 178The Report, quite helpfully gives detail of the nature of each assessment and any deficiencies or proficiencies demonstrated. It also, provides a helpful summary of the overall findings: "Performance Assessment Summary and Recommendation: * Alison Bousfield was found to be competent in 5/10 of the National Compentency Standards for the Registered Nurse (ANMC) ie not competent in 5/10 standards. * When discussion errors and omissions I observed... as part of the assessment debriefing / feedback process Alison Bousfield consistently: (a)Denied some of the errors and omissions that I observed and then described to her as feedback. (b)Explained other errors and omissions she made by blaming a third party person or situation that I did not observe to be a factor during the assessment. 179As a result of this assessment and the evidence provided by the Delmar Private Hospital I do not consider Alison Bousfield safe to practice as a Registered Nurse unless she is under the direct supervision of another Registered Nurse. I am unable to recommend a suitable education program as a result of this assessment." (at p.1) 180RN Middleton, the HCCC's nursing expert witness, stated in her report: "...It seems clear to me that RN Bousfield does not meet the standard of competence I would expect of an RN with her level of experience. I would expect RN Bousfield as a minimum to be compliant with all the national competency standards outlined by the ANMC. This is not clearly met as seen in the annual clinical nursing performance reviews and in the annual competency assessments. This is a basic requirement for all registered nurses, and should be exemplary in an RN who has the level of experience RN Bousfield has. RN Bousfield should be in a position where she exemplifies the national competency standards and role models them to other RNs. This should also be the case for basic life support and medication administration. I would expect RN Bousfield to be deemed competent in her annual assessment for basic life support and medication administration on an initial assessment. I do not believe any RN with her experience should need prompting or repeat assessment due to not meeting all requirements, irrespective of the time the assessment was performed. RN Bousfield should be fluent in emergency responses and should be able to explain the elements of basic life support with ease and without prompting. The departure from this standard is significantly below the standard I would expect of a registered nurse who has been working for over 15 years." (CV, Tab 29, pp.6-7) 181Findings on Particulars 33-38 The Tribunal is compelled by the evidence to find Particulars 33-38 factually proved on the balance of probabilities. 182Complaints Three and Four Complaint Three asks the Tribunal to make a finding of lack of competence to practise nursing. Complaint Four asks the Tribunal to make a finding of impairment. The evidence for Complaints Three and Four is identical. As such they will be considered concurrently. 183Complaint Three Is not competent to practise nursing in that she does not have the sufficient mental capacity, knowledge and / or skill to practise nursing within the meaning of section 139(a) of the National Law. 184PARTICULARS OF COMPLAINT THREE At all relevant times the nurse was employed as a Registered Nurse at Delmar Private Hospital (Delmar). (1)Particulars 1 to 38 above are repeated. (2)The nurse does not have sufficient cognitive resources to competently perform higher level nursing duties/roles which involve: (i)supervising other nursing staff; and/or (ii)the independent care of patients whose medical issues are acute, complex and/or rapidly changing; which detrimentally affects or are likely to detrimentally affect her mental capacity to practise nursing. 185Complaint Four Suffers from an impairment within the meaning of section 5 of the National Law. PARTICULARS OF COMPLAINT FOUR (identical to those for Complaint Three) (1)Particulars 1 to 38 above are repeated. (2)The nurse does not have sufficient cognitive resources to competently perform higher level nursing duties/roles which involve: (i)supervising other nursing staff; and/or (ii)the independent care of patients whose medical issues are acute, complex and/or rapidly changing; which detrimentally affects or are likely to detrimentally affect her mental capacity to practise nursing. 186PARTICULARS 1-38 (1)The HCCC relies on the evidence relating the particulars 1-38 of Complaint One, submitting that given the serious nature of the results of the competency assessments and the cumulative effect of the serious clinical practice issues identified in Complaint One, it is clear that the practitioner does not have the knowledge and/or skills required to practise nursing. (2)As previously outlined, the allegations regarding Patient C were proved and admitted (administering a dose of paracetamol in excess of the NSW Policy Directive). One allegation of two was proved concerning Patient D (an incorrect date recording of medication administration). Particulars 22a) and b) (administering medication from pocket and glasses case) were proved. Particular 24 (the practitioner using her own padlock and key for the medication trolley) was also proved. Particulars 31-38 concerning the hospital and performance assessments are all proved. Psychiatry Assessment 187The practitioner underwent neuropsychological assessment by Dr Pauline Langluddecke (Clinical Psychologist) on 24 November, 2011. A Report was furnished by Dr Langeluddecke dated 25 November, 2011 (RV, Tab2, Annexure A). This report was informed by the following: (1)Documents (Letter from Ms Statis, dated 8 April, 2010; Report from the Nurses and Midwifery Performance Review Panel, dated 18 February, 2011). (2)Observation of Ms Bousfield's affect, demeanour and cognitive functioning throughtout the assessment; (3)Information obtained from a brief clinical interview of Ms Bousfield; and (4)Results obtained on standardised tests of cognitive and emotional functioning administererd to Ms Bousfield on 24 Nobember, 2011 (RV, Tab 1, Annexure A, p.2). 188No evidence was adduced by either party of mental illness. Additionally, when questioned by Dr Whetton, the practitioner denied any use of illicit drugs or tranquillisers or analgesics. She denied any misappropriation of medication in the workplace (CV, Tab 24, p.3). Once again, no argument of such practices was put in the pleadings or the balance of the evidence. Neuropsychological Assessment 189The practitioner underwent neuropsychological assessment by Dr Pauline Langeluddecke (Clinical Psychologist) on 24 November, 2011. A Report was furnished by Dr Langeluddecke dated 25 November, 2011 (RV, Tab 2, Annexure A). This report was informed by the following: (a)Documents (See Annexure B to Reasons for Decision for details); (b)Observation of Ms Bousfield's affect, demeanour and cognitive functioning throughout the assessment; (c)Information obtained from a brief clinical interview of Ms Bousfield; and (d)Results obtained on standardised tests of cognitive and emotional functioning administered to Ms Bousfield on 24 November, 2011 (RV, Tab 1, Annexure A, p.2). 190Consistent with Dr Whetton's observation, Dr Langeluddecke reports an unremarkable mental and physical health history (p.5). The practitioner reported to Dr Landeluddecke that she couldn't say whether she was average in terms of scholastic achievement, but was "not above average". She reported that she completed her Diploma in Health Science (Nursing) at the College of Nursing in Nepean without any difficulty, gaining Distinctions in a few subjects (p.4). The practitioner told Dr Langeluddeck that she had no concerns at all regarding her thinking skills, and that her concentration was "pretty good", as evidenced by her extensive reading and ability to do crosswords (p.5) She reported her memory as "normal for my age", as being able to perform arithmetic calculations accurately, being unaware of any organisation problems, and as having "pretty good" language skills. Further, she claimed that she was not depressed or anxious at the time of the interview. 191Dr Langeluddecke performed the following Psychometric Testing: Test of Premorbid Functioning (TOPF) Wide Range Achievement Test - 4 (WRAT-4) Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV) Wechsler Memory Scale - Fourth Edition (WMS-IV) Rey Complex Figure Test (RCFT) Trailmaking Test (TMT) Conners' Continuous Performance Test - II((CCPT) Verbal Fluency Test (VFT) D-KEFS Colour Word Interference Test (CWIT) Wisconsin Card Sorting Test (WCST) Zoo Map Test (ZMT) Cognitive Difficulties Scale (CDS) Depression Anxiety Stress Scales (DASS) 192Dr Langeluddecke reports that the practitioner was co-operative with the neuropsychological assessment but seemed to be at a loss to explain the concerns of the Nursing and Midwifery Council or understand why there was need for assessment of her cognitive abilities (p.9). She presented as "somewhat distant and ... not particularly socially intuitive or forthcoming", although it was concluded that these aspects of her presentation "probably reflect longstanding personality traits and the circumstances of testing rather than being of clinical significance." Further, there were "no observable signs of psychiatric disturbance of neurological impairment". 193The history obtained from the practitioner indicated "an average cognitive ability overall and an absence of specific attentional, learning, or scholastic weakness." The testing revealed a somewhat different picture. "Ms Bousfield's cognitive test results were thought to provide a valid measure of her functioning at the present time. Current intellectual capacity on the WAIS-IV was towards the lower end of the average range for age (i.e., FSIQ around the 30th percentile). In general, verbal abilities were average for age, and visuospatial abilities were low average to average, across various cognitive domains (e.g. attention/working memory; intellectual, immediate - short-term memory, and executive functions). Visuospatial planning/organisational and reasoning skills were poor on higher level tasks. The findings probably reflect longstanding cognitive strengths and weaknesses. There is no evidence of an Attention Deficit Disorder, Learning Disorder, or acquired cognitive weaknesses in keeping with neurological impairment on psychometric testing." Opinion: 194I am of the opinion that the concerns which have arisen in relation to Ms Bousfield's competency to practice as a Year 8 RN relate to longstanding limitations in her cognitive resources. Verbal intellectual and memory abilities which are average for age have enabled Ms Bousfield to complete a Diploma in Health Sciences (Nursing). However, relative weaknesses in visuospatial learning, planning and reasoning skills render her poorly equipped to acquire and implement some of the competencies expected of an RN, including procedural tasks/clinical situations and senior nursing duties/roles. Aspects of Ms Bousfield's personality/behaviour, in particular a rather aloof and defensive manner and lack of insight/concern regarding limitations in her nursing skills, may also detract from her competence in performing the duties expected of an experienced RN. I am of the opinion that Ms Bousfield's cognitive resources (as demonstrated on psychometric testing) are at the lower end of the range which can reasonably be expected in individuals who have completed certified RN academic qualifications. As such, she is disadvantaged in furthering her nursing knowledge and practical skills at the level usually expected with increasing nursing experience and poorly equipped to cope with the demands of higher level nursing duties/roles. This is likely to result in a growing discrepancy between the level of competency which Ms Bousfield demonstrates/is capable of and that expected with increasing nursing seniority. This may explain, at least in part, the timing of her notification to the NMS. The considerable amount of time which Ms Bousfield has spent working in aged care may also have compromised the consolidation and further development in her nursing knowledge/skills over time, and in turn her competence in more demanding nursing roles. I would expect Ms Bousfield to have sufficient cognitive resources to cope with fairly routine nursing tasks after appropriate skills training. Low average visual memory and intellectual abilities may render her relatively slow to achieve competence with practical procedures (e.g. CPR; venepuncture) and necessitate more practice than her peers in order to maintain these skills. I doubt that Ms Bousfield has sufficient cognitive resources to completely perform higher level nursing duties/roles which involve supervising other nursing staff or the independent care of patients whose medical issues are acute, complex and/or rapidly changing...." (pp.9-10) 195Dr Langeluddecke provided a supplementary report dated 7 November, 2012 (RV, Tab 1, Annexure G). This report was not with the benefit of interviewing Ms Bousfield, but was an answer to specific questions from the Nurses and Midwives' Association, given based on the initial testing and interview. The questions asked were: (1)Is Ms Bousfield's cognitive deficit likely to detrimentally affect her ability to practise as a registered nurse? (2)Does Ms Bousfield suffer from an impairment within the meaning of Section 5 of the National Law? (3)Are the allegations in the Particulars 1-38 of the complaints explicable in terms of Ms Bousfield's cognitive impairment? In short, Dr Langeluddecke answered in the affirmative to all of the above questions. 196Is Ms Bousfield's cognitive deficit likely to detrimentally affect her ability to practise as a registered nurse? Dr Langeluddecke opines that the results of the November 2011 neuropsychological assessment revealed cognitive limitations which "are likely to detrimentally affect her ability to practise as a Registered Nurse according to the competency standards specified by the Australian Nursing and Midwifery Council" (p.2). Cognitively, the practitioner's general intellectual capacity was found to be towards the lower end of the Average range (30th percentile for age). Her visuospatial planning and reasoning skills, immediate-short term memory, visual working memory, and speed of information processing were found to be within the Low Average range for age. Her personality traits and behaviour patterns "render her disinclined to acknowledge and address the impact of her cognitive limitations on her competence in performing her nursing duties" (pp.1-2). 197On the question of cognitive deficit detrimentally affecting the pracitioner's ability to practise as a registered nurse, Dr Langeluddecke concluded: "...I would expect Ms Bousfield to have difficulties with a range of the National Competency Standards given the limitations in Ms Bousfield's cognitive and behavioural resources as documented on neuropsychological testing and information pertaining to observations of her nursing knowledge and practice skills in her work environment..." 198Does Ms Bousfield suffer from an impairment within the meaning of Section 5 of the National Law? Dr Langeluddecke expresses the opinion that the practitioner suffers from an impairment on cognitive grounds: "Limitations in Ms Bousfield's cognitive abilities evident on psychometric testing and the level of cognitive ability demonstrated by Ms Bousfield whilst performing nursing duties (i.e., at a Performance Assessment) and when aspect s of her nursing/medical knowledge were assessed by a Nursing and Midwifery Review Panel, indicate a cognitive "condition" which is likely to detrimentally affect Ms Bousfield's capacity to practise this profession." 199Are the allegations in the Particulars 1-38 of the complaints explicable in terms of Ms Bousfield's cognitive impairment? Dr Langeluddecke states that the limitations in the practitioner's cognitive resources which were evident on neuropsychological assessment afford partial explanation of the deficiencies in work performance, as documented in the complaints. However, the reporter notes that the deficiencies in fairly routine nursing competencies such as medication dosages/ dispensing, clinical judgment/competence, and infection control, as cited in the Complaint under the National Law, are greater than might be expected from the level of cognitive impairment attributed to Ms Bousfield by the neuropsychological testing. 200We note that not all of the particularised deficiencies in the Complaint to which Dr Langeluddecke refers in her report have been found by this Tribunal to have been proved to its comfortable satisfaction. In fact only four of the key clinical allegations out of fourteen were found proved on the balance of probabilities. Therefore, it must be noted that Dr Langeluddecke forms her opinion, in part, upon an understanding that all of the clinical departures in Particulars 1-30 are sound facts. Her opinion, of course, also draws on the clearly proven Particulars 31-38 and the extensive psychometric and other testing that she conducted. 201Dr Langeluddecke's report offers three possible explanations for even greater nursing deficiencies than the testing results might predict. (1)The first is that the psychometric testing is done in a distraction free environment on fairly structured tasks, over a relatively short time frame. It is possible that they may overestimate the practitioner's cognitive functioning in her normal work environment, "where there are competing demands on her attention and greater requirements for self-initiation, planning, prioritising, monitoring and completing tasks." (p.3) (2)The second possible explanation is that certain aspects of the practitioner's personality and behaviour (such as poor social intuition, anxiety, lack of confidence and/or concern regarding work performance), may "compromise her ability to fully utilise her cognitive resources in the work setting." (p.3) (3)Thirdly, the practitioner's nursing competence in her work environment may be lower than expected due to a lack of inclination/opportunity to pursue continuing nursing education to keep abreast of up-to-date nursing skills. 202Dr Langeluddeck gave oral testimony on 27 March, 2013. On examination in chief Dr Langeluddecke essentially repeated these three issues which may have explained the fact that the deficiencies in the practitioner's work performance were even greater than those she would have expected based on the cognitive testing results (Hearing Transcript, pp.147-150). (1)The first view is that because psychometric testing of cognitive abilities takes place in an artificial environment - quiet, no competitors for the subject's attention, structured and clearly stated instructions, with limited scope for initiative - the testing "really does represent their cognitive functioning at its best" (Hearing Transcript, p.149, lines 8-15). "So it is certainly possible to have someone who doesn't look too bad on cognitive testing but in a classroom situation or in a work situation I will get feedback indicating that their functioning is a lot worse in their situations where they have to be vigilant where there are competing demands on their time, where they have to show initiative. So, there's not always a perfect correlation between testing and functioning tin the normal environment and testing tends to overstate cognitive abilities..." (Hearing Transcript, p.149, lines 15-21) (2)The second explanation pertained to certain aspects of Ms Bousfield's personality and behaviour. "...One's ability to utilise the cognitive resources that one has depends a lot on your emotional state, if you're emotionally stable, robust, you tend to be able to fully utilise your memory, your concentration and those sorts of abilities, you know, in a more outgoing and confident in terms of personality, and also you can just optimise your cognitive abilities. So there are some aspects of people's emotional function or their personality which means that they're, even though they may not look too bad on testing in a normal environment, they don't have to fully utilise those sorts of abilities... Normally if I'm doing assessments with the medical council or the nursing council, you know, you seem to see sort of people at their best and they, you know, no matter how much they don't want to be there they tend to engage as much as possible. So her presentation had quite an unusual feel, I thought, and that raised concerns to me about her personality and behavioural functioning..." (Hearing Transcript, p.149, lines 25-32, 42-46) (3)Thirdly, Dr Landeluddecke posited that the practitioner had not always been in an environment that was conducive to furthering her nursing skills. She suggested that a period of nursing in aged care had not produced development of nursing skills or ongoing education. That, she thought, "may also be a factor which influenced her cognitive functioning in her competence in her normal work environment." Nurses and Midwifery Performance Review Panel ("PRP") 203The PRP was convened on 18 January, 2011 to conduct a review of the practitioner's performance as a registered nurse. The Reasons for Decision detail that the practitioner was unable to provide a satisfactory explanation regarding her poor performance in relation to various aspects of her nursing as assessed by her employers and the independent assessors (CV, Tab 30). When interviewed, the Panel formed the impression that: * The practitioner's responses to the questions were generally brief and not to the level of sophistication expected of an experienced registered nurse; * The level of knowledge demonstrated by the practitioner about various aspects of clinical practice was thought to be poor; * The practitioner's judgment in dealing with clinical situations often did not include any critical thinking, analysis of the theoretical knowledge or application of new learning; * The practitioner appeared to lack insight regarding the deficiencies in her knowledge and skills. Submissions for Complaints Three and Four 204Concerning Complaint Three (lack of competence) the HCCC submitted that given the serious nature of the results of the competency assessments and the cumulative effect of the serious clinical practice issues identified in Complaint One, it is clear that the practitioner does not have the knowledge and/or skill required to practise nursing. 205The HCCC further relies on the two reports of Dr Langeluddecke as evidence that the practitioner does not have the sufficient cognitive resources required to perform higher level nursing duties. It notes that Dr Langeluddecke further stated that the limitations in the practitioner's cognitive resources only partially explain the deficiencies in her work performance. The deficiencies in fairly routine competencies such as medication dosage / dispensing, clinical judgment / competence and infection control are "even greater than those which I would expect given the practitioner's cognitive test results." The explanations offered by Dr Langeluddecke for these include the distraction free environment of the testing, aspects of the practitioner's personality and behaviour and a lack of inclination / opportunity to pursue appropriate ongoing nursing education. 206To counter the evidence suggesting the Hospital was not making continuing education available - that is, that of RN Butler that the Hospital is only a 54 bed facility and not an accredited training facility - the HCCC points the Tribunal to the observations of RN Middleton (expert nursing witness) that there was evidence of some education being provided at the Hospital, and that, in any event, there is an onus on the practitioner as a registered nurse not only to take education opportunities when they are given, but also to seek out opportunities for education if they are not offered by their employer (Hearing Transcript, p.137, line 38; p.138, line 7). 207Finally, the practitioner, submits the HCCC, has accepted Dr Langeluddecke's reports (Statement of Alison Bousfield, RV, Tab 1, p.8 [41]). On the evidence, it says, the Tribunal should find Complaint Three clearly established. 208Concerning Complaint Four (impairment pursuant to s.144(d) of the National Law) the HCCC relies on the same evidence as for particulars 1-38, as well as the two reports of Dr Langeluddecke, wherein she opines that the practitioner is suffering from an impairment within the meaning of section 5 of the National Law on cognitive grounds. 209The HCCC notes that the practitioner has stated that she accepts the opinions expressed in the reports and has admitted the Complaint. 210It is further submitted that the Tribunal may order that a practitioner be deregistered "if the Tribunal is satisfied that the person is not competent to practise" pursuant to s.149C(1)(a) of the National Law. 211It argues a clear connection between a complaint of impairment and complaints of incompetence and incapacity. This, it is submitted, is stated by Sackville AJA, with whom Giles and Young JJA agreed in Lindsay v. HCCC [2010] NSWCA 194 at [156]: "There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine." 212Thus, the HCCC submits that there is a nexus between a finding of lack of capacity or competence and impairment when a finding of the latter is made. That is, a finding of impairment (s.5 the National Law) should lead a Tribunal to readily find lack of capacity and / or competence as well (s.139(a) the National Law). 213In light of the fact that the HCCC seeks that the practitioner's registration be cancelled, the submission that the Tribunal find lack of capacity to practise nursing is critical. The reason for this is that, absent of a finding of professional misconduct or lack of capacity in this case, the Tribunal lacks the power to make the order sought. 214The HCCC further directs the Tribunal to the NSW Court of Appeal decision of Tung v. HCCC [2011] NSWCA 219, which was an appeal from a decision of the Medical Tribunal. This Tribunal notes that in that case the Medical Tribunal had made a finding of impairment, but not of lack of capacity / competence to practise medicine. The latter was not actually pleaded. The Tribunal had then made an assumption that a finding of impairment under the legislation gave it the authority to cancel the practitioner's registration, assuming that the impairment automatically amounted to lack of competence. The Tribunal made an order to deregister the practitioner. 215The HCCC submissions point the Tribunal to the finding in Tung that it had been insufficient for the Tribunal to simply find that the appellant's disorder was "of a nature that it will affect her capacity to practise medicine". This was a "statement of futurity" (at [59]). The Tribunal was required to make a finding by reference to her condition at the time of the hearing, that is, it needed to address "whether the appellant did not have sufficient mental capacity or other competence to practice medicine" (at [61]). 216It is clear from the case that a finding of impairment may indeed give rise to a finding of lack of capacity to practise, but that this is not automatically the case. "...A physical or mental impairment, disability, condition or disorder which detrimentally affects the person's physical or mental capacity to practice medicine may mean that the person does not have sufficient physical capacity, mental capacity or skill to practice medicine. But that is not necessarily so, and particularly it is not necessarily so in the case of a physical or mental impairment, disability, condition or disorder which is likely to detrimentally affect the person's physical or mental capacity to practice medicine." ( at [56]) 217As observed by Sackville AJA in Lindsay v Health Care Complaints Commission ([2010] NSWCA 194) and cited in Tung(at [56]), a Tribunal cannot merely make the assumption that the impairment meant that the practitioner lacked the capacity to practise medicine. Sackville continued thus: "...Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances." (at [170]) 218The submission of the HCCC therefore urges the Tribunal to not only make the finding of lack of competence to practise nursing, but to also elucidate its reasons. 219The Complainant claims that Dr Langeluddecke supplies clear evidence that the practitioner suffers a cognitive impairment and in that she is not competent to practise as a registered nurse. 220In closing the submissions on Complaints Three and Four the HCCC asserts that a finding of impairment in this case is clearly established and that such a finding also supports a finding that the practitioner currently lacks the requisite mental capacity, knowledge and skill to practise as a registered nurse pursuant to s.139E of the National Law. 221For both Complaints Three and Four, Ms. Robinson, for the Respondent, simply submits that the practitioner indeed accepts the opinions of Dr Langeluddecke in her reports, and that she understands that she suffers from a cognitive impairment within the meaning of s.5 of the National Law. FINDINGS Findings on Complaints One and Two 222The HCCC relies on Particulars 1-38 for Complaints One and Two. It pleads on the basis of these particulars that the practitioner should be found guilty of unsatisfactory professional conduct (Complaint One). It further pleads that the practitioner is guilty of professional misconduct (Complaint Two) because the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. In the alternative, it pleads that the practitioner has engaged instances of unsatisfactory professional conduct, which cumulatively are sufficiently serious to justify the suspension or cancellation of the practitioner's registration. 223Comment must be made as to the reliance on the alleged clinical departures represented in particulars 1-30. After the Complaint was amended, Complaint One comprised some 31 particulars. To group the particulars into discreet separate issues, an issue being either a key matter alleged concerning a particular known patient (Patients A, B, C and D representing four issues ) or separate clinical departures particularised, the clinical matters make up a total of fourteen issues. As outlined earlier in these reasons, the Tribunal is comfortably satisfied that four of those issues have been proved on the balance of probabilities. 224That means that there were ten key clinical issues particularised that were not found to be proved on the balance of probabilities. The matters that were proved were as follows: * Patient C: A medication administration error which was admitted by the practitioner. * Patient D: An incorrect date recording in the medication records. * Particular 22 a) and b): improperly dispensing medications from the practitioner's pocket or glasses case. * Particular 24: The Respondent locking the medication trolley with her own padlock and key, rather than the hospital padlock and key. 225While these matters are serious, they, of themselves, would not be sufficient to bring a finding of unsatisfactory professional conduct, and certainly not one of professional misconduct. 226The Tribunal is critical of some of the conduct of the HCCC's case. Matters were put in pleadings and argued in evidence that were vague and almost impossible to substantiate. Of particular concern is the HCCC pleading matters in such a manner that made it almost impossible for the practitioner to meet the matters charged against her. Apart from the pleadings with respect to Patients A, B, C and D, the HCCC placed reliance on vague recollections of staff of matters where there was no evidence as to the identity of the patient, the date or even the year of the alleged incident, and mostly no corroborating evidence. There were matters pleaded against the practitioner years after the alleged events, when the matters had not been raised wnith the practitioner at the time they allegedly occurred. There was no possibility of producing patient records for the bulk of the particulars concerning clinical matters, and there had been no incident reports made for any of them. The practitioner was put in a position where she was asked to recall incidents which, if they occurred, were unremarkable to her at the time as no complaint was made to her about them. In many places the HCCC's evidence was thin at best. 227The Tribunal considers that the Complainant has wasted time and resources in pursuing alleged clinical departures in patient care when, given the paucity of evidence on the clinical claims and the strong evidence of cognitive and other deficits, the matter could clearly have been characterised as one of impairment (s.5) and lack of competence to practise nursing s.139(a). Indeed, during the course of directions hearings Ms Robinson maintained that the matter should be run as an impairment case, and expressed the belief that the HCCC would come to this view after receipt of Dr Langeluddecke's supplementary report. However, the HCCC insisted, as it is entitled under the National Law, to draft the Complaint such that it traversed unsatisfactory professional conduct (s.139B);professional misconduct (s.139E); lack of sufficient mental capacity, knowledge and/or skill to practise nursing (s.139(a)); and impairment (s.5). 228The Tribunal is uncomfortable with the framing of the HCCC's case. The Complainant pleads particulars 1-38 (which traverse alleged clinical departures to hospital and performance assessments) to support the allegations of unsatisfactory professional conduct, professional misconduct, lack of 'mental capacity, knowledge / and or skill to practise nursing' (s.139(a)), and impairment (s.5). With respect, this appears to be taking double-dipping to the extreme. 229The same alleged clinical departures are argued as evidence of impairment and lack of capacity, as well as of unsatisfactory professional conduct / professional misconduct. If the clinical departures are evidence of impairment, is it sound to also argue them (additionally, not alternatively), without anything more, as failures in conduct? Are they the result of health and personal frailties, or are they the result of wilfully improper or reckless nursing practise? If the hospital and other performance assessments are evidence of impairment and lack of capacity to practise nursing, is it also sound to categorise them as conduct within the meaning of the Act, such that a Tribunal may deduce that they evidence serious professional conduct issues for disciplinary purposes? 230There have been provisions in the legislation to deal with impairment and lack of capacity issues since 1996. Prior to this, there was little available apart from conduct complaints for addressing the public safety needs in cases involving health practitioners who were essentially impaired such that it affected their nursing practice. This was a rather blunt instrument for dealing with a pratitioner with health or other issues that may have rendered them fundamentally incompetent to practise nursing. This is not to say that the Complainant is not now entitled to bring a complaint of unsatisfactory professional conduct or professional misconduct under the legislation, however, the Complainant should be making every attempt to address its complaints to the essential nature of the problem, rather than taking a 'catch all' approach. The Complainant has discretion in such matters, as evidenced by s.145D(2)(a) of the National Law. Careful consideration should be given to the drafting of the Complaint such that it reflects the material issues as they affect the practise of nursing and give rise to any need protect the public. 231On the evidence before the Tribunal it would seem that the conduct of the practitioner finds its roots more in frailties of cognition, emotional fortitude, and personality deficits which, within this picture, are unhelpful in the practice of nursing, rather than in wilful, wicked, or deeply and recklessly negligent conduct. It appears to fly in the face of the impairment and lack of competence provisions in the legislation if matters which the Complainant pleads flow from these deficiencies can also be used, without anything more, to argue serious failings in conduct. By such logic, there is little point in having provisions in the legislation which recognise that personal and health frailties may be responsible for inadequacies in professional practice. 232It is the view of the Tribunal that the HCCC's case should be viewed as Complaints One and Two being argued as in the alternative should Complaints Three and Four fail, or vice versa. This is the only sensible way to view this particular case and its individual factual matrix. This is not to say that there cannot ever be findings of impairment and lack or capacity to practise concurrent with findings of unsatisfactory professional conduct / professional misconduct. The matter needs to be considered carefully within the facts of the particular case. 233As is later outlined, Complaints Three and Four are clearly established on the facts. Indeed, they are conceded by the Respondent. 234The Tribunal disputes the appropriateness of the hospital and performance assessments being pleaded for Complaints One and Two, particularly in light of the fact that they are also pleaded for Complaints Three and Four. It is thought that, in this case, these matters more relevantly contribute to claims of lack of competence to practise nursing and impairment. 235If the case is viewed as Complaints One and Two being alternatives, the matter can make more sense. 236Surprisingly, there is little by way of statutory interpretation as to the fullness of the definition of 'conduct' under the Act, and it is arguable whether the hospital and performance assessments are relevantly categorised as conduct within the full picture of this particular case. Arguably, in some cases, assessments are just that - assessments, measures of clinical ability and knowledge, not conduct per se. 237In HCCC v. Kakaire [2010] NSNNMT 28 the Tribunal was faced with the question of whether to make a finding of unsatisfactory professional conduct together with findings of impairment which detrimentally affected the respondent's capacity to practise nursing. In that particular case the Tribunal was satisfied that the evidence proved all eleven of the particulars of clinical departures which were pleaded in support of the unsatisfactory professional conduct complaint. In the present case concerning Ms Bousfield, only four of the fourteen clinical issues were proved. In HCCC v. Kakaire ( there was evidence of poor performance assessments and neuropsychological assessments in support of the impairment complaint. The Tribunal in that case found all the complaints to be proved on the evidence, and found, "without enthusiasm" that the complaint of unsatisfactory professional conduct was established ([2010] NSWNMT 28). The Tribunal did not consider that there was a proper evidential basis for concluding that the respondent's conduct some five years earlier was a manifestation of her impairment, although that inference could have been made (at [43]). While the Tribunal in that case found the complaint of unsatisfactory professional conduct proved in a technical sense, the Tribunal made it clear that the real issue in the case was impairment, and protective orders were made in relation to that complaint and not that of unsatisfactory professional conduct. 238In Caladine v. The Commissioner New South Wales Health Care Complaints Commission [2007] NSWCA 362 the NSW Court of Appeal considered a Medical Tribunal case which had alleged impairment, with a complaint of unsatisfactory professional conduct as an alternative complaint. In considering the appeal Beazley JA (Giles JA and Hislop J agreeing) stated that if the appellant was impaired then it was apparent that a finding of professional misconduct or unsatisfactory conduct was unlikely. If the respondent was not impaired, it was likely he would have been found guilty of professional misconduct or unsatisfactory professional conduct in respect of the particulars which also supported the impairment complaint (at [62]). 239In the present case, the HCCC did not argue its complaints in the alternative. There are four complaints to be proved, essentially all relying on the same particulars. In the Caladine case it was unclear at the commencement of the hearing before the Medical Tribunal that the HCCC would be able to prove that Dr Caladine was currently impaired. In the present case before the Nursing and Midwifery Tribunal, the complaints of impairment and lack of capacity to practise nursing had been conceded prior to the commencement of the hearing. 240The Tribunal finds that within the framework of the totality of the Complaint that the hospital and performance assessments are not relevantly pleaded for Complaints One and Two if they are to stand as individual complaints and not alternatives to Complaints Three and Four. It may be otherwise in a situation where impairment and lack of competence were not pleaded, but in this case the pleading of the Complaint in such a way as to include these mandatory assessments for all four Complaints is at odds with the intent of the legislation, which does not mandate that evidence of impairment or lack of capacity to practise amount to automatic evidence of unsatisfactory professional conduct / professional misconduct. 241The question of whether Complaints One and/or Two are established then falls to whether the four clinical departures that were proved to the Tribunal's comfortable satisfaction amount to unsatisfactory professional conduct or professional misconduct, either individually or cumulatively. During the course of the evidence, no real explanation has been offered for the clinical departures apart from impairment. The Tribunal determines that the four clinical matters proved in point of fact do not demonstrate knowledge skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession that is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In short, the matters proved in fact, although not trivial, do not, individually or cumulatively amount to such serious departures in clinical practice to amount to either unsatisfactory professional conduct or professional misconduct. 242Hence, the Tribunal finds that Complaints One and Two are not proved, especially when considered in the context of the totality of the Complaint brought by the HCCC. 243Findings for Complaints Three and Four (1)The medication administration error alleged with respect to Patient A is proved, as is the incorrect medication recording incident with respect to Patient D. Particulars 22a) and b) concerning the inappropriate manner of administering medication from the pocket or glasses case is proved, as is Particular 24 alleging the practitioner locked the medication trolley with her own padlock and key. The proof of these particulars on the balance of probabilities contributes to the evidentiary support for Complaint Three. (2)The Tribunal considers it unnecessary to determine whether these matters support the allegation of impairment in Complaint Four, as there is other sufficient and clearer evidence that contributes to that finding. (3)Particulars 31-38, being the hospital and other assessments, also are proved and amount to good evidence for the establishment of Complaints Three and Four. (4)The Tribunal finds Particular 2 of Complaints Three and Four to be proved. The deficit in cognitive resources is complicated by a complex interplay between emotional frailties, personality traits (including poor social intuition, anxiety and lack of confidence and/or concern regarding work performance), and lack of rigorous ongoing education. The Tribunal accepts the evidence of Dr Langeluddecke on these matters. The deficit in cognitive resources means that the practitioner cannot competently and reliably perform higher level nursing duties which involve supervising other nursing staff and/or the independent care of patients with acute, complex, and/or rapidly changing medical issues. These deficits detrimentally affect or are likely to detrimentally affect her mental capacity to practise nursing. (5)The Tribunal is comfortably satisfied on the balance of probabilities that the practitioner does, indeed, suffer an impairment within the meaning of s.5 of the National Law. (6)Likewise, the Tribunal is satisfied to the requisite standard of proof that the practitioner is not competent to practise nursing in that she does not have sufficient mental capacity, knowledge and /or skill to practise nursing within the meaning of section 139(a) of the National Law. (7)The law is clear that the Tribunal must assess the practitioner's fitness to practice at the date of the hearing (A Solicitor v. Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253). The Tribunal is comfortably satisfied that the nature of Dr Langeluddecke's conclusions and the hospital and performance assessments are convincing evidence of the lack of competence to practise nursing (s.139E) and impairment (s.5). (8)Finally, the practitioner concedes Complaints Three and Four. 244HCCC's submissions regarding orders (1)The HCCC submits that the appropriate protective order is that the practitioner's registration be cancelled pursuant to s.149C(1)(a) and (b) of the National Law and that at least twelve months elapse before the practitioner may make an application for a review under s.163A of the National Law to the Nursing and Midwifery Tribunal of New South Wales to be registered as a nurse on the register of health practitioners maintained by AHPRA. (2)The Respondent should pay the Commission's costs as agreed or assessed. (3)s.149(C)(1)(a) and (b) of the National Law provide that where the Tribunal is satisfied the practitioner is not competent to practice and / or if the practitioner is found guilty of professional misconduct, then the Tribunal may cancel that person's registration. (4)The Tribunal exercises a protective jurisdiction and the primary concern must be protection of the public. (5)Given the practitioner's lack of competency in even basic nursing requirements, as demonstrated in the competency assessment and the cumulative effect of the serious and numerous clinical practice deficiencies identified in Complaints One and Two, a finding of both unsatisfactory professional conduct and professional misconduct should be made by the Tribunal. The evidence clearly demonstrates that the practitioner is not competent to practise nursing. (6)Concerning the complaint of impairment, the HCCC points to HCCC v. Boyd [2010] NSWNMT 19 which considered that in cases of impairment and when deciding whether a nurse's or midwife's registration should be cancelled, suspended or made the subject of conditions, the Tribunal should consider the following factors: (a)the current impairment condition and its long term prognosis; (b)the likelihood of the nurse or midwife being capable of successful return to the profession; (c)recent work related assessments, reports and references; (d)the likelihood of the nurse or midwife complying with such conditions; and (e)efforts made by the nurse or midwife at re-education and or rehabilitation (at [31]). (7)The HCCC submits that the practitioner has significant cognitive and impairment issues and is also currently incapable of performing even basic nursing duties, which appear to be caused by both to her cognitive conditions and behavioural / personality issues. Further, she has also only undertaken very minimal re-education, that is, two continuing education courses in around two and a half years (HCCC v Santos [2012] NSWNMT 8). (8)The Complainant submits that conditions are not appropriate, as, given the extent of the deficiencies in clinical practice, the close level of supervision required to implement any conditions would make them unworkable in practise (HCCC v Litchfield (1997) 41 NSWLR 630). (9)With respect to the Nursing and Midwifery Tribunal of NSW being the appropriate review body, the HCCC asserts that as an independent body separate from those determining registration requirements (the Board) and implementing those requirements (the Council), the Tribunal is the appropriate body. (10)The Respondent did not make any submissions as to appropriate orders, with the exception of costs. Respondent's Submissions as to Costs 245The HCCC asks the Tribunal to order costs in its favour under the discretionary provision contained in Clause 13 of Schedule 5D of the National Law. The Complainant simply submits that costs follow the cause and that there is no reason to depart from that practice in this matter. 246The Respondent opposes the Complainant's application for costs and seeks an order as to costs in the practitioner's favour. In the alternative, the Respondent submits that the parties should pay their own costs. 247The Respondent refers the Tribunal to HCCC v. O'Connor [2012] NSWNMT 6, which referred to the decision of the Full Court of the Federal Court of Australia in Kazar (Liquidator) v. Kargarian [2012] FCAFC 136 [5] (per Greenwood and Rares JJ). "there is no automatic or absolute rule controlling the exercise of discretion to the effect that costs always follow the event. Nor is there an automatic or absolute rule that in the absence of disentitling conduct, a successful party is to be compensated by an unsuccessful party... (at [5]) ... The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognises the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party..." (at [9]) 248Although the Federal Court authority is considering costs as they apply in that jurisdiction, this Tribunal agrees with the argument in HCCC v. O'Conner (at [111], that the explanations in Kazar (Liquidator) v. Kargarian of the exercise of discretion in costs orders are also applicable to this jurisdiction. That is, that although the discretion ordinarily favours the successful party, that is not by way of rule, but rather that the manner of the exercise of discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. 249Ms Robinson submits that the HCCC has disentitled itself from obtaining a costs order. * It is submitted that the HCCC has not proved Complaints One and Two to the required standard for complaints of professional misconduct due to insufficient particularisation in the complaint. Ms Robinson directs the Tribunal to King v Health Care Complaints Commission [2011] NSWCA 353, citing Kirby P in O'Reilly v. Law Society of NSW (1988) 24 NSWLR 204: "It is essential, both for the due protection of the interests of the solicitor and for the proper approach by the decision-making tribunal to its task, that charges of professional misconduct should be specified with particularity. Only then will the findings made give rise to decisions of appropriate certainty and particularity..." This claim is directed to the following particulars, which have been loosely characterised in brackets as an aide memoire: * Particulars 1-5 (Patient A - exceeding recommended Paracetamol dosage) * Particulars 6-9 (Patient B - inappropriately allowing patient to administer insulin) * Particulars 16-21A (Patient D) * Particular 21 of the amended complaint (Patient D - administering total of 2g Paracetamol in 2 ¼ hours) * Particular 21A (Patient D - incorrect date entry in medication chart) * Particulars 22(a) and (b) (alleged administration of medication from pocket / glasses case) * Particular 23 (clinical departures nursing a patient with a suspected bladder perforation) * Particular 25 (failure to investigate when medical equipment alarmed) * Particular 26 (confusion over paracetamol and codeine content of Panamax Co) * Particular 27 (failure to perform / record observations on patient in High Dependency ward while another nurse was on a break) * Particular 28 (failure to arrange alternate pain relief when PCA machine was malfunctioning) * Particular 29 (failure to correspond appropriately to cardiac emergency buzzer) * Particular 30 (failure to closely observe a young patient post-tonsillectomy) 250Ms Robinson submits that the HCCC has prosecuted the complaint at Particulars 16-21 without verifying the evidence, and that the practitioner was unnecessarily required to defend the matter. 251It is noted by the Tribunal at this point that it has found that the practitioner, who made the errors in the medication charts, was the person best placed to correct the errors, and finds the HCCC has not conducted itself inappropriately with respect to this matter.. 252Ms Robinson also makes issue of late service of a Statement of Recollections by RN Eaton (served 07.03.2013) which including matters not contained in her earlier served Statement dated 20.09.2011 which relate to particulars 25 and 26. 253Further, it is submitted that RN Eaton and AIN Wood alleged serious misconduct regarding medications at Particulars 22(a) and (b), and both changed their evidence under oath. The Respondent was unnecessarily required to defend the matter. The Tribunal notes here that it found this matter proved, finding itself able to weigh the evidence and preferring the evidence of RN Eaton and AIN Wood to that of the practitioner on this issue. The Tribunal found these witnesses to be credible, despite submissions in the alternative, and discrepancies in the evidence appeared more related to the lapse of time and the vagueness of some of the matters particularised. 254Finally, in the costs argument, Ms Robinson opines that the late handing up of medication notes for Patient D after the closure of its evidence denied the Respondent an opportunity to further cross examine the witnesses. It is noted that during discussion of this matter during the course of the hearing Ms King for the HCCC made the point that it was only on the practitioner's amendment of her statement at the outset of the hearing was it apparent that the medical records in question concerning Patient D may have been incorrectly recorded. The medical records thought necessary were served in ample time before the hearing. Ms Robinson requested additional records of the HCCC during the hearing in an attempt to clear up the confusion surrounding the entries into the medication charts of Patient D. Orders consequent upon findings 255The Tribunal is comfortably satisfied that it is proper and necessary that the practitioner come under a cancellation of her registration to practise nursing, and that she may not apply for review of the decision until at least one year from the date of this decision. 256The Tribunal further agrees with the submissions of the HCCC that in the event of a review, the Tribunal is the appropriate forum, for the reasons cited by the Complainant and due to the seriousness of the matters proved. 257The Tribunal has considered the factors in HCCC v Boyd [2010] NSWNMT 19 (at [31]). The current impairment of the practitioner is significant when considered in light of the responsibilities of a practising registered nurse and the need to protect the public. There is nothing in the evidence which suggests the likelihood of the practitioner being capable of a successful return to the profession. That is not to say that this would be impossible, but simply to acknowledge that there was no evidence before the Tribunal to offer such hope. It is significant that there were consistent observations in the evidence that the practitioner lacked insight as to the problems with her conduct and the deficits in her capabilities. Performance assessments indicated serious problems with practice and understanding, and the independent assessor, RN Crispin, saw the practitioner's lack of insight and failure to acknowledge deficits as a bar to an educational pathway remedying the problems evident in the assessments. The practitioner has not shown, either before the events that triggered this complaint, or after, a concerted commitment to ongoing education or rehabilitation. 258The Tribunal makes these orders in keeping with the guiding principles of the National Law. This restriction on practice is deemed necessary for the protection of the public and to facilitate the safe and appropriate delivery of health services. The orders have protective, not punitive purpose. Findings as to Costs 259As stated throughout these reasons there have been problems with the HCCC's case. The pleading of and the evidence for a number of the allegations are thin. Some of them are so imprecise in time and patient identity and corroborating evidence that there is a good argument that the HCCC would have better focused its energies on simply proving Complaints Three and Four, concerning lack of capacity and impairment. 260The Tribunal does not base its decision with respect to costs on the Respondent's complaints of the failure of the HCCC to furnish further and better particulars. 261However, the Tribunal was concerned in this matter to weigh and contextualise all of the relevant matters in considering whether a costs order should be made. This was not a case where costs should simply be deemed to follow the event. 262The Complainant has not been successful in establishing all of the Complaints pleaded. Many of the factual issues concerning clinical departures have not been proved, and some, perhaps, were not justifiably included in the Complaint. 263For the reasons given, and in exercise of its discretionary powers, the Tribunal deems it inappropriate to make an order with respect to costs. As such the Tribunal considers that the fair and reasonable outcome is that the parties should each bear their own costs. Concluding remarks 264This was a rather sad case. At the outset of the hearing the Tribunal expected that the hearing process would unveil some explanation for how the practitioner, a woman who had been a registered nurse for over fifteen years, and who had worked as such for most of that time, could find herself in circumstances whereby she was not able to pass a basic life support examination. Even the Clinical Psychologist, Dr Langeluddecke, opined that the deficiencies in routine competencies cited in the Complaint were greater than might be expected given the level of impairment revealed by neuropsychological testing. Given the findings of Dr Langeluddecke, and the various performance assessments, it is surprising that the practitioner had managed to survive as an eight year registered nurse, holding positions as an 'in charge' nurse, and that there had not been record of any grave adverse outcomes. There was no evidence of any reported adverse incident involving the practitioner in the three and a half years she had worked at the Hospital. This seemed remarkable in light of the evidence brought to the hearing. 265The Tribunal is critical of the Hospital, where there appears to have been tolerance of sub-standard medication administration practises, at least on the night shift. In the evidence before this Tribunal there was seen what seems to have been a sloppy approach to reporting incidents. Further, there was evidence that verbal concerns about clinical matters that were voiced to management were not followed up. These factors most likely allowed the practitioner to continue working with a deficit of skill, knowledge and understanding for a considerable period of time. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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 Amendments 09 July 2014 - Amendments made 9 July 2014 :1. Amendment to summary of the decision2.Amendment to the orders3. Part of the sentence in previous paragraph 256 now 255 which reads "As the practitioner is presently unregistered, the appropriate order is that the Tribunal would have cancelled her registration had it been current" has been removed. Amended paragraphs: Paragraph 255 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: 09 July 2014