Civil and Administrative Tribunal New South Wales Medium Neutral Citation: HCCC v Drinkwater (No 2); HCCC v Lilly (No 2); HCCC v Davies (No 2); HCCC v Than (No 2) [2019] NSWCATOD 59 Hearing dates: On the papers Date of orders: 24 April 2019 Decision date: 24 April 2019 Jurisdiction: Occupational Division Before: J Millbank, Senior Member S Kennedy, Senior Member R Wilson, Senior Member B Seth, General Member Decision: HCCC v Davies (1) Following a finding of unsatisfactory professional conduct, Mr Davies is reprimanded in the strongest terms for his failure to properly undertake observations in an acute mental health setting, per s 149A(1)(a). (2) Pursuant to s 149A(1)(b) the practitioner is only to practise nursing under the following conditions for 2 years from the date of these orders. He is: i. Not to provide nursing in a mental health unit or specialist care setting; ii. Not to undertake agency nursing; iii. Not to undertake any night duty shifts; (3) The NMC is the appropriate review body for these conditions. (4) Pursuant to s 149A(1)(d) the practitioner must complete an ethics course approved by the NMC within 12 months of the date of these orders. HCCC v Drinkwater (1) As a result of findings of unsatisfactory professional conduct and professional misconduct, the practitioner is reprimanded pursuant to s 149A(1)(a). (2) The practitioner's registration as a nurse is cancelled pursuant to s 149C(1)(b). (3) The practitioner is not permitted to apply for a review of the cancellation order for a period of 12 months pursuant to s 149C(7). (4) Respondent to pay 25% of the Applicant's costs of these proceedings, as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). HCCC v Lilly (1) As a result of findings of unsatisfactory professional conduct and professional misconduct, the practitioner is reprimanded pursuant to s 149A(1)(a). (2) The practitioner's registration as a nurse is cancelled pursuant to s 149C(1)(b). (3) The practitioner is not permitted to apply for a review of the cancellation order for a period of 12 months pursuant to s 149C(7). (4) Respondent to pay 25 % of the Applicant's costs of these proceedings, as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). HCCC v Than (1) The practitioner is reprimanded pursuant to s 149A(1)(a). (2) Respondent to pay 10 % of the Applicant's costs of these proceedings, as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: TRADES AND PROFESSIONS – protective orders – nursing – mental health nursing – failure to properly observe and attend to patient in an acute inpatient facility Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009 ('The National Law') Cases Cited: Chen v HCCC [2017] NSWCA 186; HCCC v Borthistle [2017] NSWCATOD 56; HCCC v Cooper; HCCC v Higgins [2018] NSWCATOD 17; HCCC v Do [2014] NSWCA 307; HCCC v Kennedy, Thompson, Parker and Dowsett [2015] NSWNMPSC 2; HCCC v Mullen [2016] NSWNMPSC 1; HCCC v Philipiah [2013] NSWCA 342; Lee v HCCC [2012] NSWCA 80; Category: Sentence Parties: HCCC (Applicant) Lainie Drinkwater; Graeme Davies; Russell Lilly, Chit Chit Than (Respondents) Representation: Counsel: R Marthur (Applicant) K Doust (Drinkwater) M Byrne (Davies and Lilly) N Dawson (Than) Solicitors: HCCC (Applicant) Nurses and Midwives Association (Drinkwater, Davies, Lilly) New Law (Than) File Number(s): 18/93372; 18/93386; 18/93381; 18/93365 Publication restriction: A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) remains in place, prohibiting disclosure or publication of the names of any patients named in the evidence apart from Ahlia Raftery. REASONS FOR DECISION 1. This decision concerns the appropriate protective orders concerning four nurses whose cases were heard concurrently over five days, and determined in HCCC v Drinkwater et al [2019] NSWCATOD 39. 2. The cases arose from the tragic death of Ahlia Raftery, a young woman who took her own life while an inpatient of the Psychiatric Intensive Care Unit (the unit) at the Mater Mental Health Centre in Newcastle early on the morning of 19 March 2015. 3. Proceedings were brought by the HCCC alleging unsatisfactory professional conduct in the course of the care provided to Ahlia overnight at the unit. Mr Davies and Ms Drinkwater had been on duty during the night shift, and Ms Than and Mr Lilly on the day shift. Ms Drinkwater was the nurse in charge of the nightshift (NIC) and Mr Lilly was nurse unit manager (NUM) in charge of the overall running of the unit; he was also the NIC of the dayshift. The HCCC further alleged failures of supervision in the complaints against Ms Drinkwater and Mr Lilly. All of the respondents apart from Mr Davies also faced complaints that the conduct amounted to professional misconduct. 4. The Tribunal determined that the complaints of unsatisfactory professional conduct against Mr Davies and Ms Than were substantiated, and those of professional misconduct against Ms Drinkwater and Mr Lilly were substantiated. The reasoning behind those findings is laid out in the previous decision and is not repeated here. 5. All of the respondents apart from Ms Than had originally consented to hearing both stage 1 and stage 2 together. Oral submissions were received on day five of the hearing on the issue of protective orders concerning Mr Davies, Ms Drinkwater and Mr Lilly. 6. During day 5, the Tribunal invited the parties to consider oral submissions concerning protective orders regarding Ms Than on the basis that no finding of professional misconduct would be made. Ms Than consented to this approach, but the HCCC declined on the basis that it would need further instructions and would need to examine the reasons for the decision before making submissions on protective orders concerning a finding of unsatisfactory professional conduct. 7. Following the determination of the complaints and the formulation of reasons for stage 1, the Tribunal contemplated an order in relation to one of the respondents that was not canvassed at the hearing. Bearing in mind jurisprudence on procedural fairness from the Court of Appeal, and given the reservation of stage 2 submissions for Ms Than, the Tribunal determined that the fairest course was to allow all parties a further opportunity for written submissions before making protective orders. The parties were notified through the registry of the orders contemplated. Evidence and Submissions 1. In relation to all of the respondents, Ms Marthur for the HCCC submitted that none of the identified systemic failings prevented any of the respondents from walking a distance of less than 10 metres to attend to the patient and ensure her safety. The focus of Davies, Drinkwater and Lilly in placing responsibility upon systems issues indicated a lack of insight into their own failings. 2. In the HCCC's submission the respondents' interpretation of a close observation as simply a sighting from a distance demonstrated serious and continuing failures of professional skill and judgement. In the HCCC submission the complaints in their entirety raised a serious issue of general deterrence concerning nurses and failures to properly undertake observations. 3. The HCCC did not seek costs in its original application in relation to Mr Davies on the basis that it only sought orders under s 149A of the National Law. At the conclusion of the hearing, it sought costs against the other three practitioners. 4. It was the position of all of the respondents that the systemic failures identified in the Coroner's Report, an alleged medical failure to assess the patient as requiring constant observations, the then prevailing hospital and Local Health District culture concerning 'team nursing' at night and the undertaking of observations through mere 'sightings' mitigated, or vitiated, their individual professional responsibility for the complained of particulars. 5. None of the respondents have been the subject of any formal complaint over the course of their respective lengthy professional careers as nurses. 6. The respondents all submitted various professional references, which are addressed below. All of the referees made it clear that they were acquainted with the substance of the present proceedings. Mr Davies 1. Mr Davies submitted two references. The first was from a manager in the safety and risk unit where Mr Davies has previously worked, and is currently working. The referee states that she has known Mr Davies in a professional capacity for over twenty years, and has always found him to be honest, committed, hardworking, professional and caring. 2. The second reference from David McLeod, the Director of Nursing of Mental Health Services at HNE states that he has known Mr Davies for 16 years in a professional capacity, commends the high quality of his work in violence prevention, and also gives the opinion that he is honest and trustworthy with a strong values-driven work ethic. 3. The HCCC submitted that Mr Davies' oral evidence was the strongest example of a registered nurse who was completely lacking in insight, whose attitude to his errors should raise serious concern about the health and safety of the public. Not only did he not accept the magnitude and seriousness of his errors, errors which misled later nurses into believing that the patient had been attended to far more recently than she in fact had been, Mr Davies repeatedly stated that he didn't believe he had done anything wrong at all. Further, the lack of candour in Mr Davies' evidence should also cause concern in any assessment of his professionalism. 4. As there was no complaint of professional misconduct, the HCCC submitted that a reprimand and conditions restricting Mr Davies' practice for a period of two years were the appropriate response to protect the public. 5. Mr Byrne for the practitioner contested the characterisation of Mr Davies as lacking in insight. Mr Davies admitted particular 1 of the complaint and gave evidence of the different roles that he played in a team nursing environment in undertaking observations before signing an observation sheet. He understood that the peer expert was critical of these roles, and he accepted that none of them were best practice. 6. In Mr Byrne's submission, some of Mr Davies' answers in oral evidence were the product of his frustration at the multiple and protracted legal and investigative processes that had occurred; but he was a nurse of professionalism, integrity and diligence. 7. Mr Davies had not been subject to any conditions following the s 150 inquiry, nor since the stage 1 findings were published, and posed no risk to the public. Mr Byrnes' submitted that in 37 years of practice, Mr Davies had conducted his professional practice without incident, save for his acknowledged failings that were the subject of these proceedings. 8. The Respondent submitted that the appropriate orders were a caution as a deterrent measure, and conditions directed to further professional development, such as an ethics course. 9. The Respondent submitted that the conditions proposed by the HCCC, to restrict the practitioner from working in a mental health unit or specialist care setting, would have a more serious consequence for Mr Davies than is reasonably necessary to promote the protective purpose. Moreover an unintended effect of such conditions could be to expose the public to risk, by forcing the practitioner to return to a generalist nursing setting in which he lacked recent experience. Ms Drinkwater 1. Ms Drinkwater submitted two professional references and a number of CPD records demonstrating extensive CPD over and above the required minimum, including that directed towards the subject matter of the complaint, as well as a self-directed learning plan for the forthcoming year, and performance development records. 2. Since having conditions placed on her registration Ms Drinkwater has undertaken mentoring in relation to the NIC role, as well as clinical supervision. 3. Michael Bruce, the Nurse Manager of Psychiatric Emergency Services at HNE states that he has known Ms Drinkwater for 3 and a half years; he characterises her as a genuinely caring and considerate person who has shown insight in respect of her mistakes and has embraced multiple changes since. Mr Bruce states that Ms Drinkwater, Has demonstrated her ability to not only change particular aspects of her clinical practice but to have sustained these changes over a number of years which to my mind would suggest they are now embedded in RN Drinkwater's day to day practice. 1. The second reference was from the previous NUM in the PICU who had managed Ms Drinkwater for around a year prior to Mr Lilly taking the role. This reference describes Ms Drinkwater as caring, respectful and genuine in her rapport with patients. 2. In relation to Ms Drinkwater, the HCCC submitted that her fabricated and misleading oral evidence should be taken as an indication of lack of insight and responsibility on her part. With over 20 years of experience as a registered nurse, she had no real explanation for her failings. It was the HCCC submission that Ms Drinkwater continued to fail to take responsibility for her role as NIC, and that she posed a serious risk in practice accordingly. 3. The HCCC argued that the combination of lack of insight and dishonesty in Ms Drinkwater's evidence at stage 1 meant that concerns of public protection and general deterrence were both significant factors at stage 2. It sought orders cancelling Ms Drinkwater's registration with an order that she not be permitted to apply for review for 12 months. 4. Ms Doust for the practitioner strenuously contested the HCCC characterisation of Ms Drinkwater's evidence. Ms Doust submitted that Ms Drinkwater's evidence had differed due to the passage of time and the impact of the stress of the prolonged process, not due to dishonesty. Ms Drinkwater had an honest belief that she had seen Ahlia later than other reports established. 5. Further, Ms Doust submitted that Ms Drinkwater was a diligent nurse who was deeply and sincerely regretful and distressed about her admitted errors, in particular that she did not instruct another nurse to attend to Ahlia during the morning handover period. 6. Ms Drinkwater had continued to work in the unit as a valued staff member, without incident, had undertaken clinical supervision, complied with the s150 conditions and had undertaken considerable self-directed remediation efforts, including a number of courses in continuous professional development and improvement. These remediation efforts should be considered as evidence of insight and were relevant in determining whether there was any need for continuing conditions. The unchallenged professional references establish that Ms Drinkwater is a highly respected and clinically skilled practitioner. 7. In Ms Doust's submission there was no public protection justification for removal from practice nor was there any deterrence value in such order. The orders proposed by the HCCC would have more serious consequences that were reasonably necessary to promote the protection of the public. If removal from practice were to be contemplated by the Tribunal it should be limited to a suspension period of 3 to 6 months duration. 8. Ms Doust submitted that the present case was strikingly similar to other cases which were brought before the professional standards committee: HCCC v Kennedy, Thompson, Parker and Dowsett [2015] NSWNMPSC 2, and HCCC v Mullen [2016] NSWNMPSC 1, concerning failures in undertaking and recording observations in a mental health unit. In those cases the outcomes were orders of education and mentoring conditions combined with cautions and reprimands, respectively, for the nurses. 9. In reply, the HCCC sought to distinguish the cases cited by Ms Doust on the basis that they were complaints of lesser seriousness in that they did not involve complaints of professional misconduct, they were determined by a lesser jurisdiction, and they predated what Ms Marthur contended was a more recent emphasis, and regulatory vigilance, placed on the issue of nursing observations. In addition Ms Marthur noted that in Mullen the nurse demonstrated significant insight. 10. The HCCC submitted that the more appropriate comparator cases, which demonstrated the increased seriousness with which the Tribunal now considered failures in patient observations and clinical record keeping, were: HCCC v Cooper; HCCC v Higgins [2018] NSWCATOD 17 and HCCC v Borthistle [2017] NSWCATOD 56. 11. In reply, the Respondent submitted that HCCC v Sloan; HCCC v Hayles [2018] NSWCATOD 37 was an appropriate comparator, and argued for parity in treatment of Ms Drinkwater with the orders of conditions concerning Ms Sloan. Further, Ms Doust argued that the fact that Ms Drinkwater had been working under conditions since 2015 without incident meant that the Tribunal could exercise its discretion to remove those conditions. 12. In relation to costs, Ms Doust submitted that the parties should bear their own costs based upon the fact that the respondent had made substantial and early admissions, and the HCCC had taken an 'excessive' amount of time to prosecute the matter. In the alternative, if costs were ordered, they should be divided equally between the respondents such that Ms Drinkwater be liable for 25 % of the costs. The HCCC position was that 25 % of their costs was justified on the basis that the complaint was proven and there was no disentitling conduct on its part of the nature contemplated in HCCC v Philipiah [2013] NSWCA 342. Mr Lilly 1. Mr Lilly submitted one reference, from Michael Bruce, the Nurse Manager of Psychiatric Emergency Services at HNE who has known him in a professional capacity for 3 and a half years. Mr Bruce described Mr Lilly as considerate and caring, and states that he believes him to be genuinely sincere and honest. Mr Bruce notes that Mr Lilly has actively overseen many of the changes to the PICU that resulted from 'this tragic event' and notes that it has had a profound and ongoing impact upon him personally. 2. It was the HCCC submission that Mr Lilly lacked an understanding of his duties and responsibilities as NUM. At the relevant time Mr Lilly had been NUM for two years. A further three years has passed. Yet in his statement and oral evidence Mr Lilly still displayed no insight into his failures of supervision and management, and continued to assert that it was not his responsibility to ensure that procedures and systems were in place in the unit, or to oversee adherence to such systems, as he was entitled to rely upon the experience and judgment of his staff. 3. The HCCC sought a six month period of suspension followed by the imposition of restrictive conditions, including that he not perform a NUM or NIC role, for a period of two years. 4. Mr Byrne for the practitioner submitted that Mr Davies did not lack an understanding of his responsibilities; rather his individual failings were borne out of systemic failures, in particular the lack of a protected time for handover and the widespread practice in the HNELHD of team nursing on night shift. 5. Matters of routine practice that were established in the oral evidence should be taken as unit practice, such as the second nurse to arrive undertaking the walkaround. Mr Lilly was entitled to expect that these practices were adhered to, and to delegate care of patients. Mr Lilly's oral evidence established that he undertook audits of unit records and practices and had discharged his obligations as NUM. 6. In the respondent's submission, Mr Lilly posed no risk to the public, had continued in the NUM role of the unit following Ahlia's death, and had been responsible for many of the changes and reform that followed the initial root cause analysis and coronial inquiry. The appropriate orders in these circumstances were a caution or reprimand combined with mentoring and education conditions. 7. In relation to costs, Mr Byrne submitted that the parties should bear their own costs, based upon the fact that the respondent had admitted some particulars prior to the hearing and the HCCC's 'inordinate' delay in bringing proceedings. The HCCC position was that 25 % of their costs being paid by Mr Lilly was justified on the basis that the complaint was proven and there was no disentitling conduct on its part. Ms Than 1. Ms Than submitted six professional references, from past and current colleagues. These describe as competent, dedicated and with excellent communication skills and patient rapport. A senior psychiatrist states of Ms Than: I have never had any reason to question her commitment to providing the best quality of care to her patients possible and would be very happy for her to nurse a member of my family should the need arise. 1. A relatively junior psychiatry registrar at her current hospital describes Ms Than as a respected professional member of the mental health team and states: At no point during my interactions and experience working with Ms Than have I had any concerns about her clinical judgment and I appreciated a number of occasions where she has provide[d] me with advice, education and training to assist me in developing my own clinical skills. 1. The NUM in Ms Than's current unit describes her as a 'patient advocate' who is always thinking about ways to improve patient care, and as a 'mentor and support' to all junior, new and experienced staff. She notes that Ms Than regularly works as NIC in the unit and has relieved as NUM. Two social workers from Ms Than's current unit characterise her as a dependable, reliable, hardworking colleague who is holistic in her interactions with mental health patients, and as a professional and passionate professional, respectively. A fellow CNS in the unit speaks of her respect, trust and confidence in Ms Than. 2. The HCCC submitted that Ms Than was the most insightful of the nurses and the respondent whose evidence was most candid. At the hearing, the HCCC nonetheless pressed the complaint of misconduct on the basis that Ms Than's single failure had occurred in the context of an intensive care unit with a highly vulnerable, involuntary, patient. The complaint of misconduct was dismissed. 3. The respondent made no objection to the Tribunal's proposed order of a reprimand and in written submissions the HCCC accepted that such an order was appropriate. 4. In relation to costs, Mr Dawson argued that there should be no order of costs against the respondent because the complaint of misconduct should never have been made on the evidence, and the matter ought to have proceeded through the professional standards committee where costs are not available. 5. In the alternative if costs were awarded (at the notional proportion of 25 % per respondent), these should be reduced by half for Ms Than on the basis that the complaint of misconduct had not been made out, and the proceedings had been lengthened by the HCCC's refusal to undertake stage 2 when the Tribunal indicated that it would not make a finding of misconduct. In written submissions the HCCC conceded that a reduction in costs was appropriate and accepted that 12.5% was justified in the circumstances. Findings and Reasons 1. In making a determination of the appropriate protective orders for all of the respondents, the Tribunal is guided, as always, by the paramount consideration of the health and safety of the public contained in s 3A of the National Law, and the principled application of what such protection entails, enunciated in decisions of the Court of Appeal, most notably HCCC v Do [2014] NSWCA 307 [35] and Chen v HCCC [2017] NSWCA 186. 2. Some submissions referenced a number of cases which were said to contain comparable outcomes. While discussion of the principles and findings of similar cases may on some occasions be of assistance, we note the analysis of the Court of Appeal in Lee v HCCC [2012] NSWCA 80 [at 22-33] concerning why a simplistic or 'ready reckoner' approach to 'sentencing range' should be regarded with extreme caution in the context of disciplinary proceedings for health practitioners. 3. In Lee, the Court concluded this analysis by noting [at 34] that: (a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern; (b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct"; (c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers; (d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle; (e) since the predominant consideration is the protection of the public, a decision can only 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; and (f) the [specialist tribunal] brings special skill and experience to the task of formulating protective orders. 1. In this matter, the Tribunal has not been taken to any discernible range or pattern, nor persuaded of any unifying principle, regarding the referenced cases in submissions noted above. We have therefore given them little consideration in our discussion below. Davies 1. Mr Davies was a very unimpressive witness; whose testimony did little to assist the inquiry. 2. The complaint found against Mr Davies concerns him signing for close observations of patients which he did not personally undertake, and of claiming to the NIC that a set of four close observations were 'done' when he had, at most, sighted the patients down a corridor. 3. The Tribunal rejected Mr Davies' account of speaking to and engaging with Ahlia at around 6 am. We found, rather, that between 5.15 am and 6.45 am Mr Davies repeatedly walked past her while she was in her room or in the corridor, and that he sighted her from within and next to the nurses' station while she was in the corridor. 4. In his transcribed accounts of the close observations in the HNELHD and s 150 interviews, Mr Davies continually referred to observations as 'walking past' and 'gone past' and we have found that he did just that and little more. 5. On several of those occasions between 5.15 am and 6.45 am Ahlia was up and about in her room and moving between her room and the bathroom. Mr Davies made no record of this in the patient notes and no report of it to the NIC who was preparing the handover to the day shift. Mr Davies left before the handover occurred. 6. When asked by the Tribunal his view on what the benefit is to patient safety of accurately recording observations at the time they occur, and of recording the person who actually undertook them, Mr Davies stated that it provides an audit trail and allows responsibility to be attributed to one person. Like many of his answers in oral evidence, this answer was a defensive one that reflected his own interests and did not reflect those of the deceased patient or of patient safety generally. 7. If, for example a patient is observed by a nurse at 6.01 but that is used as the basis of 'the' 6.15 observation signed by someone else, another health practitioner approaching the patient at 6.30 would be doing so on the mistaken basis that the patient had been attended to by the first nurse only 15 minutes earlier, when they had in fact been sighted by a different person nearly 30 minutes earlier. In that context the practitioner undertaking care at 6.30 might also seek information from the wrong person about the patient's current state if no progress notes were documented. 8. The risk posed to patient safety from the failure to properly undertake and document observations in an acute mental health setting is very real. Arguably the lack of information which the day shift had concerning Ahlia's wakefulness, movements and state of mind when they came onto shift at 7 am is a concrete manifestation of such risk. 9. Mr Davies' continued denial of any wrongdoing through his oral evidence displayed a breathtaking lack of insight and an even more disturbing lack of understanding of, or concern for, the role of proper observation processes in ensuring patient safety in an acute mental health setting. 10. While the reference supplied by Mr Davies speak highly of his professionalism, we note that none of them are from a mental health or acute mental health setting. There was no indication before us that acute mental health was a setting to which Mr Davies' skills and temperament were well suited. 11. In the circumstances, an order imposing conditions limiting Mr Davies practice is appropriate to protect the health and safety of the public. 12. The orders in relation to Mr Davies are: 1. Following a finding of unsatisfactory professional conduct, Mr Davies is reprimanded in the strongest terms for his failure to properly undertake observations in an acute mental health setting, per s 149A(1)(a). 2. Pursuant to s 149A(1)(b) the practitioner is only to practise nursing under the following conditions for 2 years from the date of these orders. He is: 3. i. Not to provide nursing in a mental health unit or specialist care setting; 4. ii. Not to undertake agency nursing; 5. iii. Not to undertake any night duty shifts; 6. The NMC is the appropriate review body for these conditions. 7. Pursuant to s 149A(1)(d) the practitioner must complete an ethics course approved by the NMC within 12 months of the date of these orders. Drinkwater 1. Ms Drinkwater presented as a caring and committed nurse who had struggled to exert authority in the context of a work environment with widespread and entrenched poor practice in which she, too, cut corners. 2. As NIC Ms Drinkwater failed to ensure that the nurses operating under her direction undertook appropriate patient observations and recorded them properly. As NIC Ms Drinkwater had a duty to ensure a complete and accurate handover to the incoming shift, and in both her verbal report and failure to undertake or ensure a walkaround she failed significantly. These failures meant that the on-coming nurses in the day shift did not have adequate or up to date information about the patients in their care. Nothing in Ms Drinkwater's evidence indicated that she fully appreciated the extent of her responsibility for those failures. 3. To the contrary, at the hearing Ms Drinkwater sought to minimise her degree of responsibility by belatedly giving an account of sighting Ahlia asleep at 6.30 am (when we have found she was awake and up), and by considerably embellishing her account of what information she had provided to the incoming shift about Ahlia's previous suicide attempt at the handover from night to day. 4. While some errors and inconsistencies in oral evidence are understandable as a consequence of stress and the passage of time, it is noteworthy that all of Ms Drinkwater's later additions to her account were exculpatory of herself in one way or another. In the stage 1 decision we provided detailed reasons for rejecting key aspects of Ms Drinkwater's account, and we record here our finding that these embellishments and reconstructions reflect poorly on her attitude to her professional responsibilities, which include candour in investigative processes and fidelity to law. 5. In these circumstances we have come to the conclusion that the only appropriate order is one of cancellation of registration. This is required due to the risk that Ms Drinkwater's substandard practice poses to the public and, to an equal degree, because of the need to send a clear message to the public and the profession about the need for diligence, care and professionalism in the conduct of observations on patients in acute mental health in-patient settings. 6. While there was a considerable delay of four years from the time of events to this hearing. While such delay is undesirable in the interests of justice, and we accept that it is very likely to have exacerbated negative impacts upon the patient's grieving family, as well as imposing stress and uncertainty upon the practitioners themselves, there is no evidence to suggest that such delay was the result of any dilatoriness on the part of the HCCC. We note that the Coroner's Report was not handed down until 9 June 2017. 7. In these circumstances there is no disentitling conduct on the part of the HCCC, which was successful in its case, and they are entitled to their costs against the respondent. 8. The orders in relation to Ms Drinkwater are: 1. As a result of findings of unsatisfactory professional conduct and professional misconduct, the practitioner is reprimanded pursuant to s 149A(1)(a). 2. The practitioner's registration as a nurse is cancelled pursuant to s 149C(1)(b). 3. The practitioner is not permitted to apply for a review of the cancellation order for a period of 12 months pursuant to s 149C(7). 4. Respondent to pay 25 % of the Applicant's costs of these proceedings, as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Lilly 1. As noted in the stage 1 decision, there were very serious systems failures in the unit. Some of those, such as those concerning a consistent and clear process for the walkaround component of handover, and the absence of staff on the floor during handover, are matters for which Mr Lilly was directly responsible as NUM. 2. The Tribunal holds Mr Lilly accountable for the failure to ensure that processes were in place to ensure there was complete and accurate handover between the night and day shifts. 3. We find that the practitioner lacked any real insight into his responsibility for systemic failures within the unit. 4. It was very concerning that throughout the hearing Mr Lilly continued to characterise his role as a manger as someone who was entitled to expect or assume proper practice rather than as someone who was responsible for ensuring it as the unit manager: through systems, procedure, monitoring, auditing and follow up. 5. Moreover, we find that there were aspects of Mr Lilly's oral evidence that were belatedly tailored in order to minimise the apparent extent of his knowledge and responsibility, in particular his claim that he was not actually present at the morning handover (despite a number of earlier statements about what he heard from Ms Drinkwater at that handover). While he ultimately adopted his earlier statements as more likely to be correct, we find that this reflects poorly on Mr Lilly's attitude to his professional responsibilities. 6. While Mr Lilly undertook a number of reforms following the death of Ahlia, these rectification efforts were very externally focused and largely didn't address issues of culture within the unit, clarity of responsibilities of staff within the unit, or his own understanding of his role as a manager of that unit. 7. In these circumstances we have come to the conclusion that the only appropriate order is one of cancellation of registration. This is required due to the risk that Mr Lilly's substandard practice poses to the public and, to a greater degree, because of the need to send a clear message to the public and the profession about the need for diligence, care and professionalism in the conduct of observations on patients in acute mental health in-patient settings. 8. There was no disentitling conduct on the part of the HCCC, which was successful in its case, and they are entitled to their costs against the respondent. 9. In relation to Mr Lilly the orders are: 1. As a result of findings of unsatisfactory professional conduct and professional misconduct, the practitioner is reprimanded pursuant to s 149A(1)(a). 2. The practitioner's registration as a nurse is cancelled pursuant to s 149C(1)(b). 3. The practitioner is not permitted to apply for a review of the cancellation order for a period of 12 months pursuant to s 149C(7). 4. Respondent to pay 25% of the Applicant's costs of these proceedings, as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Than 1. Ms Than was the only respondent whose evidence was entirely accepted by the Tribunal. 2. Ms Than was also the only respondent who fully accepted responsibility for her part in events. The error made by Ms Than, in not attending to Ahlia and in prioritising reading her notes in the circumstances in which Ahlia's behaviour was noted as odd, was a very serious one. This is why the complaint of unsatisfactory professional conduct based on only one particular was upheld. 3. It was, however, an error made in the space of 20 minutes and on the basis of limited information. Ms Than was not told during handover that Ahlia had made a recent suicide attempt on another ward, nor that she had been awake and up and about since sometime after 5 am and definitely before 6 am. 4. Based on her oral evidence and the strong professional references provided by her, we believe that Ms Than's current practise poses no risk to the safety of the public. A reprimand is sufficient recognition of the gravity of her past error of judgement. 5. In relation to costs, we cannot accept the submission of the respondent that the matter was so clear cut that no complaint of misconduct should ever have been made. The hearing involved a substantial weighing, and in some cases, rejection, of a significant volume of evidence: it was only when the totality of that evidence was assessed and various factual findings as to the sequence of events were made that the position became clear. 6. We do accept Mr Dawson's submission that costs against Ms Than should be substantially reduced because no finding of misconduct was ultimately made. Moreover the conduct of the HCCC in not proceeding to stage 2 at the hearing when invited to do so unreasonably increased its costs and those of Ms Than. It is not too much to ask of a regulator, and model litigant, that it be prepared to make submissions on orders in the alternative, based on one or both of only two complaints being proved concerning a single particular. 7. In the above circumstances, based upon a notional assessment of the respondent's liability for costs at 25 %, we reduce that share by a further 60%, leaving this respondent liable for a total of 10 % of the applicant's costs. 8. In relation to Ms Than the orders are: 1. The practitioner is reprimanded pursuant to s 149A(1)(a). 2. Respondent to pay 10% of the Applicant's costs of these proceedings, as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 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 2019