Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nguyen [2020] NSWCATOD 31 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: We order that consequent upon the finding of unsatisfactory professional conduct which we have made, the respondent is reprimanded. Catchwords: TRADES AND PROFESSIONS – nurse – directed by NUM to observe patients inconsistent with hospital protocols – held constituted unsatisfactory professional conduct – reprimand imposed 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) Hoang Nam Nguyen (Respondent) Representation: Counsel: C Mitchell (Applicant) Solicitors: Health Care Complaints Commission (Applicant) NEW Law Pty Ltd (Respondent) File Number(s): 2019/00297065 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 Hoang Nam Nguyen that he is guilty of unsatisfactory professional conduct under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law"). 2. The application is 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 Mr Hoang Nguyen ("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 9 January 2014. Relevant to the Complaints, the practitioner was employed as a casual Registered Nurse (RN) by North Shore Nurses, a nursing agency. Prior to the events of the Complaints, he had worked approximately 10 day shifts and one night shift at St George Hospital in Kogarah NSW (the Hospital) in the Mental Health Unit ('MHU'). 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 Kah Mun Tam (a 2nd year RN, employed on an extended contract with the hospital) 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. PARTICULARS OF COMPLAINT ONE 1. 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. he had been allocated the shared care of x4 care level 2 patients who required observation every 10 minutes; b. he had been allocated the shared of x5 care level 3 patients who required observation every 30 minutes; c. he had been allocated the shared care of x5 care level 4 patients who required observation every hour; d. the manner of his observations were overly brief; e. he performed observations of all patients, regardless of their care level, on an hourly basis; f. he failed to exercise independent judgement when he accepted the advice of the NIC to perform observations on all patients on an hourly basis; g. he failed to perform any bedside observations between at least 0440 and 0620 on 14 November 2017; h. he failed to view and record the patients' respiratory rates; i. he failed to record his observations in the electronic medical records. 2. During the night shift, the practitioner falsified clinical records in that he documented observations for patients in the sub-acute wing to record that he had performed observations for care level 2 patients every 10 minutes and that he had performed observations for all care level 3 patients every 30 minutes in circumstances where: a. between 2130 and 0440 on 17 November 2017 he performed observations on all patients in the sub-acute wing once every hour; b. between 0440 and 0620 on 17 November 2017 he failed to perform any observations on all patients in the sub-acute wing; c. the practitioner failed to request assistance from the NIC to carry out observations in the sub-acute wing during the period 0440 to 0620 on 14 November 2017: d. the practitioner failed to exercise independent judgement when he accepted the advice of the NIC to complete observations charts to falsely show observations that he had not performed. Factual background 1. We conducted a hearing in these proceedings on 11 and 12 March 2020 concurrently with proceedings instituted by the applicant against the other nurses referred to in the Application. Evidence in one was taken to be evidence in all, save that we will only have consideration to that part of the evidence which is relevant to the proceedings brought against this respondent. 2. Both parties tendered into evidence a number of documents and the respondent gave oral evidence. We shall refer to this evidence to the extent that it is relevant to our consideration of these proceedings. 3. The respondent tendered a written statement in which he admitted all of the particulars of the Complaint brought against him. The applicant tendered into evidence a number of documents including information given to investigating officers and others by the respondent. Based on the evidence and the admissions of the respondent we are comfortably satisfied to the Briginshaw standard that each of the particulars of the Complaint has been established. 4. The applicant also tendered into evidence an expert report of Mr Warren Shaw, a clinical nurse specialist of many years' experience. It was the opinion of Mr Shaw that the standard reasonably expected of a nurse of an equivalent level of training or experience to the respondent at the time would include "ensuring that observations both complied with policy and procedure and met the therapeutic and safety requirements of patients" under his care. He would also be expected to maintain "sound, contemporaneous records of observation activity to better inform future patient care and demonstrate compliance with care requirements." Furthermore, Mr Shaw said that the acceptance by the respondent of the directions given by Ms Tran, the nurse in charge, constituted agreement to falsify medical records. In his opinion the respondent should have challenged and reported his superior's "poor and unethical practice." Overall, Mr Shaw assessed the respondent's conduct as being significantly below the standard expected of a nurse of an equivalent level of training and experience. Was the respondent guilty of unsatisfactory professional conduct? 1. Such misconduct is defined in section 139B of the National Law in the following terms 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. Having regard to the expert opinion of Mr Shaw which we have summarised above, the concessions properly made by the respondent concerning the accuracy of the particulars of the Complaint, and that the respondent conceded that he had been guilty of unsatisfactory professional conduct, we find that he is so guilty. 2. It is well-established that the jurisdiction of this Tribunal is 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. Having regard to the factual circumstances of this matter, the expert opinion of Mr Shaw, the concessions properly made by the respondent and the principles set out above we find that the respondent is guilty of unsatisfactory professional conduct, as conceded by him. Protective orders 1. It is now necessary to determine what protective orders should be appropriately made consequent upon the finding of unsatisfactory professional conduct which we have made. The available orders are set out in section 149A 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. 1. The respondent gave oral evidence and tendered into evidence a number of documents in support of his submission that an appropriate protective order would involve the imposition of a reprimand only. 2. In his written statement Mr Nguyen said that he was extremely remorseful for what had occurred and accepted that his conduct was both unacceptable and a serious error of judgement. He said that he had sought mentoring after this incident and has been assisted by supportive colleagues. Significantly, Mr Nuygen said that "with the benefit of hindsight,…. I should not have accepted the shifts in the mental health unit in circumstances where I was not adequately familiar with the relevant policies and procedures that I should have followed at that time." We would add that in answer to a question from a member of the Tribunal during the hearing Mr Nuygen said that he had not been given any ward orientation before commencing work on the night shift and that was only the second night shift that he had worked in the Unit. Indeed, the only direction that he had been given was by Ms Tran to do hourly rounds and check the patients in whatever location that they were at, at the time. 3. Mr Nuygen also said that he was upset with himself for having chosen to follow the instructions given him by Ms Tran, because he knew that they were wrong. He has undertaken a great deal of remedial education since and has reflected on what has occurred. He said that he would no longer accept instructions if he knew that they were incorrect and would escalate the matter to a higher managerial level. 4. Practice conditions which had been imposed on his registration had now been lifted. Since the incident Mr Nguyen has completed an extensive number of CPD courses, the details of which are in evidence before us. 5. We have been provided with a letter from Ms Genevieve Clarke Operational Nurse Manager at the Bankstown-Lidcombe Hospital where Mr Nguyen works. It is undated but is clearly written in response to a letter from the respondent's solicitors dated 14 October 2019. In that letter Ms Clarke said that following an enquiry from the Professional Standards Committee of the Nursing and Midwifery Council she has provided formal support for the respondent since March 2018 in particular to facilitate the practice conditions which had been imposed on his registration. The respondent was placed on a risk mitigation strategy working under the direct supervision of a responsible practitioner, was required to review the particulars of his conduct, she developed a performance improvement plan and he met regularly with the Nursing Unit Manager to monitor his progress, provide reflection and receive feedback. The respondent has been assessed as having met all of the requirements of these protocols and since June 2018 has returned to a full rotating roster. Ms Clarke said that in having met all of the requirements imposed upon him the respondent "has taken full responsibility for his previous actions and has demonstrated personal and professional growth in understanding the importance of meeting both the conditions placed on his registration and the subsequent competency assessments and how this relates to providing safe, compassionate nursing care." 6. We have also been provided with letters of support from Christopher Hay, Clinical Operations Manager of St George Mental Health Service, Ms Mayla Mendieta Nursing Unit Manager Bankstown-Lidcombe Hospital and a work colleague, Tafadzwa Cynthia Sox. 7. The applicant also submitted that a reprimand was an appropriate protective order. In its submissions it emphasised that although the respondent, as a professional qualified nurse had certain responsibilities, he was not in a leadership position and had had prior experience of only one night shift before the shift during which the misconduct occurred. In addition, he was the only one of the three nurses who carried out some observations, albeit insufficient. Furthermore, the respondent had readily admitted his misconduct, has demonstrated insight into what occurred and why, has expressed contrition and remorse and has taken active steps to rehabilitate himself, as attested by the supporting references to which we have referred above. 8. It was submitted on behalf of the respondent that a caution was an appropriate protective order. In support the respondent relied on the fact that he has accepted responsibility for his conduct, he has expressed insight, contrition and remorse for what occurred, he has taken steps to undertake further education to avoid conduct of this kind in the future, he has not been the subject of any other complaints, he has produced a number of references in support of his good character and work as a nurse, and now advocates for his patients. We accept the force of these submissions, but we regard the misconduct of the respondent as being so serious in all the circumstances that it warrants the imposition of a reprimand. 9. The applicant did not seek a costs order against this respondent. Orders 1. We order that consequent upon the finding of unsatisfactory professional conduct which we have made, the respondent is reprimanded. ********** 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