Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ake [2018] NSWCATOD 7 Hearing dates: 5 and 6 October 2017 Date of orders: 05 January 2018 Decision date: 05 January 2018 Jurisdiction: Occupational Division Before: O Shub (Principal Member) G Tolhurst (Senior Member) K Sherwood (Senior Member) B Seth (General Member) Decision: The registration of the Respondent is cancelled with effect from this date Pursuant to the provisions of s. 149C of the Health Practitioner Regulation National Law, we fix a non-view period of 12 months with effect from this date. Each Party is to pay their own costs Catchwords: Nursing, Observations, Rapid Response Team, CPR, Communication Skills, Determination of Protection Orders, Unsatisfactory Professional Conduct Legislation Cited: Health Care Complaint Act 1993 Health Practitioner Regulation National Law Cases Cited: Allinson v General Council of Medical Education (1894) 1 Q.B 750 (at 755); Briginshaw v Briginshaw (1938) 60 CLR 336; Clyne v NSW Bar Association (1980) 104 CLR 186; Gianoutsos v Glykis (2006) 65 NSWLR 539 (CCA); HCCC v Do [2014] NSWCA 307; HCCC v Karalasingham [2007] NSWCA 267; HCCC v Litchfield (1997) 41 NSWLR 630; HCCC v Roberts [2008] NSWNMT 17; Health Care Complaints Commission v King [2013] NSWMT 9; Herron v McGregor (1986) 6 NSWLR 246; Law Society of NSW v Foreman (1994) 34 NSWLR 408; Lee v HCCC [2012] NSWCA 80; Medical Tribunal in HCCC v Dr Della Bruna [2014] NSWCATOD 31; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; NSW Bar Association v Meakes [2006] NSWCA 340; Pillai v Messiter [No 2] (1989) 16 NSWLR 197; Prakash v Health Care Complaints Commission [2006] NSWCA 153; Re Dr Parajuli [2010] NSWMT 3; Sabag v Health Care Complaints Commission [2001] NSWCA 41; Saville v Health Care Complaints Commission [2006] NSWCA 298; Sullivan v Civil Aviation Authority [2013] FCA 1362; Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73; Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Merelita Ake (Respondent) Representation: Counsel: Mr B O'Donnell (Applicant) Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses and Midwives Association (Respondent) File Number(s): 2017/00122372 Publication restriction: The name of Patient A is restricted and the patient will be referred to as Patient A Reasons for decision Background/History 1. The Respondent is a registered nurse who was first registered as a nurse in New South Wales on 21 July 2004. She commenced working in the Specialist Mental Health Service for Older People Acute Inpatient Unit ("SMHSOP ARU") at Manly Hospital in 2013 and is currently still employed there. 2. Patient A, a 74 year old female with a long history of schizophrenia and anorexia nervosa was admitted to SMSHOP AIU on 17 June 2013 following an admission to Hornsby Hospital due to a psychotic relapse. 3. The Respondent was the Senior Nurse in Charge in the SMHSOP AIU on the night shift on 2/4 July 2015 ("the night shift"). 4. Patient A was pronounced deceased at 7am on 4 July 2015 with an unknown cause of death. 5. The application and complaint against the Respondent was made in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s145A of the Health Practitioner Regulation National Law ("The National Law"). 6. The complaint consisted of three separate complaints: 1. Complaint One; that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the Respondent engaged in conduct that demonstrates the knowledge, skill or judgement 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; 2. Complaint Two; that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(b) and (l) of the National Law in that the practitioner has; 1. Contravened a provision of the Health Practitioner Regulation (NSW) 2010; and 2. Engaged in improper or unethical conduct relating to the practice or purported practice of nursing. 1. Complaint Three; is guilty of professional misconduct under section 139E of the National Law in that the practitioner has; 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration ; or 2. engaged in more than one instance of unprofessional conduct that when considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioners registration. Particulars Complaint One: 1. Between approximately 21:30 hours on 3 July 2015 and 06:00 hours on 4 July 2015 ("The Relevant Period") the Practitioner failed to undertake or cause to be undertaken adequate observations on Patient A, in that she failed to carry out observations and check Patient A for signs of life every 15 minutes throughout the night in circumstances where: 1. Patient A's care zone was classified as Red; 2. Patient A was on level two observations; 3. The Northern Sydney Local Health District Nursing observation/patient security levels-mental health/Drug and Alcohol Procedure (PR2008_043) ("The Observation Procedure") states that Level 2 observations require patients to be checked for signs of life at 15 minute intervals throughout the night; The Respondent denies Particular One, and states that she conducted observation rounds and signed for those rounds that she did, and RN Smith signed for the balance of the 15 minute rounds in the observation chart. 1. The Practitioner failed to comply with the observation procedure in that the Practitioner failed to ensure that the observation chart for Patient A was completed accurately and contemporaneously; The Respondent denied this Particular and stated that after each observation round that she performed, she signed for that round. 1. The Practitioner failed to adequately consider Patient A's history and identified risks, including the risk of silent aspiration when she observed at 02:00 hours on 4 July 2015 that Patient A's breathing "appeared reduced". 1. failed to conduct basic observations on Patient A at the time, or before 06:00 hours on 4 July 2015; and 2. failed to recognise that Patient A's condition was deteriorating The Respondent denied this Particular, and stated that she was aware of Patient A's high risk aspiration and her need for thickened fluids. She stated that she did not observe that Patient A had "reduced breathing" at 0200 hours. She did not use the word reduced (at the hearing ACCEPTED that the word used by the Respondent was "relaxed"). She stated there was no clinical reason for her to conduct basic observations on Patient A at 0200 hours or before 0600 hours, other than the regular checks, which were carried out and signed for. She denies that Patient A's condition was deteriorating at 0200 hours. 1. The Practitioner failed to take appropriate action upon finding Patient A non-responsive at approximately 0600 hours on 4 July 2015 in that she: 1. Failed to conduct observations such as blood pressure, temperature, pulse and respiration; and 2. Prioritised changing Patient A's bed linens and put track pants on Patient A as opposed to maintaining life support for Patient A; and 3. Failed to call for the Rapid Response Team ("RRT") in accordance with Northern Sydney Local Health District Clinical Emergency Response Systems ("CERS") activation and response of clinical review and rapid response Northern Beaches HS procedure ("PR2010_103). The Respondent denied this Particular and stated that at 0600 hours her breathing was at first, irregular and then it stopped. Her immediate reaction was to feel her pulse. She then called out to RN Smith to "call the doctor, this patient is dying". She did not leave the room to call RRT. She made a clinical decision to stay with Patient A, given her critical state. She immediately commenced CPR. After about 5 minutes she checked her pulse, which by this time had returned and was regular. She noted that Patient A had wet herself and was very cold. She attempted to keep Patient A warm by changing her wet sheets and putting some track suit pants on. Dr Chung arrived soon thereafter; 1. The Practitioner did not demonstrate the appropriate communication skills of a Senior Nurse in an emergency situation when she asked RN Smith to "get the doctor" upon finding Patient A non-responsive at approximately 0600 hours on 4 July 2015 in that she: 1. Failed to specify that the RRT should be called; and 2. Did not convey the urgency of the situation to RN Smith. The Respondent denied this Particular. She stated that her breathing was at first irregular, and she was taking deep gasping breaths. She then heard one audible moaning sound and she stopped breathing. She did not think at that instant to specify to call the RRT but her intention was that the words "call the doctor, this patient is dying" conveyed a sense of urgency sufficient for RN Smith to understand that the situation was urgent. Complaint Two: 1. The Practitioner failed to ensure that the clinical record for Patient A was completed in an accurate and timely manner in that she: 1. Recorded and signed that observations of Patient A were made at 15 minute intervals during the relevant period when this in fact was not the case. The Respondent denied this particular and stated that the observations on the observation chart at 15 minute intervals were documented and that those which she signed for were done by her. 1. Completed a retrospective entry into Patient A's clinical record on 10 July 2015. The Respondent admitted this Particular and stated that following Patient A's death, she was required to provide handover to the morning staff and was interviewed by Police, which lasted about two hours. She was very upset and tired, and did forget to make an entry into Patient A's progress. When this was brought to her attention a few days later, she made a retrospective entry into the progress notes. She stated that while this was not ideal or best clinical practice, it is preferable to no entry at all. Complaint Three: 1. Complaint One particulars 4 and 5 and Complaint Two are repeated and are relied on individually. 2. Complaint One particulars 4 and 5 and Complaint Two are repeated and are relied on individually. The Respondent denied these Particulars for the reasons stated above. Issues to be determined 1. The issues to be determined will come down to: 1. Whether the Respondent conducted or caused to conduct the 15 minute observations which were required in respect of Patient A; 2. Whether the Respondent failed to ensure that the observation chart for Patient A was completed accurately and contemporaneously; 3. Whether the Respondent failed to identify the history and identified risks, including the risk of silent aspiration when she observed that Patient A was asleep at 0200 hours, failed to conduct basic observations and failed to recognise that Patient A's condition was deteriorating; 4. Whether the Respondent failed to take appropriate action at 0600 hours when finding Patient A non-responsive in; 1. Failing to conduct basic observations such as blood pressure, temperature, pulse, respiration etc.; 2. Prioritise changing Patient A's bed linen and putting on track suit pants; and 3. Failed to call the RRT. 1. Whether the Respondent did not demonstrate the appropriate communication skills of a senior nurse in an emergency situation, when asking RN Smith to "get a doctor…" in that she: 1. Failed to specify the RRT; and 2. Did not convey the urgency of the situation to RN Smith. The Evidence of the Applicant 1. The only witness called by the Applicant was the Expert, Nurse Martin, who had provided an Expert report. 2. The Witness was asked to confirm her report which she did, and was then taken to various parts of her report. 3. In the first instance the Witness was asked whether she criticised the fact that the Respondent had changed the linen and track pants of Patient A when she found Patient A unresponsive at approximately 0600 hours on 4 July 2015. 4. She was asked whether she was aware that the Respondent's explanation was that she wanted to make Patient A comfortable and warmer because she felt that she was uncomfortable and cold to the touch. The Expert expressed the opinion that if Patient A was found to be unresponsive she would have expected that a competent nurse would think that to be a low priority. 5. That ended the evidence-in-chief and the Witness was cross-examined by the Respondent's Counsel. 6. The first point put to the Expert was whether she had an opinion on the pre-printing of the 15 minute line slots. Her response was that it makes it easier for the staff if the sheet is pre-printed. 7. Of significance, the Witness was taken to Tab 7 and in particular to page 1 of tab 7, where in response to a printed question "was there anything unusual or concerning about Patient A's observations (including vital signs) during the course of the night?" the Respondent had written "breathing appeared relaxed – like she was in a deep sleep" whereas in the report of the Expert, she read that word as "reduced". 8. On reviewing the document the Witness agreed that the word was "relaxed", but indicated that in her view it was not a usual term used by a nurse. 9. The Expert was then asked whether she agreed that when the Respondent called out "get a doctor this Patient is dying", that should have indicated a high degree of urgency, she agreed, but stated that although she did not know the position at Manly Hospital, she believed that there should be an emergency button or similar which she could access. 10. Finally in cross-examination, the Witness was asked whether she was aware of the existence of an NFR (Not For Resuscitation) order, and was asked whether at tab 39 page 13, the references to NFR constituted an NFR order. The Witness stated that this does not constitute an NFR order and she could not find any record of one in the paper provided. 11. Upon re-examination the Expert was asked whether she was aware that the night before, Patient A was on thickened liquids and whether she was aware that if a patient's intake of liquids had changed, then her breathing might indicate some distress. She responded that there could be respiratory distress. She was asked whether those concerns as are reflected in the 2:00am observations should be reflected in the observations, to which she responded that they should be. She was asked whether that added credence to a possibility that the observations had been pre-recorded, to which she responded that it could be the case and then signed by a person some time later. She was then questioned on whether details of the observations should be recorded elsewhere, to which she responded that they should be in the patient's clinical records. 12. The Tribunal then questioned the Expert on whether the document referred to at tab 39, page 203, lends itself to only very brief comments since it clearly only allocates one line per observation. She stated that it does convey that position but the words should convey the condition of the patient. Any detailed information relating to the patient should be recorded in the patient's record. 13. In response to what her view was on stopping CPR to change the sheets, she stated that she could not give an explanation other than to say that CPR should have continued until the RRT arrived and they would take over. 14. In her report dated 5 September 2016, the Expert expressed the following opinions: 1. In respect of issues One, Two and Three she stated that the Respondent's conduct was below the standard reasonably expected of a practitioner of an equivalent level of training and experience; 2. In respect of issues Four and Five, she stated that the Respondent's conduct in: 1. Advising RN Smith to contact the doctor, commencing CPR and changing Patient A's linen and putting on track pants were significantly below the standard expected and invited her strong criticism; 2. Record keeping for the shift of 3/4 July 2015 in respect of Patient A is below the standard expected of a practitioner of an equivalent level of training and experience; 3. Not doing routine observations and documenting a pulse, respiration and blood pressure when she was concerned about Patient A and not calling the RRT when she began CPR are significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. 1. The Tribunal was provided with a statement prepared by RN Smith dated 14 December 2015, addressed to the Health Care Complaints Commission (tab 16). 2. RN Smith stated that she was on the night shift with the Respondent, who was in charge of the night shift, between 3 and 4 July 2015. She confirmed that they did the night checking rounds in the ward alternatively as a routine. 3. RN Smith stated that she was informed by the Respondent that Patient A died in her bed at about 0600 hours on 4 July 2015, after she did the ward round. She stated that both of them returned to Patient A's room straight away, and she observed that Patient A was pale, nil sight of breathing and nil pulse. Patient A was also not responding to their calling her at that time. She was incontinent; urine and faeces in her bed. She stated that the Respondent ordered her to help her by changing Patient A's clothes and her dirty bed linen firstly, then after that, the Respondent then told her to call the doctor on night duty at the emergency department. She stated that she followed the Respondent's order to call the doctor as soon as possible, after Patient A had been changed into clean clothes and bed linen, which was after 0600 hours on 4 July 2015. 4. The on-call doctor arrived at the ward quickly, after the phone call. He accessed the Respondent and ordered her to call the hospital RRT for help. The RRT staff arrived in a few minutes after they had received the call and did their best to save Patient A's life for about half an hour. They then stopped work and notified that Patient A was deceased at about 0700 hours. The Evidence of the Respondent 1. In evidence-in-chief, the Respondent was asked about the fact that she had done observations before the official start time of her shift (which was 0930 hours). She indicated that she usually arrived before 0900 hours and then usually went around the ward. The nurses were busy when she arrived and the nurses asked her to do the observations for them. She was asked whether she had a memory of the patients on the ward that night, and stated that only three of the people were not acutely ill. Mainly dementia the others were all acutely ill. 2. The Respondent was asked whether the patients are allocated differing levels of care. She stated that three of the patients' were on 15 minute observations, there were two patients in the ward in which Patient A was, and the third patient was high risk of suicide and was also on 15 minute observations. The other patients were on half-hourly observations. 3. Patient A's room was next to the office due to her being on 15 minute observations. 4. On hand-over, the Respondent was told that Patient A had been given some fluid and that her teeth had been cleaned. She was asked whether she was aware whether Patient A was on NFR (Not for Resuscitation). She stated that although she had been told something like that but she would have needed to check whether there was such documentation. 5. The Respondent was then taken to tab 39, page 203, to confirm which signature is in fact her signature. She indicated that her signature is the signature with the small circle. 6. In regard to the criticism by the Expert of the use of the word "bed", the Respondent was asked whether she agreed with that criticism, to which the Respondent said she did not agree. The patient could be in bed with closed eyes, but still awake, and therefore that would have differentiated between awake or asleep. The Respondent did state that if she was re-doing those remarks today, she would certainly provide greater detail if she could. 7. The Respondent was asked to confirm that she did each of the 15 minute observations, and confirmed that she definitely did do so. In fact she stated that Patient B, the other patient in Patient A's room kept coming out of the room to ask when she was going home, as it was intended she would be leaving the following morning, and she therefore went into the room many times to take her back to her bed and was able to do the observations on a 15 minute basis. This is the concern that she was intending to convey. 8. The Respondent was asked whether she fills in multiple entries ahead of time and then initials them at a later stage. She stated that she definitely did not do so. 9. The evidence then turned to the question of her concerns listed at tab 7, and was asked what they related to. The Respondent stated that she had been looking after Patient A for three nights and it was usually around that time that she would wake-up and go to the toilet and ask for some food. On this occasion she did not wake up. 10. Going forward to the time around 0600 hours, the Respondent indicated that she wanted to wake Patient A, so that she could take her to the toilet and settle her before she finished her shift. The Respondent went over to Patient A and thought that she did not "look right". The Respondent checked Patient A's pulse and it was very weak, so she commenced giving her CPR. When Patient A's pulse was normalised, the Respondent noticed that Patient A was wet, and went to get bedding to change her. The Respondent was asked whether that would normally be her behaviour, to which she replied she would not do that until her pulse was back to normal. Thereafter, she wanted to stay with Patient A, so she called out to RN Smith, the other nurse on duty, to "call the doctor this Patient is dying". The doctor arrived and at that time stated that Patient A was alive. 11. The Respondent was asked whether she would use the same terms again, in similar circumstances, to which she replied she would not have told RN Smith to call the Doctor, but would have told her to call 33, the RRT. 12. After further CPR by the RRT, Patient A was pronounced dead. 13. At the time that the Doctor was working on Patient A, the Respondent took Patient A's temperature and it was very low, at 27 degrees. The Doctor told the Respondent to cover the Patient and call for extra help. The Respondent then called the RRT. They arrived within approximately five to ten minutes. 14. Following time spent with the police, the Respondent had some days and nights off, and it was only after she returned that she was told that she had not written a report on the incident. The Respondent confirmed that she should have written the report straight away, but regrets that she did not. 15. Upon cross-examination, the Respondent confirmed that Patient A had been one of her patients on previous night shifts, and that she had done numerous night shifts. The Respondent was taken to Exhibit 2, tab 1 (a folder of documents provided by the Respondent), and was asked to confirm that she was aware, as stated in paragraph 45, of the high risk of aspiration, which she did confirm but stated that she did not use the words "reduced breathing". 16. The Respondent was questioned on the police statement she made, which was found at tab 22 of exhibit 1, where in paragraph 11 she stated that they checked all patients every half hour, and paragraph 14 where the Respondent confirmed her concerns and paragraph 17 where she stated that she saw Patient A again at 0300 hours and was still concerned. The Respondent was then asked to go to tab 39, page 203, and to advise where she reflected that concern. The Respondent stated that she did not write that on the observations sheet, but put it into the progress notes. When the Respondent was asked to point that out she stated that she could not find a reference to that. 17. There followed extensive questioning on the handwriting on page 203 of tab 39. It was put to the Respondent that the handwriting at 0100 hours and 0115 hours are the same as the handwriting at 0030 hours and 0045 hours. She did not agree and stated that they were different. It was put to the Respondent by Counsel that he did not believe her. 18. The cross-examination continued on that line and it was put to the Respondent that the entries were filled in by her in advance, initialled by either RN Smith or herself later. The Respondent did not agree with that proposition. 19. It was put to the Respondent that the changing of the sheets was made a priority before calling the Doctor, so as to disguise the fact that they did not notice the incontinence earlier. The Respondent stated that was not true and that she changed the sheets because Patient A needed to be warm. 20. The Respondent was asked whether she changed the sheets or whether RN Smith did, or both. She indicated that they both did so. 21. The Respondent was asked whether since the event of 4 July 2015 she had changed the way she keeps records. She confirmed that and said that she now needs to shine the torch on the patient's face to see if they are breathing. She stated that she was aware that Patient A might have had some respiratory blockages and she needed to check for that, and confirmed that at that time (4 July 2015) she did not shine a light on Patient A. 22. It was put to the Respondent that on the night of 4 July 2015, she did not check Patient A every 15 minutes. She replied that she did. When asked what she might have done wrong that night, the Respondent stated that she should have taken her to the toilet at 0200 hours and by doing that she could have avoided some difficulty. The Respondent stated that what she did was to check up on her, covered her and saw that she turned over which indicated that she was still alert. She stated that you can hear if someone has an obstruction of respiration when you go nearer to their bed. She was asked whether she took Patient A's vital signs at 0200 hours, and the Respondent stated that she did not. The Respondent was asked whether she should have, but said that at that time she was not really concerned as Patient A was still alert. 23. The Tribunal had some questions for the Respondent relating particularly to her concerns at the 0200 hours and 0300 hours observations, but the Respondent stated that because there was no change in Patient A's condition at that time, it was not necessary to record anything further. 24. On re-examination, the Respondent was asked to confirm why she did not take vital signs during the night of 4 July 2015 and whether there were regular times for the taking of vital signs. The Respondent indicated that vital signs are taken at 0800 hours, 1300 hours and 1900 hours. 25. The Respondent was asked whether there was any indication for IPS (Individual Patient Special). She confirmed that this has to be ordered by the Doctor, but in respect of night IPS this was not usually provided. The Respondent stated that this was a question of expense. 26. The Respondent was asked why she did not press the duress alarm (which nurses have on their body), at 0600 hours when she saw the problems with Patient A. She indicated that at that time, all duress alarms were collected at 0600 hours and were returned after checking that they were working. Accordingly she did not have the duress alarm on her at the time of the incident. This position no longer applies. 27. The Tribunal questioned her about the busyness on that evening, and the fact that at the time of this incident, the night shift nurses worked as a team, whereas the day nurses were allocated to specific patients. The Respondent indicated that since that time, the position had been altered, and that night shift workers no longer worked as a team but were allocated specific patients. 28. That concluded the evidence and the parties were given time to make submissions. The Applicant's Submissions Complaint One: 1. This matter arises out of the conduct of the Respondent, a Registered Nurse registered under the Health Practitioner Regulation National Law (NSW) ("the National Law"), in her treatment of Patient A. 2. Regarding particular 1(a), the hospital records at Exhibit 1 tab 39 at page 51 confirm that on the evening of 3-4 July 2015 Patient A's care zone was classified as "RED". The meaning of a red care zone is explained in detail in the policy document at Exhibit 1 tab 9B (the document with a publication date of 27 June 2012) but the following passage at 5 will suffice: "This care zone represents patients who are considered currently to be in clinical crisis whose care requires frequent review." 3. Regarding particular 1(b), the Respondent admits that Patient A was on Level 2 observations in her statement at Exhibit 2 tab 1 at page 19. Further, the Mental Health Nursing Observation Chart at Exhibit 1 tab 39 at pages 202 and 203 shows that Patient A was on Level 2 observations. 4. Regarding particular 1(c), the procedure document referred to there is reproduced at Exhibit 1 tab 8. It defines "Level 2" as "Minimum 15 minute observation" at 3. The document elaborates on the nature of level 2 observations at 7-8 and includes the requirements: 1. "Observations occur at least every 15 minutes"; and 2. "Patient to be checked for signs of life (e.g. respiration) each 15 minute interval throughout the night and these are to be documented." These requirements are again summarised in the table at 9 of Exhibit 1 tab 8. 1. Therefore, the only real issue between the parties with respect to particular 1 is the claim that the Respondent failed to undertake or cause to be undertaken adequate observations on Patient A in that she failed to carry out observations and check Patient A for signs of life every 15 minutes throughout the night. 2. The Applicant submitted that the Respondent has given inconsistent statements regarding the frequency with which Patient A was observed and checked for signs of life: 1. On 15 July 2015, some eleven days after the events, the respondent answered questions from a Mr Meredith at the hospital and his record of her answers are at Exhibit 1 tab 7 the Respondent is recorded as saying that "15 minute checks" were done every 15 minutes "until 2 am". There is no record of what those checks consisted of or what occurred after 2 am – though in fairness the document does later record that the Respondent became "concerned after 2 am". 2. On 21 September 2015, the Respondent gave a statement to the police, a copy of which is at Exhibit 1 tab 22. At [11] of that statement the Respondent claimed that all patients were checked every 30 minutes. However, later in that paragraph the Respondent claims that Patient A's roommate was anxious about being able to go home the next day and "came out of her room every 15 minutes to check the time" and that the Respondent would try to wake Patient A every time she returned the roommate to her bed. 3. On 17 December 2015, the NSW Nurses and Midwives Association wrote to the HCCC on the Respondent's behalf (Exhibit 1 tab 23). That letter, presumably written on the Respondent's instructions, stated that "all patients were checked every half hour overnight, including [Patient A]" but made no mention of 15 minute observations or of the roommate's attempts to leave her room. 4. On 14 March 2016, the Respondent gave evidence pursuant to proceedings under s 150 of the National Law during which the respondent said that she and RN Smith had been "doing our rounds every half an hour, 15 minutes, according to the patients' needs": Exhibit 1 tab 28 at page 3 (line 40). 5. In her statement to the Tribunal, made on 18 July 2017, the Respondent stated that "[a]ll patients were checked every half an hour overnight, including [Patient A]. Because [Patient A] was on Level 2 Observations, she was checked more frequently, being 15 minutely": Exhibit 2 tab 1 at [19]-[20]. 1. The Respondent claims, to have conducted the required observations, all seem to be based upon the observation chart at Exhibit 1 tab 39 at page 203. For example, the Respondent's claims to have conducted observations at certain specified times in Exhibit 2 tab 1 at [20] appear to be entirely based on the initials on that chart. However, in the HCCC's submission, the accuracy and contemporaneity of that chart is enormously suspect. 2. Indeed the accuracy and contemporaneity of the chart at Exhibit 1 tab 39 at page 203 is the subject of particular 2 of Complaint One (as amended), which alleges that: The practitioner failed to comply with the Observation Procedure in that she failed to ensure that the Observation Chart for Patient A was completed accurately and contemporaneously. 1. In oral evidence the Respondent agreed that: 1. the Respondent's initials were the circular squiggle visible in, for example, the entries in the "Nurse Initial" column at 0030, 0045, 0100, 0145, 0330 and 0415-0445; 2. RN Smith's initials were the angular squiggle seen in , for example, the entries at 0000, 0015, 0115, 0130, 0345, 0400 and 0500 to 0545; and 3. the handwriting from 0600 and below (except perhaps for the deleted entry at 0600) was the handwriting of RN Smith. 1. The Applicant submitted that despite the Respondent's denials, it seems clear that one of the two nurses was initialling entries written by the other nurse at some other time. This conduct only makes sense if the entries were being filled out in advance and then initialled later and that in turn makes it probable that the observations records were not accurate and contemporaneous but were instead filled out in tranches whenever observations were actually made. This conclusion is bolstered by the inconsistencies in the Respondent's prior statements regarding how often she actually conducted observations of Patient A. 2. In this context, the Respondent's apparent urgency at 6 am in cleaning up the soiling of the patient's bedclothes and clothing as a result her incontinence (discussed in further detail below with respect to particular 4(c)) appears more as an attempt to disguise the absence of real observations for some time before 6 am: see the Expert reviewer's comments to this effect at Exhibit 1 tab19 at pages 3 and 4. 3. This conclusion is bolstered by the Respondent's refusal in the witness box to make even the most obvious concessions to the clear evidence regarding the observations chart – an attitude which, it is submitted, should be seen as indicative of a consciousness of guilt. This impression is further bolstered by the Respondent's tendency in oral evidence, whenever she was asked what she did on the evening of 3-4 July 2015, to respond in terms of what she should have done or what she was required to have done, rather than in terms of what she actually did. The Respondent was an evasive and inconsistent witness who should not be believed on this point – though her dishonesty is as likely to be an unconscious self-deception as it is to be a deliberate attempt to deceive (These are civil proceedings and the Tribunal should apply the civil standard of proof on the balance of probabilities. While the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 applies to these proceedings, it does not create a third standard of proof - there is, for example, no third standard of "comfortable satisfaction": Gianoutsos v Glykis (2006) 65 NSWLR 539 (CCA) at [48]-[51] (McClellan CJ at CL, with whom Sully and Hislop JJ agreed). Rather Briginshaw is concerned with the quality or sufficiency of the evidence necessary to discharge the standard of proof: see, e.g., Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450 (Mason CJ, Brennan, Deane and Gaudron JJ)). 4. The Applicant submitted that at a minimum, particular 2 is made out on the clear evidence of the handwriting on the observation chart. Particular 1 should be found to be made out. 5. The HCCC peer reviewer, Nurse Martin, concluded that the conduct in particulars 1 and 2 was significantly below the standard expected of a nurse of the Respondent's level of training and experience: see Exhibit 1 tab 19 at [3.3] (which Nurse Martin amended from "below" to "significantly below" during her oral evidence). It should be noted that Nurse Martin appears to have also taken the matters in particular 3 into account in reaching her conclusion as to the seriousness of the conduct and the HCCC submits the Tribunal should do so as well. 6. In her statement in Exhibit 2 tab 1 at [45] the Respondent admits that that she "was aware of [Patient A's] high risk of aspiration and her need for thickened fluids", which should be taken as an admission that she was aware of the "risk of silent aspiration" alleged in particular 3. The Respondent confirmed that she was aware of the risk of silent aspiration in her oral evidence. 7. As to particular 4(a), while she claims to have taken Patient A's pulse on discovering her critical state around 6 am, the Respondent makes no claim to have taken blood pressure, temperature (beyond a general assessment that the patient was cold) or respiration before Dr Chung arrived and there is no evidence that she made any record of her pulse observations. On that basis, the HCCC submits that particular 4(a) is substantially made out. 8. As to particular 4(b), the Respondent has been equivocal as to whether she caused Patient A's linen and clothes to be changed before or after she asked RN Smith to "call a Doctor": 1. In her interview with Mr Meredith on 15 July 2015, the Respondent is recorded as saying that, after getting a pulse, she stopped CPR to change the sheets and the notes appear to indicate she called for the doctor after doing this: Exhibit 1 tab 7 at [1]. 2. In her police statement of 21 September 2015, the Respondent indicated that she changed Patient A's sheets and put tracksuit pants on her at the same time as she called for a doctor: Exhibit 1 tab 22 at [23]-[25]. 3. In the letter of 17 December 2015 to the HCCC the Respondent's representative claimed that she called the doctor before changing the patient's bedding and clothes: Exhibit 1 tab 23 at [17]. 4. Her oral evidence at the hearing was equivocal and contradictory on this point, with the Respondent's narrative answers to other questions often suggesting that she changed the sheets before she called the doctor, though she claimed the contrary when the issue was squarely put to her. RN Smith, by contrast, stated that the Respondent told her to call the doctor after she helped the Respondent change the patient's bed linen and clothes: see Exhibit 1 tab 16 at page 3 [3] and Exhibit 1 tab 17 at page 12 (lines 15-22).The Respondent did not require RN Smith to appear for cross-examination. 1. The Tribunal should prefer RN Smith on this point and should agree with the Expert, that addressing the fact that the patient being wet and soiled should have been very much lower on the Respondent's list of priorities: Exhibit 1 tab 19 at pages 3 and 4. 2. The Expert concluded that the conduct in particulars 4 and 5 was significantly below the standard expected of a nurse of the Respondent's level of training and experience: see Exhibit 1 tab 19 at pages 3 and 4. Complaint Two 1. The Expert accepted in oral evidence that one explanation for the Respondent's behaviour might be to dispute the fact that Patient A had become incontinent some time earlier and that this had not been discovered due to inadequate observations before 6 am. This hypothesis was put to the respondent and, although she denied it, it should be accepted by this Tribunal. 2. The Tribunal should find that the conduct was improper and unethical because of the dishonesty involved not only in the inaccuracy and non-contemporaneous nature of the observations sheet (the seriousness of which might possibly have been mitigated to a small extent by pressures of time and other patients), but also in the Respondent's refusal to own up to her actions in the face of clear evidence. Such a tendency to cover up one's own mistakes (a tendency that also appeared in the changing of the patient's clothes and sheets) is not only improper and unethical but can be a path to disaster for a health care professional and those under her care. 3. In relation to sub-particular (b), the Respondent gave unclear evidence as to the reason why she made the entry in the progress notes on 10 July 2017, some 6 days later. The reason provided in oral evidence was that she entered the note on the day that she was told to do so upon her return to work after days off. In her statement at Exhibit 2 tab 15 at [58] she admits that retrospective entries are not ideal or best clinical practice. 4. The Expert concluded in her report at Exhibit 19 tab 5 that it is "questionable if the retrospective entry made 6 days after the incident accurately reflects the events of the shift" and that it "provides a rambling summary of the clinical events that occurred". 5. The Tribunal should find that the retrospective entry was improper conduct in relation to the practice of nursing. Complaint Three 1. Complaint Three is an allegation of professional misconduct within the meaning of s 139E of the National Law, alleging that the unsatisfactory professional conduct alleged in Complaints One and Two, taken individually or cumulatively as set out in Complaint Three, are sufficiently serious to justify the suspension or cancellation of the Respondent's registration. 2. The element of dishonesty as alleged in Complaint Two is the key element that raises the Respondent's unsatisfactory professional conduct to the level of professional misconduct. It makes the Respondent's conduct all the more serious and all the more of a threat to the public and the reputation of the profession as it raises the prospect of future failures by the Respondent being disguised by her, with potentially serious clinical repercussions: see generally Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at [200] (Kirby P). Applicant's Proposed Orders 1. The Tribunal has a range of powers which include the power to caution, reprimand, or impose conditions on the registration of the practitioner; order the practitioner to undergo treatment or education; to report on the practice or to seek and take advice on practice management (s149A) and the power to fine the practitioner (s149B). 2. Where the Tribunal makes a positive finding of professional misconduct, the Tribunal may suspend the practitioner's registration for a specified period or cancel the registration entirely (National Law s149C(1)). If such an order is made, it may "provide that an application for review… may not be made until after a specified time (Ibid s149C(7)). Whether the offence(s) are sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment (see Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]). 3. The Tribunal's paramount consideration is clearly the protection of the health and safety of the public (Ibid s 3A), imposition of restrictions on the practice of a health professional is only to occur in furtherance of this higher objective. Indeed, such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality (Ibid s 3(3)(c)). 4. Such a determination of necessity and appropriateness are made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals (see Lee v HCCC [2012] NSWCA 80 at [34]). 5. The importance of considering a practitioner's digressions on a case-by-case manner is indicated by the Court's observations in HCCC v Litchfield (1997) 41 NSWLR 630, at 638C (Gleeson CJ, Meagher and Handley JJA): "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal" (emphasis added). 1. In accordance with these comments, the Tribunal has a wide discretion relating to disposition of a complaint establishing professional misconduct. The circumstances of the particular case will determine the appropriate disposition - HCCC v Karalasingham [2007] NSWCA 267 at [67] per Basten JA. 2. As such, a finding of professional misconduct may not automatically lead to cancellation of a practitioner's registration. De-registration may, however, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession (Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [64] (Santow JA) and [101] (Basten JA).). 3. In assessing the central question of the practitioner's fitness to practice, it is relevant to have regard to any steps she has taken since this conduct occurred. 4. In the absence of such insight, the HCCC submits that the only appropriate protective order is cancellation of the Respondent's registration (s149C(1)(b)) with a non-review period of 12 months (s149C(7)). 5. The HCCC seeks costs. Under Schedule 5D, clause 13 of the National Law, the Tribunal has the power to require the Commission, a registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another party, where so decided by the Tribunal. The Respondent's Submissions The National Law 1. The role of the Tribunal is to consider whether the alleged conduct amounts to unsatisfactory professional conduct within the meaning of s139B (1)(a), s139B (1)(l) and/or professional misconduct within the meaning of s139E of the National Law. 2. The objective and guiding principle is found at s3A of the National Law. That section states, "the protection and safety of the public must be the paramount consideration." Legal Principles 1. The phrase "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" is not defined in the National Law. However, in Re A Medical Practitioner and the Medical Practice Act (unreported, NSWMT, 3 September 2007), Deputy Chairperson Judge Freeman stated (in relation to legislation in the same terms as section 139B of the National Law) that: "As a general principle, the use of the term "significant" may in law be taken to mean not trivial, of importance, or substantial" 1. For the complaint to be proved, the Tribunal must be reasonably satisfied on the balance of probabilities that the Respondent's conduct satisfies the statutory definition of unsatisfactory professional conduct and/or professional misconduct. The burden of proof is on the Health Care Complaints Commission ("HCCC"). As stated in Briginshaw v Briginshaw (1938) 60 CLR 336: "Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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". 1. In Sullivan v Civil Aviation Authority [2013] FCA 1362 (17 December 2013) at [37] the principle which Briginshaw embodies is that there is a rational relationship between the seriousness of the fact to be found and the strength of material sufficient to prove that fact. 2. Justice Lopes in Allinson v General Council of Medical Education (1894) 1 Q.B 750 (at 755) defined professional misconduct as (HCCC v Roberts [2008] NSWNMT 17 (19 May 2008)): "[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency." 1. In Pillai v Messiter (No 2) 1989 16 NSWLR 197, Kirby P said "…the statutory test is not met by mere professional incompetence 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 ... practitioner." Response to Complaint 1 – Particular 1 1. The Respondent maintains that she observed Patient A at 15 minute intervals throughout her shift at the times identified in her Statement (Ake Tab 1 page 11 paragraph 40), in her Interview with Mr Noel Meredith (HCCC Tab 7 page 1), and as documented on Patient A's 'Mental Health Nursing Observation Chart' (HCCC Tab 39 page 202-203). 2. In her statement to the Police on 21 September 2015 (HCCC Tab 22 page 2 paragraph 11), the Respondent stated that "throughout the night we checked all patients every half an hour". In her oral evidence, the Respondent acknowledged that this was an error and she reiterated her insistence that the observations for which she signed for were carried out by her and at 15 minutely intervals. 3. The nurse Expert, Ms Martin in her report dated 5 September 2016, concluded that the Respondent's observations on the night of 3-4 July were below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Ms Martin did not find that it was a significant departure in order to be considered significantly below to attract her strong criticism (HCCC Tab 19 Expert Report page 3). 4. We submit that on the balance of the Respondent's evidence; her documentation on Patient A's Mental Health Nursing Observation Chart; and the finding of Ms Martin that the Respondent's conduct did not fall significantly below the standard which is required in order to satisfy s 139B(1)(a), that this particular cannot be made out Response to Complaint 1 – Particular 2 1. Following each observation round that the Respondent completed for Patient A, she signed for that observation round on Patient A's Mental Health Nursing Observation Chart (HCCC Tab 39 page 202-203). The Respondent was satisfied that Patient A was alive during her rounds as she would often observe Patient A kick off her blankets when the Respondent attempted to cover her legs in order to keep her warm (HCCC Tab 7 page 1). 2. It is difficult to reconcile Ms Martin's findings in her Expert Report with any evidence that the observations conducted by the Respondent "appeared to be limited for fear of disturbing a sleeping patient" (HCCC Tab 19 Expert Report page 3). This is nothing more than an assumption and is unsupported by any of the available evidence. 3. Notwithstanding, Ms Martin concluded that the Respondent's observations on the night of 3-4 July were below the standard reasonably expected of a practitioner of an equivalent level of training or experience. She did not state that it was a significant departure in order to be considered significantly below to attract her strong criticism (HCCC Tab 19 Expert Report page 3). 4. We submit that on the balance of the Respondent's evidence; her documentation on Patient A's Mental Health Nursing Observation Chart; and the finding of Ms Martin that the Respondent's conduct did not fall significantly below the standard, which is required in order to satisfy s139B(1)(a), that this particular cannot be made out. Response to Complaint 1 – Particular 3 1. In her report, Ms Martin states that the Respondent described Patient A as having 'reduced breathing' at 0200 hours (HCCC Tab 19 Expert Report page 3). The Respondent denies ever making this statement or using the word 'reduced'. During cross-examination and upon re-examination of the handwriting (HCCC Tab 7 page 1) Ms Martin agreed that she was in error. That the Respondent did observe at 0200 hours and what was documented from her interview on 15 July 2015, following the incident, was that Patient A's breathing "appeared relaxed – like she was in a deep sleep" (HCCC Tab 7 page 1). 2. The Respondent submitted that Patient A's condition at 0200 hours was consistent with her simply being asleep, rather than that of a patient whose condition was deteriorating and requiring escalation of care. 3. The Respondent's oral evidence is that at 0200 hours and in the 15 minutely intervals where she observed and signed for Patient A's observations after 0200 hours (i.e. at 0200, 0215, 0230, 0245, 0300, 0315, 0330, 0415, 0430 and 0445 hours), she did not observe or hear Patient A to be in any kind of respiratory distress or compromise. It follows that conducting basic observations at 0200 hours or at any time up until 0600 hours was not clinically indicated. 4. The Respondent's concern for Patient A at 0200 hours was that she had not yet gone to the toilet, as she had done on a number of occasions the previous night. The Respondent acknowledged that, with the benefit of hindsight, she should have documented her concern that Patient A had not gone to the toilet in the 'Remarks' section of Patient A's Mental Health Nursing Observation Chart or as a Progress Note in Patient A's EMR (Electronic Medical Record), or both. In mitigation for her documentation shortcomings, it was the Respondent's oral evidence that the shift was particularly busy with a number of acutely unwell patients requiring her attention and observation. 5. Despite her acknowledged misinterpretation of the word "relaxed", Ms Martin would not change her finding that the Respondent's observations on the night of 3-4 July were below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Notwithstanding, Ms Martin did not state that it was a significant departure in order to be considered significantly below to attract her strong criticism (HCCC Tab 19 Expert Report page 3). Response to Complaint 1 – Particular 4 1. When The Respondent went to wake Patient A sometime after 0600 hours, she observed that her breathing had changed, firstly to grasping breaths, then to an audible moan and then stop. The Respondent immediately felt for a pulse. She called out to RN Smith for assistance, using the words, "Get the Doctor, this patient is dying." The Respondent commenced cardio-pulmonary resuscitation ("CPR") on Patient A. After approximately 5 minutes of CPR, The Respondent rechecked Patient A's pulse and it had returned. The Respondent's evidence was that it was weak but regular. At this point, The Respondent did not attend to a set of clinical observations on Patient A. The Respondent had observed that Patient A had been incontinent of urine and that her clothes and sheets were wet and that Patient A was cold. Her immediate thought was to warm Patient A and she changed her clothes and sheets. At some point during this process, RN Smith had arrived to assist. The Respondent emphatically denies that her actions in changing Patient A's clothing and sheets were intended to disguise Patient A's current state. The Respondent's actions were directed towards warming Patient A. The Respondent chose to remain with her patient and directed RN Smith to collect the oxygen cylinder and emergency trolley. 2. In both her oral and written evidence, The Respondent stated that Dr Chung arrived soon after, The Respondent informed him of what had happened. Dr Chung felt for a pulse and informed The Respondent that Patient A was still alive and still breathing. Dr Chung directed The Respondent to keep Patient A warm, as she was cold. Dr Chung asked The Respondent for Patient A's temperature and The Respondent went to the nurse's station to retrieve the thermometer. When The Respondent returned, she observed that Dr Chung had commenced CPR on Patient A. Response to Complaint 1 – Particular 5 1. The Respondent did not yell out to RN Smith the words "call the Rapid Response Team". Her choice of words at that immediate moment reflected her concern for Patient A and her need for urgent medical attention. How RN Smith processed The Respondent's words and communicated this to the switchboard was clearly problematic, given her poor English and communication skills (HCCC Tab 10 Switchboard Log page 2 and 3), (HCCC Tab 17 Transcript of Proceedings with the Nursing and Midwifery Council s150 – Min Smith), (HCCC Tab 3 page 12 email of complaint from RN Stephanie Cummings to NUM Heidi Henry (Sun, 5 July 2015) (& cc'd to NM Anne Wangui and NM Agnes Codd)). 2. The switchboard operator documented her conversation with RN Smith as follows (HCCC Tab 10 Switchboard Log page 2 and 3): "Min (RN) from SMHSOP called through switch and said that she had an emergency for a doctor and wasn't very clear on the telephone of what she required, she continued to say "doctor". I put the call through to emergency several minutes later, Min called again through switchboard; stating that a patient has died and she needs an emergency rapid response". 1. The original complainant provided further evidence of RN Smith's communication difficulties to the HCCC, RN Stephanie Cummings (HCCC Tab 3 page 12). She states: "I find it difficult to discuss … issues with Min due to her very poor grasp of English language and/or her not listening. She appears fixed on her way of clinical practice and unable or unwilling to change her practice to comply with current policies and procedures. I feel that this puts clients and other staff at risk, and has done so for a very long time." 1. We submit that The Respondent did convey a sense of urgency in her communication to RN Smith when she yelled out to her, "Please get the doctor, this patient is dying". In its Particular, the Complainant only stated the first half of The Respondent's expression (i.e. 'get the doctor') and omitted the second half "this patient is dying". We submit that this is a critical omission by the Complainant as it distorts and dilutes the urgency conveyed by The Respondent to RN Smith. Had the Complainant included the entire expression and all of the words used by The Respondent in its particular (i.e. "Please get the doctor, this patient is dying", The Respondent did indeed convey an appropriate sense of urgency. When the entire expression used by The Respondent is considered along with the fact that The Respondent was not present during RN Smith's confusing phone conversation with the hospital switchboard operator, we submit that Particular 5 should not be made out. Response to Complaint 2 – Particular 1 1. The Respondent documented Patient A's observations at 15 minute intervals (Ake Tab 1 page 11 para 40). 2. The Respondent did make a retrospective entry in Patient A's progress notes. The Respondent acknowledges that this is not best practice. On the morning following Patient A's death, The Respondent was required to provide handover to nurses from the oncoming morning shift. She then completed two IIMS (Incident Information Management System) reports. She was then required to attend an interview with the police and provide a statement that lasted for approximately 1½ hours. This police interview immediately followed The Respondent's usual night shift finish time of 0730 hours. The Respondent left the hospital that morning on or about 1000 hours. 3. It is reasonable that health practitioners will be required on occasion to make retrospective entries into a patient's progress notes. In her oral evidence The Respondent accepted that as the in-charge of the night shift, she should have documented the events of that shift for Patient A at the time of the incident or immediately following it. She acknowledged that her retrospective entry was sub-optimal. 4. In Ms Martin's Expert report dated 5 September 2016, she concluded that The Respondent's record keeping for 3-4 July was below the standard reasonably expected of a practitioner of an equivalent level of training or experience but did not state that it was a significant departure in order to be considered significantly below to attract her strong criticism (HCCC Tab 19 Expert Report page 5). In her oral evidence Ms Martin changed her view and determined that The Respondent's record keeping was significantly below the standard and that this would attract her strong criticism. Ms Martin attributed her change of view to events and experiences unrelated to the death of Patient A and after she had submitted her first and second (revised) Expert reports. From her oral evidence, it is unclear what specific events and experiences had caused Ms Martin to change her view. Clearly this change of view is difficult to reconcile with the written findings of her Expert report. We submit that the Tribunal should rely on Ms Martin's viewpoint as stated in her written report so far as her conclusions relate to Ms Ake's documentation. 5. The Respondent accepted and acknowledged that she overlooked making an entry in Patient A's progress notes immediately following the death of Patient A. It is reasonable that The Respondent was distressed by the death of Patient A. The Respondent faced numerous distractions on the morning of 4 July following the death of Patient A: 1. having to provide handover to nurses from the oncoming morning shift; 2. completing two IIMS reports; 3. attending to a number of enquiries from her line managers; 4. participating in a lengthy police interview after the conclusion of her rostered shift; 5. her sheer exhaustion from the overall activity of the unit during her 10-hour shift. 1. When this matter was brought to The Respondent's attention, she came into the Unit and completed a retrospective entry. We submit that the mitigating circumstances relating to The Respondent's retrospective documentation are exceptional and that The Respondent's conduct did not fall significantly below the standard, which is required in order to satisfy s139B(1)(a). It follows that this particular should not be made out. Response to Complaint 3 – Particular 1 1. The Respondent repeated and relied on the submissions provided in paragraphs above to deny this particular and for the same reasons to support a finding that The Respondent is not guilty of professional misconduct. Response to Complaint 3 – Particular 2 1. The Respondent repeated and relied on the submissions provided in paragraphs above to deny this particular and for the same reasons to support a finding that The Respondent is not guilty of professional misconduct. Respondent's proposed Protective Orders – Legal Principles 1. The Tribunal has a wide discretion and general powers under section 149A (1) of the National Law to make any one or more of a range of protective orders upon a finding that the subject matter of a complaint has been proved: 1. caution or reprimand the practitioner; 2. impose the conditions it considers appropriate on the practitioner's registration; 3. order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); 4. order the practitioner to complete an educational course specified by the Tribunal; 5. order the practitioner to report on the practitioner's practice at the times, in the way and to persons specified by the Tribunal; 6. order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal 1. The Tribunal may also impose a fine under s 149B but only in the limited circumstances referred to in s149B (2)(b). 2. In addition, the Tribunal may suspend or cancel the practitioner's registration under s 149C (1). 3. Protective orders are not intended to punish the practitioner but to protect the public. (Clyne v NSW Bar Association (1980) 104 CLR 186). No order should be made which has more serious consequences for the practitioner than is reasonably necessary to promote the protective purpose. (NSW Bar Association v Meakes [2006] NSWCA 340 [113]. 4. The decision of the Medical Tribunal in HCCC v Dr Della Bruna [2014] NSWCATOD 31 at [88]-[91], sets out the applicable principles in determining protective orders: [88] In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]. [89] Although the Tribunal has concluded that Dr Della Bruna's conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 was a decision under the Medical Practice Act 1992 (NSW) but the relevant provisions of that Act are substantially the same as the applicable provisions of the National Law and the Court of Appeal's reasoning is equally applicable to the present case. At [67] it was held: …However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [which are substantially the same as ss 149 to 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C (1) of the National Law is to a similar effect]. Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2) [see s 149B (2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case : see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ). [90] In Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3, the Medical Tribunal said at [200]: The authorities also clearly establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice: see Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 - 425 (Latham CJ, Dixon and Williams JJ (Rich and Starke JA dissenting)); The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported), (Kirby P, Mahoney and McHugh JJA). [91] This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practice - see Health Care Complaints Commission v King [2013] NSWMT 9 at [25]). The expression used by the High Court in Ex parte Lenehan was "probable permanent unfitness" and referred to the finding, which usually underlies an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practice at the time of making the order and is likely to remain so for a significant period. Respondent's proposed Protective Orders 1. In the event that the proposed findings sought by the HCCC are proved, the Tribunal will take into consideration all the relevant circumstances, including the following matters. 2. The Respondent made admissions in her oral evidence acknowledging her failings regarding her retrospective documentation in Patient A's medical record on 10 July 2015 (6 days after the death of Patient A). She acknowledged that this is not best practice and has changed her practice since this incident. That is, her documentation is now contemporaneous. Further, The Respondent made admissions in oral evidence acknowledging her failings in communication with RN Smith when she called out for assistance. The Respondent acknowledged that using the words "Please get the doctor, this patient is dying" was not ideal in circumstances where she should have called for the Rapid Response Team. 3. In NSW Bar Association v Meakes [2006] NSWCA 340 Basten JA observed at [113] that no order should be made which has more serious consequences for the practitioner than is reasonably necessary to promote the protective purpose. 4. It is submitted the orders sought by the complainant at s149B (power to impose a fine) and 149C (powers to suspend or cancel registration, make a prohibition order, etc.) would have a more serious consequence for The Respondent than is reasonably necessary to promote the protective purpose. The latter proposed order would effectively require The Respondent to cease working as a registered nurse and at the age of 66 years, her prospects of securing employment are extremely poor. 5. The Tribunal will take into consideration that The Respondent has had no previous complaints made against her throughout her entire nursing career and has had no conditions imposed on her registration, either before or after 3 and 4 July 2015. 6. We submit that The Respondent's 13 years of service and dedication to the public health care system is what should define her, not this prosecution. The Respondent has continued to work at the same mental health unit without incident. The Respondent is a well-respected member of her nursing team. The references from The Respondent's former Nursing Unit Managers, Ms Heidi Henry (Ake Tab 3) and Ms Bobbie Woodward (HCCC Tab 30) are testament to her value to the unit and the nursing profession. It is evident from both references that The Respondent has been an exemplary employee and a competent and safe practitioner. It is submitted that the public is not at risk were The Respondent permitted to continue practicing as a RN. 7. When The Respondent appeared before the NSW Nursing & Midwifery Council for her s150 Proceeding following the original complaint, they Committee found: 1. Ms Ake did appropriately respond to the needs of the patient when she was discovered unresponsive. [Para 46] … 2. The members were of the opinion that Ms Ake's practice does not appear to present a significant risk to public safety at this time. [Para 47] … 3. The delegates are satisfied that conditions on Ms Ake's registration are not required for the protection of the health or safety of any person. [Para 51] (Our emphasis) 1. It is submitted that the Complainant's proposed request for the cancellation or suspension of The Respondent's registration would be harsh, unreasonable and unjust. While the Tribunal is not bound by the findings of the NSW Nursing and Midwifery Council, their findings are both insightful and instructive as to the qualities of The Respondent as a nursing professional and her level of risk to public safety. Costs 1. Based on the statutory provisions and legal principles to be applied in respect of costs applications in disciplinary proceedings, it is submitted that an order be made that each party pay its own costs. 2. Decision 3. The Tribunal had available to it, a set of papers with documents and statements (Exhibit 1 and 2), the evidence of the Expert called by the Applicant, and the evidence of the Respondent. In addition, the Tribunal had available to it the submissions made by both the Applicant and the Respondent, both orally and in writing. 4. The Tribunal considered each of the complaints made by the Applicant and the particulars of those complaints, and makes the following finding in respect of each of the particulars of each of the complaints. 5. In respect of Complaint One, Particular One: the Applicant alleges that the Respondent failed to carry out observations every 15 minutes throughout the night as she was obliged to do under the circumstances listed in (a), (b), (c). This is denied by the Respondent, who refers the Tribunal to the entries contained at Tab 39, page 203. The Tribunal was concerned that in her initial review of the incident, completed on the 15th July 2015, in response to the question of how often Patient A was observed, the Respondent replied: 1. "Patient was on 15 minute checks"… "Did every 15 minutes until 2 a.m." 1. The Tribunal also had available documents provided by both parties, including in particular a statement by RN Smith. RN Smith was not required for cross-examination and her statement therefore is unchallenged. In addition, in the same document, the Respondent was asked at what time she had concerns for Patient A. She responded that she was concerned after 2 a.m. This concern was not recorded in any document that was available to the Tribunal. 2. Of significance is the fact that she expressed concern about Patient A not waking at 2 a.m. and in her evidence she refers to the fact that she was still asleep at 3 a.m. If this was so out of the ordinary, by sometime after 3 a.m. The Tribunal believes that she should have woken Patient A, or at least done some base line vital observations which include temperature, pulse, blood pressure, respiration rate, to check whether a patient who was in the red zone could have indications of a problem different from that of the previous night's lack of sleep. The Respondent was aware that the patient had not slept the night before. 3. Further, in her police report at Tab 22, page 18, the Respondent stated that every hour she tried to "stir her up". The Respondent was thinking that at 6 a.m. she would get her up. She stated that she was worried about her because it was unusual for her to be sleeping right through the night. 4. Patient A was, to the Respondent's knowledge, at risk of aspirating and that she was intended to receive only thickened fluids, but that a request had been made to give her unthickened fluids. These fluids put Patient A at an increased risk of aspirating. Accordingly, when Patient A failed to wake up at any time when the Respondent was trying to "stir her up", a registered nurse of the level of experience of the Respondent should have considered that Patient A was not waking due to more significant medical issues than a failure to sleep the night before. 5. At a minimum, the Respondent should have undertaken the base line vital signs which may have indicated that Patient A was deteriorating. 6. The Standard General Observation Chart at Tab 37, page 207 indicates that no such vital signs were recorded for Patient A after 1900 hours on 3 July 2015. 7. The policy directive at Tab 11, paragraph 3.2.1 provides that the frequency of vital sign observations should be increased as indicated by the patient's condition and clinical judgement of the clinical staff. 8. The Tribunal had the evidence of the Expert produced by the Applicant who found that the Respondent's conduct in respect of this particular matter was below the standard expected of a Registered Nurse of the Respondent's level and experience and in some instances, significantly below the standard. Essentially, it is fair to say that in respect of issues 1, 2 and 3 referred to in this Decision, were below the standard, while in respect of issues 4 and 5; (a) was significantly below the standard and invited her strong criticism which, (b) was below the standard. As a general overall comment made by the Expert, she stated that in her view, the conduct of the Respondent was significantly below the standard. The Tribunal is comfortably satisfied that the above conduct represents a significant departure from the standard reasonably expected of a practitioner of an equivalent level of training and experience. 9. In respect of Particular 2, the Applicant spent a considerable amount of time on the completion of the observation chart and in particular the similarity of the handwriting at the various 15 minute intervals on the observation chart. The Applicant sought to convince the Tribunal that the comments in respect of the observations were all made by the same hand while the signature of the person conducting the observations was divided between the Respondent and RN Smith who was on duty with the Respondent that night. The Applicant argued that this indicated that all the comments in the comments column of the observations chart were made in advance of the observations being carried out and that they established that the chart was not completed accurately and contemporaneously. The Applicant stated that the handwriting of the various entries were said to be by a different person but argued that while not being handwriting Experts the similarities are such as to make that improbable. 10. The Tribunal reviewed various other pages of the observation charts provided at Tab 39, including pages completed when RN Smith was on duty with other Registered Nurses and finds difficulty in determining the exact nature of the various handwritten entries to be of the same or of a different hand. The Tribunal also had difficulty accepting the argument that the entries were all made in advance as the entries were both consistent in their wording in some places and different in their wording in other places. It is difficult to accept that entries were made for lengthy periods in advance in circumstances where some entries were referred to as: bed, others asleep others awake, others in corridor, and so on. Finally, the Tribunal, despite having been referred to a case which indicated that the Tribunal is entitled without the advantage of Expert evidence to determine issues such as handwriting, found it difficult to accept the Applicant's submissions in respect thereof. In circumstances where this was such a central issue to clarifying the onus of proof in the Applicant's case, the Applicant failed to produce Expert evidence (when it could have) to support its allegation that the handwriting in the comments column of the observation charts were all made by the same hand. 11. Accordingly, the Tribunal is not comfortably satisfied that Particular 2 is proven. 12. In respect of Particular 3 the complaint required amendment to alter the word "reduced" to "relaxed" as the original complaint had misread and misquoted the entry. However, the Tribunal believes that even if the breathing at 0200 hours was relaxed, over the course of the next 4 hours the Respondent failed to consider possible reasons for Patient A not waking up and therefore the Tribunal's comments in respect of Particular 1 apply equally to Particular 3 and the Tribunal is comfortably satisfied that the conduct of the Respondent fell significantly below that expected of a Registered Nurse of the Respondent's level and experience. 13. Particular 4(a). On the Respondent's own evidence, having discovered the patient had a very low pulse and was looking pale, she immediately commenced CPR. Giving CPR is normally commenced after undertaking the Airway, Breathing, Circulation, (ABC) test (look listen and feel) and noting that the patient was not breathing. In such circumstances a nurse would tend not to leave the patient but would call for help. 14. In Respect of Particular 4(b), the Tribunal was satisfied that she should not have prioritised the changing of sheets and clothing over the question of dealing with the diminished state in which she found Patient A. 15. Under paragraph 6 of Tab 12, it is provided that staff are to activate the Rapid Response Call if the pulse rate is found to be less than 40. 16. On the Respondent's own evidence the pulse was "about I think 40" and in the circumstances the Rapid Response Procedure should have been activated by the Respondent instead of calling for a doctor. 17. In the circumstances the Tribunal was comfortably satisfied that particular 4(c) is proven. 18. In respect of Particular 5 the Tribunal examined the responses of the Respondent to questions in the section 150 Hearing of the Midwifery Council on the 14th of March 2016 and in particular, the Responses between lines 9 and 20 on page 6 of the transcript of that Hearing. The Respondent was asked what she meant when she called out and said, "Call the doctor". The Respondent stated that she was intending to get the emergency numbers to be called so that they could have something done at that stage to the patient and was expecting a Rapid Response. 19. The Tribunal is comfortably satisfied that Particular 5 is proven in that RN Smith could not have understood from words "Call the doctor", (even with the words "this patient is dying") to mean call the RRT. Had the Respondent called out RN Smith to call the RRT that would more appropriately have conveyed the appropriate sense of urgency in the situation, although the words "this patient is dying", should and could have conveyed a sense of urgency. Nevertheless, the Tribunal is comfortably satisfied that particular 5 is made out. 20. In respect of Complaint 2, in the absence of a handwriting Expert the Tribunal is not comfortably satisfied that the Respondent engaged in improper or unethical conduct as alleged by the Applicant in the Particulars to Complaint 2 at paragraph 1(a) of the Particulars of Complaint 2. 21. In respect of paragraph 1(b) of the Particulars of Complaint 2, the Respondent admits that the entry was made retrospectively and that this was not ideal. The Respondent explained that she thought the circumstances of the incident would have been completed by the other nurse and it was only on the 10th of July 2015 that it was pointed out to her that there was no entry for the particular incident. She then made the entry on that day. Clearly the Respondent should have done the incident report on the same day, before leaving the hospital but she explained that she overlooked doing it as she had been at the hospital for a very long time and she was tired. 22. The Tribunal is comfortably satisfied that 1(b) is proven but the Tribunal is not comfortably satisfied that this delay made the Respondent guilty of unsatisfactory professional conduct in the particular circumstances. It certainly fell below the standard expected of a nurse of her level of experience and training. 23. In respect of Complaint 3, the Applicant seeks an order that the Respondent is guilty of professional misconduct in that the particulars referred to in Complaints 1 and 2 either taken individually or together constitute sufficient proof that the Respondent is not only guilty of unsatisfactory professional conduct but is guilty of professional misconduct. 24. The Respondent's conduct in respect of this incident partly falls significantly below the standard expected of a registered nurse of the Respondent's level and experience and partly falls below the standard expected of a registered nurse of her level and experience and the Tribunal is comfortably satisfied that the registered nurse is guilty of unsatisfactory professional conduct pursuant to section 139B and guilty of professional misconduct under section 139E. 25. The Tribunal comes to this conclusion for the reasons set out above but in particular, has significant concern that: 1. The Respondent on her own evidence expressed a concern about the patient at 2:00am, on her evidence she was also concerned at 3:00am and yet failed to do observations that would have been clinically expected of a nurse of her level and experience. 2. Between 3:00am and 6:00am the Respondent in her evidence conducted superficial observations on Patient A at 15 minute intervals but having regard to her concerns, should have included a basic set up observations. 3. The behaviour of the Respondent on finding Patient A not responsive, acted in a way that fell significantly short of what is expected of a nurse of her level and experience in failing to conduct a basic check on vital signs (…, pulse, respiration and blood pressure) and instead prioritised the changing of the linen and clothing of Patient A. 4. On finding Patient A in the condition she was, at 0600 hours, and instructing Nurse Smith to call a doctor instead of the RRT, falls significantly below what can be expected of a nurse of her level and experience. 1. It therefore falls to the Tribunal to determine whether the Applicant's call for a de-registration of the Respondent is appropriate in the circumstances or whether no orders against the Respondent as submitted by the Respondent is appropriate or whether any other orders are appropriate. The Tribunal had regard to various factors which mitigate against a de-registration of the Respondent and in particular: 1. That the Respondent has been a registered nurse for the past 13 years and in that period of time has not at any time had a complaint made against her other than the complaint in respect of this particular incident. 2. The Tribunal had available to it a reference given by Heidi Henry who has known the Respondent for more than 7 years and who during this time was employed as the Acting Nurse Unit Manager in respect of the Respondent for the past 8 months and also the Clinical Nurse Educator on the East Wing at the Respondent's unit for the past 2 years. The evidence, which was not challenged by the Applicant was to the effect that the Respondent takes her work seriously and portrays this in the quality of her work and that she has no hesitation in recommending her, despite her knowledge of the complaint against the Respondent. 3. In addition the Tribunal had available to it evidence of a significant number of training courses which the Respondent has undertaken since this incident which evidence was not challenged by the Applicant. These included commencing a Graduate Diploma in Acute Care Nursing through the University of Technology, Sydney and completing a Graduate Certificate in Mental Health Nursing. 4. Finally, the Tribunal considered the findings of the Nursing and Midwifery Council in its section 150 Hearing delivered in respect of the proceedings held on the 14th March 2016 that there was no action necessary or appropriate for the protection of the health or safety for any person or persons that after carefully considering all of the material before the proceedings and for the reasons outlined in their written decision the delegates were satisfied that conditions on the Respondent's registration were not required for the protection for the health and safety of any person. 1. However, in contrast with the considerations above, the Tribunal had regard to the evidence given by the Expert Witness RN Martin, the evidence available to it of RN Smith and the various aspects of the evidence of the Respondent. There were contradictions and a serious lack of insight or preparedness to consider mistakes made by the Respondent in the particular circumstances of Patient A despite the considerable number of courses completed by the Respondent in the time since the incident with Patient A. The Tribunal believes that Protective Orders are necessary for the protection of the public and as an appropriate deterrent for other members of the nursing profession. The Respondent has been and would be working with very vulnerable people who must be protected and the strongest message must be sent to other nurses working with vulnerable people that lapses in patient care cannot be tolerated. 2. It is well established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction, there are a number of matters to which we must have regard. They have been most recently succinctly referred to in the Judgment of Meagher JA in the NSW Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmitt JJA agreeing) at [35] and following, his Honour said: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients, or potential patients, of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the professions. That objective is achieved by setting and maintaining those standards, and where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards, will not be permitted to practice. [36] In Law Society of NSW v Foreman (1994) 34 NSWLR 408, Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings:… in the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question it extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But in my opinion it would be wrong to confine the objects of disciplinary proceedings and the purpose is to be achieved by the Orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the Orders to be made are to be directed to ensuring that to the extent she is not, her practice is restricted". [37] In Herron v McGregor (1986) 6 NSWLR 246, Maque JA referred more than briefly to the same consideration (at 258): "It is of course of fundamental importance to bear in mind the public interest in disciplining Doctors who are guilty of professional misconduct. In many cases, the protection of the public and the maintenance of professional standards requires that the names of Doctors be removed from the register. However, it is present fitness to practice which is the principle and ultimate issue of public interest." 1. In respect of costs, the Tribunal had regard to the fact that the Applicant proved part of its complaint and failed to prove part of its complaint. In the circumstances the Tribunal was comfortably satisfied that each party should bear its own costs. 2. In the circumstances the Tribunal makes the orders set out below. Orders 1. We make the following Orders: 1. The registration of the Respondent is cancelled with effect from this date. 2. Pursuant to the provisions of s. 149C of the Health Practitioner Regulation National Law, we fix a non-review period of 12 months with effect from this date. 3. Each Party is to pay their own costs. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 January 2018