Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Tam [2020] NSWCATOD 30 Hearing dates: 11 and 12 March 2020 Date of orders: 27 March 2020 Decision date: 27 March 2020 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member K Eyre, Senior Member Dr S Schulz-Robinson, Senior Member R Kusuma, General Member Decision: Consequent upon the finding of professional misconduct which we have made we make the following orders (1) the respondent is reprimanded (2) the current practice conditions imposed on the respondent's registration are removed (3) the respondent is to pay the costs of the applicant in an amount assessed in default of agreement. Catchwords: TRADES AND PROFESSIONS – nurse – failure to observe patients – held constituted professional misconduct – cancellation or suspension of registration not appropriate protective orders in particular circumstances – reprimand imposed – costs order made Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Kah Mun Tam (Respondent) Representation: Counsel: C Mitchell (Applicant) Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses and Midwives' Association (Respondent) File Number(s): 2019/00297068 Publication restriction: Publication is prohibited of the names of the 25 patients in the Mental Health Unit at St George Hospital, Kogarah NSW on the evening of 13 – 14 November 2017 from 9.30 pm to 7 am and any material which might tend to identify any such persons. REASONS FOR DECISION Background 1. These proceedings concern an application brought by the applicant Health Care Complaints Commission by way of complaint against the respondent Kah Mun Tam that she is guilty of unsatisfactory professional conduct and professional misconduct under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law"). 2. Relevantly, the complaints made against the respondent are in the following terms; The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Miss Kah Tam ("the practitioner") of (address deleted) being a registered nurse registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of Nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of Nursing. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a Registered Nurse on 12 January 2016. The practitioner was first employed as a Registered Nurse (RN) at St George Hospital in Kogarah NSW (the Hospital) in the Mental Health Unit ('MHU') in February 2016. The practitioner was rostered on, on the night of 13-14 November 2017 from 2130 to 0700 ('the night shift'). Also rostered on, were RN Thi My Tran (a 10th year RN, and the Nurse-in-Charge ('NIC')), RN Hoang Nam Nguyen (a 4th year RN, employed on an agency basis with the hospital, with one shift previous experience on the MHU) and Registered Nurse A. During the night shift, there were 25 patients in the MHU. Of those: • 1 patient required level 1 care (1-to-1 special nursing at all times) • 8 patients required level 2 care (10 minute observations) • 9 patients required level 3 care (30 minute observations), and • 7 patients required level 4 care (hourly observations). Attached and marked 'A' is a table setting out the names, care level, bed/ ward wing and reason for admission of patients in the MHU on the night shift. (not reproduced) PARTICULARS OF COMPLAINT ONE 1. During the night shift, the practitioner failed to provide appropriate management of patient care when she remained within the nurses station between around 1200 and 0440 on 14 November 2017 in circumstances where: a. she was predominantly engaged in non-work related activities; b. she had been allocated the care of all 10 patients in the acute corridor of the MHU; c. her reliance on CCTV footage of patients as a means of performing observations was substandard; d. she failed to record accurate and contemporaneous observations. 2. During the night shift, the practitioner failed to perform observations in accordance with the NSW Health Procedure - Engagement and Observation in Mental Health Inpatient Units – PD2017_025; in circumstances where: a. She had been allocated 4 care level 2 patients who required observation every 10 minutes; b. She had been allocated 4 care level 3 patients who required observation every 30 minutes; c. She had been allocated 2 care level 4 patients who required observation every hour; d. She failed to perform any bedside observations between at least 1200 and 0620 on 14 November 2017; e. she failed to view the patients' respiratory rates. 3. During the night shift, the practitioner falsified clinical records in circumstances where: a. Between at least 1200 and 0600 on 14 November 2017 she documented observations for all patients in the acute wing when she did not conduct the observations; b. She wrote a single standardised response on patient progress notes regardless of the patients' behaviours or experiences; c. In using the standardised phrases '[Patient] slept well overnight – rise and fall of chest + positional changes observed during all nursing rounds,' she gave the impression that she had directly performed observations at regular intervals throughout the night; d. (not pressed) COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively. Factual background 1. We conducted a hearing of these proceedings on 11 and 12 March 2020 concurrently with proceedings against the other persons named in the Application. Evidence given in the proceedings was taken to be evidence in all of the proceedings except to the extent that we have only take into account such evidence which is relevant to the proceedings against this respondent. 2. A great deal of documentary evidence was tendered on behalf of both parties. In addition, the respondent gave oral evidence including cross examination. We shall refer to the evidence to the extent that it is relevant to our determination of these proceedings. The narration which follows is based upon the evidentiary material before us. 3. As we have pointed out, we have not reproduced material annexed to the Application which sets out the details of the 25 patients being cared for inter-alia by the respondent. One patient had been assessed at level 1 care, requiring one-to-one nursing, which was being provided by a fourth nurse. Of the remaining patients, 8 had been assessed at level 2 care to be reviewed every 10 minutes, 8 had been assessed at level 3 care to be reviewed every 30 minutes and 7 at level 4 care to be reviewed every 2 hours. These patients were all suffering from a mix of major psychiatric conditions. All were vulnerable and in need of constant professional care. A number were suffering from suicidal ideation. 4. The applicant tendered into evidence a summary of the swipe card access report for the Mental Health Unit which verified the allegations made against the respondent that she had failed to carry out her observations of the patients in a timely and effective manner consistent with the level of care which should have been provided to each of them. We were also provided with corroborative recordings taken by an installed video security system. 5. As will be seen, Ms Tam readily admitted that she was guilty of unsatisfactory professional conduct as particularised in the Complaints, save for one matter of detail to which we shall refer. However, when the hospital first commenced investigating these matters Ms Tam denied sleeping during a shift, conceded that she had remained in the nurses' station for a lengthy period time, but said, in an interview conducted on 15 January, 2018 "….. I wasn't doing the 10 minute interval checks and stuff like that. It might have been a prolonged time between the times that I did the rounds and stuff so I do agree that I wasn't I guess professional in the sense that I wasn't following that step by step." Ms Tam said that she had been looking at the patients through the cameras. She added; "I did do some rounds but I didn't do the right amount." 6. Ms Tam continued to deny the extent of her misconduct in the course of an interview conducted during section 150 proceedings on 26 February 2018. When discussing level 2 care observations, which she acknowledged were to be carried out every 10 minutes, the respondent said "I probably did it about every 40 to 60 minutes. Usually on nightshift we don't do every 10 minutes, we usually do like every 30 minutes." She endeavoured to explain this on the basis that 10 minute intervals were "too disruptive" to the patients' sleep. 7. Of course, in making the assertions noted above, Ms Tam was not being truthful. The CCTV footage upon which she said she relied showed what was happening in the corridors in the ward but not in the rooms of individual patients. Secondly, CCTV footage demonstrates that she did not undertake any rounds at all and she did not attend in any of the patient rooms other than at about 11 pm that evening when a new patient was admitted. 8. In a written statement dated 10 January, 2020 tendered for the purpose of these proceedings Ms Tam said that she admitted all of the particulars under Complaint 1, and the same particulars with respect to Complaint 2 and that she was guilty of unsatisfactory professional conduct. In a supplementary statement dated 10 March 2020 Ms Tam said that she had been allocated 8 patients, and not 10 patients. This modification was accepted by the applicant for the purpose of these proceedings. 9. Consequent upon section 150 proceedings, the Nursing and Midwifery Council of NSW imposed conditions on Ms Tam's registration requiring that she work under direct supervision. Those conditions were varied on 27 May 2019 to provide for indirect supervision, and they remain current. 10. The applicant tendered into evidence an expert report of Mr Warren Shaw, a highly qualified and experienced Clinical Nurse Specialist. It was the opinion of Mr Shaw that the respondent's conduct which is the subject of these proceedings invited his strong criticism and was significantly below the standard expected of a nurse of her equivalent level of training and experience. She compromised the safety of her patients by allowing herself to be distracted whilst on duty, she failed to carry out observation of the patients in an appropriate and professional manner, she falsified documentation concerning her observations and, assuming that there were cultural factors at play, she failed to conduct herself in a manner which would have allowed her to resist those factors. Finally she had failed to be transparent with those investigating her conduct. This evidence was not challenged by the respondent. Is the respondent guilty of professional misconduct? 1. The applicant asserted that the respondent was guilty of professional misconduct. The respondent accepted that she was guilty of the lesser unsatisfactory professional conduct but denied that she was guilty of professional misconduct. 2. Professional misconduct is defined in the National Law as follows; 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (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. This definition in turn refers to the definition of unsatisfactory professional conduct which is found in section 139B of the National Law. We reproduce hereunder that part of that definition which is relevant to our consideration of these proceedings; 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard 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) Contravention of this Law or regulations 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. 1. It is now necessary to determine whether the respondent is guilty of professional misconduct as asserted by the complainant. 2. By reason of the definition contained in section 139E which we have set out above, it is necessary to determine whether the unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or there is "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." This directs attention to a consideration of those circumstances which would justify suspension or cancellation of registration. Whilst this involves the exercise of a value judgement having regard to all of the relevant factual circumstances, it must be undertaken in the context of the statutory regime which applies to these proceedings. 3. It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been succinctly referred to in the judgement of Meagher JA in the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said; 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other members of the nursing profession. 2. In her oral evidence the respondent readily conceded that she was aware of the protocols applying to the various care levels in the Mental Health Unit in the hospital at the time. The respondent also conceded that at the time this conduct occurred the patients under her care were vulnerable and dependent upon her. She acknowledged that she had let those patients down and said that she would be conscious of this all of her life. 3. The only explanations offered by the respondent for her conduct were that on the night in question she was completing her new graduate position and was concerned about her future career path. She also said that she was heavily influenced by Ms Tran, the nurse in charge who had "a strong personality" and who directed the way the work would be carried out that night. 4. The respondent was also adamant that she had been informed that it was not customary in that unit to record the respiratory rates of patients, even though this was required in a hospital form. She said that this formed part of the culture of those working in that unit. She also said that there was no nurse educator assigned to that area, but acknowledged that she could have looked at the hospital policy documents herself or discussed any matter of concern with senior personnel. 5. The respondent endeavoured to explain why she had denied her conduct during the investigation phase by stating that she had not been thinking clearly, and that she was scared. She knew at the time that she had been furnishing false information and said that she was sorry that she had done this. 6. We have no hesitation in finding that the respondent's conduct which is the subject of these proceedings constituted unsatisfactory professional conduct. Whether it can be characterised as professional misconduct involves a value judgement of that conduct in the context of the statutory definition, the overall objectives of the National Law and the four matters which we are required to take into account in assessing whether cancellation or suspension of registration might be justified. 7. We regard the conduct of the respondent the subject of these proceedings as being most serious, for all of the reasons outlined above, and in particular those identified by Mr Shaw in his expert report which we have earlier summarised. 8. We wish to make particular comment concerning two matters of significance in these proceedings. The respondent said that a "culture" existed in the Unit with respect to the frequency during which observations were conducted and whether the respiratory rates of patients would be recorded. She also referred to the regime established that evening by the nurse in charge, who was said to have a "strong personality" and which she knew was contrary to established hospital protocols. We wish to make it clear that whatever the "culture" might be, and whatever might be the attitude of a nurse in charge or other superior personnel, all professional nursing staff (and indeed, all staff) in any health care setting are required to comply with standards and protocols established by the operator of the facility unless they are clearly incorrect in that they compromise the health and welfare of patients. Even then, it is necessary to elevate the matter to a higher level of seniority in order to deal with any particular problem of this kind. We note that the respondent has acknowledged this during the course of her evidence in these proceedings. 9. We conclude in all the circumstances that the conduct of the respondent which is the subject of these proceedings was so serious and its consequences so potentially grave that it should be characterised as professional misconduct. Appropriate protective orders 1. The available protective orders consequent upon a finding of professional misconduct are set out in sections 149A and 149C of the National Law; 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. (2) The Tribunal may do any one or more of the following in relation to the student— (a) caution or reprimand the student; (b) impose the conditions it considers appropriate on the student's registration; (c) order the student to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the student to complete an educational course specified by the Tribunal. (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only— (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered. (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled. (5) The order or condition concerned is then a critical compliance order or condition. 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied— (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order— (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. Before considering what appropriate protective orders should be made in the circumstances of these proceedings, we shall refer to some additional evidence adduced by the respondent. 2. In her statement the respondent said that she acknowledged her failure in not conducting physical observation rounds as required and said that she was "deeply remorseful" for her substandard care. In order to address her misconduct, she has undertaken a number of educational and "quality and safety improvement" projects and has given in-service training under supervision. She professed to have insight into her misconduct and remorse for what had occurred. 3. In her oral evidence before us the respondent said that she had now undertaken a formal performance development plan (a copy of which was tendered into evidence on her behalf), and she now complied strictly with all requirements of her profession. She said that she would like to become a nurse educator and to use the mistakes that she had made as a basis for educating others. She was now prepared to stand up to strong personalities, and she has become an advocate for her patients. The respondent impressed us whilst giving evidence as being a person who had insight into her misconduct, was genuinely remorseful for what had occurred and was determined to learn from her mistakes. 4. The respondent tendered into evidence on her behalf a number of documents which were strongly supportive of her rehabilitation; 1. quarterly supervision reports of Toni-Marie Anderson from 24 December 2018 to 5 November 2019 are highly complimentary of every aspect of the respondent's performance 2. the respondent has completed a large number of professional development courses, each one of which is listed 3. a statement of Carol Liu dated 7 January, 2020 referred to work performed by the respondent with her in connection with a number of programs in the administration, prescribing and monitoring of Clozapine, and attested to her remorse and contrition following her misconduct and her compliance with practice conditions under which she has continued to work. She said that the respondent "has utilised this incident as a major learning curve and has turned this into a learning opportunity to further self-development and build her professional skills." 4. Chris Hay, Clinical Operations Manager of the St George Mental Health Service provided a letter dated 19 December, 2019 in which he said that he has known the respondent since January 2016, he regards her as "a reliable, competent and highly skilled Registered Nurse" who is "extremely patient centred and motivated to provide safe and effective care to her patients". Mr Hay noted that the respondent had consistently expressed regret and contrition for her misconduct, and notwithstanding that misconduct, considers her "as a fit and proper person to be held out to patients and the whole community as a person worthy of their confidence." 5. David Tobin, St George Mental Health Inpatient Services Manager in a letter of 18 December 2019 said that he has known the respondent since January 2016, and confirmed that her conduct and service was exemplary other than for the incident on the night shift on 13 November 2017. He noted her expressions of remorse and contrition for what occurred, that she has "grown professionally from her mistakes of that night" and in his opinion the respondent is a fit and proper person to be held out to patients and the whole community as a person worthy of their confidence. 6. A letter from Merryn Anderson, Nurse Unit Manager of the St George Mental Health Unit is unfortunately undated. Ms Anderson has worked with the respondent for a total of 3 years and has been the respondent's "line manager" for one year. She described the work of the respondent in the mental health area in glowing terms and said that the respondent had made "significant personal growth" since the incident. The respondent has also worked closely with her in developing strategies to improve herself and to advance her career. She assessed the respondent as a "safe and competent practitioner (who) is of one that would be able to look after myself or members of my family." She also assessed the respondent as being capable of being allocated as the nurse in charge of the mental health unit. 7. A letter of 14 April 2019 from Billy Carlon Nurse Unit Manager 3, St George Mental Health Unit recommended the removal of practice conditions which were then current. The same recommendations were made by Mr David Tobin in a letter of 16 April 2019 and Melissa Wilkinson, Nursing Unit Manager 1 in a letter, undated. 1. The applicant submitted that appropriate protective orders in all the circumstances pertaining to the respondent would involve a period of suspension, or alternatively the imposition of a reprimand, with continued practice conditions. It was submitted on behalf of the respondent that a reprimand together with the continuation of practice conditions would constitute an appropriate protective order. 2. We commence our consideration by observing that the professional misconduct which we have found to have been committed by the respondent was of a most serious kind. In normal circumstances it would justify cancellation or suspension of registration; this is axiomatic because of the provisions of the definition of professional misconduct. Notwithstanding that prima facie cancellation or suspension of registration would be justified, there are exceptional circumstances which pertain to the respondent which militate against making a protective order of this kind. 3. We note firstly that there is abundant evidence that this respondent has total insight into the fact that she engaged in misconduct, and the reasons why her conduct should be so characterised. In addition, we assess the expressions of contrition and remorse made by the respondent as being genuine as corroborated by the several statements which we have summarised above. We are impressed that the respondent has set about on a determined course aimed at rehabilitating herself, and enhancing her knowledge, skills and professionalism in her practice of nursing. We also take into account the glowing references given to her by persons who are obviously senior nursing professionals and who exercise managerial responsibility over the respondent. 4. It is quite clear at the present time that the respondent is a responsible member of the nursing profession and practices accordingly. 5. On this basis there is no requirement to make a protective order which would have the effect of protecting the public from the respondent's practice as a nurse. Equally, given her sincere expressions of insight, contrition and remorse there is no requirement to make a protective order which would have any deterrent effect on the respondent personally. Given that we propose to impose a reprimand on the respondent for reasons which we shall shortly advance, and given the circumstances surrounding these proceedings as we have described them, we do not conclude that it is necessary to either cancel or suspend the respondent's registration in order to uphold the dignity and respect of the profession in the eyes of the public. 6. Finally, we do not consider that in failing to cancel or suspend the registration of the respondent we are not providing a sufficient deterrent effect to other members of the nursing profession. The evidence before us is that the respondent has suffered greatly as a result of the humiliation, cause for introspection, and the consequences of working under practice conditions all brought about by her misconduct on one evening. We trust that the prospect of facing cancellation or suspension of registration would be a sufficient deterrent of itself for any other nurse who attempted to misconduct himself or herself in the manner undertaken by this respondent. 7. The applicant also sought an order that the respondent continue to work under practice conditions. Given the assessment of the respondent's professional capabilities contained in the statements which we have summarised above, some of which have been made by persons who have supervised and managed her, we see no reason why it is necessary to continue to impose practice conditions on the respondent's registration. She has been assessed as being capable in every way, and as being suitable to be appointed as the nurse in charge of a shift in the unit where she continues to work. In the circumstances the continued imposition of practice conditions cannot be warranted and would create an unnecessary additional cost to the hospital. We note, however, that the respondent intends to continue her existing informal mentoring arrangements. 8. As we have said, it was submitted on behalf of the respondent that a reprimand would be an appropriate protective order in all the circumstances. We agree. The misconduct as we have described it was very serious and needs to be addressed as seriously as appropriate in all the circumstances. In one sense, the respondent may deem herself fortunate in that a more serious protective order has not been made. In all the circumstances it is appropriate that a reprimand be imposed. Costs 1. The applicant sought a costs order in its favour, which was not opposed. We note agreement between the parties that those costs will be assessed by reference to that portion of the overall work performed by the applicant's solicitor which pertains to the respondent. Orders 1. Consequent upon the finding of professional misconduct which we have made we make the following orders 1. the respondent is reprimanded 2. the current practice conditions imposed on the respondent's registration are removed 3. the respondent is to pay the costs of the applicant in an amount assessed in default of agreement. ********** 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: 27 March 2020