Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cooper; Health Care Complaints Commission v Higgins [2018] NSWCATOD 17 Hearing dates: 26 July 2017 and 26 October 2017 Date of orders: 16 February 2018 Decision date: 16 February 2018 Jurisdiction: Occupational Division Before: R Titterton, Principal Member I McQualter, Senior Member A Walsh, Senior Member Dr C Berglund, General Member Decision: In relation to 2017/00036342; (1) Complaint One is established. (2) Complaint Two is established. (3) RN Cooper is reprimanded. (4) The following conditions are placed on Robert Cooper's registration: (a) Robert Cooper must complete an education course on record keeping and ethics that has been approved by the Nursing and Midwifery Council of NSW within 12 months of the date of this decision. (b) Robert Cooper is to provide to the Nursing and Midwifery Council of NSW evidence of successful completion of the courses signed by an individual authorised by the education institution within 14 days of completion of the course. (5) The Nursing and Midwifery Council of NSW is the appropriate review body of these conditions when Robert Cooper has a principal place of practice in NSW. (6) Sections 125 to 127 of the National Law are to apply should Robert Cooper's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. (7) Robert Cooper pay the Commission's costs of application 2017/00036342. In relation to 2017/00036331; (1) Complaint One is established. (2) Complaint Two is established. (3) Lucas Higgins' registration is suspended for a period of four months. (4) The following conditions are placed on Lucas Higgins' registration: (a) Lucas Higgins must complete an education course on record keeping and ethics that has been approved by the Nursing and Midwifery Council of NSW within 12 months of the date of this decision. (b) Lucas Higgins is to provide to the Nursing and Midwifery Council of NSW evidence of successful completion of the courses signed by an individual authorised by the education institution within 14 days of completion of the course. (5) The Nursing and Midwifery Council of NSW is the appropriate review body of these conditions when Lucas Higgins has a principal place of practice in NSW. (6) Sections 125 to 127 of the National Law are to apply should Lucas Higgins' principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. (7) Lucas Higgins pay the Commission's costs of application 2017/00036331. Catchwords: TRADES AND PROFESSION – Nursing – Health Practitioner Regulation National Law – complaints of unsatisfactory professional conduct and professional misconduct – where Nursing Observation Charts for Patients completed in a manner that was misleading and in breach of the NSW Health Code of Conduct) and the Health Central Coast Local Health Nursing Observation / Patient Acuity Levels – Mental Health / Drug and Alcohol Procedure Legislation Cited: Health Regulation National Law NSW No 86a Medical Practitioners Act 1938 Cases Cited: Clyne v New South Wales Bar Association [1960] HCA 40; Gad v Health Care Complaints Commission (2002) NSWCA 111 Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Kennedy, Thompson, Parker and Dowsett [2015] NSWNMPSC 2 Health Care Complaints Commission v Litchfield (1977) 41 NSWLR 630 Health Care Complaints Commission v Mullen [2016] NSWNMPSC Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Rahimpanah [2014] NSWMPSC 4 Health Care Complaints Commission v Thomas, Hayden and Rumble [2017] NSWNMPSC 1 Health Care Complaints v Perroux [2011] NSWDC 99 Latoudis v Casey (1990) 170 CLR 534 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182. NSW Bar Association v Hamman (1999) NSWCA 404 NSW Bar Association v Meakes [2006] NSWCA 340 NSWMPSC Ohn v Walton (1995) 36 NSWLR 77 Pillai v Messiter (No.2) (1989) 16 NSWLR Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Re Dr Parajuli [2010] NSWMT 3 Saville v Health Care Complaints Commission [2006] NSWCA 298 Texts Cited: Corpus Juris Secundum, vol 58 (1948) Category: Principal judgment Parties: 2017/00036342; Health Care Complaints Commission (Applicant) Robert Cooper (Respondent) 2017/00036331; Health Care Complaints Commission (Applicant) Lucas Higgins (Respondent) Representation: 2017/00036342; Counsel: M Gibson (Applicant) Solicitors: M Byrne (Respondent) 2017/00036331; Counsel: M Gibson (Applicant) Solicitors: P Robertson (Respondent) File Number(s): 2017/00036342 and 2017/00036331 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the Tribunal prohibits the disclosure of the name of the persons referred to in the proceedings as Patient A and Patient B. REASONS FOR DECISION 1. These reasons concern two Applications for Disciplinary Findings and Orders, each filed 16 December 2016. The Health Care Complaints Commission (the Commission) seeks orders, pursuant to s 149C of the Health Regulation National Law NSW No 86a (the National Law) against each of Registered Nurses (RNs) Robert Cooper and Lucas Higgins. The orders sought are that: 1. The respondents' registration be cancelled; 2. Each respondent not apply for a review of that order for a minimum period of one year; and 3. The respondents pay the Commission's costs of the applications. 1. The complaints the subject of the applications are, in summary, that each respondent was guilty of unsatisfactory professional conduct and professional misconduct in respect of conduct which occurred at the Gosford Mental Health Unit of Gosford Hospital on 30 and 31 August 2013. 2. For the reasons that follow, we have decided: 1. In relation to RN Cooper, to reprimand him and place conditions on his registration; 2. In relation to RN Higgins, to suspend his registration for a period of four months, and thereafter place conditions on his registration; 3. To order each respondent to pay the Commission's costs. Conduct of the hearing 1. The two applications were heard together, with evidence in one being evidence in the other. The Complaints against RN Cooper 1. Two complaints are made against RN Cooper. Complaint One is that he is guilty of unsatisfactory professional conduct. Complaint Two is that he is guilty of professional misconduct. 2. The background to each complaint is the same, and is as follows: The practitioner was first registered as a nurse on 19 December 1995. He worked as a registered nurse at Gosford Hospital from July 2004 until his employment was terminated in October 2014. On 30 and 31 August 2013 ('the Shift'), the practitioner was working as the Nurse-In-Charge of the night shift ('the Shift') in the Mental Health Inpatient Unit ('the Unit'). The Nurse in Charge of the shift was in charge of the entire Unit and was stationed in the High Dependency Unit ('the HDU'). Patient A was involuntarily admitted to the Unit on 26 August 2013 for schizoaffective disorder and was transferred from the open ward to the HDU on 30 August 2013. In the HDU she was under care level 2 observation, which requires 15 minute observations. Patient B was admitted to the Unit on 19 August 2013 for schizophrenia and depression and was transferred to the HDU. In the HDU he was under care level 2 observation, which requires 15 minute observations. At approximately 06:00 hours, Patient A was found unresponsive in her room and rigor mortis was noted to have set in. Patient A's time of death could not be determined, however, her cause of death was noted as morbid obesity and features consistent with sleep apnoea. 1. The particulars of Complaint One are: 1. RN Cooper completed the Nursing Observation Chart for Patients A and B in a manner that was misleading and in breach of the NSW Health Code of Conduct (March 2012, PD2012_018) (Code of Conduct) and the Health Central Coast Local Health Nursing Observation / Patient Acuity Levels – Mental Health / Drug and Alcohol Procedure (PD2008_043) (Observation Policy) by signing Patient A and Patient B's Nursing Observation Charts at the following times in circumstances where CCTV footage indicates that RN Cooper did not observe Patients A and Patient B on, or near, those times: 1. on 30 August 2013 at 23:45; 2. on 31 August 2013 at 01:45 and 3. on 31 August 2013 at 02:15. 1. During the Shift, RN Cooper did not conduct adequate and appropriate visual observations on Patient B in accordance with the Observation Policy at 23:35 and 02:05 as CCTV footage shows that RN Cooper only gave Patient B cursory glances, without the aid of a torch, which is insufficient to accurately observe for signs of life; 2. As the Nurse-In-Charge of shift, RN Cooper failed to adequately supervise or monitor the completion of the observation rounds for Patients A and B in that he did not ensure that observations were being completed every 15 minutes in accordance with the Observation Policy as CCTV footage indicates that observations were conducted at intervals that ranged between 23 and 83 minutes. 1. The particulars to Complaint Two are Complaint One and the particulars thereto which are relied on both individually and cumulatively. 2. RN Cooper denies each complaint. He denies Particular (1) and does not admit Particulars (2) and (3). The Complaints against RN Higgins 1. Two complaints are made against RN Higgins. Complaint One is that he is guilty of unsatisfactory professional conduct. Complaint Two that he is guilty of professional misconduct. 2. The background to each complaint is the same, and is as follows: The practitioner was first registered as a nurse on 7 February 2002. He commenced employment with the Central Coast Local Health District in February 2002 until his employment was terminated in October 2014. From 2013 onwards, he was employed as Clinical Nurse Specialist. During the night on 30 and 31 August 2013 shift ('the Shift'), the practitioner was working as a Clinical Nurse Specialist in the High Dependency Unit ('the HDU') in the Mental Health Inpatient Unit ('the Unit') at Gosford Hospital. Patient A was involuntarily admitted to the Unit on 26 August 2013 for schizoaffective disorder and was transferred from the open ward to the HDU on 30 August 2013. In the HDU she was under care level 2 observation, which requires 15 minute observations. Patient B was admitted to the Unit on 19 August 2013 for schizophrenia and depression and was transferred to the HDU. In the HDU he was under care level 2 observation, which requires 15 minute observations. At approximately 06:00 hours, Patient A was found unresponsive in her room and rigor mortis was noted to have set in. Patient A's time of death could not be determined, however, her cause of death was noted as morbid obesity and features consistent with sleep apnoea. 1. The particulars of Complaint One are as follows: 1. RN Higgins did not conduct an adequate and appropriate visual observation on Patient A at 23:06:09 hours on 30 August 2013 in accordance with the Observation Policy in that CCTV footage shows that RN Higgins only gave Patient A a cursory glance, without the aid of a torch, which is insufficient to accurately observe for signs of life. 2. During the Shift, RN Higgins failed to undertake appropriate observations of Patients A and B in accordance with the Observation Policy in that he did not attend to visual observations to check for signs of life at least every 15 minutes in circumstances where CCTV footage shows that on a number of occasions no one attended the rooms of Patients A and B for periods ranging from approximately 30 minutes to 1 hour and 20 minutes. 3. RN Higgins completed the Nursing Observation Chart for Patients A and B in a manner that was misleading and in breach of the Code of Conduct and the Observation Policy by signing Patient A and Patient B's Nursing Observation Charts at the following times in circumstances where CCTV footage indicates that RN Higgins did not observe Patients A and Patient B on, or near, those times: 1. on 30 August 2013, at 22:00; 22:15; 22:30; 22:45; and 23:15; 2. on 31 August 2013, at 00:00; 00:30; 01:00; 01:15; 01:30;02:30; 02:45; 05:00; 05:30; and 05:45. 1. During the Shift, RN Higgins did not conduct adequate and appropriate visual observations on Patient B in accordance with the Observation Policy at 23:06; 00:16; 00:46; 01:43; 02:53; 04:51; and 05:21 as CCTV footage shows that RN Higgins only gave Patient B cursory glances, without the aid of a torch, which is insufficient to accurately observe for signs of life. 2. RN Higgins advised RN Roche that he completed visual observations of Patients A and B at 03:15; 03:30; 03:45 and 04:00 on 31 August 2013 and, RN Roche signed the Nursing Observation Chart for Patients A and B on that advice from the practitioner, in circumstances where CCTV footage shows that no one entered the HDU Corridor to conduct observations of Patients A and B between 02:53 and 04:16, being approximately 83 minutes. 1. RN Higgins admits Particulars (1), (2) and (3) of Complaint One. He denies Particular (4) and does not admit Particular (5). He submits that the conduct described in Particular (1) does not amount to unsatisfactory conduct, but that the conduct described in Particulars (2) and (3), both individually and cumulatively, amount to unsatisfactory professional conduct. 2. The particulars to Complaint Two are Complaint One and the particulars thereto which are relied on both individually and cumulatively. RN Higgins submits that Particulars (2) and (3) do not amount to professional misconduct. The evidence 1. There was a large amount of material before the Tribunal, including but not limited to Fact Finding Reports prepared by Mr Graham Flack in respect of both RN Cooper and RN Higgins. At the time or preparing those Reports Mr Flack with Nurse Unit Manager at the Gosford Mental Health Unit, the respondents' direct line manager; Two statements of Mr Flack; a statement of Mr Phillip Menge, the Security Supervisor for Gosford Hospital; Correspondence between the respondents and the Nursing and Midwifery Council; CCTV footage of staff movements in the HDU on the night in question; Transcripts of interviews of the respondents taken in the Central Coast Local Health District (CCLHD) Investigation; the Coroner's report into the death of Patient A dated 13 November 2013 and the materials available to the Coroner; a statement of RN Cooper dated 11 September 2014, prepared for a "show cause" meeting to be held on 11 September 2014 following the CCLHD's investigation, and a number of expert reports of Ms Christine Muller. 2. RN Higgins provided a written statement to the Tribunal, as did RNs Roche and Cooper. All three were cross-examined. Otherwise, the evidence was tendered without objection, including video footage of the HDU on the night in question. 3. The evidence of RN Cooper 4. The principal evidence of RN Cooper appears in his statement of 29 May 2017. He acknowledges that he was the Nurse in Charge (NIC) of the shift on 30 and 31 August 2013, and describes his role as follows: My role as NIC was to move between the HDU and the Ward to assist with any issues arising in the facility. The NIC is generally stationed in the HDU overnight. The NIC has administrative duties to attend to during the shift. These administrative duties include, but are not limited to, ensuring the mental health team have current information by electronically updating the handover sheet, updating the fire lists and updating the ward and HDU white boards. The NIC also reviews new admission files and prepares a comprehensive handover sheet to assist at the daily team meetings. 1. RN Cooper then discusses Patient A's previous presentations to the HDU, and explains that on 27 August 2013 Patient A had been transferred from the HDU to the open ward following an assault. However, she was transferred back to the HDU on 30 August after the patient who had assaulted her was himself moved to the open ward. 2. RN Cooper says that upon arriving in the HDU at 09:15, he allocated RN Higgins to work with RN Roche. Between 22:30 and 23:45, he attended care level rounds and was satisfied that both Patients A and B were alive and sleeping. After completing the care round notes he began reading patient notes and started compiling file reviews for new admissions. This involved reviewing files and typing up relevant details including patient histories for the admissions the following Monday. During this period, RN Cooper states that RNs Roche and Higgins conducted the majority of the care level rounds with the exception of 01:45, 02:00 and 02:15, which he attended to. Again, he was satisfied that both Patients A and B were alive and sleeping. 3. He recalls that RN Higgins took a break from the HDU between 01:30 and 02:15, and RN Roche took her break from 03:30 to 04:15. RN Cooper took a break from the HDU from approximately 04:45 to 05:30. 4. RN Roche requested assistance with Patient A at about 06:00. Both RN Cooper and RN Higgins followed RN Roche to Patient A's room, where she was found to be unresponsive, with respirations and pulse absent. RN Higgins and RN Roche commenced resuscitation procedures, while RN Cooper called for the Medical Emergency Team (MET). By the time RN Cooper returned to Patient A's room, RN Higgins had retrieved the resuscitation trolley from the treatment room and was administering oxygen. Shortly after the arrival of the MET team Patient A was declared to be deceased, and further resuscitation efforts ceased. 5. RN Cooper was cross-examined the Commission's counsel. Relevantly he stated that the events of the night in question had changed him, and that he recognised closer scrutiny was required. He said that his practice as NIC had now changed, and that he now accompanies the nurse and observes the observations being undertaken if he can. He stated that he was not organised on the night in question. He said that he felt "terrible" when the shift was over and he went home. He has questioned himself repeatedly on whether he played a part in Patient A's death. He was tearful as he explained this to the Tribunal. He now understands that "back signing" or "backfilling" of Nursing Observations is not acceptable. 6. The Commission submitted that RN Cooper was not a persuasive witness, and that his evidence was inherently implausible and inconsistent with the evidence of RN Roche and RN Higgins and the other available evidence. 7. We consider that RN Cooper was a defensive witness, understandable perhaps given the circumstances in which he appeared before the Tribunal. His reluctance to completely accept responsibility as NIC was worrying, and his persistence in claiming that he undertook observations in circumstances where the CCTV footage does not support that claim is troubling. His continued claims without evidence that the CCTV footage was incomplete was particularly concerning and demonstrates a continuing lack of insight. However, his remorse over the death of Patient A appeared genuine and consistent with the supportive assessments of his character provided by colleagues past and present. Evidence of the RN Higgins 1. The principal evidence of RN Higgins appears in his statement of 13 June 2017. 2. RN Higgins admits Particulars (1), (2) and (3). In relation to Particular (1), he accepts he did not conduct an adequate visual observation of Patient A at 23:06:09 on 30 August 2013. However, he says that he could hear Patient A snoring and that he was satisfied that there signs of life. 3. In relation to Particular (2), RN Higgins states that, while he does not wish to excuse his conduct for not attending the rounds at fifteen minute intervals, he states that he was working in a team nursing model with shared responsibility for the observation rounds. By way of explanation and not attempting to excuse his conduct, he says that the culture and practice in the HDU was to attend observation rounds during night shift approximately every 30 minutes. 4. In relation to Particular (3), he acknowledges it was inappropriate and misleading to sign for rounds he had not conducted despite the entrenched culture and practice within the HDU at that time. 5. RN Higgins accepts that the conduct the subject of Particulars (2) and (3) amounts to unsatisfactory professional conduct. 6. RN Higgins denies Particular (4). The respondent explains that Patient B was in bedroom 1 of the HDU, with the bed only two paces inside the door frame, and that Patient B was sleeping with the door wide open. A "large fluro batten" in the ceiling outside the bedroom provided sufficient illumination, and the night lights in the bedrooms programmed to switch on during the night. He says that due to the quiet nature of the ward on the night in question, he was able to hear Patient B's rhythmic breathing on approach from approximately two metres either side of the doorway. He says that he could see "at a glance" that Patient B's breathing rate was regular enough to determine that he was breathing sufficiently to support life. The respondent says that he did adequately observe Patient B. 7. RN Higgins does not admit Particular (5). He says that the culture and practice in the HDU was to "backfill and sign for rounds" in between the rounds that were conducted. 8. The Commission submits that RN Higgins made numerous statements that are demonstrably not true. It submits that RN Higgins' position has changed, in that his initial position was, in effect, that he had done nothing wrong, and positively asserted in his interviews that he undertook the rounds as per the observations chart, whereas by the time of the hearing he made admissions about his conduct. 9. The Commission submits that his evidence pertaining to the clinical notes purportedly made at 06:45 is particularly damaging to his credit. The Commission submits that on its face the entry was false, both as to time and content, and was intended to create a false impression. 10. There is substance in the Commission's criticisms of RN Higgins' behaviour and insight. The evidence of Michelle Roche 1. It was RN Roche who found Patient A unresponsive in her room at 06:00 on 31 August 2013. She provided a statement to the Tribunal, to which were attached transcripts of interviews with the CCLHD, and her statement to the coroner for the resulting inquest into Patient A's death. Relevantly: 1. In her statement to Police of 5 November 2013, RN Roche stated that while she had recorded on the care level observation chart that she attended to the checks from 03:15 until approximately 04:30, she only attended to the 04:30 hours check. She stated that she signed the 03:15, 03:30, 03:45, 04:00 and 04:15 checks after consulting RN Higgins who had attended to those checks and he informing her that Patient A was sleeping soundly. RN Roche states that "this was usual practice at the hospital", which she now knows to be not appropriate; 2. In her interview with the CCLHD on 19 December 2013 during its investigation, RN Roche stated that: 1. "I just know that as a regular on night duty, if someone hadn't signed, you'd sign the – if you had done your round and you're happy with your rounds and someone had forgotten to sign, you signed the check's beforehand"; 2. "the rounds weren't every 15 minutes", which she states was "normal practice" within the HDU; 3. She did sign observation sheets on behalf of other staff members, in particular she signed for RN Higgins' rounds after he told her that he had completed the rounds 1. In her interview with CCLHD on 30 July 2014 during its investigation, RN Roche stated that the "general practice" in HDU was that the checks were conducted every 30 minutes; 2. In her interview with the CCLHD on 11 September 2014 during its investigation, RN Roche: 1. again stated that the "usual practice" was that checks in HDU were completed every 30 minutes; 2. stated that when she returned from her break after 04:00 she spoke to RN Higgins. She undertook the 04:15 observation round and noticed that previous rounds had not been signed for. She states that RN Higgins told her that he had completed the observations and, as she believed and trusted him, she signed for his observations. 1. She then states: 16. At the commencement of the shift, RN Cooper as the NIC did not allocate specific rounds for each patient, we were to do the rounds between us. This was usual practice at Gosford Hospital. 17. I recall that the night was a particularly quiet evening, given there were only two patients in the HDU. 18. RN Cooper as the NIC was based in the HDU, however, as he was also the NlC of the open ward, he was often between the two wards. l recall him being in the HDU for majority of the shift. Whilst in the HDU, he was either completing patient rounds or he was catching up on paperwork in the nurses station. 19. I do not recall RN Cooper specifically checking that the observation rounds for Patient A or Patient B had been attended to when he returned to the HDU each time. My recollection is that this was not something that the NIC would usually do at Gosford Hospital. 20. As I have mentioned a number of times, it was the usual practice in the HDU that observations were done every 30 minutes. This was not something that the staff was specifically advised to do, however, it was the unspoken practice of the staff who worked in the HDU. 21. I have admitted that I signed for the observations between approximately 0315 and 0415 when I was in fact on a break. I back-signed these observations following a conversation with RN Higgins where I asked him if he had attended to those observations whilst I was on my break. 22. I do not recall the specific details of the conversation with RN Higgins, however, I recall returning from my break and seeing that the observation chart was not filled in for the times that I was on my break l recall RN Higgins making a comment about Patient A snoring. 23. It was usual at Gosford Hospital that if there was a gap in the observation chart the next person to do observations would ask if the observations had been done, and if someone said they had been, you would back-sign the observation chart. I recall this happening a couple of times at Gosford Hospital. 1. The Commission submits, and we accept, that there was a consistency in the evidence of RN Roche that reflects favourably upon her credibility. From her first police statement and through three interviews and her evidence via telephone before the Tribunal there was consistency. Where there is an inconsistency between her evidence and that of RN Higgins and RN Cooper, we consider that her evidence should be preferred. The evidence of Ms Christine Muller 1. The Commission qualified Ms Christine Muller to provide expert opinion in relation various aspects each complaint. Separate reports were prepared for each respondent. RN Cooper 1. In relation to RN Cooper, Ms Muller describes the responsibilities of a Nurse In Charge of Shift in relation to ensuring that observations of patients are undertaken. She states: The Nurse-In-Charge (NIC) of shift is responsible for ensuring the smooth running and operation of the unit in the absence of the nominated Nurse Unit Manager. This includes ensuring that the allocated RNs are aware of their responsibilities in relation to the completion of observation rounds and that they are attended. It is also reasonable to assume that the NIC would relieve staff when they were on allocated break which would increase the responsibility associated with ensuring all rounds were completed in a timely and appropriate manner. 1. In relation to the adequacy of RN Cooper's supervision of the observations of Patients A and B, with reference to the responsibility of an NIC, she further states that: From the information available to me: • RN Cooper spent time both units however was based in the [HDU] • Observation rounds were not completed at 15 minute intervals as per the policy but at intervals that ranged between 23 and 83 minutes before the MET Call was made at approximately 0557 • 63% (7) of observation rounds were completed at approximately 30 minute intervals (r23-41 minutes), 27% (3) of rounds were completed at approximately 60 minute intervals (r48-67 minutes), 9% (1) of rounds was completed after an 83 minute interval. • No rounds were completed when RN Roche was at her break between 0330 and 0415. Reviewers Comment When I consider that RN Cooper was primarily based in the [HDU] as the NIC, yet rounds were completed at intervals between 23 and 83 minute time frames rather than 15 minute time frames, I feel that RN Cooper failed to adequately supervise or monitor the completion of observations rounds for [Patients A and B]. I find this failure to fall significantly below the standard that would reasonably be expected of a senior mental health nurse with equivalent experience and education. This failure invites my strong criticism. 1. Ms Muller was asked to comment on the adequacy and appropriateness of RN Cooper's observations of Patient A, and asked to review the CCTV footage. She states that, while not ideal, RN Cooper's observation of Patient A at 23:35 on 30 August and 02:05 on 31 August 2013, while not ideal, to be consistent with what would reasonably be expected of a senior registered mental health nurse with equivalent experience and education. 2. Ms Muller is asked to comment on the adequacy and appropriateness of RN Cooper's recorded observations on the Nursing Observation Chart for Patient A on 30 and 31 August 2013. Again she states that, while not ideal, the documentation was consistent with what would reasonably be expected of a senior registered mental health nurse with equivalent experience and education. 3. Ms Muller was asked to provide her opinion of RN Cooper's conduct in signing Patient A's Nursing Observation Chart at 23:45, 01:45 and 02:15 hours, when CCTV footage indicated that he did not observe her at or near those times. Ms Muller states that signing for rounds that did not occur falls significantly below the standard that would reasonably be expected of a senior mental health nurse with equivalent experience and education. She states that RN Cooper's actions invite her strong criticism despite the culture and practices of the HDU at the time due and his insistence that he did complete the observations, given his role as the NIC. 4. Ms Muller was asked to provide her opinion of RN Cooper's conduct in signing Patient A's Nursing Observation Chart at 01;45 hours, when CCTV footage indicates that RN Higgins did the observations rounds at this time. She states that, assuming that RN Cooper observed the round being completed from the nurses' station, the decision to sign off the round observation fell below the standard that would reasonably be expected of a senior mental health nurse with equivalent experience and education, but it did not attract her strong criticism. 5. Ms Muller was asked to provide her opinion of RN Cooper's visual observations of Patient B on 30 and 31 August 2013. She states that a cursory glance inside the room was insufficient to observe for signs of life, and that completing observations without the aid of a torch to be an unusual practice which would hinder accurate observation. She states that RN Cooper's observations to be significantly below the standard that would reasonably be expected of a senior mental health nurse with equivalent experience and education, and invited her strong criticism. However, we note that at the commencement of Ms Muller's oral evidence she stated that she considered the audible breathing of Patient B as a sufficient clinical indicator that he was alive. She said that RN Cooper's conduct might have been below the standard of what would reasonably be expected of a senior mental health nurse with equivalent education and experience, but she stated that it was not a significant departure in order to be considered significant enough to attract her strong criticism. 6. Ms Muller was asked to comment on the adequacy and appropriateness of RN Cooper's recorded observations on the Nursing Observation Chart for Patient A on 30 and 31 August 2013. She considered that his documentation met the minimum standard required for a night duty shift where the patient remained in bed the entire shift. While not ideal, she felt that this was consistent what would be reasonable to expect of a senior mental health nurse with equivalent education and experience, particularly on night duty when the patient was settled and sleeping through the night. 7. Ms Muller was asked to provide her opinion of RN Cooper's conduct in signing Patient B's Nursing Observation Chart at 23:45, 01:45 and 02:15 hours when CCTV footage did not observe him on or near those times. Ms Muller states that signing for rounds that did not occur falls significantly below the standard that would reasonably be expected of a senior mental health nurse with equivalent experience and education. She stated that RN Cooper's actions invited her strong criticism despite the culture and practices of the HDU at the time and to his insistence that he did complete the observations, and given his role as the NIC. 8. Ms Muller was asked to provide her opinion of RN Cooper's conduct in signing Patient B's Nursing Observation Chart at 01:45, when CCTV footage indicates that RN Higgins did the observations rounds at that time. She considered that, assuming that RN Cooper observed the round being completed from the nurses' station, the decision to sign off the round observation fell below the standard that would reasonably be expected of a senior mental health nurse with equivalent experience and education, but it did not attract her strong criticism. RN Cooper 1. Ms Muller made similar criticisms of RN Higgins' conduct as she made of RN Cooper's conduct. 2. Ms Muller is asked to comment on the adequacy and appropriateness of RN Higgins' visual observations of Patient A. She states, in summary, that of the seven rounds, rounds two to seven were consistent with what would be reasonable to expect of a clinical nurse specialist with equivalent education and experience. However, round 1 (the round at 23:06 on 30 August 2013), was significantly below the standard that would reasonably be expected of a mental health clinical nurse specialist with equivalent experience and education, and invited her strong criticism. 3. In relation to the adequacy and appropriateness of RN Higgins' recorded observations on the Nursing Observation Chart for Patient A, Ms Muller states that his documentation met the minimum standard required for a night duty shift where the patient remained in bed the entire shift. While not ideal, she felt that this was consistent what would be reasonable to expect of a senior mental health nurse with equivalent education and experience, particularly on night duty when the patient was settled and sleeping through the night. 4. In relation to RN Higgins conduct in signing Patient A and B's Nursing Observation Charts when CCTV footage indicated that he did not observe her on or near those times, Ms Muller states that signing for rounds that did not occur falls significantly below the standard that would reasonably be expected of a clinical nurse specialist with equivalent experience and education. She states that RN Higgins' actions invited her strong criticism despite the culture and practices of the HDU at the time due to his insistence that he did complete the observations and given his role as a clinical nurse specialist. 5. Ms Muller was also asked her opinion of RN Higgins being aware of RN Roche signing off on Patient A's Nursing Observation Charts when she had not competed those rounds and based on his comments that he had observed Patient A sleeping. Ms Muller states that, assuming RN Roche was accurate in her statement that she completed the observation rounds based on advice from RN Higgins that he had actually completed the rounds and that Patient A was sleeping when there was no evidence in his reports of the CCTV footage that the rounds were completed, the behaviour fell significantly below the standard that would reasonably be expected of a clinical nurse specialist with equivalent experience and education and invited her strong criticism. 6. In relation to the adequacy and appropriateness of RN Higgins' visual observations of Patient B on 30 and 31 August 2013, Ms Muller states that the observations were significantly below the standard that would reasonably be expected of a clinical nurse specialist with equivalent experience and education and invited her strong criticism. 7. Ms Muller was asked to comment on the adequacy and appropriateness of RN Higgins' recorded observations on the Nursing Observation Chart for Patient B on 30 and 31 August 2013. She considered that his documentation met the minimum standard required for a night duty shift where the patient remained in bed the entire shift. While not ideal, she felt that this was consistent what would be reasonable to expect of a senior mental health nurse with equivalent education and experience, particularly on night duty when the patient was settled and sleeping through the night. Oral evidence 1. As noted, Ms Muller in oral evidence changed her assessment of the adequacy of the observations of Patient B on the assumption that there was sufficient light to observe Patient B. While she stated that the observations were still below the applicable standard, they were not significantly below the applicable standard. The Commission acknowledges that it is unable to direct the Tribunal's attention to any evidence directly relevant to the level of lighting in Patient B's room. 2. Mr Byrne, for RN Cooper, asked Ms Muller her opinion about the team nursing model of practice as opposed to the individual patient model of care. Ms Muller said that both were effective. The evidence of Mr Menge 1. Mr Menge is the Security Supervisor at Gosford Hospital. One of his duties is retrieve CCTV footage when required. In his statement he explains the positioning and operations of the three CCTV cameras in the HDU. He explains that the cameras are "motion sensored", that is the recordings only begin when the sensor is triggered. Once initial motion is activated recording is activated. When no further motion is detected, footage ceases and the footage appears to freeze. Once motion is detected again the camera recommences recording. 2. Mr Menge states that he has no reason to believe that the system was configured incorrectly, that there was a problem with the data transfer between the CCTV cameras and the digital video recorders or that the data was edited. 3. Mr Menge was not required for cross-examination. Relevant Findings 1. As the Tribunal noted in Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62 at [8]: The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. 1. On the basis of the tendered materials, and the evidence of the witnesses including their cross-examination, we make the following relevant findings. Overview 1. The events that are the subject of the complaints occurred in the Gosford Mental Health Unit of Gosford Hospital. The Gosford Mental Health Unit is a 30 bed declared mental health facility comprising a 6 bed High Dependency Unit (HDU) and a 24 bed General Acute area. 2. The HDU is located in one of four wings of the Mental Health Unit. Patient A was located in the last room on the right hand side of the corridor (when viewed from the direction of the main section of the hospital). Patient B occupied a room on the left hand side of the corridor. Staffing arrangements on the night of 30 August and morning of 31 August 2013 1. RN Higgins was rostered on shift in the HDU as a Clinical Nurse Specialist. His shift commenced at 21:30 on 30 August and concluded at 07:30 on 31 August 2013. 2. RN Cooper was rostered on shift as the Nurse In Charge of Shift of the Gosford Mental Health Unit. This involved responsibility for the HDU (six beds) and the adjoining sub acute open ward (24 beds). His shift commenced at 21:30 on 30 August and concluded at 07:30 on 31 August 2013. He was stationed in the HDU. 3. RN Michelle Roche was also rostered on shift in the HDU. She had worked during the afternoon shift and agreed to work overnight. Patients A and B 1. Patient A was admitted to the Gosford Mental Health Unit on 26 August 2013 for schizoaffective disorder and was transferred from the open ward to the HDU on 30 August 2013. In the HDU, she was under care level 2 observation, which requires 15 minute observations. 2. At approximately 06:00 on 31 August 2013, Patient A was found unresponsive in her room by RN Roche. An AIMS Incident Detail report of Benita Bolcina states: Rapid response to mental health HDU. [Patient A] found on a mattress on the floor and on her back dead. Had clearly been dead for several hours as rigor mortis had set in. Her arms were in the air and her legs bent. I was unable to straighten them. On arrival the male nurse was using an ambu bag to bag the patient. I told him to stop as it was futile and the patient already dead and had been for some time. . . . The male nurse was clearly distressed by the incidences. When probed by my ICU [registrar] re when the patient was last observed he initially borked [sic – baulked] at the question. The question was asked in a few different ways and the answer finally came "an hour ago". 1. An inquest into the death of Patient A was dispensed with by Coroner John Arms. In his report of 13 November 2013, the Coroner found that there were no suspicious circumstances surrounding Patient A's death and that the "usual practice" of nursing staff signing observations based on instructions from the actual observer did not contribute to her death and that the cause of her death on post-mortem was an apparent natural cause, being morbid obesity, features consistent with sleep apnoea, schizophrenia and coronary heart disease. 2. Patient B was admitted to the Mental Health Unit on 19 August 2013 for schizophrenia and depression and was transferred to the HDU. In the HDU, he was under care level 2 observations, which requires 15 minute observations. CCTV footage of observations 1. The Gosford Mental Health Unit had a number of CCTV cameras operating on the night of 30 August 2013. The task of retrieving CCTV footage was undertaken by the Gosford Hospital Security Supervisor, Phillip Menge. 2. There were three cameras operating in the HDU on 30 and 31 August 2013. The cameras were set to 'motion sensor' mode. On this setting, a recording is made only when a motion sensor is activated. Three digital video recorders (DVRs) collect the data from the cameras. 3. Mr Menge was requested to provide the recordings from the CCTV cameras from around 20:00 to 08:00. In response to this request, he provided a USB to the HCCC on 22 May 2015. It was the same footage that was viewed by the Respondents and used as part of the CCLHD's investigation. 4. A summary of the CCTV material was made by Mr Dan Matthews, Manager Workforce Services for the LHD. 5. Between the hours of 22:00 on 30 August and 06:00 on 31 August 2013 if observations had been made every 15 minutes, there would have been a total of 33 separate observations made. The CCTV shows that there were 12 observations made and 21 not made. (A table showing the contents of the CCTV cross-referenced with the Observation Charts was attached to the Commission's submissions.) 6. Based on the CCTV footage we find that RN Cooper undertook the following observations in the following manner: 1. On 30 August 2013, at 23:35:11, RN Cooper walked past Patient B's room holding a torch. He gave a cursory glance inside Patient B's room, but did not stop walking and did not use the torch. He continued walking to Patient A's room, where he looked inside her room using his torch for approximately three seconds; 2. On 31 August 2013, at 02:05:02, RN Cooper walked past Patient B's room holding a torch. He gave a cursory glance inside Patient B's room, but did not stop walking and did not use the torch. He continued walking to Patient A's room, where he looked inside her room using his torch for approximately four seconds; 1. Based on the CCTV footage we find that RN Higgins undertook the following observations in the following manner: 1. On 30 August 2013, at 23:06:09, RN Higgins walked past Patient B's room holding a torch. He gave a cursory glance in the direction of Patient B's room, but did not stop walking, did not look inside the room and did not use the torch. He continued walking to Patient A's room, but turned around before reaching it. As he walked past Patient B's room, he gave a cursory glance in the direction of the room, but did not stop walking or look inside the room. He did not use the torch at any time; 2. On 31 August 2013, at 00:16:58, RN Higgins walks past Patient B's room holding a torch. He gave a cursory glance in the direction of Patient B's room, but did not stop walking, and did not look inside the room. He continued walking to Patient A's room, where he looked inside her room using his torch for approximately nine seconds. He then returns down the corridor, and as he walked past Patient B's room, he gave a cursory glance in the direction of the room but does not stop walking or look inside the room. He did not use the torch at any time. 3. On 31 August 2013, at 00:46:39, RN Higgins walks past Patient B's room holding a torch. He gave a cursory glance in the direction of Patient B's room, but did not stop walking, and did not look inside the room. He continued walking to Patient A's room, where he looked inside her room using his torch for approximately three seconds. He then looked inside her room again for approximately four seconds. He then returned down the corridor and as he walked past Patient B's room he gave a cursory glance in the direction of the room, but does not stop walking and does not look inside the room; 4. On 31 August 2013, at 01:43;48, RN Higgins walked past Patient B's room holding a torch. He gave a cursory glance in the direction of Patient B's room, but did not stop walking, and does not look inside the room. He continued walking to Patient A's room, where he looked inside her room using his torch for approximately three seconds. He then looked inside her room again for approximately seven seconds. He then returned down the corridor and as he walked past Patient B's room he gave a cursory glance in the direction of the room, but did not stop walking and did not look inside the room; 5. On 31 August 2013, at 02:53:27, RN Higgins walked past Patient B's room holding a torch. He gave a cursory glance in the direction of Patient B's room, but did not stop walking, and did not look inside the room. He continued walking to Patient A's room, where looked inside her room using his torch for approximately 14 seconds; 6. On 31 August 2013, at 04:51:18, RN Higgins walked past Patient B's room holding a torch. He gave a cursory glance in the direction of Patient B's room, but did not stop walking, and did not look inside the room. He continued walking to Patient A's room, where he looked inside her room using his torch for approximately seven seconds. He then returned down the corridor and as he walks past Patient B's room he gives a cursory glance in the direction of the room, but does not stop walking and does not look inside the room; 7. On 31 August 2013, at 05:21:38, RN Higgins walked past Patient B's room holding a torch. He gave cursory glance in the direction of Patient B's room, but did not stop walking, and did not look inside the room. He continues walking to Patient A's room, where he looks inside her room using his torch for approximately 15 seconds. He then returns down the corridor and as he walked past Patient B's room he gave a cursory glance in the direction of the room, but does not stop walking and does not look inside the room. 1. At 05:53:48 hours, RN Roche is seen walking through the corridor holding a torch in her left hand. She walks to Patient B's room, stops and looks inside his room for approximately four seconds. She then walks to Patient A's room, looks inside her room and then enters the room. At 05:57:03 RN Roche is seen leaving Patient A's room, running down the corridor. On the balance of probabilities RN Roche was inside Patient A's room between 05:54:18 to 05:57:03 hours. 2. At 05:57:13, RN Roche runs down the corridor to Patient A's room. A few seconds later RN Higgins walks promptly to Patient A's room, followed by RN Cooper. 3. The observations for Patients A and B were signed for as follows: 1. By RN Cooper: 1. on 30 August 2013, at 23:30 and 23:45; 2. on 31 August 2013, at 01:45, 02:00; and 02:15; 1. By RN Higgins: 1. on 30 August 2013, at 22:00; 22:15; 22:30; 22:45 and 23:15; 2. on 31 August 2013, at 00:00; 00:30; 01:00; 01:15; 01:30; 02:30; 02:45; 05:00; 05:30; and 05:45; 1. By RN Roche: 1. on 30 August 2013, at 20:30, 20:45 and 21:00; 2. on 31 August 2013, at 03:15; 03:30; 03:45; 04:00; 04:15 and 04:30. 1. Based on the CCTV footage, the accuracy and completeness of which we have no reason to doubt, the only observations which in fact were made by RNs Higgins and Cooper were: 1. By RN Cooper: 1. On 30 August at 23:35:11, and 2. On 31 August at 02:05:02, 1. By RN Higgins: 1. on 30 August at approximately 23:06:09, and 2. on 31 August at 00:16:58, 00:46:39, 01:43;48, 02:53:27, 04:51:18 and 05:21:38, in the circumstances described above. 1. Any submission is made that to the effect that the footage is incomplete or unreliable is, in the absence of any expert evidence on the issue, rejected. We are satisfied that the CCTV footage does show, and we find, that no-one entered the HDU Corridor to conduct observations of Patients A and B between 02:35 and 04:16 hours. 2. Accordingly, we find that RN Cooper did not undertake observations on 30 August 2013 at 23:45 and on 31 August 2013, at 01:45 and 02:15 as claimed and as signed for. It follows that we reject his evidence that he did. 3. Accordingly, we find that, given his admissions, RN Higgins did not undertake observations of Patients A and B on 30 August 2013, at 22:00; 22:15; 22:30; 22:45 and 23:15 on 31 August 2013, at 00:00; 00:30; 01:00; 01:15; 01:30; 02:30; 02:45; 05:00; 05:30; and 05:45. Conclusions re RN Cooper Particular (1) 1. RN Cooper denies Particular (1). He submits that he observed Patients A and B on or near 23:45 on 30 August 2013, and on or near 01:45 and 02:15 on 31 August 2013. He does not recall any event or incident that shift that would have prevented him from attending to either Patients' nursing observations. We reject that evidence and his submission. Given our findings above, we find that each of Particulars (1)(a), (b) and (c) are established. We reject the lengthy submissions of RN Cooper that the video footage is inaccurate or unreliable. The submission is not supported by expert evidence, nor was Mr Menge's evidence tested in cross-examination. Particular (2) 1. RN Cooper denies Particular (2). RN Cooper says that he did not consider it necessary to shine a torch on Patient B as there was sufficient light provided from the corridor. He states that after satisfying himself that Patient B was alive, he did not need to enter Patient B's room on account of the time of the day and his need for sleep. He also states that he heard Patient B's breathing was audible. The cross-examination of RN Cooper did not cause us to doubt these matters. In the circumstances, we find that Particular (2) is not established. Particular (3) 1. In relation to Particular (3), RN Cooper admits that he did not apply close or direct supervision to either RN Roche or RN Higgins throughout their shifts, at least to the extent that he monitored each nurse to ensure that the 15 minute observations were completed. He says that it was his usual practice, as the nurse-in-charge, to regularly ask all nurses throughout the shift, whether they had any problems or concerns that required his input or escalation, and that neither RN Roche or RN Higgins raised any such concerns throughout the shift. 2. He submits he allocated RN Higgins to work in the HDU for the shift. RN Higgins was a Clinical Nurse Specialist and had 11 years' nursing experience. He also allocated RN Roche, who had 4 years' experience as a nurse, and was familiar with Patient A's current management plan, treatment regime, blood results (low sodium levels) and had developed a good rapport with Patient A. Knowing that he would be moving between the HDU and the General Ward throughout his shift, RN Cooper submits that he considered the skill-mix of allocating RN Higgins and RN Roche to the HDU was appropriate that shift. 3. He relies on the oral evidence of RN Higgins that he would regularly ask if the rounds had been completed. He says that there was no 'Duties List' prescribing the roles or responsibilities of a NIC within the Gosford Mental Health Inpatient Unit, and says that the role of the NIC was constantly evolving. He described a number of administrative tasks and checks he was required to undertake overnight in preparation for the following shift and that he was frequently absent from the HDU, as he moved between the HDU and General Ward throughout his shift. 4. He says that that he would, at times, review the Observation Charts of Patients A and B, to check whether the Observation rounds for that period had been completed. 5. In summary, he submits that it was not possible for him to ensure that RN Higgins and RN Roche were completing observations on Patient A and Patient B every 15 minutes as there were five RN's working under his supervision on that shift, namely RN Higgins and RN Roche in the HDU, and a further three RNs working in the General Acute Unit. 6. The Commission relies says the Tribunal should find that Particular (3) is established. The Commission submits, and we accept, that in cross-examination, RN Cooper: 1. Agreed that on the night of the 30 August and morning of the 31 August there must have been occasions when the Observation Charts contained gaps; for example, when RN Roche was on a break from around 0330 to 04:15; 2. Agreed that the Observation charts shows RN Roche signed the charts in the spaces pertaining to the times: 03:15, 03:30, 03:45, 04:00, 04:15 and 04:30, but that she could not have made those observations before 04:15 because she was on a break. 3. Acknowledged that if there was no forward filling of the observation charts then some of the entries must have been signed after Patient A was located and found to be unresponsive. In this respect, he was taken to the AIMS Incident Detail document in which a nurse Benita Bolcina recorded that "The male nurse was clearly distressed by the incidences (sic). When probed by my ICU reg re when the patient was last observed he initially borked [sic – baulked] at the question. The question was asked a few different ways and the answer finally came… "an hour ago". 4. Stated that he was not aware of the comments and would not have instructed staff to backfill. 5. Stated that he was not in the ward the entire time. 1. The Commission submits that this evidence is relevant to more than just RN Cooper's credit, and is also relevant to Particular 3. 2. As Ms Muller stated, the role of the NIC is to ensure the smooth running and operation of a unit in the absence of the nominated Nurse Unit Manager. This includes ensuring that the allocated RNs are aware of their responsibilities in relation to the completion of observation rounds and that they are attended. It is also reasonable to assume that the NIC would relieve staff when they were on allocated break which would increase the responsibility associated with ensuring all rounds were completed in a timely and appropriate manner. 3. We find particular (3) established. Unsatisfactory professional conduct? 1. Unsatisfactory professional conduct is defined in s 139B of the National Law relevantly as: conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. The Tribunal can look at all the conduct found proven either separately or cumulatively when making a determination as to whether the conduct amounts to unsatisfactory professional conduct: Health Care Complaints Commission v Rahimpanah [2014] NSWMPSC 4. 2. The Code of Conduct as in force at the relevant time imposed a duty on each respondent to carry out their duties diligently and efficiently and to comply with all applicable NSW Health policies and procedures. The relevant applicable policy was contained in the Observation Policy. The Observation Policy provides that patients are to be subject to one of four levels of observation described as Level 1 – 4. Patient A and Patient B were both subject to Level 2 observations. The Observation Policy states, in the case of Level 2 patients, observations are to occur at least every 15 minutes, patients are to be checked for signs of life and these are to be documented. Individual observation charts are to be kept as part of the health care record. 3. The Observation Policy states that: observation is an important nursing skill, and is vital to patient safety in the acute stages of mental illness, when patients may be vulnerable and become a risk to themselves. The aim is to prevent potentially suicidal, violent or vulnerable patients from harming themselves of others. Observation is not simply a custodial activity. It is also an important opportunity for continuing assessment, engagement of the patient if that is possible and developing the therapeutic alliance. 1. We consider that RN Cooper as NIC had a responsibility to ensure that his nursing staff were aware of their responsibilities in relation to the Observation Policy and for completing the required Level 2 observations of both patients A and B. His failure to do so constitutes unsatisfactory professional conduct. 2. We also consider that the conduct of RN Cooper in signing for observation rounds (namely on 30 August 2013 at 23:45 and on 31 August 2013 at 01:45 and 02:15) that he did not undertake to be unsatisfactory professional conduct. 3. We find that each of Particulars (1) and (3), when considered individually, and cumulatively, amounts to unsatisfactory professional conduct. The conduct the subject of each particular is conduct that demonstrates that the judgment possessed and lack of care exercised by RN Cooper was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Professional misconduct? 1. Professional misconduct is defined in s 139E of the National Law as: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": Health Care Complaints v Perroux [2011] NSWDC 99 at [18]; Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [278]. 2. The Commission submits that when assessing the seriousness of each respondent's conduct (in the context of s 139E) the consequences of the conduct in question is relevant. It submits that it is hard to conceive a more vulnerable person that Patient A on 30 August 2013. She suffered a debilitating mental illness that left her unable to control her thoughts and actions. The Commission submits that Patient A died alone in the HDU where she had been assessed as requiring 15 minute checks to ensure her safety and wellbeing. The Commission submits that had the policy been applied, Patient A might well be alive today. 3. The difficulty with this submission is that there is no suggestion in either complaint that RN Higgins or RN Cooper was responsible in any way for the death of Patient A. This is understandable, as there is a Coroner's finding that the lack of observation of her did not contribute to her death and that she died of natural causes. In this respect, we note the statement in Corpus Juris Secundum, vol 58 (1948) at 818 (referred to by Kirby P in Pillai v Messiter (No.2) (1989) 16 NSWLR 197 at 200) that whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences. Nevertheless, the Commission also submits that we should be satisfied that the conduct the subject of the complaints amounts to professional misconduct for the following reasons. 4. First, the conduct was deliberate, in that RN Cooper was aware of the requirement for 15 minute observations, and his conduct in not ensuring the undertaking of observations was not merely negligent or accidental, as was his own conduct signing for observations that he did not undertake. 5. Secondly, the conduct was ongoing. RN Cooper gave evidence to the effect that the night in question was a normal night, and that it was not unusual in any respect. The Commission submits that the conduct was so established and entrenched as to amount to a "culture" of 30 minute observations, as claimed by both RN Roche and RN Higgins. 6. Thirdly, in Pillai, Kirby P stated at 200 that the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession, and that something more was required, such as a deliberate departure from accepted standards. There, Kirby P was considering the statutory test of "misconduct in a professional respect" contained in s 27(1)(c) of the Medical Practitioners Act 1938, but we see no reason why the principle is not applicable in the present circumstances. 7. We find that the conduct the subject of Particulars (1) and (3) when considered cumulatively amounts to professional misconduct. We find that the conduct, being more than one instance of unsatisfactory professional conduct is conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of RN Cooper's registration. Conclusions re RN Higgins 1. RN Higgins has admitted Particulars (1), (2) and (3) to Complaint One. 2. Given our findings above, we find that Particular (4) is established. 3. As to Particular (5), the issue is whether or not RN Higgins told RN Roche that he had completed observations of Patients A and B on four occasions on 31 August 2013, RN Roche signing the Nursing Observation Charts for Patients A and B on that advice, in circumstances where CCVT footage shows that no-one entered the HDU Corridor to conduct observations of Patients A and B between 02:35 and 04:16 hours. As noted, RN Higgins does not admit (as opposed to denies) the particular. He says in his statement that he cannot recall advising RN Roche that he had completed visual observations of Patients A and B. He says that there was an entrenched culture and practice within the HDU at the time to "backfill" and sign for rounds "in between the rounds that were conducted". 4. Where there is a conflict between the evidence of RN Higgins and RN Roche, we prefer the evidence of RN Roche. She has been consistent in her account of her conversation with RN Higgins and the practice of "backfilling" in place at Gosford Hospital at the time for over four years. 5. As with RN Cooper, the Commission submits that the conduct of RN Higgins was deliberate, in that he was aware of the requirement for 15 minute observations his conduct in not undertaking the observations was not merely negligent or accidental, and was ongoing. He too claimed that there was a "culture" of 30 minute observations. 6. In the circumstances, we also find Particular (5) is established. 7. Applying the principles set out above: 1. We find that the conduct the subject of each of Particulars (1), (2), (3), (4) and (5), when considered individually, and when considered cumulatively, amounts to unsatisfactory professional conduct. The conduct the subject of each particular is conduct that demonstrates that the judgment possessed and lack of care exercised by RN Higgins was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; 2. We find that the conduct the subject of Particulars (1), (2), (3), (4) and (5), when considered cumulatively, amounts to professional misconduct. We find that the conduct, being more than one instance of unsatisfactory professional conduct is conduct that, when the instances are considered together, amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of RN Higgins' registration. Protective Orders 1. The relevant principles in determining the appropriate order include the following. 2. First, the nature of the jurisdiction of the Tribunal is not to punish the respondent, but to protect the public and to maintain proper standards in the profession: Clyne v New South Wales Bar Association [1960] HCA 40; Prakash v Health Care Complaints Commission [2006] NSWCA 153. 3. Secondly, in determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public: s 3A of the National Law. 4. Thirdly, there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include the reminder to other members of the profession of the public interest in maintaining high professional standards (the deterrent aspect to the protective nature of the jurisdiction: Health Care Complaints Commission v Do [2014] NSWCA 307 and the unacceptability of certain kinds of conduct and the maintenance of confidence in the high standards of the profession: New South Bar Association v Meakes [2006] NSWCA 340. 5. Fourthly, the conduct of the respondent must be measured against what is reasonably expected of a practitioner of an equivalent level of training and experience and by the standard of the profession. In Health Care Complaints Commission v Litchfield (1977) 41 NSWLR 630 the Court stated at 638: 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 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. 1. Fifthly, the test for cancellation of a practitioner's registration under the National Law was stated by the Tribunal in Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [278] to [280] as follows: [278] In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18]. [279] The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. [280] Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 1. Sixthly, the object of protection of the public includes deterring the practitioner from repeating his or her misconduct and deterring others who might be tempted to behave in a similar way: NSW Bar Association v Hamman (1999) NSWCA 404. 2. Seventhly, in determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v Health Care Complaints Commission (2002) NSWCA 111 at [55]. 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: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] per Basten JA. 3. Accordingly, a finding of professional misconduct may not automatically lead to cancellation of a practitioner's registration, although deregistration may 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: Litchfield; Re Dr Parajuli [2010] NSWMT 3; Saville v Health Care Complaints Commission [2006] NSWCA 298; Prakash v Health Care Complaints Commission [2006] NSWCA 153. 4. Eighthly, 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 at 113. 5. The Commission submits that there is a palpable lack of insight shown by both respondents and the order of cancellation sought by it in each case is justified having regard to the protective nature of the jurisdiction. The Commission submits that the Tribunal can protect the community most effectively sending a clear message that this sub-standard pattern of conducting observations will result in serious consequences for those involved. 6. RN Cooper 7. RN Cooper submits that is a matter for the Tribunal to determine whether cancellation of his registration for a period of 12 months is appropriate. He submits that that order would harsh, unreasonable and not serve the public interest. He suggests a reprimand, and/or conditions relating to education courses in ethics and record keeping. He submits that he is not a risk public safety if he was to continue practising as a nurse. 8. In support of this submission, he relies on the following matters: 1. His nursing career spans 22 years and that he currently works as a registered nurse; 2. He has continued to work as an registered nurse without incident since 31 August 2013 and he currently occupies a senior nursing position within his chosen mental health specialty; 3. He is married with three young dependent children, and a cancellation of his nursing registration will adversely impact his capacity to provide for his family. He has no trade or tertiary qualification outside the profession of nursing; 4. In the 18 years that he has worked as a nurse prior to this complaint in 2013, and in the 4 years that he has worked following, he has never been the subject of any complaint, investigation, or had any disciplinary finding made against him; 5. At no time have conditions been placed on his registration; 6. At no time either before or after this matter, did the Nursing & Midwifery Council impose conditions on RN Cooper's registration, or his right to practice restricted, suspended or withdrawn. 1. RN Cooper also relies on references from experienced mental health nurses who occupy senior management positions within the mental health directorate of the Western Australia Great Southern Mental Health Service. He submits that these references show that he has been an exemplary employee as well as a competent and safe practitioner. He submits that any cancellation of registration would not only impact him professionally and personally, it would impact the service for which he is currently employed. His departure would result in the loss of considerable nursing expertise to the profession. 2. In this respect, we have before us very supportive references of peers of RN Cooper, including his "line manager" at the Great Southern Mental Health Service in Western Australia (GSMHS), Ms Joan Valley. She states that he "definitely" is a fit and proper person to be held out to patients and the whole community as a person worthy of their confidence. She also states that if the particulars to the complaints were found to be true, she would be disappointed but that that would not affect her view. 3. Similar remarks are made by Ms Kate Hambleton, a Clinical Nurse Consultant with the GSMHS. She states that RN Cooper is capable, committed team member and leader. Since his employment in March 2015, he has given her no cause for concern regarding his nursing practice. 4. Mr Gary Greenwald is RN Cooper's clinical supervisor at GSMHS. He too provides an extremely supportive professional and personal reference, stating that RN Cooper is a compassionate, conscientious, diligent and committed; and a man of integrity. 5. Former colleagues of RN Cooper from Gosford Hospital also provided positive references. 6. As we have stated above, the Tribunal has a wide discretion relating to disposition of a complaint establishing professional misconduct. We must consider the whole of the practitioner's conduct (Gad) and the circumstances of the particular case (Karalasingham), and that a finding of professional misconduct may not automatically lead to cancellation of a practitioner's registration: see too Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178. 7. Our finding of professional misconduct means that it is open to us, if appropriate to do so, to make an order suspending or cancelling his registration. There is no doubt that his failure as NIC to ensure that timely observations were made of Patients A and B in accordance with the Observation Policy was a serious matter. However, we have noted above our observations of RN Cooper's distress at the death of Patient A in the witness box which we accept was genuine. This was corroborated by one of RN Cooper's referees, a colleague form Gosford Hospital, Su Wells, who also knew Patient A. 8. We do not find the circumstances of this case warrant the cancellation of the practitioner's registration. We accept the practitioner's expressions of remorse and contrition as genuine. We accept that cancellation of the practitioner's registration would deprive the community in rural Western Australia of a skilled senior nurse. 9. We accept that, as noted by many of the professional referees, it has taken a significant period of time for these complaints to be heard. It is now close to four and half years since the night in question, in circumstances where RN Cooper has continued to work unsupervised, in senior positions, and without complaint. 10. We have given consideration to imposing a period of suspension, but do not think it appropriate to do so. We consider that the public is sufficiently protected by a public reprimand, which will appear on the National Register maintained by the Australian Health Practitioner Regulation Agency. 11. RN Cooper has conceded that it would be appropriate for us to issue a reprimand, and we think that that is an appropriate concession. As was stated in Hanna (No 2) at [52]: The imposition of a reprimand is a serious matter. It is a public record that a practitioner's conduct has fallen below the standard expected of such a professional. It sends a message of deterrence to other practitioner's and upholds the reputation of the profession. A reprimand can only be removed from the Register on application by the practitioner to the National Board. 1. We have considered the various conditions that the Commission has suggested in the event that we decide not to cancel either respondent's registration. The only conditions that we consider are necessary are: 1. RN Cooper must complete an education course on record keeping and ethics that has been approved by the Nursing and Midwifery Council of NSW within 12 months of the date of this decision; 2. RN Cooper is to provide to the Nursing and Midwifery Council of NSW evidence of successful completion of the courses signed by an individual authorised by the education institution within 14 days of completion of the course; 1. Finally, we also note that RN Cooper has referred us to the protective orders made by the NSW Nursing and Midwifery Professional Standards Council, Health Care Complaints Commission v Thomas, Hayden, Rumble [2017] NSWNMPSC 1, Health Care Complaints Commission v Mullen [2016] NSWNMPSC, and Health Care Complaints Commission v Kennedy, Thompson, Parker and Dowsett [2015] NSWNMPSC 2. While each of these decisions involved conduct and events similar to these applications, neither involved findings of professional misconduct. RN Higgins 1. The Commission submits that RN Higgins should be deregistered, and that he not be permitted to reapply for registration for a period of 12 months. 2. RN Higgins relies on the following decisions of the NSW Nursing and Midwifery Professional Standards Committee (the Committee): Health Care Complaints Commission v Thomas, Hayden and Rumble [2017] NSWNMPSC 1 and Health Care Complaints Commission v Kennedy, Thompson, Parker and Dowsett [2015] NSWNMPSC 2. 3. RN Higgins submits that the complaints in both matters are strikingly similar to the present case. In Kennedy, the nurses failed to conduct any observation rounds in a mental health in-patient unit between 23:00 to 06:00 during a night shift apart from stating they heard the patient snoring. However, the patient was checked at about 08:00 he was found to have attempted to hang himself, was non-responsive and subsequently died. The Committee cautioned three nurses and reprimanded the fourth. That nurse, Thompson, was found to have "backfilled" an entry for 07:00 hours, when he had last observed the patient at approximately 06:30. 4. In Thomas, a patient, who had a history of depression and suicidality, committed suicide while in a mental health inpatient unit. The Committee observed at [132] that: This is not the first time in New South Wales that failure to observe patients and falsification of records of observations have ended in the death of a patient. A megaphone needs to sound to the profession that such conduct is not acceptable. It is not in the public interest, or in the interests of the integrity of the nursing profession, that such complaints be wrapped in undertakings swept under the carpet. 1. The Committee found each practitioner guilty of two complaints of unsatisfactory professional conduct, reprimanded each practitioner, and placed various conditions on their rights to practise. RN Higgins submits that in neither case did the Professional Standards Committee find that the conduct amounted to professional misconduct, and that for reasons of consistency this Tribunal should come to a similar conclusion. It is correct that the Committee did not make findings of professional misconduct. But this was understandable; it was not asked to do so; a Professional Standards Committee does not have the power to hear complaints about professional misconduct. Only the Tribunal has that jurisdiction. 2. RN Higgins argues that, given the findings of the Coroner, his conduct is far less culpable. That may be so, however, the Court of Appeal has cautioned against the use of comparative cases in the determination of periods of suspension: Lee v Health Care Complaints Commission [2012] NSWCA 80. 3. RN Higgins submits that if the Tribunal makes a finding of professional misconduct, the orders proposed by the Commission for cancellation of registration would have more serious consequences for him than is reasonably necessary to promote the protective purpose. He proposes that the Tribunal place various conditions on his registration, including conditions relating to mentoring, reporting and education. In determining the appropriate protective orders, RN Higgins submits that in determining the appropriate protective orders, the Tribunal will take into consideration the following matters: 1. He has reflected on this incident for a considerable time and with the benefit of hindsight he has gained insight and learnt from his past conduct. He asks the Tribunal to accept that he has improved his practice especially in regard to observations of patients in his care and he assures the Tribunal he will continue to improve and encourage others to not fall into entrenched culture and practice that is in breach of policy and procedure. He was saddened and devastated following the death of Patient A and this was reflected during his oral evidence in these proceedings. 2. The Commission has taken an excessive length of time to prosecute this matter; 3. He has practised without any restrictions imposed on his registration and without any adverse incident or complaint for the past four years. 1. The respondent tendered a reference from his current Nursing Unit Manager who considers him to be a clinician with high-level clinical skills and assessment capabilities. RN Higgins asks that the Tribunal accept this reference as confirmation of his current clinical practice, and notes that this evidence was not challenged by the Commission despite his referee being available for cross examination. 2. We consider that RN Higgins's registration should be suspended. In our view, there is a difference between a senior clinician with direct patient care (RN Higgins) and a manager (RN Cooper). The clinician is the immediate patient advocate and ensures clinical standards, particularly so in the case of a clinical nurse specialists (that is, RN Higgins), clinical nurse consultants and nurse practitioners. In our view, there is a higher standard of clinical care expected from the clinical nurse specialist than from the RN (Ms Roche) and even the NIC (RN Cooper), as RN Cooper's role that evening was a management role rather than a strictly clinical one. We consider that it is important that nurses understand that if they are taking senior clinical nurse roles that added responsibility comes with these roles. 3. In addition, RN Higgins: 1. Did not undertake the observations on all occasions he said he did. He falsely completed various observations on the night concerned. 2. Falsely told RN Roche that he had undertaken the observations, and she signed off on observations based on that assurance. 3. Was a Clinical Nurse Specialist and he should have been more particular in the way he observed the patient. While Patient A may have reacted adversely to more intrusive observation because of her paranoia and the fear she had of further assault (as claimed), as a Clinical Nurse Specialist he should have the skills and knowledge to both observe the patient effectively and not overstimulate her or cause her any angst. 1. For these reasons, we consider that suspension of RN Higgins' registration is the appropriate protective order. Such an order is necessary to adequately to achieve the objectives of minimising the risk of recurrence, deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession. Costs 1. RN Cooper submits that, 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. We reject that submission. The Tribunal has repeatedly indicated, as has the Court of Appeal, that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342: Qasim v Health Care Complaints Commission [2015] NSWCA 282; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182. 2. RN Higgins makes no submissions as to costs. 3. The Commission has been successful in establishing each complaint against each respondent. It follows that RN Cooper and RN Higgins are to pay the costs of the respective applications brought against them. In relation to RN Cooper, the Commission was not successful in establishing Particular (2) to Complaint One. However, this matter occupied very little of the hearing, and we do not consider that there should be any reduction in the costs to be paid by RN Cooper. Orders 1. The Tribunal makes the following orders: In relation to 2017/00036342; 1. Complaint One is established. 2. Complaint Two is established. 3. RN Cooper is reprimanded. 4. The following conditions are placed on Robert Cooper's registration: 1. Robert Cooper must complete an education course on record keeping and ethics that has been approved by the Nursing and Midwifery Council of NSW within 12 months of the date of this decision. 2. Robert Cooper is to provide to the Nursing and Midwifery Council of NSW evidence of successful completion of the courses signed by an individual authorised by the education institution within 14 days of completion of the course. 1. The Nursing and Midwifery Council of NSW is the appropriate review body of these conditions when Robert Cooper has a principal place of practice in NSW. 2. Sections 125 to 127 of the National Law are to apply should Robert Cooper's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. 3. Robert Cooper pay the Commission's costs of application 2017/00036342. In relation to 2017/00036331; 1. Complaint One is established. 2. Complaint Two is established. 3. Lucas Higgins' registration is suspended for a period of four months. 4. The following conditions are placed on Lucas Higgins' registration: 1. Lucas Higgins must complete an education course on record keeping and ethics that has been approved by the Nursing and Midwifery Council of NSW within 12 months of the date of this decision. 2. Lucas Higgins is to provide to the Nursing and Midwifery Council of NSW evidence of successful completion of the courses signed by an individual authorised by the education institution within 14 days of completion of the course. 1. The Nursing and Midwifery Council of NSW is the appropriate review body of these conditions when Lucas Higgins has a principal place of practice in NSW. 2. Sections 125 to 127 of the National Law are to apply should Lucas Higgins' principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. 3. Lucas Higgins pay the Commission's costs of application 2017/00036331. ​ ********** ​ 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: 16 February 2018