Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sloane; Health Care Complaints Commission v Hayles [2018] NSWCATOD 37 Hearing dates: 12 December 2017 Date of orders: 19 March 2018 Decision date: 19 March 2018 Jurisdiction: Occupational Division Before: O Shub, Principal Member D Beaumont, Senior Member A Bizzotto, Senior Member M Kelly, General Member Decision: The Tribunal makes the following orders: In respect of the First Respondent: (1) The First Respondent is reprimanded subject to the conditions below: (a) She may not work as a nurse in charge. (b) She is entitled to work day shifts only. (c) She is required to engage with a clinical nurse educator for at least one year, the frequency of which is to be determined by her clinical nurse educator. (d) She is to authorize her clinical nurse educator to report directly to the Nursing and Midwifery Council on the frequency and attendance by the nurse on her clinical nurse educator. (e) The conditions set out above are to be monitored and enforced by the Nursing and Midwifery Council. (2) 50% of the costs to be paid by the First Respondent. In respect of the Second Respondent: (1) The Second Respondent's registration is cancelled from the date of this decision. (2) The Second Respondent may not apply for re-registration for a period of at least two years. (3) 50% of the costs to be paid by the Second Respondent. Catchwords: Nursing, 10 minute observations, failure to conduct observations as provided for, completion of observation charts, giving of false evidence, failure to supervise, vulnerable patients, mental health environment Legislation Cited: Health Practioner Regulation Law (NSW) (The National Law) Cases Cited: HCCC v Litchfield (1997) 41 NSWLR 630 at 637-638 NSW Bar Association v Meakes [2006] NSWCA 340 at [114]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]-[39]; A Solicitor v Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 at 268 [21]; Gad v Health Care Complaints Commission [2002] NSWCA 111 at [55]; Burns v Corbett [2017] NSWCA 3; (2017) 343 ALR 690; State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639; Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350; Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363; Gianoutsos v Glykis [2006] NSWCCA 137; (2006) 65 NSWLR 539 at 548‑549 [51]; In re Dr Suman Sood [2006] NSWMT 1 at [10]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; Law Society of New South Wales v Walsh [1997] NSWCA 185; Council of the Law Society of NSW v Shehadie (No 2) [2016] NSWCATOD 151 at [41]; Health Care Complaints Commission v Goh [2014] NSWCATOD 106 at [36], [50], [62]; Clyne v NSW Bar Association (1980) 104 CLR 186; NSW Bar Association v Meakes [2006] NSWCA 340 [113]; HCCC v Delabruna (2014) NSW CATOD 31 at paragraph 88; Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3; Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 – 425; The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported). Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Rosaline Sloane (First Respondent) David Hayles (Second Respondent) Representation: Applicant – B Tronson of Counsel, instructed by Ms Bannon First Respondent – M Byrne Second Respondent – No appearance File Number(s): 2017/00245134 (First Respondent)2017/00245138 (Second Respondent) Publication restriction: The names of Patients A to H are restricted and the patients will be referred to as Patients A to H. REASONS FOR DECISION First Respondent's Background/History 1. The matter consists of complaints against two Respondents. Separate complaints were brought against each of the two Respondents; however the two matters were consolidated for hearing and will be dealt with as such. 2. Ms Sloane was first registered as a nurse on 22 February 2008 and commenced employment as a registered nurse at Prince of Wales Hospital (the Hospital) in November 2014. On 1 July 2015, Ms Sloane was working as the nurse in charge of the night shift, in Kiloh Observation Ward, an acute mental health ward at the Hospital. The nurse in charge of the shift was in charge of the entire unit. Ms Sloane undertook observations of 8 patients, Patients A to H during the night shift. Six of those patients required observations to be undertaken every 10 minutes, and two of those patients required observations to be undertaken every 30 minutes. 3. On 2 July 2015 at 0733 Patient A was found by day shift nurses "lying on the floor…with one blanket covering him…was incontinent of urine +++ lying in puddle of urine. On close examination had pressure marks on his face, arm and hip all right side". 4. Complaint One states that: 1. Ms Sloane is guilty of unsatisfactory professional conduct under s. 139B(1)(a) and (l) of the National Law in that Ms Sloane has engaged in conduct that demonstrates the knowledge, skill or judgment possessed or care exercised by Ms Sloane in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or; 2. Engaging in improper or unethical conduct relating to the practice or purported practice of nursing. 1. For purposes of clarity, the Tribunal will deal with Ms Sloane's response to the particulars to the complaint in bold at the end of the particulars. Particulars of Complaint One 1. Between 1 July 2015 and 2 July 2015 during her rounds between 2340 hours and 0250 hours, Ms Sloane failed to complete the required number of observations for Patients A to F, being observations every 10 minutes, as CCTV footage indicates that Ms Sloane only observed the patients on three occasions, at 0058-0101 hours; 0158-0202 hours and; 0257-0303 hours. 2. Between 1 July 2015 and 2 July 2015 during her rounds between 2340 hours and 0250 hours, Ms Sloane failed to complete the required number of observations for Patients G to H, being observations every 30 minutes, as CCTV footage indicates that Ms Sloane only observed the patients on three occasions, at 0058-0101 hours; 0158-0202 hours and; 0257-0303 hours. 3. Between 1 July 2015 and 2 July 2015 Ms Sloane completed the Patient Care Level 2 Observation – Mental Health Record for Patients A to F in a manner that was intentionally misleading and false by recording observations every 10 minutes at numerous times in circumstances where CCTV footage indicates that Ms Sloane only observed the patients on three occasions, being at 0058-0101 hours; 0158-0202 hours and; 0257-0303 hours. 4. Between 1 July 2015 and 2 July 2015 Ms Sloane completed the Patient Care Level 2 Observation – Mental Health Record for Patients G to H in a manner that was intentionally misleading and false by recording observations every 30 minutes at numerous times in circumstances where CCTV footage indicates that Ms Sloane only observed the patients on three occasions, being at 0058-0101 hours; 0158-0202 hours and; 0257-0303 hours. 5. Between 1 July 2015 and 2 July 2015 Ms Sloane failed to make adequate clinical records for Patients A to H in that Ms Sloane failed to: 1. Record any reference to whether the patients were sleeping; 2. Record any reference to the patients mental state; 3. Record any reference to the patient's respiration rate. 1. On 2 July 2015 Ms Sloane failed to make adequate clinical records for Patient A in that she failed to record that Patient A was located on the floor of the ensuite bathroom and recorded "BR" (Bedroom) for every observation. 2. On 2 July 2015 as the nurse in charge, Ms Sloane failed to adequately supervise the observations for Patients A to F that were conducted every 10 minutes by RN David Hayles as CCTV footage indicates that observations were only conducted by RN David Hayles (Second Respondent) on 3 occasions at 0359-0400 hours' 0504-0506 hours and; 0554-0555 hours. 3. On 2 July 2015 as the nurse in charge, Ms Sloane failed to adequately monitor and direct the observations for Patients G to H that were conducted by Mr Hayles in that she did not ensure that observations were conducted every 30 minutes as ordered. The CCTV footage indicates that observations were only conducted on 3 occasions at 0359-0400 hours; 0504-0506 hours and; 0554-0555 hours and not as ordered. 4. On 2 July 2015 as the nurse in charge, Ms Sloane failed to adequately monitor and direct the correct completion of the observation records for Patients A to F by Mr Hayles. Mr Hayles did not ensure that observations were conducted every 10 minutes as ordered. The CCTV footage indicates that observations were only conducted on 3 occasions at 0359-0400 hours; 0504-0506 hours; and 0554-0555 hours and not as ordered. 5. On 2 July 2015 Ms Sloane failed to adequately care for Patient A when she found him on the floor at 0257-0303 hours by failing to: 1. Wake up Patient A; 2. Reposition Patient A back to bed so that he did not remain on the floor for the remainder of the shift; 3. Remove or change Patient A's clothing or incontinence pad; 4. Attempt any toileting regime for Patient A; and 5. Record any reference to Patient A being found on the floor and remaining there for the duration of the shift. 1. During an internal investigation at the Hospital, Ms Sloane knowingly provided false information: 1. On 16 July 2015 in an email to A/NUM Mark Geikowski, Ms Sloane stated that on 2 July 2015 at 0257-0303 hours she located Patient A "lying on the bathroom floor" and she "woke him up and assisted him to get up and to go back to bed" and "he remained asleep in his bed for the rest of the night" when Ms Sloane knew she had left Patient A on the floor from 0257-0303 hours and for the remainder of the shift; 2. On 19 August 2015 in an interview with the Professional Practice Unit (PPU) of the South Eastern Sydney Local Health District, Ms Sloane stated that on 2 July 2015 at 0257-0303 hours she located Patient A "lying on the bathroom floor" and she "woke him up and assisted him to get up and to go back to bed" and "he remained asleep in his bed for the rest of the night" when Ms Sloane knew she had left Patient A on the floor from 0257-0303 hours and for the remainder of the shift; The Applicant contends that each of the Particulars of Complaint One in itself justifies a finding of unsatisfactory professional conduct. In the alternative when two or more of the particulars are taken together a finding of unsatisfactory professional conduct is justified. The Respondent has admitted each of the Particulars of Complaint 1 Complaint Two states that: 1. Ms Sloane is guilty of professional misconduct under s.139E(a) and (b) of the National Law in that Ms Sloane has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of Ms Sloane's registration; and Engaged in more than one instance of unsatisfactory professional conduct that when the instances are considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of Ms Sloane's registration. Legal Issue 1. In opening submissions by Counsel for the Applicant, Counsel submitted that in respect of Mr Hayles the Tribunal has, pursuant to s.165J(3) of the National Law, a right to proceed with the Complaint against Mr Hayles despite a lack of appearance by Mr Hayles and handed to the Tribunal Exhibit Two, containing exchanges of correspondence with Mr Hayles. 2. The Tribunal was provided with Exhibit One, being the lever arch file of documents marked "Documents Served by Health Care Complaints Commission", in respect of the First and Second Respondent, Exhibit Two being correspondence with Mr Hayles, Exhibit Three being an email from AHPRA to Lucy Cannon, and Exhibit Four being the documents served by Ms Sloane. 3. In respect of Ms Sloane, Counsel for the Applicant indicated that they did not intend calling the expert witness whose expert witness report is contained in Exhibit One, and Counsel for Ms Sloane indicated that the expert witness was not required for cross-examination. First Respondent's Evidence 1. After making various submissions in opening the Applicant closed its case against Ms Sloane. 2. Ms Sloane was called to give evidence, and confirmed that the statement contained in the folder Exhibit Four at Tab One is her statement and she abides by it. 3. Ms Sloane was asked to deal with the layout of the Kiloh Ward. She indicated that the Kiloh Ward holds the general ward of about thirty beds, and the observation ward which has sixteen beds, eight on each side, usually divided by men on one side and women on the other. 4. On night shifts the nurse in charge does not have a specific allocation, but there would normally be two nurses on each side. (There is normally two nurses on each side including the nurse in charge. On the night in question there was also an EEN working on their side). 5. Ms Sloane confirmed that Mr Hayles was on duty with her on the night in question. 6. Ms Sloane stated that she was reluctant to take the role of nurse in charge because she did not feel that she had the capacity to work in that role, and did not have sufficient experience to take on that role. Ms Sloane had raised her reluctance with the Supervisor a number of times. 7. In response to a question by her Counsel, she stated that she had read the complaint, and agreed with all of the allegations made against her. In addition she stated that she had read the expert report and accepted that that report is a fair report. 8. Ms Sloane indicated that she was aware that observations are important because looking after a patient requires that she provides appropriate care for the protection of the patient. She was asked whether she had had any other complaint before the incident in question, and stated that she had not. She indicated that she would like to continue to develop her nursing practice and would like to continue for another ten years. 9. Ms Sloane was then cross-examined by the Applicant's Counsel. In cross-examination she confirmed that she recalled that Patient A was found on the floor, and confirmed that she left him lying on the floor. 10. When questioned about her reasons for leaving Patient A lying on the floor, she explained that she did not want to disturb the patient, and did not at that time know, that the patient was easily re-directable. 11. In cross-examination Ms Sloane confirmed that she knew that Patient A was behaving in an odd and disorderly manner and that she would have known that such a patient would need 10 minute observations, and that a patient on 30 minute observations would need 30 minute observations. She conceded that she would have known that for those patients, observations are very important. 12. She was asked about how her practice had changed since this incident, and advised the Tribunal that she carries out nursing care in strict conformance with patient needs. She does not do any shifts as nurse in charge, does not do night shifts, works only with a senior nurse and communicates with other staff so that her therapeutic care of patients, her ability to write patient notes accurately, her time management to complete all duties required of her have changed and improved. 13. She did confirm that on the night in question there were other senior nurses that she could have communicated with, a supervisor or someone via telephone whether in the main hospital or otherwise, or the MIH NICU. 14. She admitted that she had lied and accepted that it was unacceptable to lie. In that regard, she stated that to lie is not to state a true record of what occurred, and it is important for it to be correct. There was no re-examination of the Ms Sloane. 15. On questioning by the Tribunal Ms Sloane indicated that she understands that observations are in place because these patients are in need of being seen to ensure that they were alive, or not injuring themselves in some way. Clinical observations are important because it gives a quick indication as to whether the condition is "between the flag". 16. She was asked questions about how she would know that she did not know something and needed to enquire of somebody more senior. In response she indicated that if she feels anxious then she knows that she does not know what to do. 17. In relation to her reluctance to take on the nurse in charge role she indicated that she had been working in the Kiloh ward for seven or eight months and felt that she did not have the confidence to stand up to the nurses. In particular, she indicated that the culture in the ward was to do hourly observations even if the patients were on 10 minute observations. She was just doing what was being done at the time and didn't stand up against it. 18. In respect of the lies which she told and are referred to earlier, she stated that she conveyed those lies to protect her job, and did not want to show that she had done anything wrong. She was asked whether she had, on other occasions, filled out observations that she didn't do, before this incident and indicated that she had done so. She was asked whether she had ever sought to ask another nurse or person in the ward whether that was an appropriate thing to do, to which she replied she did not do so because she knew it was not appropriate. 19. That concluded the evidence of the First Respondent and the First Respondent closed its case. Background/History and Particulars to Complaint Two 1. As per Complaint One. Expert Evidence in respect of the First Respondent 1. The Applicant provided an expert report of RN Christine Muller dated 12 August 2016. In respect of the behaviour of Ms Sloane, she was asked to provide her view on that behaviour, in respect of various matters. The questions put to her were the following: 1. Please provide your opinion on the adequacy of the observations that RN Sloane performed for the patients on the Kiloh Ward on the night shift from 1 July 2015 to 2 July 2015 with reference to the frequency of those observations. In this regard, she indicated that she was of the opinion that Ms Sloane's actions in regard to the frequency of the observations actually completed and those signed for as completed to fall significantly below the standard reasonably expected of a clinician with equivalent qualifications and experience. These actions invited her strong criticism. 1. Please provide your opinion on the adequacy of the observations that RN Sloane performed for the patients on the Kiloh Ward on the night shift from 1 July 2015 to 2 July 2015 with reference to the manner in which the care level checks were performed as evidenced by the CCTV footage. In response she stated that in her opinion, the manner in which RN Sloane completed the observations on the previously noted patients was appropriate and to be of a standard reasonably to be expected of a clinician with equivalent qualification and experience. 1. Please provide your opinion on the adequacy of RN Sloane's conduct as the nurse in charge, in ensuring that her colleague performed the required frequency of observations for the patients on the Kiloh Ward on the night shift from 1 July 2015 to 2 July 2015 given her stated arrangement that he would perform them from 0300 hours on 2 July 2015. In answer she stated that she is of the opinion that RN Sloane's failure to ensure that RN Hayles completed the observation rounds he signed for as completed to fall significantly below the standard reasonably expected of a clinician with equivalent qualifications and experience and that these actions invited her strong criticism. 1. Please comment on the accuracy or otherwise of the recordings made by RN Sloane on the care level observation charts for the 14 patients for the duration of the night shift work by RN Sloane. The expert analysed each of the behaviours in respect of each of the patients listed and noted that when she considers the evidence available to her she is of the opinion that RN Sloane performed and recorded observations to a standard to be significantly below what is reasonably expected of a clinician with equivalent qualifications and experience and that her actions invite her strong criticism. 1. Please comment on RN Sloane's conduct in finding Patient A asleep on the floor of his bathroom ensuite between 0100 hours and 0300 hours on 2 July 2015 and leaving Patient A there. In response she stated that in her opinion, the actions in leaving Patient A on the bathroom floor in an incontinent state for several hours to be grossly negligent and defies any behaviour that would be deemed to be appropriate basic nursing care for an acutely unwell patient. She was of the opinion that RN Sloane's care for Patient A was significantly below what is reasonably expected of a clinician with equivalent qualifications and experience and that her actions invite her strong criticism. 1. Please provide your opinion of RN Sloane's rationale for not waking Patient A when she found him asleep on the floor of his ensuite bathroom, namely that she had not worked on that ward before and did not know the patient and how he would wake. In response she stated that in her opinion, RN Sloane's rationale for not waking Patient A to be naïve and not to be based in even a minimum standard of nursing care. RN Sloane's rationale for not waking Patient A is significantly below what is reasonably expected of a clinician with equivalent qualifications and experience and that her actions invite her strong criticism. 1. Please make any other comments regarding RN Sloane's conduct that you believe to be relevant. In response she stated that while she accepts that the evidence against RN Sloane is difficult to dispute, she finds RN Sloane's open admission of a failure to adequately care for her patients and her expressed regret in regard to these matters to be commendable. Background/History of Second Respondent 1. Mr Hayles was first registered as a nurse on 24 August 2005 and commenced employment as a registered nurse at Prince of Wales Hospital (the Hospital) as an agency nurse in June 2015. 2. On 1 July 2015 Mr Hayles was working on the night shift in the Kiloh Observation Ward, an acute mental health ward at the Hospital. Mr Hayles undertook observations of 8 patients, Patients A to H during the night shift. Six of those Patients required observations to be undertaken every 10 minutes, and two of those patients required observations to be undertaken every 30 minutes. 3. On 2 July 2015 at 0733 Patient A was found by day shift nurses "lying on the floor…with one blanket covering him…was incontinent of urine +++ lying in puddle of urine. On close examination had pressure marks on his face, arm and hip all right side". COMPLAINT AGAINST SECOND RESPONDENT Evidence in respect of Second Respondent 1. Having regard to the failure to appear by Mr Hayles, the Tribunal had available to it a limited amount of evidence. It was necessary to rely largely on the s.150 proceedings before the Nursing and Midwifery Council of New South Wales, and some limited correspondence from Mr Hayles. 2. The s.150 hearing addressed the performance and conduct of Mr Hayles in relation to his compliance with accepted standards. 3. It was noted that Patient A was on care level 2 and required 10 minutely observations. The review of Patient A's observation chart indicated that on 2 July 2015 between 0303 hours and 0556 hours Mr Hayles did three rounds of observations at 0356 hours, 0504 hours, and 0554 hours. In his response to the Council, Mr Hayles recounted that while doing his rounds after 0300 hours, Patient A was in bed. Further, he did not remember noticing any wetness and if he had, would have assisted Patient A to change. Mr Hayles advised that he is unable to recall the exact rounds that he did and must go by the CCTV footage evidence provided. He advised the hearing that he takes his responsibilities as a registered nurse seriously, and that if he had failed to conduct the required observations, that was not how he normally discharged his duties. 4. In his response to the Council, Mr Hayles advised that the nursing assistant who was on shift did not help with the observations and felt that a fairer system would be for staff to rotate observations, especially when frequent observations are required. He added that he was under financial stress which may have affected his performance due to poor sleep. 5. Mr Hayles advised the Council that he had relocated to Western Australia and is currently working full time as a clinical nurse at the Albany Acute Psychiatric Unit. 6. It was clear from the CCTV footage evidence, which Mr Hayles accepted, that Mr Hayles had lied to the Nursing and Midwifery Council in stating that he had conducted 10 minute observations and signing off for 10 minute observations in Patient A's chart. He sought to explain that away by the financial stress under which he was operating. 7. The Tribunal also had regard to the supervision reports of Mr Hayles from his time working in Western Australia, and in particular, page 2 of tab 11 where the supervisor stated: "Concerns have been raised about David's practice that includes allegations of failure to undertake clinical interventions and falsifying health records. These allegations are currently under investigation. Further restrictions have been placed on David's practice while the allegations are investigated." 1. In addition, at page 3 of tab 11 the supervisor stated: "While meeting with David, gaps were noted in his knowledge base, including knowledge of policies and procedures." 1. In response to a request for information made by the Nursing and Midwifery Council, Mr Hayles gave the answers to allegations raised by them, in a letter addressed to the Nursing and Midwifery Council dated 11 May 2016. The allegations and Mr Hayles's responses are dealt with in the following paragraphs. 2. The allegation was made that at approximately 1145 hours on Monday 21 March 2016 Mr Hayles breached the WA Health Code of Conduct, the Code of Professional Conduct for Nurses in Australia and the requirements of the Alcohol Withdrawal scale when you documented blood pressure, pulse and temperature for inpatient URNL 2537435 in the secure unit of the Albany Mental Health Inpatient Unit at Albany Health Campus without physically taking the patients vital signs. In response Mr Hayles stated that after reviewing the documents in question it seems that at 1145 hours he put in the earlier values for blood pressure and temperature (taken around 0900 hours) on the Alcohol Withdrawal scale. He had sincerely apologised for this. 1. The allegation was made that on Monday 4 April 2016 the Second Respondent breached the WA Health Code of Conduct, the Code of Professional Conduct for Nurses in Australia when he failed to administer the prescribed paliperidone depot 150mg IM when it should have been administered on the day as specified on the MR170A Short Stay Medication Chart for Inpatient URNG 0657716 in a secure unit of the Albany Mental Health Inpatient Unit at Albany Health Campus. In response Mr Hayles stated that the patient was put on paliperidone depot in the late morning, the depot was ordered and he picked it up in the early afternoon. After getting the depot he handed over to an afternoon staff member and advised that the injection needed to be administered and he went on his lunch break. Upon his return from lunch he assumed that as he had handed over the care, that the injection had been administered, however upon reflection, he should have made sure that the depot had been given, or was going to be given. He apologised for not having done so. 1. At approximately 0750 hours on Tuesday 5 April 2016 Mr Hayles breached WA Health Code of Conduct, the Code of Professional Conduct for Nurses in Australia when he failed to appropriately escalate an oxygen saturation of 88% to the shift coordinator and initiate a medical review as required by the MR140A Observation and Response chart for inpatient URN 12018783 at the Albany Mental Health Inpatient Unit at Albany Health Campus. In response Mr Hayles stated that when he recorded the oxygen saturation of 88%, he checked with the medical officer and was told that for that patient it was in order. He believed that the patient had previous charts of oxygen saturation levels of 88% which were acceptable for this patient. Unfortunately the medical officer is not able to write on the observation chart that 88% saturation levels are okay, as only a registrar or above is able to do this. He did not tell the shift coordinator and apologised for that. 1. It was alleged that at approximately 1215 hours on Wednesday 5 April 2016 Mr Hayles breached WA Health Code of Conduct, the Code of Professional Conduct for Nurses in Australia when he wrote in the MR55A Intergrated Progress Notes "Physical observations have been taken on two occasions, all within normal ranges" which was in direct conflict with the recorded observations on the MR140 for inpatient URNJ 2018783 at the Albany Mental Health Inpatient Unit at Albany Health Campus. In response Mr Hayles stated that he should have written "physical observations are within normal ranges for client URNJ 2018783. I apologise for this." 1. It was alleged that during the morning shift on Tuesday 5 April 2016 Mr Hayles breached WA Health Code of Conduct, the Code of Professional Conduct for Nurses in Australia when he failed to take proper care of inpatient URNC4196293 at the Albany Mental Health Inpatient Unit at Albany Health Campus by failing to record entries in the MR55A Intergrated Progress Notes. In response Mr Hayles stated that he did not make the entries in the client's notes and sincerely apologised for that. 1. In respect of all of the above responses, Mr Hayles stated that he put that down to a lack of sleep, where he was waking up many times most nights. He was seeking help for this and was going to be tested for Chronic Obstructive Sleep Apnoea. He has also made changes to his lifestyle, including exercising (specifically bike riding) and is trying to eat healthier. He stated that he is sincerely sorry and remorseful for his actions, and is determined to make changes to improve. Expert Evidence in regard to the Second Respondent 1. The Tribunal had available to it the expert report of RN Christine Muller dated 12 August 2016. 2. In response to the expert's opinion as to the adequacy of the observations that Mr Hayles performed for the patients on the Kiloh ward on the night shift on 2 July 2015 the expert stated that she was able to determine that Mr Hayles completed rounds on only 3 occasions for 10 minute intervals, and therefore did not complete 24 rounds for the 6 patients on 10 minute observations, and did not complete 5 rounds for 2 patients on 30 minute observations. 3. In considering all the information available to her, the expert opined that Mr Hayles's actions in regard to the frequency of observations actually completed and those signed for as completed to fall significantly below the standard reasonably expected of a clinician with equivalent qualification and experience, and his actions invited her strong criticism. 4. In response to the question on the adequacy of the observations that Mr Hayles performed for the patients on that night with reference to the manner in which the care level checks were performed as evidenced by the CCTV footage, the expert noted from the CCTV footage that Mr Hayles completed observation rounds by looking through a window in the bedroom doors. Ms Muller was unable to determine what visual observation could have been made during that time, but noted the observations consisted of a cursory glance. Ms Muller noted that the time frame between leaving and returning to the nurses station was 60 seconds on two rounds, and one round of 120 seconds. Accordingly, on two rounds the maximum time to observe a patient would have been 7 seconds and 15 seconds respectively, which is insufficient time to assess a patients respiration rate. 5. In respect of this question, the expert opined that the manner in which Mr Hayles completed the observations on the previously noted patients was cursory at best, and fell significantly below the standard reasonably expected of a clinician with equivalent qualification and experience, and his actions invited her strong criticism. 6. In response to a question on the accuracy or otherwise of the recordings made by Mr Hayles on the care level observation charts for the 14 patients from 0300 hours to 0700 hours on 2 July 2015, the expert opined that from the information provided to her Mr Hayles completed observations only three times for 8 of the 14 patients instead of rounds between 8 and 27 times, but the observation rounds do not specify if the patients were sleeping or otherwise, and made no reference to the mental state or respirations. The expert noted that the observations did not accurately record the movements of 2 patients that were observed by CCTV to be walking around the unit, and he did not specify that Patient A was lying on the bathroom floor. In considering the evidence available to her, the expert opined that the performance was significantly below the standard reasonably expected of a clinician with equivalent qualification and experience, and his actions invited her strong criticism. 7. In respect of the fact that Patient A was found on the floor of his ensuite bathroom and that he had been incontinent of urine with pressure marks on the right side of his face and hip, the expert was asked to comment on Mr Hayles's conduct in not ensuring Patient A was in his bed for the hours when he carried out observations. The expert stated that she is unable to support or endorse any circumstances where a registered nurse would leave a patient lying on the floor of a bathroom and/or incontinent for any length of time, and considers this behaviour to be a breach in the principles of basic nursing care. She stated that the magnitude of this behaviour is multiplied, when she considers the evidence that highlighted Patient A to be acutely unwell with episodes of behaviours consistent with catatonia in response to acute psychosis. Her further concern is that the potential for negative patient outcomes such as hypothermia or compartment syndrome were not addressed. The expert stated that the actions of Mr Hayles leaving Patient A lying on the bathroom floor in an incontinent state for several hours to be grossly negligent and defies any behaviour that would be deemed appropriate basic nursing care for an acutely unwell patient. She stated this behaviour is significantly below the standard reasonably expected of a clinician with equivalent qualification and experience, and his actions invited her strong criticism. 8. In general terms, the expert was asked to make any other comments regarding Mr Hayles's conduct that she believed to be relevant, to which she responded that she noted from CCTV footage that at 0256 hours Mr Hayles is seen entering the corridor from the bottom of the screen, but did not complete an observation round. Mr Hayles was not seen on CCTV footage, prior to that time. She questioned Mr Hayles's whereabouts between 1258 hours and 0256 hours. She questioned the reasons that Mr Hayles did not complete an observation round when returning to the nurses station, but rather Ms Sloane attended the round at 0257 hours, passing Mr Hayles in the corridor. 9. That concluded the evidence which was available to the Tribunal in respect of Mr Hayles and the Tribunal regarded Mr Hayles's case, in the absence of his appearance, as closed. Submissions Applicants Submissions 1. The Applicant made various submissions in respect of legal issues as well as factual issues. In respect of public interests underpinning the jurisdiction: 1. The Tribunal's jurisdiction must be exercised bearing in mind the need to protect the public and to maintain high standards in the profession: see, for example, HCCC v Litchfield (1997) 41 NSWLR 630 at 637-638. Added to this, as recognised by Basten JA in NSW Bar Association v Meakes [2006] NSWCA 340 at [114], are the following important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective orders: 1. the order reminds other members of the profession of the public interest in the maintenance of high professional standards; 2. the order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence; and 3. by speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession. 1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]-[39], Meagher JA engaged in a general discussion about the public interest. His Honour concluded that there is a "public interest in having the respondent's conduct denounced as unacceptable", and that orders made by the Tribunal would "make plain that conduct of the kind engaged in is unacceptable". 2. The question of fitness to practise must be determined at the date of the hearing: A Solicitor v Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 at 268 [21]. In determining the question of fitness, the whole of the conduct of the practitioner should be considered: Gad v Health Care Complaints Commission [2002] NSWCA 111 at [55]. In respect of a preliminary jurisdictional point: 1. In Burns v Corbett [2017] NSWCA 3; (2017) 343 ALR 690, the NSW Court of Appeal held that the Tribunal does not have jurisdiction in relation to matters in which the Tribunal purports to exercise federal judicial power – in that case, because the matters were between residents of different States. There is an argument available to Mr Hayles that the proceedings concerning him constitute a matter between a State and a resident of a different State (see Constitution, s 75(iv)), given the High Court's decision in State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 that the State Bank of NSW (like the Commission, a statutory corporation) was "the State" for similar constitutional purposes. If this reasoning applies to the Commission then any judicial power exercised in this matter would be federal judicial power and so, on the basis of Burns v Corbett, the Tribunal would not have jurisdiction. 2. There is a short answer to this argument. The principle in Burns v Corbett applies only where the Tribunal is exercising judicial power, not administrative power. In disciplinary proceedings in matters such as the present, the Tribunal is exercising administrative power: see, for example, Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350. For this reason, even if the Commission is "the State" for the purposes of s 75(iv) of the Constitution, the Tribunal nevertheless has power (or jurisdiction) to determine the complaint against Mr Hayles and, so, can proceed. In respect of the standard of proof: 1. By reason of the seriousness of the allegations and the gravity of the consequences, the evidence for a finding that a complaint is made out must be strong: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363. This does not alter the fact that the standard of proof is the civil standard, that is, that the Tribunal must be satisfied on the balance of probabilities. 2. The Court of Criminal Appeal has cautioned against the use of the term "comfortably satisfied": Gianoutsos v Glykis [2006] NSWCCA 137; (2006) 65 NSWLR 539 at 548‑549 [51] (applied by the Medical Tribunal of New South Wales: In re Dr Suman Sood [2006] NSWMT 1 at [10]). The Briginshaw principle applies to the quality or sufficiency of the evidence available, as Mason CJ, Brennan, Deane and Gaudron JJ held in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450 (emphasis added, references omitted): … the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. 1. Thus the Briginshaw principle requires that the Tribunal not hold itself to be satisfied on the balance of probabilities without evidence of sufficient strength, given the nature of the proceedings and the potential consequences to the respondent. Factual basis of Complaint 1. As noted above, the complaints against each respondent arise out of the same series of facts. The Commission places primary reliance on the CCTV footage (HCCC Documents, Tab 43) and the relevant patient observation charts (HCCC Documents, Tabs 54-61). Where the particulars raise, as a factual question, what each respondent ought to have done, the Commission also places reliance on the expert reports of Christine Muller: Tabs 19, 34. 2. As detailed below, Ms Sloane has admitted each particular. Mr Hayles has not done so. However, at an earlier stage of the overall process of the complaint and investigation, Mr Hayles accepted the CCTV footage was accurate: HCCC Documents, Tab 5, p 4 [26]. In addition, Mr Hayles has given no evidence contradicting the facts set out below. 3. In these circumstances, the Tribunal can be satisfied of the relevant facts for the reasons set out below. 4. During the shift, Ms Sloane and Mr Hayles agreed that Ms Sloane would undertake observations of Patients A-H until 0300 hours and that Mr Hayles would undertake observations of those patients from 0300 hours until the end of the shift: HCCC Documents, Tab 41, p 2 [9]. 5. Despite recording that almost all the required observations had been done for Patients A-H in the medical records, CCTV footage demonstrates that Ms Sloane only performed observations on three occasions during the shift at 0058 to 0101 hours, 0158 to 0201 hours and 0257 to 0303 hours: HCCC Documents, Tab 43 (see also Tabs 44, 48, 34 (p 4) and compare Tabs 54-61); Tab 41, pp 2-3 [10]-[11]. Note that, for Patient E, Ms Sloane did not sign for the first three observations she ought to have carried out (Tab 58, p 1), and for Patient G, Ms Sloane did not sign for the first observation she ought to have completed (Tab 60, p 1). 6. For these reasons, the facts underlying each of the Sloane Particulars ("SP1 to 4") are made out. Ms Sloane has admitted these particulars: Sloane Documents, Tab 1, pp 1-2 [5]-[8]; see also HCCC Documents, Tab 41, p 3 [11](i)-(ii). 7. Similarly, despite recording that all the required observations had been done for Patients A‑H in the medical records, CCTV footage demonstrates that Mr Hayles only performed observations on three occasions during the shift at 0359 to 0400 hours, 0504 to 0506 hours and 0554 to 0555 hours: HCCC Documents, Tab 43 (see also Tabs 44, 48, 19 (p 5) and compare Tabs 54-61). 8. For these reasons, the facts underlying each of the Hayles' Particulars ("HP 1, 2, 4 and 5") are made out. 9. Further, the failure of Ms Sloane to ensure Mr Hayles carried out these observations and recorded them accurately means the facts underlying each of SP7, SP8, SP9 and SP10 are made out: see also Tab 34, p 6 [3]. Ms Sloane has admitted these particulars: Sloane Documents, Tab 1, pp 3-4 [11]-[14]; see also HCCC Documents, Tab 41, p 3 [11](iii)-(iv). 10. In conducting his rounds, Mr Hayles ought to have spent adequate time to assess each patient's respiration rate: HCCC Documents, Tab 19, pp 5-6 [2]. In each of the first two rounds he conducted, he did not allow sufficient time. Thus the facts underlying HP3 are made out. 11. In making the observations that were made, each of Mr Hayles and Ms Sloane ought to have recorded, for each patient, his or her respiration rate, whether he or she was sleeping and, if not his or her mental state: HCCC Documents, Tabs 19 (pp 5-9 [2]-[3]); 34 (pp 5 [2], 7-9 [4]). They did not do so. Thus the facts underlying each of SP5 and HP6 are made out. Ms Sloane has admitted SP5: Sloane Documents, Tab 1, p 2 [9]. 12. Similarly, each of Ms Sloane and Mr Hayles ought to have recorded that Patient A was lying on the floor of the en suite during the observations each did make during the shift: HCCC Documents, Tab 19, p 6 [3](a). Thus the facts underlying SP6 and HP7 are made out. Ms Sloane has admitted SP6: Sloane Documents, Tab 1, p 2 [10]. 13. During the night shift between 0257 and 0303 hours, Ms Sloane found Patient A on the floor of his room and made no attempts to move him: HCCC Documents, Tabs 37, 38, and compare CCTV footage (Tab 43), on which Ms Sloane can be seen carrying blankets between 2:57 and 3:03. She placed a blanket on Patient A and he remained on the floor for the remainder of the shift: HCCC Documents, Tabs 37, 38, 48-51. 14. Patient A was subsequently found by day shift nurses to be lying on the floor covered with one blanket and incontinent of urine, with pressure marks to his face: HCCC Documents, Tabs 48-51. 15. In acting in the manner described in paragraph 93, Ms Sloane failed to provide adequate care to Patient A on the basis alleged in SP11: see HCCC Documents, Tab 34, pp 10-11 [5]-[6]. Thus the facts underlying SP11 are made out. Ms Sloane has admitted this particular: Sloane Documents, Tab 1, p 4 [15]; see also HCCC Documents, Tabs 37, 38, 41 (p 3 [11](v)). 16. Notwithstanding Ms Sloane's failure, Mr Hayles ought to have provided Patient A with adequate care during the rounds he conducted from 3:00 am: HCCC Documents, Tab 19, pp 9-10 [4]. He did not. Thus the facts underlying HP8 are made out. 17. Following the incident, the Local Health District conducted an internal investigation. During this investigation, Ms Sloane said she found Patient A on the floor and redirected him back to bed where he remained for the duration of the night: HCCC Documents, Tabs 35, 36 (pp 2-3). On 9 September 2016, Ms Sloane admitted that she had lied about this and also admitted she had left Patient A on the floor after finding him: HCCC Documents, Tabs 37, 38. 18. Soon after 1 July 2015, Mr Hayles relocated to Western Australia. 19. On 8 October 2015, a s 150 hearing was held in relation to each respondent's conduct: HCCC Documents, Tabs 8, 31. Conditions were imposed on the practice of each respondent. 20. On the basis of Ms Muller's opinion, contained in Exhibit 1, the Tribunal can be satisfied that each of SP1 to SP11 inclusive constitutes unsatisfactory professional conduct. 21. As to SP12, namely, Ms Sloane's false statements during the investigation by the Local Health District, the Commission relies on the part of the definition of unsatisfactory professional conduct in s 139B(1)(l) of the National Law (other improper or unethical conduct). It is uncontroversial that a practitioner lying to her employer in this situation – the investigation of inadequate patient care – is dishonest, improper and unethical. The Tribunal can thus be satisfied that each of the false statements made by Ms Sloane constitutes unsatisfactory professional conduct. 22. In addition, or as an alternative, to a finding that SP3 and SP4 constitute unsatisfactory professional conduct on the basis of Ms Sloane's standard of practice, her conduct of falsifying the Care Level Charts by signing as complete almost all observations between 2340 and 0300 hours, when in fact she only completed three rounds of observations during this timeframe, was improper and unethical conduct and thus unsatisfactory professional conduct. 23. For these reasons, Complaint One in relation to Ms Sloane is made out. 24. As the conduct in question arises from a single series of events, it is appropriate to consider the particulars set out above (or any combination of them) cumulatively. On such a cumulative consideration, the Tribunal can be satisfied that the conduct in question, taken cumulatively, justifies suspension or cancellation and is thus professional misconduct. That is because it is conduct of a very serious nature, namely: 1. conduct which endangered patients (especially Patient A): SP1-SP11; 2. conduct which permitted a fellow practitioner to endanger patients: SP7-SP10; and 3. conduct which was dishonest, and intentionally so: SP3, SP4, SP12. 1. Even if the Tribunal considers each particular individually, each is sufficiently serious (for the reasons given above) to ground a finding of professional misconduct. 2. For these reasons, Complaint Two in relation to Ms Sloane is made out. In respect of expert opinion in relation to the Second Respondent: 1. The Commission retained Ms Muller to provide an expert opinion on Mr Hayles' practice on 1-2 July 2015. Ms Muller was briefed with all relevant evidence including the CCTV footage: HCCC Documents, Tab 18, pp 3-4. 2. For these reasons, set out in Ms Muller's Expert Report in Exhibit 1, Complaint One in relation to Mr Hayles is made out. 3. Once again, as the conduct in question arises from a single series of events, it is appropriate to consider the particulars set out above (or any combination of them) cumulatively. On such a cumulative consideration, the Tribunal can be satisfied that the conduct in question, taken cumulatively, justifies suspension or cancellation and is thus professional misconduct. That is because it is conduct of a very serious nature, namely: 1. conduct which endangered patients (especially Patient A): all particulars; and 2. conduct which was dishonest, and intentionally so: HP4 and HP5. 1. Even if the Tribunal considers each particular individually, each is sufficiently serious (for the reasons given above) to ground a finding of professional misconduct. 2. For these reasons, Complaint Two in relation to Mr Hayles is made out. 3. Mr Hayles has not provided any evidence in these proceedings, and he did not appear at the hearing. However, there is some evidence available to the Tribunal which was given by Mr Hayles during earlier stages in the process of the complaint and investigation. For completeness, this is summarised below. 4. Mr Hayles did not participate in the s 150 hearing on 8 October 2015. However, he did provide written submissions to the panel in advance of that hearing: HCCC Documents, Tab 5, p 4 [21]. In those submissions (summarised in the s 150 reasons for decision), Mr Hayles: 1. accepted the CCTV footage was accurate: p 4 [26]; 2. stated he did not normally discharge his duties in this manner: p 4 [26]; 3. stated he did not think the system was "fair" and that the nursing assistant ought to have helped with observations: p 4 [29]; and 4. stated that his performance may have been affected by poor sleep which was a result of financial stress: p 4 [30]. 1. Mr Hayles provided a written submission to the s 150C hearing in May 2016: HCCC Documents, Tab 14. This was directed at the allegations made in relation to his practice in Western Australia in April 2016. In summary, Mr Hayles accepted the facts of the allegations and accepted some responsibility, but not complete responsibility. This is not relevant to facts of the present proceedings, but it is relevant to the question of consequential orders. 2. On 10 November 2016, in his response to a letter sent to him by the Commission outlining the then-proposed complaint to be made against him, Mr Hayles (HCCC Documents, Tab 25): 1. said his "recollection of the night is obviously hazy": p 2; 2. "admit[ted] to making errors of judgement that night", but said "[o]ne of the main errors … was accepting the culture of the ward especially in regards to night shifts": p 2; 3. stated that, in particular, he "[felt] compelled to do whatever the others were not doing despite it being too much to cope with especially with the amount of observations": p 2; 4. said the pressure was increased because he was an agency nurse: p 2; 5. said he could not remember making an agreement with Ms Sloane as to how to divide up the observations, but would have expected to do some of them and to share them with the nursing assistant: p 2; 6. accused the nursing assistant of sleeping in the office for around three hours and the nurse in charge (presumably Ms Sloane) of going "for an extended break at this point": p 2; 7. said "[t]o do all these observations just by myself was completely inappropriate but as an agency nurse I felt compelled to do them and not make a fuss. Obviously, this was the wrong thing to do but being under a lot of financial stress at the time I just accepted my role": p 2; 8. said he had allowed sufficient time for observations because "if I can hear a regular breathing pattern, then that should be sufficient", especially because "there were so many 10 minute observations to be done", and his employer in Western Australia agreed with him: p 2; 9. admitted again "to making mistakes that night", including that he "should have been more assertive": p 3; 10. referred to his now-diagnosed sleep apnoea as having affected his performance, in his view: p 3; and 11. asserted it was "obvious [he] made mistakes" on the shift in question, but that he had "learnt from them": p 3. 1. There is nothing in any of these submissions which contradicts the findings sought by the Commission, either on a factual basis or in relation to the characterisation of the conduct. In respect of Orders and Costs, the Applicant submitted in relation to the First Respondent that: 1. As submitted at paragraph 109 above, the conduct in question is conduct of a very serious nature. If the Tribunal finds Complaint Two to be made out, it will have found that the conduct justifies suspension or cancellation of Ms Sloane's registration. The question then will be whether an order of that nature is appropriate in the present case, particularly having regard to Ms Sloane's admissions, and any remorse and insight she has demonstrated. 2. As outlined above, Ms Sloane has made broad admissions to the Tribunal: Sloane Documents, Tab 1. She has stated she is "extremely remorseful": p 5 [19]. She also "accept[s] that [she] failed to carry out and document clinical observations in accordance with the relevant local policy and with professional practice obligations": p 5 [19]. 3. Further, she has "undertaken a self-directed review" of enumerated policies and has "reduced [her] contracted hours of employment [in order to] undertake further professional development": p 5 [20]-[21]. 4. Finally, she "accept[s] that [she is] accountable for ensuring the safety of all patients under [her] care" and says she "deeply regret[s] her failures on this shift": p 5 [22]. 5. These admissions and statements are significant and ought to be taken into account in Ms Sloane's favour. 6. However, Ms Sloane has not admitted that the conduct in question constitutes either unsatisfactory professional conduct or professional misconduct, which speaks to a lack of insight as to its severity. That is consistent with the statement that she "accept[s] that [she] failed to carry out and document clinical observations in accordance with the relevant local policy and with professional practice obligations": Sloane Documents, Tab 1, p 5 [19]. That is, in only accepting so much, Ms Sloane seems to imply the conduct the subject of the proceedings was effectively a technical failure. She does not acknowledge the endangerment of the patients in her care (particularly Patient A), and she does not acknowledge her untruthfulness to her employer. Thus despite Ms Sloane's admissions, her insight appears to be limited. 7. In addition, there is a level of detail lacking in what Ms Sloane has said in certain regards. 8. In addition, while Ms Sloane has now made these admissions, she was untruthful during the Local Health District investigation, and maintained her lies for over two months. 9. Finally, Ms Sloane has provided two character references: Sloane Documents, Tabs 3, 5. These references provide some support for her evidence that she is engaging in professional development. 10. Such references have limited weight in disciplinary proceedings: Law Society of New South Wales v Walsh [1997] NSWCA 185. While they may be of "some value", particularly when given by "experienced practitioners" (see Council of the Law Society of NSW v Shehadie (No 2) [2016] NSWCATOD 151 at [41]), if they contradict the factual findings the Tribunal itself makes, that value is likely to be eroded. They are of most value in confirming the practitioners present approach to their practice, including in relation to rehabilitative steps. In respect of Orders and Costs relating to David Hayles: 1. Again, Mr Hayles' conduct is of a very serious nature, although less serious to some degree than that of Ms Sloane. Once again, if the Tribunal finds Complaint Two to be made out, it will have found Mr Hayles' conduct such as to justify an order for suspension or cancellation of his registration, and the question will be whether all of the circumstances make such an order appropriate. 2. The Tribunal is "hampered" by Mr Hayles' absence and the lack of any evidence from him, particularly in determining whether he has developed any insight: see, for example, Health Care Complaints Commission v Goh [2014] NSWCATOD 106 at [36], [50], [62]. Indeed, his failure to participate in the proceedings could be seen as a demonstration of an absence of remorse for, or insight into, his conduct. This increases the likelihood that an order such as suspension or cancellation of his registration is appropriate. 3. As summarised at paragraphs 54 to 59 above, there is some evidence available from Mr Hayles during the earlier processes. 4. The response to the Commission (summarised at paragraph 107 above) is most relevant for present purposes. While Mr Hayles accepts in this document that he made mistakes, tellingly, nowhere does he state what mistakes he made, other than "accepting the culture of the ward" and being insufficiently "assertive". Further, he seems to assert that he did conduct observations when others were not, or at least that he took some sort of responsibility for doing them, despite the fact that the CCTV footage demonstrates that this is plainly not the case. 5. In addition, his statement that he has "learnt from" his "obvious mistakes" can give the Tribunal no comfort when he has provided no evidence beyond bare assertion not only as to what he considers those mistakes to have been, but also of what or how he has learned. 6. Certain events in Western Australia are also relevant to the question of consequential orders. As noted above, Mr Hayles moved to Western Australia shortly after 1 July 2015. At the time of the s 150 hearing, he was working there, in an acute psychiatric unit, presumably in the capacity of registered nurse: HCCC Documents, Tab 6, p 1. His line manager provided a reference for him: HCCC Documents, Tab 7. 7. Following the s 150 hearing, conditions were imposed on Mr Hayles' registration: HCCC Documents, Tab 5, pp 6-7. Condition 3(c) required that monthly reports be provided by Mr Hayles' manager. The report provided in April 2016 included, in addition to raising other concerns, a report of an allegation that Mr Hayles had "failed to undertake clinical interventions and falsified health records": HCCC Documents, Tab 8, p 6 [34](a); see also Tab 11, p 2 and Tab 12 (which contains more detail as to the allegation). The other reports from November 2015 to March 2016 had been satisfactory: HCCC Documents, Tabs 9-10. 8. As a consequence of the allegation outlined above, Mr Hayles' employer had made a notification to the relevant authority in Western Australia and had placed certain restrictions on his practice within his employment: HCCC Documents, Tab 8, p 6 [35]; see also Tab 12. 9. By reason of the concerns raised in the April 2016 report, a s 150C hearing was convened to consider whether the conditions placed on Mr Hayles' registration ought to be varied in any way: HCCC Documents, Tab 8, p 5 [26]. Again, Mr Hayles did not participate in the hearing, but did provide written submissions to the panel: HCCC Documents, Tab 8, p 5 [28]-[29]; see also Tab 14. Mr Hayles again blamed lack of sleep for the issues which had led to the allegations: Tab 14, p 3. 10. The panel decided to impose an additional condition, requiring supervision, on Mr Hayles' registration: HCCC Documents, Tab 8, pp 7-8 [42]-[43] and conditions. 11. Despite the allegations, it appears Mr Hayles retained the support of his employer in Western Australia for at least some time, and it is relevant to note that he was assessed in May 2016 as competent: Tabs 16-17. As at November 2016, it seems that Mr Hayles remained employed in the same position: Tab 25, p 3. 12. The allegations made against Mr Hayles in Western Australia are relevant in that they appear to involve conduct similar to that presently before the Tribunal, and so they counter Mr Hayles' assertion that he has "learnt from" the mistakes he made on 1‑2 July 2015. 13. In addition, the manner in which Mr Hayles sought to avoid complete responsibility for his conduct appears similar to his response to the Commission in relation to the present allegations. However, in circumstances where the Tribunal does not have before it any factual determination in relation to the complaints in Western Australia, it should not place weight on this evidence against Mr Hayles in this respect. That is, any use of this evidence ought to be limited to that referred to in paragraph 140 above. Submissions by the First Respondent 1. In respect of the National Law Ms Sloane made submissions similar to those made by the Applicant and are well known to the Tribunal. 2. In respect of the Legal Principles Ms Sloane outlined the meaning of the phrase "significantly below the standard reasonably expected…" and the submissions reflect largely the submissions made by the Applicant and are well known to the Tribunal. 3. In respect of Complaint One Ms Sloane stated that she accepted that she failed in her professional responsibility on 1 and 2 July 2015 and expressed remorse for this failure. RN Sloane acknowledges that the dignity and care of vulnerable patients is central to her role as a nursing professional. 4. Since 1 and 2 July 2015, RN Sloane has engaged with regular supervision of her clinical practice. Her Supervisor, Ms Katrina Maree Vukovic, has provided a reference on behalf of RN Sloane for the Tribunal (Exhibit 4, Tab 3). RN Sloane has reduced her contracted hours of employment in recognition of her need for better self-care. Further, she has undertaken a self-directed review of a number of local hospital and Ministry of Health policies, procedures and guidelines. 5. RN Sloane is deeply affected by the care and treatment she provided on 1 and 2 July 2015 and has accepted responsibility for her actions. This acceptance is a measure of the seriousness with which she takes her responsibilities as a nurse. RN Sloane is acutely aware of her failings on that night. In oral evidence, RN Sloane acknowledged that she initially tried to deflect responsibility of the care she provided to Patient A (Exhibit 1, Tab 35) (Exhibit 1, Tab 36/pages 2 and 3) (16 July 2015 and 19 August 2015). On 9 September 2015, RN Sloane acknowledged that this was wrong she has accepted responsibility soon after (Exhibit 1, Tab 37/page 2). In an email to the hospital investigator, Mr Nuoran Tawfiq, RN Sloane wrote: "I regret, and apologise for… (1) That I failed to give [Patient A] the level of care he deserved… (2) That I lied about this in an attempt to protect myself from the consequences of my actions (3) That I didn't carry out ten minute observations that the Care Level Two observations required." 1. The Tribunal will note the comments from the nurse expert Ms. Christine Muller, where she states (Exhibit 1, Tab 34/page 11): "While I accept the evidence is difficult to dispute, I find that RN Sloan[e]'s open admission of a failure to adequately care for her patients and her expressed regret in regard to these matters to be commendable." 1. RN Sloane's adoption of a lesser frequency of observation was in part owing to her following a unit culture and in part owing to her not wanting to disturb sleeping patients. She accepts that this approach was flawed and unacceptable. 2. In admitting the particulars of the complaint, it remains the case that RN Sloane failed to undertake the patient care level observations, which she knew as a nurse she should have undertaken. The Tribunal will note that RN Sloane has reflected on her practice and this incident has had an effect on her present approach to her practice as a nurse. The Tribunal will note how RN Sloane viewed her conduct on the night, as well as her present understanding of her conduct and how that has impacted her practice of nursing in the future. 3. In respect of protective orders Ms Sloane submitted that 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. 4. The Tribunal has the power to: 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 counseling (including, but not limited to, psychological counseling); 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. 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 Tribunal was referred to the decision of the Medical Tribunal in HCCC v Delabruna (2014) NSW CATOD 31 at paragraph 88 which sets out the applicable principles in determining protective orders. 5. Ms Sloane also referred the Tribunal to 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). In respect of proposed protective orders the First Respondent submitted: 1. Regarding the protective orders proposed by the HCCC. It is a matter for the Tribunal to determine whether cancellation of RN Sloane's registration is appropriate. We submit that this proposed protective order is harsh, unreasonable and does not serve the public interest. RN Sloane agrees a reprimand or caution will provide a deterrent. The HCCC's proposed order that RN Sloane's registration be cancelled with a non-review period of twelve (12) months would have more serious consequences for RN Sloane than is reasonably necessary to promote the protective purpose for the following reasons: 2. It has been 2 ½ years since this incident and prior to and following this incident there have been no complaints or investigations regarding RN Sloane's performance or conduct. 3. RN Sloane has remained employed within the Kiloh Mental Health Unit of South Eastern Sydney Local Health District since the incident on 1 and 2 July 2015. Letters of support submitted on behalf of RN Sloane from her current Nurse Manager and Supervisor - Ms. Katrina Maree Vukovic (Exhibit 4 Tab 3) and Clinical Nurse Consultant and secondary Supervisor, Mr Stephen Blowfield (Exhibit 4 Tab 5). 4. RN Sloane has had conditions imposed on her registration (Exhibit 1 Tab 27) by the NSW Nursing and Midwifery Council ("NMC"), since 9 October 2015 (approximately two (2) years), and she has been compliant with those conditions. RN Sloane has been subject to a 'Supervised Practice Plan' to ensure compliance and ongoing monitoring of her registration conditions. Supervision reports are prepared at monthly intervals and submitted to the NMC for ongoing monitoring purposes. To date, no issues, problems or concerns have arisen with respect RN Sloane's performance or conduct. 5. RN Sloane's nursing career spans 9 years and she has continued to work as a RN without incident since 2 July 2015. Her continuous service to the public health system and her dedication to the nursing profession should define her, not this complaint. RN Sloane would like to continue practicing as a registered nurse for the remainder of her working life. 6. It is submitted that the Tribunal determine whether it considers an order for mentoring, in addition to supervision, would enable practice development through the support of a senior mental health nurse. 7. RN Sloane has always indicated a willingness to engage in further education and training. RN Sloane would be amenable to undertaking further education courses. It is submitted that the Tribunal determine whether it considers that an order for RN Sloane to undertake an education course in ethics is appropriate. 8. RN Sloane has gained valuable insight from this incident and is supported by her employer. She does not pose a risk to public safety if she was to continue practicing as a nurse. It follows that cancellation of her registration is not required for the protection of the health or safety of any person. Decision and Reasons 1. The Tribunal has considered all of the evidence referred to in this opinion and the submissions made by both the Applicant and Ms Sloane. It has also considered such evidence as was available to it in respect of Mr Hayles and responses by Mr Hayles in regard to the complaints made against him. 2. In respect of RN Sloane, the Tribunal seriously considered that for the protection of the profession in particular, RN Sloane should have her registration cancelled or suspended. 3. However, the Tribunal had regard to the various steps that RN Sloane has taken to remedy the failure which occurred on 1 July 2015. In that regard, she has undertaken various training courses, has engaged with a clinical nurse educator, has made her own decision not to work as a nurse in charge and has worked only on day shifts. 4. In light of the above, the Tribunal felt that de-registration or suspension of her registration in respect of RN Sloane was not appropriate but instead believed that a strong reprimand of RN Sloane would send an appropriate message to her and to the profession in general, that behavior of this type will not be tolerated. 5. In respect of RN Hayles, all the allegations made against him in the complaint have been admitted by Mr Hayles, other than that his behavior constitutes unsatisfactory professional conduct or professional misconduct. It is true that it is commendable that Mr Hayles has admitted all of those allegations and that does demonstrate some insight into his behavior at the time. The difficulty which Mr Hayles has is that at this time, he is not demonstrating sufficient insight into the importance and significance of the failures in his behavior on that occasion, and does not accept that that behavior constitutes unsatisfactory professional conduct or professional misconduct. The Tribunal is comfortably satisfied that the complaints brought by the Applicant against Mr Hayles have been proven, and that Mr Hayles is guilty of unsatisfactory professional conduct and professional misconduct. 6. The Tribunal was required to consider the Jurisdictional Point in respect of Mr Hayles set out in paragraphs 74 and 75 above. There were no submissions made by Mr Hayles in regard to Jurisdiction. The Tribunal is comfortably satisfied that in disciplinary proceedings, which are administrative in nature, it is within powers and accordingly accepts that it has jurisdiction to determine the complaint against Mr Hayles. 7. In addition to the above, the Tribunal had available to it, a schedule of conditions imposed upon Mr Hayles by AHPRA in response to a complaint made against Mr Hayles in Western Australia, the elements of which, while not exactly the same, do reflect the same behavior that was found in respect of the current complaint against Mr Hayles. 8. Having considered all the above and having set out the conduct and circumstances in this decision in some detail, the evidence and the written submissions made by both parties and the responses given by Mr Hayles, the Tribunal is comfortably satisfied that the allegations against Ms Sloane and against Mr Hayles have been made out and the Tribunal has therefore determined that: 1. Ms Sloane is guilty of unsatisfactory professional conduct pursuant to s.139B and is guilty of professional misconduct pursuant to s.139E; 2. Mr Hayles is guilty of unsatisfactory professional conduct pursuant to s.139B and is guilty of professional misconduct pursuant to s.139E of the National Law. 1. The Tribunal makes the following orders: In respect of the First Respondent: 1. The First Respondent is reprimanded subject to the conditions below: 1. She may not work as a nurse in charge. 2. She is entitled to work day shifts only. 3. She is required to engage with a clinical nurse educator for at least one year, the frequency of which is to be determined by her clinical nurse educator. 4. She is to authorize her clinical nurse educator to report directly to the Nursing and Midwifery Council on the frequency and attendance by the nurse on her clinical nurse educator. 5. The conditions set out above are to be monitored and enforced by the Nursing and Midwifery Council. 1. 50% of the costs to be paid by the First Respondent. In respect of the Second Respondent: 1. The Second Respondent's registration is cancelled from the date of this decision. 2. The Second Respondent may not apply for re-registration for a period of at least two years. 3. 50% of the costs to be paid by the Second Respondent. ********** ​ 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: 19 March 2018