Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Picones [2018] NSWCATOD 56 Hearing dates: 4, 5 April 2018 Date of orders: 05 April 2018 Decision date: 24 April 2018 Jurisdiction: Occupational Division Before: J Millbank, Senior Member S Hillsley, Senior Member A Walsh, Senior Member H Schutz, General Member Decision: 1. Cancellation of the practitioner's registration under s 149C(1)(b) of the National Law with immediate effect from 5 April 2018. 2. The practitioner may not apply for review of the order for 12 months from the date of the order per s 149(7). 3. A prohibition order per s 149C(5)(a) preventing the practitioner from undertaking any health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) for the duration of the cancellation order. 4. Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: Nursing – mental health nursing – adolescent patients – multiple boundary violations – multiple dispensing of sedating medication not clinically indicated and not recorded – false and misleading evidence Legislation Cited: Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') s 3A; s 139B; s 139E; cls 7 and 13(1) Sch 5D Cases Cited: Briginshaw v Briginshaw [1938] HCA 34, (1983) 60 CLR 336; Chen v Health Care Complaints Commission [2017] NSWCA 186; Gad v Health Care Complaints Commission [2002] NSWCA 111; Health Care Complaints Commission v BXD (No 1) [2015] NSWCATOD 134; Health Care Complaints Commission v Do [2014] NSWCA 307; Health Care Complaints Commission v Fisher [2016] NSWCATOD 62; Health Care Complaints Commission v Flekser [2016] NSWCATOD 1; Health Care Complaints Commission v Fraser [2014] NSWCATOD 29; Health Care Complaints Commission v Gower [2011] NSWNMT 17; Health Care Complaints Commission v Litchfield (1977) 41 NSWLR 630; Health Care Complaints Commission v Mitchell [2015] NSWCATOD 15; Health Care Complaints Commission v Perroux [2011] NSWDC 99; Health Care Complaints Commission v Phung (No 1) [2012] 1 NSWDT 3; Health Care Complaints Commission v Piper [2014] NSWCATOD 62; Health Care Complaints Commission v Sloane [2018] NSWCATOD 37; Lee v Health Care Complaints Commission [2012] NSWCA 80; Pillai v Messiter (No 2) (1989) 16 NSWLR 197; Qasim v Health Care Complaints Commission [2015] NSWCA 282; Sabag v Health Care Complaints Commission [2001] NSWCA 411; Slezak, Dr Peter [2011] NSWMPSC 10; Sudath v Health Care Complaints Commission [2012] NSWCA 171. Texts Cited: NSW Health, PD2012_69, Health Care Records – Documentation and Management (2012); NSW Health, PD2013_043, Medication Handling in NSW Public Health Facilities (2013); Nursing and Midwifery Board of Australia, Code of Ethics (2008); Nursing and Midwifery Board of Australia, Code of Professional Conduct (2008); Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Kevin Lloyd Picones (Respondent) Representation: Counsel: R Bhalla (Applicant) L Toose (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Nurses and Midwives Association (Respondent) File Number(s): 2017/00275848 Publication restriction: Under Cl 7 of Sch 5D of the National Law prohibition of disclosure to any person or entity of the names of the patients set out in the schedule to the complaint or any other patient named in evidence. REASONS FOR DECISION Background 1. At the time of the hearing the practitioner was 27 years old. Mr Picones was first registered as a nurse in February 2014. In March 2015 he commenced employment as a registered nurse at a child and adolescent mental health unit ('the CAMHS unit') in a NSW regional city. 2. The CAMHS unit provides care to children and young people with a range of mental health issues. At the time of the events under consideration, Patient A was 15 and was an involuntary patient in the CAMHS unit for a 5 month period due to self-harm, intense suicidal ideation and emotional dysregulation. Patient B was 14 years old and was admitted to the unit for a 4 ½ month period with a diagnosis of anorexia, with periods also in the paediatric unit when her weight was dangerously low. Patient C was 16 years old, with a benzodiazepine addiction; he was admitted to the unit following a drug-based suicide attempt and spent 6 weeks there before being discharged to a drug rehabilitation facility. 3. On 2 September 2015 Patient C stated to a staff member that Mr Picones had supplied him with Phenergan on more than one occasion (in circumstances where the medication was neither prescribed nor charted), had enabled patients to smoke and had provided a patient access to his mobile phone. On 3 September 2015 the nurse unit manager spoke to Mr Picones, who admitted that he had provided a patient access to his phone but denied the other allegations. The manager counselled Mr Picones on his professional responsibilities and boundaries, and accepted his expressions of regret and responsibility as genuine. 4. Phenergan is an antihistamine with a strong sedating effect. It is a medication which should only be used under the direction of a doctor or pharmacist. 5. On 22 September 2015 Patient B alleged to a different staff member that Mr Picones had supplied her with Phenergan in circumstances where the medication was neither prescribed nor charted. Patient B reported the placement of a Phenergan tablet (taped under a table) and produced another from her pocket. Patient A joined the discussion and alleged that she and other named patients had been provided with Phenergan by Mr Picones on more than one occasion. 6. An internal investigation was conducted in October 2015 in which some but not all of the patients identified as having been provided with Phenergan were interviewed. From those interviews, further allegations emerged of the practitioner supplying cigarettes to patients, and boundary violations including making sexualised remarks, disclosing personal information about other staff, and providing patients with access to his phone, as well as not intervening when he witnessed a patient self-harming. Mr Picones denied all of the allegations, excepting that he provided access to his mobile phone to a patient on the sole occasion previously admitted. 7. The relevant Local District Health (LHD) service undertook a timely risk assessment, and imposed workplace restrictions. A mandatory notification was made by the district to the Nursing and Midwifery Council (NMC) in October 2015. At that time the NMC was satisfied that the risk was managed appropriately. In December of 2015 the NMC requested notification should Mr Picones leave the employment of the relevant district. 8. During December 2015 and January 2016, the LHD undertook an investigation. Mr Picones continued to deny all of the allegations apart from the single incident of access to his phone. In June 2016 the LHD released a report finding that some but not all of the allegations were substantiated. 9. In March 2016 Mr Picones left his employment and in April 2016 took up employment at the older persons mental health and psychiatric emergency care unit in Nepean hospital, in a different health district. He did not inform Nepean that he was under investigation nor that he was practising under workplace restrictions. 10. The June 2016 report of the LHD recommended a warning, the placing of Mr Picones' name on the service check register and noted that if he had still been within the employ of the district he would have been placed on a disciplinary performance improvement plan. The report also recommended that in future all staff working within the CAMHS unit have a minimum three years post-graduate experience and post-graduate training in the area. 11. A copy of the June 2016 LHD report was provided to Nepean Hospital. Nepean suspended Mr Picones from clinical practice for four months while it conducted its own risk assessment, and then returned him to clinical duties with restrictions, including supervision, day shifts only, and the requirement of online education. 12. Somehow, the NMC was not notified that Mr Picones had changed employment until January 2017. A section 150 hearing was convened in February 2017 and on 24 February 2017 the NMC imposed conditions including that the practitioner not work night shifts, have supervisory responsibilities, work as a sole practitioner on any shift, and must inform all current nursing employers of the conditions. Condition one provides: 1. The registrant must practise under the direct or indirect supervision of a registered nurse (Division 1) who does not have any conditions on his/her practice. The supervisor must be: 1. on-site and working in close proximity within a ward or unit with the registrant; and 2. be able to oversee and provide advice about the registrant's practice when necessary. Complaint and issues 1. On 8 September 2017 the Health Care Complaints Commission (HCCC) filed a complaint with this Tribunal concerning the practitioner's conduct with patients A, B and C. Complaint 1 is that the practitioner misappropriated Phenergan from the unit (particular 1), provided it on multiple occasions to Patient A when it had not been ordered or prescribed (particular 2), and failed to make a written record of this supply in breach of NSW Health Policy, Health Care Records – Documentation and Management s 2.4 and 7.6 (particular 3). Complaint 2 is in similar terms as it relates to Patient B (particulars 1-3) and Complaint 3 as it relates to Patient C (particulars 1, 2 and 4). 2. In addition as concerns Patient A it is alleged that the practitioner told Patient A not to tell anyone that he had supplied her with Phenergan saying words to the effect of, 'don't tell anyone about this, I could lose my job' (Complaint 1, particular 4), gave her cigarettes (particular 5), declined to intervene when he observed her in self-harming behaviour (particulars 6 and 7), declined to appropriately intervene when he observed Patient A in a sexual situation with another patient, and made sexualised remarks following this incident (particulars 8 and 9). 3. In relation to Patient B it is further alleged that the practitioner made a remark to her about the quantity of particular drugs, including Phenergan, required to overdose (Complain 2, particular 4) and allowed her to access his phone to message another staff member (particular 5). 4. Concerning Patient C it is further alleged that the practitioner provided Temazepam, Valium and Tramadol on multiple occasions when it had not been ordered or prescribed (Complaint 3, particular 3), gave Patient C a cigarette when he was escorting him for a walk (particular 5), took a photograph of another patient while in the company of Patient C (particular 6), provided Patient C access to his mobile phone to access Facebook (particular 7), and made impropriate personal disclosures about other staff members (particular 8). 5. It is particularised that the practitioner breached the nursing code of conduct and code of ethics based on the matters complained of (Complaint 1, particular 2, Complaint 2 particular 6, Complaint 3 particular 9). 6. The complaints concerning Phenergan are said to have occurred 'in about September 2015' while many of the others are placed between August and September or even more broadly between June and November 2015. 7. In his written statement dated 22 February 2018 for these proceedings Mr Picones acknowledged for the first time that he had in fact provided Phenergan to Patients A, B and C, as well as to another named patient, in inappropriate circumstances. However, he avowed that this had happened on one occasion only. Mr Picones conceded that he had not made written records and that the admitted conduct was a breach of the Nurses Code of Conduct and Code of Ethics. 8. On the morning of the hearing the HCCC sought and was granted leave to add a further complaint, that the practitioner had made false and misleading representations to the LHD investigation in a letter dated 12 December 2015, and to the HCCC in a letter dated 20 January 2016 (Complaint 4) when he denied providing patients A, B and C with Phenergan. Complaint 4 originally also included a particular concerning the making of a false statement to the NMC during the s 150 proceedings regarding the provision of Phenergan; however the transcript of that hearing revealed that Mr Picones was never actually asked about this matter during that process, and did not make any direct statement to the Council on this issue. This particular was therefore dropped. Complaint 5 is of professional misconduct. 9. In his 22 February 2018 statement Mr Picones further conceded that he had inappropriately told Patient C personal information about other staff, and that he told Patient A 'not to tell anyone I was supplying her with Phenergan tablets…because I was in fear of losing my job.' He also made numerous partial concessions that differed from the patient accounts and particulars, in that he asserted that he had: made a sexualised remark as a joke to Patient A (but not following any observations of her with another patient), had allowed Patient C to have a cigarette (but not provided it), and had not intervened when Patient C had used his mobile phone (rather than used it himself to photograph a patient). The remaining particulars were denied. The practitioner did not concede that his admitted actions constituted unsatisfactory professional conduct or misconduct. 10. In summary, the Tribunal finds that Complaint 1 particulars 1-4, 8-10, Complaint 2 particular 1, 2 (in part), 3, 5 and 6, Complaint 3 particulars 1-2, 4-6, 8 and 9, Complaint 4 particulars 1 and 2 and Complaint 5 are proved to the required standard, for the reasons which follow. Evidence and Hearing 1. At hearing the issues that required resolution were whether Mr Picones: * Supplied Phenergan to Patients A, B and C on more than one occasion; * Provided cigarettes to Patients A and C; * Failed to intervene when Patient A self-harmed; * Failed to intervene when finding Patient A in a sexual situation with another patient and made sexualised remarks to her; * Advised Patient B on how to overdose; * Used his mobile phone to photograph a patient; * Allowed Patient C to use his mobile phone to access Facebook; * Inappropriately provided Patient C with Temazepam, Valium and Tramadol, and * Whether the admitted and proved conduct amounts to unsatisfactory professional conduct or professional misconduct. 1. The HCCC evidence comprised witness statements from Patient A and C, a number of nurses, a nurse manager and doctors from the CAMHS unit, as well as medical records for Patients A, B, C and another patient who had been named by the patients (and subsequently, the practitioner) as having been provided Phenergan (Patient Four). A peer expert report dated 5 December 2016 was provided by Ms Marabong. None of these witnesses was called to give oral evidence. 2. The respondent's evidence comprised his February 2018 statement, a copy of his CV and some recent CPD and professional development reports. The respondent gave oral evidence. 3. Given the concessions made by the practitioner, the parties agreed that it was appropriate to hear Stage 1 and 2 together. In order to give the practitioner the fullest opportunity to address the Tribunal on appropriate orders, findings on the complaints, including all particulars, were delivered orally at the conclusion of the first day of the hearing, and the second day of the hearing was devoted to stage 2. 4. The respondent was recalled to give evidence on the second day. The practitioner's representative requested leave to call as a witness by telephone the practitioner's present workplace supervisor, Ms Vevers, at Nepean Hospital in order to provide current evidence as to his practice. As there had been no witness statement provided in advance, this was an unusual course. Given the serious issues which had been found proved concerning his past boundary violations and drug dispensing, leave was granted in order to maximise the opportunity for the practitioner to address the question of his current and future safety to practise. To address any difficulties with unforeseen evidence, the Tribunal allowed Ms Vevers to be recalled later in the day for cross-examination. Findings 1. Even allowing for his relative youth and inexperience, and the effect of nerves in a formal disciplinary setting, Mr Picones was a wholly unimpressive witness. On multiple occasions Mr Picones swore to a version of events which, when contradicted by objective evidence, he then altered. While purporting to be contrite and remorseful, Mr Picones repeatedly tailored his account of events to minimise their seriousness and his own responsibility. Omissions in Mr Picone's oral evidence and documents were also unearthed in the course of the hearing that belied any claim to candour on his part. Having sworn to a number of different versions of events which were demonstrated to be internally inconsistent or factually impossible, Mr Picones then stated that he could not clearly recollect the events. 2. The Tribunal provided Mr Picones with multiple opportunities to address the contradictions and omissions in his testimony, however he was unable to offer a satisfactory or consistent account of what happened, or of his own motivations. 3. Because Mr Picones was not a witness of candour, nor indeed of truth, where the account of other witnesses contradicted Mr Picones, their evidence was generally preferred. However, the evidentiary matrix of this matter was complicated by the fact that there was no direct evidence from Patient B, and the second-hand evidence of Patient B's complaint to a nurse involved Patient A's additional allegations. In addition, the direct evidence on some particulars was very limited in nature, and some particulars were said to have occurred anywhere in a five month period. For these reasons the Tribunal took a cautious approach to the evidence. We gave little weight to general claims (such as 'He would give us smokes and Phenergan') and for most particulars found them to be proved only when there was additional corroboration. 4. It is noteworthy that Mr Picones' concessions in his written statement of February 2018 regarding several particulars asserted that all of them occurred on 16 September 2015; that is, on one afternoon shift he: escorted Patient C out for a walk and supervised him for 5 minutes while he smoked a cigarette 'as it was his last day on the unit and he was getting discharged' and also made a personal disclosure about another staff member on this walk, then at another time that afternoon allowed Patient C to pick up the practitioner's mobile phone from a table during group activities and use it, then dispensed Phenergan to three patients inappropriately at 7.30 pm, and later permitted Patient B to access his phone while attending her on the paediatric ward and also providing her with Phenergan. 5. In his oral evidence Mr Picones commenced by correcting his evidence to say that the inappropriate disclosure about another staff member to Patient C had happened a week earlier than 16 September 2015. Later he amended this to say two weeks earlier. He continued to assert a specific recollection of all other events occurring on the same day; that day being 16 September 2015. When asked what occurred on that one day to trigger several incidents of poor conduct, Mr Picones claimed that he had just had one really bad day. 6. Under cross-examination Mr Picones corrected his evidence to concede that the Phenergan tablets were not 10mg as his written evidence stated, but 25 mg as the witnesses had all asserted. 7. Mr Picones was emphatic that his supply of Phenergan involved providing it to Patient A and C and Patient Four at the same time as a group, and then going to another ward to provide it to Patient B shortly thereafter, and that this was the sole occasion on which this occurred. 8. The Tribunal drew Mr Picones' attention to the clinical records of Patient C, which indicated that he had been discharged at 8 am on 16 September 2015. Mr Picones then asserted that he must have been mistaken and the events he admitted from 16 September had occurred instead on the 15th of September – Patient C's 'last day'. The Tribunal then drew Mr Picones attention to the staff roster which listed him as not working on either 15 September or 14 September 2015. The Tribunal invited him to reconsider his evidence over the luncheon adjournment on day one of the hearing. 9. After lunch, Mr Picones swore that the admitted events still all occurred only once and on the same day, but that day was 'around early September'. He specifically attested that they occurred on a day when he had 'specialled' (or one-on-one nursed) Patient B for a half hour period in the paediatric unit while another nurse was absent, and that he had provided Patient B with the Phenergan and his mobile phone during that half hour. 10. A review of Patient B's clinical records indicated that she was in the paediatric unit from 9 September 2015 to 22 September and on 15 minute observations for much of that time. Mr Picones only attended to her on one occasion for a period of half an hour, in the evening of 17 September 2015, i.e. when Patient C had already been discharged. On the morning of day two of the hearing the Tribunal invited Ms Toose to review these records and consult with her client. After an adjournment Ms Toose indicated that Mr Picones accepted that the events must have occurred on different days and that he had a bad memory. Supply of Phenergan to Patients A, B and C 1. In his statement of 22 February 2018 Mr Picones stated that he spent a lot of time with a group of four patients on the unit who were friends, Patients A, B, C and Patient Four. In early September 2015 I was having a discussion with the group and during this discussion I mentioned that there was an antihistamine called Phenergan that people use to help them sleep. They asked, "can you get it for us?" They said that it would help them with their sleep. I hesitated in an obvious fashion. They said "we won't say anything to anyone, we promise." 1. The practitioner then stated that on 16 September 2015 he worked an afternoon shift from 1330 to 2200. During the afternoon when I was in the medication room I took two sheets of Phenergan tablets (10mg) from the ward stock and placed them into my pocket. At approximately 1930 hours, I was sitting at a table in the dining room talking with [Patient A, C and Patient Four]. I told them I had Phenergan on me. They said "can you please give it to us" and again stated "we promise we won't say anything." I gave each of them 2 x tablets of Phenergan. I then went to the Paediatric ward where [Patient B] was at the time and I gave her 2 x tablets. 1. While admitting that this was not clinically indicated, and accepting that it was a breach of the Nurses Code of Conduct and Code of Ethics, Mr Picones nonetheless asserted that this was a medication which could be nurse initiated. In oral evidence he shifted to say that the believed at the time that this was a medication that could be nurse initiated. This is not the case and we find that Mr Picones knew this at the time, as evidenced by his failure to chart the medication. Moreover, NSW Medication Handling Policy requires that two nurses be present for the administration of certain medications to patients under 16, and the Unit policy was that all medication, even Panadol, had to be charted and had to be administered in the presence of two nurses. We find that Mr Picones was aware of these policies at the time, as evidenced by his own admission that he told Patient A he could lose his job for having supplied the Phenergan. Notably, although Mr Picones characterised the Phenergan as something to assist with 'mild insomnia' on no version of his account did he provide it to the patients late at night when they were unable to sleep. 2. In his oral evidence Mr Picones stated that he waited almost two weeks before providing the Phenergan after having misappropriated it from the unit supply because he was 'very hesitant' to provide it and eventually 'gave in'. Later he altered the timing of his account such that he provided it very shortly after removing it. 3. The above are examples of the manner in which Mr Picones repeatedly altered his account and hedged in order to minimise his responsibility. Another example of the evasion of responsibility is provided throughout his statement where he refers to the patients 'pleading' and 'begging' him for the tablets (and other matters such as the use of his phone), and in oral evidence to himself as 'pressured' and 'giving in' – even though, again on his own account, it was he who had first suggested the use of Phenergan. 4. Patient A and C both alleged that they were provided with Phenergan by the practitioner on multiple occasions and provided statements to this effect. Patient C first made this allegation on 2 September 2015. 5. On 22 September 2015 Patient B stated that she had been provided Phenergan by the practitioner, but as noted above, this statement was recorded by a nurse and was combined with Patient A's allegations as she joined the conversation. This record is ambiguous as to whether Patient B indicated the provision of Phenergan on more than one occasion. There is no direct evidence from patient B. 6. Therefore, while we conclude that the practitioner supplied Phenergan to Patient A and Patient C on multiple occasions, we are unable to find on the balance of probabilities that the practitioner supplied Phenergan to Patient B more than once. 7. Providing cigarettes to Patients A and C 8. Patient A's evidence on this issue was very general, and we are unable to find on the balance of probabilities that it occurred. Patient C made this allegation with greater specificity, and on more than one occasion. We prefer Patient C's evidence to the practitioner's discredited account, and find that the practitioner did in fact provide him with a cigarette on one or more occasions. Failing to intervene when Patient A was exhibiting self-harming behaviour 1. Patient A's account of these two events was quite general in nature. Patient A stated that on the second occasion Mr Picones said, 'I know it won't work and she does too, so I'm just going to leave her.' In this quote Mr Picones is speaking in the third person about Patient A, i.e. is speaking to someone other than her, but there is no account from that person and that person is not named in the evidence. While giving little weight to the practitioner's denials, these allegations would be bizarre behaviour from a registered nurse in a mental health ward, even a nurse with very poor boundaries and poor judgment. It is hard to fathom any explanation for such behaviour, which is not consistent with all of the other matters alleged and conceded, in which the practitioner was over-familiar with, and seeking to ingratiate himself with, the patients. The Tribunal was therefore unable to find these particulars proved on the balance of probabilities. Advising Patient B on how to overdose 1. There is no witness statement from Patient B. As above, behaviour of this kind would go beyond the practitioner's acknowledged and proved failings and veer into the bizarre, even sadistic. It is not consistent with the weight of the evidence concerning the practitioner's multiple boundary violations, none of which seems directed to calculated harm or arising from malice. The Tribunal finds that this particular is not proved. Failing to intervene when finding Patient A in a sexual situation with another patient and making sexualised remarks to Patient A 1. In his written statement Mr Picones admitted that he made a remark in which he advised Patient A of the 'best time' to have sex with Patient D on the unit but says that this was a joke and said in such a way that it was easily construed as a joke. 2. The Tribunal asked Mr Picones to describe the context in which this joke arose, but he could not remember anything at all about the setting or conversation which had precipitated it. 3. It is a logical inference that this remark arose after Mr Picones had observed Patient A and Patient D in some kind of sexual interaction. We prefer the evidence of Patient A and find both of these particulars proved. The practitioner using his mobile phone to photograph a patient 1. Patient C's account of this incident was that he had once seen Mr Picones 'take Snapchats with his phone of [a patient] when she was going out of control.' Patient C also said that the practitioner had allowed him access to his phone 'a few times.' He noted the make and colour of the practitioner's phone, an iphone 5C, which Mr Picones confirmed was correct. 2. The practitioner's account of this incident is that on 16 September 2015 he left his phone on a table during group activities and that Patient C picked it up and started using Snapchat, which Mr Picones allowed to occur for some minutes. In oral evidence Mr Picones said his phone was not secured by pin code or finger print. As noted above Mr Picones altered the timing of this event in his evidence. On balance the Tribunal preferred the evidence of Patient C and finds the particular proved. Allowing Patient C to use his mobile phone to access Facebook 1. Patient C claims that he accessed the practitioner's phone to log on to his own Facebook account as well as looking at information about other staff members through the practitioner's Facebook account. There was corroborative evidence of inappropriate disclosures about the staff members, and of other patients accessing the practitioner's own Facebook account. Such conduct could occur briefly, in circumstances in which the activity was clandestine because staff phone use was prohibited on the unit. In contrast allowing Patient C to log into his own account would have taken considerably longer, as it would require the practitioner to log out of his own account first, and the patient would then need to log in and possibly also complete verification steps as he was utilising a new a device to access that account. On balance the Tribunal is unable to find this particular proved to the required standard. Inappropriately provided Patient C with Temazepam, Valium and Tramadol 1. Patient C was charted for PRN Valium for panic attacks and Temazepam at bedtime as part of a process of weaning him off benzodiazepines. Both of these drugs and Tramadol are Schedule 4D medications which must be closely accounted for, including being signed out in a unit drug register by two nurses. This register was not in evidence. 2. Patient C's witness statement was that Mr Picones 'would always give me extra Temazepam 10 mg. He would also give me extra Valium if I asked for it. He gave me something else once, I think it was Tramadol.' 3. Given the generality of the allegation and lack of corroborative documentary evidence from the unit drug registers, the Tribunal does not find this particular proved. Unsatisfactory Conduct or Professional Misconduct 1. The opinion of the peer expert, Ms Marabong, was that each of the particulars if true, constituted conduct significantly below the standard reasonably expected of a practitioner with the same training and experience, and was subject to her strong criticism. 2. Ms Marabong notes that: [Patients A and B and Patient Four] seemed to be very concerned, even anxious, about RN Picones' welfare. Adolescent mental health patients are particularly vulnerable to exploitation due to their developmental immaturity (emotional and psychological), as well as their acute mental health conditions which may impair their judgment, insight or perception of their environment. … RN Picones demonstrated gross over-involvement in their care and clearly had difficulties with placing boundaries and limits on their prohibited behaviours. 1. Ms Marabong opines that if the practitioner found himself in difficulties in managing professional boundaries, it was his responsibility to inform his colleagues and seek assistance. Statements from other nurses and the NUM indicate that in fact they intervened on more than one occasion in September 2015 to counsel the practitioner about professional boundaries; for example on 3 September in response to the allegation from Patient C, and again on or around 10 September in response to the revelation from another patient that Patient C had a 'crush' on the practitioner. As a result of this latter incident, the practitioner asked to be moved off the unit temporarily but returned to the unit within days. 2. Mr Picones asserted that he did not know at the time that Patient C's recent suicide attempt had involved Phenergan, but he was well aware that Patient C's primary diagnosis was of drug addiction. 3. The practitioner stated that he did not watch any of the three patients swallow the medication. The possibility of pooling and/or stockpiling the medication was therefore very real. All three patients were on a variety of prescribed medications, including sedating medications, which could have interacted adversely. Moreover, because the medications were not charted there was the additional risk that the patients could have been administered other PRN medications by staff who were unaware of what medications they had active in their systems. 4. The proven counts of inappropriate provision of Phenergan, and failure to chart this mediation, are sufficiently serious to rise to the level of professional misconduct. Such conduct was both improper and unethical; it involved a wilful abuse of professional position and placed the physical and psychological health of the patients in danger. 5. Complaint 4 of providing false and misleading representations to the local district investigation and to the HCCC is also of such gravity as to rise to the level of misconduct. It goes to the core of professional conduct that a practitioner can be trusted to be truthful by their supervisors, professional body and regulators. 6. The remaining proved and admitted particulars are each so below the standard reasonably expected that they individually constitute unsatisfactory professional conduct. 7. It goes without saying that all three of the adolescent patients (as well as Patient Four about whom no complaint was made but the practitioner admitted providing Phenergan), were extremely vulnerable, by virtue of their youth, their presence as in-patients in a hospital setting and most importantly their underlying mental health conditions and states of emotional crisis including recent suicide attempts and suicidal ideation. Current and future risk posed by the practitioner 1. The respondent called Ms Vevers as the practitioner's current supervisor, to give evidence of his present practise. Ms Vevers spoke warmly of Mr Picones as a competent, pleasant and well-liked nurse whose skills she believed had improved over the time he had worked with her. 2. Two aspects of Ms Vevers' brief evidence caused the Tribunal considerable concern. 3. Firstly, she stated that although she had originally been Mr Picones' supervisor as required by the s 150 conditions, she was no longer his direct supervisor because he had resigned his full-time position and returned to the hospital as a casual employee. She thought this occurred around mid-2017 and although she had managed the casual pool for a period of time she no longer did so. Mr Picones was now rotating between three different units under the direct supervision of NUMS in those units and indirect supervision of the casual pool supervisor. Ms Vevers stated that she thought 'around 50 per cent' of these managers knew about the current conditions on Mr Picones' registration. Ms Vevers and Mr Picones each subsequently named a different person as the current manager of the casual pool. 4. Secondly, Ms Vevers stated that she had only received one complaint about Mr Picones in the time she was his supervisor. Although professing satisfaction in the resolution of that complaint, Ms Vevers reported that it involved an incident in which the practitioner borrowed money from an in-patient in a mental health unit in order to buy himself a pizza for dinner. 5. The Tribunal sought clarification from Mr Picones on these matters. Mr Picones' CV, submitted as evidence to the Tribunal on 23 February 2018, states that he is currently a full-time employee of the aged care mental health unit at Nepean Hospital. This was the Tribunal's understanding of his employment status until Ms Vevers' oral evidence on day 2. 6. Mr Picones said that his CV was not up to date and that this was 'a mistake'. He stated that he had changed to casual employment in October 2017 but could not provide any reason for doing so. 7. Mr Picones stated that his supervisor remained Ms Vevers after becoming casual, but then when the Tribunal drew to his attention condition 1 in the s 150 decision requiring an on-site supervisor, he changed to say that he understood his supervisor to be whomever he was working with at the time. Mr Picones did not believe that he had any obligation to draw to the attention of his present supervisors or managers the current conditions on his practise. 8. Mr Picones said he had borrowed money from a patient when he had ordered a pizza while on shift, having had his payment card declined due to lack of funds. He had paid her back the next day, and now understood that this was inappropriate conduct and, when prompted, that it was a boundary violation. 9. The fact that Mr Picones engaged in such conduct in the knowledge that he was operating under conditions and facing imminent disciplinary proceedings makes it even more alarming. Relevant law 1. The standard of proof is the civil standard as stated in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3. 2. While the Tribunal's powers to receive evidence are broad, it must take into account only material which is probative, that is, 'material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined': Sudath v HCCC [2012] NSWCA 171 [79]. 3. The professional members of the Tribunal are entitled to apply their own specialist experience to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238]. 4. 'Unsatisfactory professional conduct' is defined in s 139B of the National Law as including: (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. 'Improper' and 'unethical' are not defined in the National Law. The assessment of what constitutes improper or unethical conduct is based upon their ordinary meaning. 'Improper' conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: HCCC v Phung (No 1) [2012] 1 NSWDT 3 at [68]; HCCC v Fisher [2016] NSWCATOD 62 at [57]; HCCC v Flekser [2016] NSWCATOD 1 at [119]. Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87]. Making a false statement to a professional body or regulatory inquiry may constitute improper and unethical conduct: HCCC v Mitchell [2015] NSWCATOD 15 at [59]. 2. The gravity of the conduct must be measured against the extent to which it departs from proper standards, not by reference to the worst cases: HCCC v Litchfield (1997) 41 NSWLR 630 (at 638). 3. 'Professional misconduct' is defined in section 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': HCCC v Perroux [2011] NSWDC 99 at [18]. This level of seriousness requires more than 'mere incompetence', and can include a deliberate departure from accepted standards, indifference to them, or serious negligence: HCCC v BXD (No 1) [2015] NSWCATOD 134 at [37], quoting Kirby J in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. 2. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: HCCC v Litchfield (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. 3. The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions: HCCC v Do [2014] NSWCA 307 [35]. 4. Having made a finding of professional misconduct, the powers available to the Tribunal include the power to suspend or cancel the registration of the practitioner: s149C(1)(b). 5. Contrary to much received wisdom in previous case law drawing upon disciplinary cases from the legal profession, there is no requirement under the National Law that there must be a finding of 'probable permanent unfitness' to practise of a health practitioner in order to justify cancellation of their registration: Chen v HCCC [2017] NSWCA 186 at [56], [69]. 6. Whether the gravity of the misconduct is such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v HCCC [2001] NSWCA 411 at [82]. 7. The predominant consideration is the protection of the public. Protective orders must be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v HCCC [2012] NSWCA 80 at [34]. In determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v HCCC [2002] NSWCA 111 at [55]. 8. If the Tribunal either suspends or cancels a practitioner's registration under s149C(1) or (3) or if the Tribunal makes a disqualification order under s149C(4) of the National Law, it is then open to the Tribunal to consider imposing a prohibition order. The National Law requires that the Tribunal must be satisfied that a person 'poses a substantial risk to the health of members of the public' prior to making a prohibition order under s 149C(5). 9. While the Tribunal has a discretion to make a costs order in respect to proceedings before it, that discretion is not unfettered and is to be guided by the relevant legal principles. Costs are for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise: Qasim v HCCC [2015] NSWCA 282 [85]. Submissions 1. Ms Toose sought to characterise the practitioner as candid and contrite. She stressed that Mr Picones had been in practice in an aged mental health unit for the past two years with no concerns raised about his performance, and contended that it was 'clear from RN Picones' evidence that RN Picones is most unlikely to repeat this conduct'. 2. Rather surprisingly given the gravity of the admitted conduct, Ms Toose submitted that the appropriate order was a reprimand. Ms Toose argued that in the circumstances of the case a cancellation order was unnecessarily punitive and would exceed what is necessary for the protection of the public. If conditions were considered appropriate by the Tribunal these should be 'remedial and not restrictive' such as mentoring and/or supervision. 3. In support of her submissions, Ms Toose cited a number of cases in which nurses had initially denied allegations of wrongdoing, and the Tribunal, having found misconduct proved, ordered conditions on practice rather than deregistration: HCCC v Gower [2011] NSWNMT 17; HCCC v Piper [2014] NSWCATOD 62; HCCC v Sloane [2018] NSWCATOD 37. 4. For the HCCC, Mr Bhalla characterised the practitioner as 'going through the motions' of contrition in an attempt to lessen any penalty, making a series of limited admissions, without any genuine candour or real insight into his failures. 5. Mr Bhalla submitted that cancellation was required because it was clear from the practitioner's evidence that he still did not appreciate the gravity of the complaints nor the harm that the conduct had caused. Since the complained of events, the evidence of the practitioner's own witness revealed a subsequent complaint which was symptomatic of his approach to boundary violations. In these circumstances the Tribunal could not be confident that the practitioner would not fall into the same conduct again. 6. The evidence suggested that the practitioner had not been under on-site supervision for several months as required by the s 150 conditions. The practitioner did not understand himself to have professional duties of disclosure and candour and had not taken steps to ensure that he was appropriately supervised. The HCCC therefore sought an interlocutory order of suspension under s 165L if final orders were reserved. Appropriate protective orders 1. The Tribunal considered the full range of available orders. Bearing in mind the relative inexperience of the practitioner at the time of the events, and the very demanding setting in which he was practising at such an early stage in his professional career, the Tribunal was reluctant to impose a period of deregistration. We considered at length whether the practitioner could practise safely within conditions, or would be likely to take any steps to rehabilitate his failings following a period of suspension. 2. The manifest dishonesty of the practitioner in these proceedings, combined with the fact that he had previously concealed the original LHD proceedings from his subsequent employer, then removed himself from a position of supportive professional supervision within that latter employment and failed to inform the Tribunal that such a change had occurred, meant that we could have no confidence that any conditions would be adhered to. 3. The cases cited by Ms Toose are readily distinguished from the facts of this case, in that all of the practitioners in those matters made full admissions to the Tribunal, and were adjudged by the Tribunal to be trustworthy practitioners who would not contravene their obligations again. Our findings are directly to the contrary. 4. Moreover, the practitioner's profound inability to articulate the importance of professional boundaries or demonstrate any understanding of the perspective of the patients involved gave us grave concern for Mr Picones' ability to remedy his approach to professional boundaries in the future. 5. Engaging with one's professional regulator and all forms of disciplinary inquiry with diligence and honesty are fundamental requirements of any professional. 6. The ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals. Mistakes happen. Covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions and services because of the real and present danger that such behaviour poses to the safety of patients. Without candid admissions and the provision of assistance to peers and superiors from a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented. 7. A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in any and every health services setting. 8. In these circumstances cancellation of registration was the only order available to appropriately protect the safety of the public. The higher threshold of substantial risk to the health of the public was also met and required the imposition of a prohibition order preventing Mr Picones from providing other health services for the duration of the cancellation order. 9. Given these grave concerns, combined with the evidence that it appeared that Mr Picones had been practicing since at least October 2017 without appropriate supervision, the Tribunal took the step of issuing orders with immediate effect at the conclusion of the hearing. 10. As noted, at this time the Tribunal has no confidence that Mr Picones will enact appropriate professional boundaries, nor that he will abide by his professional obligations of candour and disclosure to professional bodies and regulators. Having ordered cancellation of registration the Tribunal has no power to impose conditions. Therefore we merely suggest that if he were to return to the Tribunal to apply for a review of the cancellation order after 12 months, Mr Picones may be better placed to address the concerns raised by this decision if he undertakes some form of individual counselling or therapeutic intervention to explore his underlying weaknesses and motivations concerning boundary issues, in addition to undertaking in-person professional training courses and on-going mentoring concerning ethics and professional boundaries. The practitioner has expressed a keen interest in, and desire to return to, mental health nursing. In our view it does not appear that he is well suited to this field and we encourage him to seek advice and guidance on this issue. Orders 1. Cancellation of the practitioner's registration under s 149C(1)(b) of the National Law with immediate effect from 5 April 2018. 2. The practitioner may not apply for review of the order for 12 months from the date of the order per s 149(7). 3. A prohibition order per s 149C(5)(a) preventing the practitioner from undertaking any health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) for the duration of the cancellation order. 4. Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 5. Under Cl 7 of Sch 5D of the National Law prohibition of disclosure to any person or entity of the names of the patients set out in the schedule to the complaint or any other patient named in evidence. ******** 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: 24 April 2018