Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Tran [2020] NSWCATOD 32 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: (1) consequent upon our finding that the respondent is guilty of professional misconduct we determine that if the respondent were still registered we would have cancelled her registration (2) the respondent is disqualified from being registered in the nursing and midwifery profession for a period of 2 years (3) we ask that the Registrar inform the relevant National Board with which the respondent was registered that we require it to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. (4) The respondent is to pay the costs of the applicant assessed in default of agreement. Catchwords: TRADES AND PROFESSIONS – nurse in charge – failure to ensure patients observed – failure to ensure observations accurately recorded – held constituted professional misconduct – cancellation of registration – 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) Thi My Tran (Respondent) Representation: Counsel: C Mitchell (Applicant) Solicitors: Health Care Complaints Commission (Applicant) No appearance for respondent File Number(s): 2019/00297061 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 Thi My Tran 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 Ms Thi My Tran (also known as Sussan Tran) 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. BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a Registered Nurse on 16 January 2007. The practitioner was first employed as a Registered Nurse (RN) at St George Hospital in Kogarah NSW (the Hospital) in 2008. At the time of the Complaints, the practitioner had been employed in the Mental Health Unit ('MHU') for approximately 10 years, including working as the Nurse-in-Charge (NIC) for approximately 6 years. The practitioner was rostered on as the NIC on the night of 13-14 November 2017 from 2130 to 0700 ('the night shift'). Also rostered on, were RN Kah Mun Tam (a 2nd year RN, employed on an extended contract with the hospital), 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. PARTICULARS OF COMPLAINT ONE 1. As the NIC of the night shift, the practitioner failed to provide appropriate management of patient care when she remained within the nurses station between around 1143 and 0452 on 14 November 2017 in circumstances where: a. she was predominantly engaged in non-work related activities; b. she had allocated the care of all patients in the sub-acute corridor of the MHU to be shared between herself and Registered Nurse (RN) Nguyen; c. she had failed to instruct RN Nguyen to perform observations in accordance with the NSW Health Procedure - Engagement and Observation in Mental Health Inpatient Units – PD2017_025; d. she had allocated the care of all patients in the acute corridor of the MHU to RN Tam; e. RN Tam also remained in the Nurses Station between around midnight and 0440 on 14 November 2017; f. she was assisting RN Tam with a job application, interview skills and discussing other non-work related matters. 2. As the NIC of the night shift, the practitioner failed to provide appropriate management of patient care when she: a. advised RN Nguyen to the effect that he should perform (hourly) 'rounds' of all patients on the sub-acute ward of the MHU, contrary to the NSW Health Procedure - Engagement and Observation in Mental Health Inpatient Units; b. failed to advise and ensure that RN Nguyen accurately documented all observations including the patients' respiratory rates. 3. As the NIC of the night shift the practitioner allocated the care of all of the patients on the acute corridor to RN Tam and failed to provide adequate management of patient care in that she: a. failed to ensure that RN Tam performed observations in accordance with the NSW Health Procedure - Engagement and Observation in Mental Health Inpatient Units between around 1200 and 0620 on 14 November 2017; b. allowed RN Tam to remain in the Nurses Station c. between around 1200 and 0440 on 14 November 2017; d. permitted and engaged with RN Tam in non-work related activities; e. failed to ensure that RN Tam accurately documented all observations including the patients' respiratory rates. 4. Throughout the night shift, the practitioner failed to allocate patients to staff in accordance with the staff level of competence and experience, patient needs and acuity set out in the NSW Health, South Eastern Sydney Local Health District – Mental Health District Service Business Rule – Nursing In Charge Of Shift of an Inpatient Mental Health Unit (SESLHDBR/056); in circumstances where: a. she allocated the care of all patients on the sub-acute corridor to be shared between herself and RN Nguyen; b. the practitioner failed to personally perform any observations; c. the practitioner was aware that RN Nguyen was an agency nurse and unfamiliar with the procedures and policies of the MHU and mental health nursing generally; and d. the practitioner was engaged in non-work related activities for the vast majority of the night shift. 5. As NIC of the night shift, the practitioner falsified clinical records in that: a. she documented observations that she had not personally conducted and that did not occur at all; b. she documented observations that had been conducted by other persons, namely RNs Nguyen and Tam; c. she wrote a single standardised response on 17l patient progress notes. 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. 1. We conducted a hearing of this matter on 11 and 12 March 2020 concurrently with the hearing of proceedings concerning the two other nurses named in the proceedings. Although the hearings were conducted concurrently, we shall take into account such evidence as is relevant only to these proceedings against the respondent. 2. The respondent did not appear and did not participate in the proceedings in any way. Representatives of the applicant attempt to make contact with her prior to the hearing commencing and during the course of the hearing but were unable to do so. Factual background 1. The respondent had forwarded an email communication to the applicant on 19 December 2019 in which she referred to the particulars of both Complaints made against her. She agreed that each of the particulars alleged against her were "true." In doing so the respondent commented that it was "common practice to do rounds every 30 – 60 minutes despite being in care level 2 (every 10 minutes)." She also commented "it is not common practice for nurses to document respiratory rates. Since I've worked as a RN none of the respiration's were filled out by myself or any of my former colleagues. We were verbally told by management to just sign our names instead. This cannot be proven on my behalf as I have been fired and cannot have access." 2. Finally, in her email the respondent said "My practice that night was extremely below standards and if there was an incident that happened overnight if a patient were to commit suicide or have medical emergency they would have not been attended right away and the outcome would have been devastating. Fortunately, no one was harmed that night." 3. The applicant tendered into evidence documentation which consisted of notes of an interview with the respondent conducted on 9 February 2018, St George Hospital investigation report, door swipe access summary and summary of CCTV footage. This material in the aggregate provides proof of each of the particulars of each of the Complaints contained in the application. The respondent conceded that she was engaged in non-work activities during the course of the shift, that she had delegated to herself care of all of the patients in the subacute corridor to be shared with registered nurse Nguyen, that she had failed to instruct him to perform observations in accordance with the established protocols by instructing him to conduct hourly observations for all patients but to complete the relevant documents to indicate otherwise, and that she had remained in the nurses station between 11:42 PM and 4:53 AM the next morning. 4. 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. The respondent who was the shift leader should have ensured that the clinical activity of her team including observations complied with hospital policies and procedures and met the therapeutic and safety requirements of patients under her care. She should also have "maintained sound, contemporaneous records of observation activity to better inform future patient care and demonstrate compliance with care requirements". 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, and she falsified documentation concerning her observations. Mr Shaw assessed the overall conduct of the respondent as being significantly below the standards expected of a practitioner of an equivalent level of training and experience. He was strongly critical of her conduct. 5. We are comfortably satisfied to the Briginshaw standard that each of the particulars of each of the Complaints contained in the Application has been proven. Is the respondent guilty of professional misconduct? 1. The applicant alleged that the respondent should be found guilty of professional misconduct by reason of the factual findings which we have made. 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 clear from the expert opinion of Mr Shaw that the conduct of the respondent constitutes unsatisfactory professional conduct, and we so find. 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. Evidence produced by the applicant is that the respondent was first registered as a nurse on 16 January 2007. Her registration ceased on 1 July 2019 and she has been unregistered since that date. Between 26 February 2018 and 1 July, 2019 the respondent had been subject to practice conditions imposed by the Nursing and Midwifery Council of NSW pursuant to section 150 of the National Law which required that she work under supervision, that she not be a nurse in charge of any shift, ward or unit nor have supervisory responsibilities for any other nurse, nor work as the sole practitioner. 3. In our opinion the conduct which we have found to constitute professional misconduct under the National Law is of a most serious kind. Firstly, the respondent was the nurse in charge of the unit at the relevant time. It was her responsibility to allocate the work to be performed by her team, and to ensure that that work was attended to in an appropriate manner. It was inappropriate that she engaged in any conduct which resulted in the failure to carry out observations in a timely and proper manner and to falsify the inadequate observations that were in fact made. We note that at the time the respondent had been registered as a nurse for a period in excess of 10 years. All of these matters must be considered in the context that the respondent's work was being carried out in a mental health unit where all of her patients were vulnerable, unsafe and dependent upon proper nursing care for their welfare. As the respondent conceded in her email, she let her patients down. 4. In all the circumstances we have no difficulty in concluding that the respondent is guilty of professional misconduct. Protective orders 1. The available protective orders consequent upon a finding of professional misconduct are set out in section 149C of the National Law; 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. We add for completeness that there are alternative protective orders that may be made under section 149A. In view of the determination which we have made concerning the appropriate protective order it is not necessary that we consider the provisions of that section. 2. The applicant submitted that in all the circumstances the only appropriate protective order was the cancellation of the respondent's registration. We observe that we are empowered to make such an order even though the respondent is no longer registered by reason of the provisions of section 149C(4) set out above. 3. We agree with the submission of the applicant that in all the circumstances the misconduct of the respondent as particularised in the Complaints is so serious that it must call into question her competency to practice nursing safely, and her commitment to the health welfare and safety of her patients that evening. This is compounded by the fact that the respondent was the nurse in charge. It is conduct of such a kind that warrants cancellation of the respondent's registration in the interests of the protection of the safety of the public, as a deterrent to the respondent and other members of the nursing profession, and in order to uphold the integrity of the nursing profession in the eyes of the public. 4. In circumstances where the respondent has provided no explanation for her conduct other than dereliction of duty, we are unable to assess on any scientific basis any appropriate period which should be fixed under section 149C(4)(b). In all the circumstances, we assess an appropriate period as being 2 years which will allow the respondent an opportunity to take such rehabilitative action and to engage in such reflective exercise as she might see fit. Costs 1. This is a costs jurisdiction. The applicant sought a costs order in its favour. There is no reason why such an order should not be made. We note that the applicant will confine its assessment of costs to those incurred with respect to that part of the proceedings concerning the respondent. Orders 1. We make the following orders; 1. consequent upon our finding that the respondent is guilty of professional misconduct we determine that if the respondent were still registered we would have cancelled her registration 2. the respondent is disqualified from being registered in the nursing and midwifery profession for a period of 2 years 3. we ask that the Registrar inform the relevant National Board with which the respondent was registered that we require it to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. 4. The respondent is to pay the costs of the applicant 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