Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Aird [2020] NSWCATOD 41 Hearing dates: On the papers Date of orders: 27 April 2020 Decision date: 27 April 2020 Jurisdiction: Occupational Division Before: O Shub, Senior Member B Clarke, Senior Member Dr S Schulz-Robinson, Senior Member R Leontini, General Member Decision: (1) The Respondent having been found guilty on a criminal charge of common assault, is guilty of professional misconduct. (2) The Respondent is guilty of unsatisfactory professional conduct and professional misconduct in respect of the action perpetrated by her. (3) Consequent upon the finding that the Respondent is guilty of professional misconduct, under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if the practitioner was still registered as a nurse the Tribunal would have cancelled her registration. (4) Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the Tribunal requires the National Board to record the fact that had the Respondent been registered the Tribunal would have cancelled the respondent's registration for a period of two years from the date of this decision. (5) The Respondent shall not be entitled to apply for registration as a nurse for a period of two years from the date of this decision. (6) The Respondent be subject to a prohibition order which will prevent her from providing the following health services on a public, private or volunteer basis until she is registered as a nurse: (a) medical, hospital, nursing or midwifery services; (b) mental community health services; (c) health education services; (d) aged care services. (7) The Respondent shall pay the costs of the Applicant as assessed or agreed. Catchwords: PROFESSIONS AND TRADES – non‑registered nurse – criminal charge of common assault – vulnerable patient – vulnerable elderly patient with dementia – slapping in the face Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1983) 60 CLR 336 Clyne v NSW Bar Association [1960] HCA 40 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: Code of Ethics for Nurses in Australia Code of Professional Conduct for Nurses Registered Nurse Standards for Professional Practice Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Debbie Aird (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self Represented) File Number(s): 2019/00318504 Publication restriction: Publication of the name of the Patient shall be suppressed and will be referred to as Patient A and the name of Nurse 2 shall be suppressed and referred to as Nurse 2. This decision has been amended. REASONS FOR DECISION 1. The Respondent was first registered as a registered nurse having completed her general nursing training at the Woden Valley Hospital, Canberra. In 1986 she was first registered as a midwife having completed her midwifery training at Nepean District Hospital. In 2017 she surrendered her registration as a midwife and in December 2019 she surrendered her registration as a nurse. 2. Following a complaint against the Respondent a section 150 enquiry was held and a complaint brought against the Respondent by the Applicant. The Health Care Complaints Commission of Level 12, 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) (National Law), complained that the Respondent being a registered nurse registered under the National Law, COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner has been made the subject of a criminal finding for a criminal offence in NSW. BACKGROUND TO COMPLAINT ONE In 1976, the practitioner was first registered as a nurse in NSW. In 1995, the practitioner commenced employment as a registered nurse at the Boorowa Multipurpose Hospital ("the facility"). On 7 June 2016, Patient A became an aged care resident at the facility. Patient A received care from the practitioner and other nurses. On Saturday 15 July 2017, the practitioner was rostered on night duty at the facility with an enrolled nurse ("Nurse 2"). Between approximately 0555 to 0659 hours on 16 July 2017, the practitioner and Nurse 2 attended Patient A. On 7 September 2017, the practitioner was charged with the common assault of Patient A pursuant to section 61 of the Crimes Act 1900. On 16 April 2018, the practitioner was found guilty of common assault of Patient A contrary to section 61 of the Crimes Act 1900 (NSW) at Cootamundra Local Court. The practitioner was sentenced under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to a good behaviour bond for six months. PARTICULAR OF COMPLAINT ONE 1. On 16 April 2018, the practitioner was the subject of a criminal finding of an offence of common assault of Patient A, contrary to section 61 of the Crimes Act 1900. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(b) of the National Law in that the practitioner has contravened section 130(1) of the National Law. BACKGROUND TO COMPLAINT TWO As for Complaint One. The practitioner did not notify the Nursing and Midwifery Board ("the National Board") of her charge or her criminal finding. Common assault is a criminal offence punishable by two years' imprisonment. PARTICULARS OF COMPLAINT TWO 1. On and from 14 September 2017, the practitioner contravened section 130(1) of the National Law in that the practitioner failed to give the National Board written notice within 7 days after becoming aware of being charged on 7 September 2017 with a criminal offence punishable by 12 months' imprisonment or more, namely one count of common assault contrary to section 61 of the Crimes Act 1900. 2. On and from 23 April 2018, the practitioner contravened section 130(1) of the National Law in that the practitioner failed to give the National Board written notice within 7 days after becoming aware of being the subject of a criminal finding on 16 April 2018 for an offence punishable by imprisonment, namely one count of common assault contrary to section 61 of the Crimes Act 1900. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed 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 of nursing. BACKGROUND TO COMPLAINT THREE As for Complaint One. On 23 May 2018, the practitioner submitted an online form to the Australian Health Practitioner Regulation Agency ("AHPRA") to renew her annual registration as a nurse. PARTICULAR OF COMPLAINT THREE 1. On 23 May 2018, the practitioner made a false statement to AHPRA in her online renewal form in circumstances where: a) in response to the question "Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?", the practitioner selected the response "No"; b) the practitioner's response was false in that the practitioner had been charged with common assault on 7 September 2017 and had been found guilty of common assault on 16 April 2018 and the practitioner had not declared that change to her criminal history to AHPRA. COMPLAINT FOUR The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the 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 of nursing. BACKGROUND TO COMPLAINT FOUR As for Complaint One. On 29 December 2016, the Care Plan for Patient A was updated to state that Patient A "often becomes aggressive by attempting to hit and kick staff when he does not want to be attended to ... When this occurs staff are to walk away and return at a later time." PARTICULARS OF COMPLAINT FOUR 1. Between approximately 0600 hours and 0659 hours on 16 July 2017, the practitioner used her hand to slap the face of Patient A in circumstances where: (a) Patient A was 91 years old; (b) Patient A was non-ambulant and had communication and cognitive issues associated with dementia; (c) Patient A was lying on his bed, facing the practitioner; (d) Nurse 2 administered suppositories to Patient A; (e) Patient A growled and spat at the practitioner's face; (f) the practitioner failed to walk away; (g) the practitioner failed to seek assistance from Nurse 2. 2. At around 0700 on 16 July 2017, the practitioner failed to complete an appropriate handover regarding Patient A to the day nurses in circumstances where: (a) the practitioner stated words to the effect that "He spat at me so I slapped him, in the ten second rule"; (b) the practitioner failed to comment on Patient A's clinical condition. 3. On 16 July 2017, the practitioner failed to complete adequate health care records for Patient A in that she failed to document that: (a) suppositories had been administered to Patient A; (b) Patient A had growled and spat at her; (c) the practitioner had slapped Patient A's face. COMPLAINT FIVE The practitioner 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 FIVE 1. Particular 1 of Complaint Four is relied upon individually. 2. Particulars 1 and 2 of Complaint Two, Particular 1 of Complaint Three and Particulars 1, 2 and 3 of Complaint Four are relied upon cumulatively or in any combination. ONUS 1. It is trite that the onus of proof rests with the Applicant, the Commission. In considering whether the onus has been discharged, the Tribunal must be comfortably satisfied that that onus has been discharged: Briginshaw v Briginshaw (1983) 60 CLR 336. 2. At 362 and 363 Dixon J held: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding or considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal in such matter "reasonable satisfaction" should not be produced by in exact proofs, indefinite testimony or indirect inferences … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and a reasonable satisfaction which in a subtle issue may, not must, be based upon a preponderance of probability it being that the nature of the issue necessarily affects the process by which reasonable satisfaction is obtained." NATURE OF THE JURISDICTION 1. The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of midwifery. In Clyne v NSW Bar Association [1960] HCA 40, the High Court said: "Although it is sometimes referred to as the penalty of disbarment it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view for the protection of those who require protection and from the professional point of view in order that abuse of privilege may not lead to loss of privilege." 1. As observed by Beston JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 1. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s3AS of the National Law. DECISION ON THE PAPERS 1. The Tribunal had available to it Volumes 1 and 2 (Exhibit 1), a set of documents provided by the Applicant and a folder of documents provided by the Respondent (Exhibit 2). There was no opening address as the matter was ordered to be decided on the papers. THE ISSUES 1. In essence, the only real issue for the Tribunal is whether or not the Respondent is guilty of unsatisfactory professional conduct or professional misconduct in slapping the face of Patient A or whether the slapping of Patient A was in self‑defence. EVIDENCE OF NURSE 2 1. Nurse 2 stated that she currently works at Boorowa Multipurpose Service as an enrolled nurse. She has been working at the Boorowa Multipurpose Service for 11 years. Nurse 2 has been an enrolled nurse for 11 years. She has known Patient A since he was admitted 7 June 2016 into the Nursing home. She knows that he was involved in some form of home invasion a few years ago and from this he can be hostile. About a year ago Patient A suffered a stroke and he cannot move from his bed without assistance and cannot talk. He basically lays in bed helpless. 2. On Saturday 15 July 2017 she was rostered on night shift to work with the Respondent. The Respondent and Nurse 2 worked together for approximately 11 years. 3. She and the Respondent received the handover from Ally Bean. "Ally requested that we give X2 suppositories to Patient A who resides in room 3 of the nursing home section of the hospital." Nurse 2 had stated to Ally that this was handed over the night before and that Patient A needed X2 suppositories and he was non‑compliant. During this conversation the Respondent stated in words similar to "Well he will have them tonight". Nurse 2 found the Respondent to be a bit blunt. The handover was completed and the evening shift left the hospital. This was about 11:15pm. From this time on she and the Respondent were the only staff inside the facility. 4. About 5.55am the Respondent and Nurse 2 went to the pan room to get the trolley and start rounds. All the patients were sighted and Personal Care attended to rooms 2, 4, 5, 10, and 11 at the time. Nurse 2 gave the Respondent an up to date report on Patient A's non‑compliance. The Respondent said to Nurse 2 "He is getting the supplements if he likes it or not". Nurse 2 said "I'm walking away if he starts to get aggressive". 5. Nurse 2 went into room 3 and explained to Patient A that they were there to attend to his care and to check his pad and that he had not had his bowels open for a couple of days so Nurse 2 suggested he would be given X2 suppositories. 6. At this stage the Respondent walked into the room. Nurse 2 explained to the Respondent again that if he was aggressive and non‑compliant she would be leaving the room. By this time they had been attending to Patient A for about ten minutes. 7. Nurse 2 elevated the bed to a comfortable height, the Respondent on Patient A's Right side and Nurse 2 on the Left rolled Patient A to the Right side of the bed facing the window from where Nurse 2 then gave Patient A X2 suppositories. Patient A started making growling noises. Nurse 2 could not tell if Patient A was holding the Respondent's wrist or she was holding his wrists and Nurse 2 does not recall him trying to bite her. It all happened very quickly but Nurse 2 did see Patient A spit on the Respondent's face, the spit did make contact with the Respondent's face, then the Respondent slapped Patient A across the Left side of his face, the Respondent used her Right hand to slap him. Nurse 2 did notice a small bit of blood on the back of Patient A's wrist but Nurse 2 is not sure if it came from a nail or the bed rail. 8. She stopped what she was doing and pulled the sheets back up over Patient A. She picked up the pad and walked out of the room. Shortly afterwards the Respondent came out of the room. She said to the Respondent "I am disgusted in what happened in there and I do not want to talk about it". 9. Nurse 2 made various statements over the course of the investigation all of which are consistent with her initial statement to the police and which do not require repeating. EVIDENCE OF JOCELYN PIPER 1. Ms Piper stated that she is a registered nurse and currently works at Boorowa Multipurpose Service. She has worked in that position for nearly three years and has been nursing for 19 years. 2. On Sunday 16 July 2017, she started work at 7:00am. The normal routine of a shift changeover is that the registered nurses handover the acute patients and the enrolled nurses handover the nursing home patients. By this she means that patient information is provided to her and if there were any issues. 3. On this day, the Respondent was the registered nurse on during the night shift. Nurse 2 was the enrolled nurse on during the night shift. They were the only staff on during the night. When she started her shift she could clearly tell that something was wrong with Nurse 2. She was angry and on edge. There was conversation between the Respondent and Nurse 2 and she could clearly tell that there was hostility between them both. When they spoke to each other their conversation was tense. 4. The Respondent handed over the acute patients to her. With her starting her shift was Cherylee Mears (Enrolled Nurse) and Mark Dwyer (Assistant in Nursing). After the Respondent handed over the acute patients to her, Nurse 2 handed over the nursing home patients. The first two patients in Rooms 1 and 2 were provided. When they got to Room 3 which is the room of Patient A, Nurse 2 said "He wouldn't let us change him so we just left him". The Respondent then stated "No, remember I gave him a suppository. He spat at me so I slapped him. It was the 10 second rule". Nothing was said about the incident but she stated that they were all in shock and she was thinking to herself "oh my god". 5. At about 12:45pm she text messaged Cecilia Walsh, who is the facility manager and asked her to call her at work. Cecilia called and she informed her of the incident and Cecilia told her to talk to Joe Garlick who is the cluster manager. In the conversation with Joe, she was told to do an incident report and document it into the patient's notes. She had to leave a note for the Respondent explaining that she was not allowed to approach residents and patients by herself and that she had to be with another staff member at all times. The matter was then taken out of her hands. Following her statement she was asked various questions and was asked to describe what was told to her at the handover by the Respondent in relation to the care she provided to Patient A on 16 July 2017. She was asked whether she contacted Nurse 2 during her shift and why. She indicated that when she rang Nurse 2, she was just ringing to see whether she was alright and Nurse 2 burst into tears. She said "It was just awful, it was just horrible". She said that "she didn't know what she could have done to stop it". She said that "after it had happened she just walked out, she didn't know what to do". She was asked about the reaction of other staff at handover and when they were told the information and she stated that they were all in shock. She was asked to describe Patient A's behaviour during the day shift of that day and she indicated that he seemed scared and flinched when they went near him. She stated that sometimes he has good days and sometimes bad days. He didn't eat much that day. The day after he was worse, he looked pale and more withdrawn than normal. After the policewoman came and spoke to her, she asked the policewoman if they could talk to Patient A and tell him that they knew what had happened. She indicated that that would be OK and she then went and said to Patient A "we know what that nurse did to you, we know it wasn't right and the police know". He winked at her and smiled and seemed to pick up after this. EVIDENCE OF CHERYLEE MEARS 1. In a statement to the police, Ms Mears stated that on Sunday 16 July 2017 she was rostered to work at the Boorowa Multipurpose Hospital. Her position at the hospital is an enrolled nurse. She has been working at the Hospital since July 2006 and as an enrolled nurse since 2009. 2. On this particular day she was to work with Mark Dwyer and Jocelyn Piper. They were the morning shift and started at 7.00am. On this day they were all in the nurses station. The night shift was Nurse 2 and the Respondent. She would say that the Respondent, Nurse 2 and her were work mates. They didn't socialise outside of work. 3. The Respondent and Nurse 2 were to provide her with a handover of patients and what had happened during the night. Nurse 2 didn't seem herself when we first came in. Nurse 2 is normally bubbly, happy and smiley. She thought Nurse 2 was cranky to begin with. She thought something had happened between Nurse 2 and the Respondent. 4. She thinks Nurse 2 started with giving details of the first couple of patients. Then she can't remember whether Nurse 2 said anything about Patient A or not but she remembers the Respondent saying about Patient A "We were attending to his care and he spat at me. I slapped him, but it was the ten second rule". EVIDENCE OF MARK DWYER 1. Mr Dwyer stated that on Sunday 16 July 2017 he was rostered to work the morning shift at the Boorowa Multipurpose Hospital. His role at the hospital is an assistant in nursing. He worked at the hospital for 9½ years and has been an assistant in nursing for the same time. 2. In the morning he was rostered to work with Cherylee Mears and Jocelyn Piper. The morning shift were taking over from the Respondent and Nurse 2. Around 7:00am he was in the nursing station with Cherylee, Jocelyn, Nurse 2 and the Respondent. Nurse 2 and the Respondent were going to give them a handover of patients' care from the overnight shift. The Respondent was explaining Patient A's care from the night. He was in Room 3. The Respondent had explained that they were doing patient care and something happened which caused the patient to spit at her. He could not remember the words exactly but it was something like that she whacked him. 3. Nothing else was said about the Respondent hitting the patient and he did not know what else happened with the investigation thereafter. SECTION 150 PROCEEDINGS 1. The Tribunal was provided with reasons for the decision of a section 150 proceeding held on 23 October 2017 pursuant to which the following orders were made. Pursuant to section 150(1)(b) of the National Law (NSW) the delegates imposed the following conditions on the Respondent's registration as a nurse: Information to be recorded on the Public National Register: 1. The registrant must practise under the indirect or direct supervision of a registered nurse (Division 1) who does not have any conditions on his/her practice. The supervisor must be: a. on-site and working in close proximity within a ward or unit with the registrant; and b. able to oversee and provide advice about the registrant's practice when necessary. 2. The registrant must not work night duty. 3. The registrant must be supervised by a nurse manager (or equivalent) approved by the Nursing and Midwifery Council of New South Wales who has agreed to oversee supervision and designate supervisors. The registrant must: a. provide the Nursing and Midwifery Council of New South Wales with the name, contact details and resume of the nominated nurse manager within two weeks of commencing work; b. authorise the nurse manager to (i) Notify the Nursing and Midwifery Council of New South Wales of any breach of the conditions or unsafe practice; and (ii) Exchange information with the Council related to compliance with the conditions and (iii) Provide the Council with a copy of the conditions signed by the registrant and by the nominated nurse manager indicating awareness of the conditions and authorisation. c. authorise the nurse manager to provide a written report about the registrant's performance against the standards for practice for a registered nurse (Division 1) approved by the Nursing and Midwifery Board of Australia at monthly intervals. 1. The section 150 recorded that Ms Aird was born on 29 February 1956 and was first registered as a registered nurse (Division 1) in NSW on 23 November 1976. 2. Ms Aird was first registered as a midwife on 12 November 1986 on the basis of a Midwifery Certificate she completed at Nepean Hospital. Ms Aird surrendered her registration as a midwife in September 2017. 3. Ms Aird has had a previous complaint made against her in NSW. 4. Information has been received from the ACT office of AHPRA that no complaints had been received against Ms Aird in the ACT prior to the commencement of the National Scheme on 1 July 2010. 5. Ms Aird had no conditions on her registration as a nurse prior to the section 150 proceedings. 6. The Council had received two notifications concerning Ms Aird. 7. The first notification from a patient's daughter in relation to the treatment of her mother, at Boorowa Hospital, is dated 5 July 2016 and was received by the Council on 8 November 2016, when the Health Care Complaints Commission advised that Ms Aird was identified as being involved in the patient's care and Ms Aird was added as a provider in the matter. 1. The patient's daughter alleged that inappropriate care was provided to her mother at Boorowa Hospital relating to the use of Norspan 10mg patches. It was alleged that Ms Aird failed to recognise the patient's deteriorating health and failed to notify the doctor. It was also alleged that Ms Aird failed to undertake regular observations and the patient's clinical records were inadequate. 2. The Council on 23 June 2017 resolved to refer Ms Aird for a Performance Interview pursuant to s 145B(1)(a) of the National Law. Ms Aird attended the Performance Interview and the report of that interview is attached. 3. The Council at a meeting on 6 October 2017 considered the Performance Interview report and resolved to close the matter for the following reasons: 1. the registrant has been issued with professional guidance; 2. the registrant has reflected on the incident and has identified how her practice could be improved; 3. that there were no further concerns regarding the safety of the registrant's on-going practice; 4. that the registrant presented as a caring and compassionate nurse who was clearly upset by the patent's distress during her end‑of‑life period. 1. The Council received a second notification, from Ms Joanne Garlick, dated 18 July 2017 advising that an incident had occurred at 7am on Sunday 16 July 2017. The notification advised that Ms Aird told the registered nurse on the morning shift that she had smacked a resident. The notification states that when the incident occurred, two staff members (an AIN and Ms Aird, a registered nurse) were attending to a resident who was being uncooperative, in that he was swinging punches in the air, and that the resident spat at Ms Aird, who then smacked the resident. Ms Garlick further advised that: 1. a report was made to the police at Boorowa Police Station 2. Ms Aird had been suspended from clinical duties and that Ms Aird would only be performing non-clinical duties effective from 19 July 2017. 1. The Council at its meeting on 6 October 2017 considered the matter and determined to provide Ms Aird with notice of s150 proceedings to consider whether urgent interim action (imposing conditions or suspension of registration) is required for the health and safety of any person. Issues considered 1. The Nursing and Midwifery Council considered: 1. Should the previous complaint be considered by the Committee when making its decision? 2. Is the Respondent's conduct within accepted standards? 3. Are there mitigating factors that may have impacted on the Respondent's conduct? 4. Has the Respondent received intervention to address conduct issues? 5. Is there a risk to the health and safety of any person/persons because of the Respondent's conduct issues? 6. Are any restrictions required to decrease the risk and, if so, what are they? Evidence and deliberations 1. The Nursing and Midwifery Council considered: 1. The delegates were concerned that Ms Aird was aware of the current complaint when she attended the Performance Interview regarding the first complaint. Ms Aird provided no indication of a second conduct issue to the Performance Interview members, even though the second complaint concerned an issue that was sufficiently serious for a report to be made to the police at Boorowa Police station. 2. The delegates were concerned that Ms Aird had not been open and honest with the members of the Performance Interview. 3. The delegates determined that the issues raised in both complaints should be considered when making their decision today, as they are of the opinion the actions that Ms Aird has exhibited might be symptomatic of an underlying issue. Is Ms Aird's conduct within accepted standards? 1. The Nursing and Midwifery Council considered: 1. The delegates only had before them the documentation provided in the notification and the additional documentation provided by the Local Health District. In that documentation it was advised that Ms Aird admitted to striking a resident across the face with an open hand. Such conduct is not within accepted standards. 2. The delegates noted that it had been Ms Aird who informed the morning shift staff that she had slapped the resident. The delegates noted her honesty but they did not consider that it changed the fact that such conduct is not within accepted standards. The delegates also noted the incident had been witnessed by another nurse. 3. Boorowa Health Service provided the final report concerning the matter. The report noted discrepancies concerning the events that led up to the slap. Ms Aird states that the resident had hold of her arm and was trying to bite her, though this version is not supported by the other nurse present when the slap occurred. If Ms Aird has not provided an accurate account of the events associated with the incident this is not within accepted standards. 4. The delegates had no information from Ms Aird to explain these discrepancies. They considered that, if the allegation was proven, and Ms Aird's version of events leading up to the slap is correct the conduct is still not within accepted standards. 5. The delegates held concerns about Ms Aird's professional conduct. It would appear that she has not accepted responsibility for her action of slapping a patient, nor acknowledged that this is unacceptable. 6. The delegates considered that Ms Aird had not managed the situation appropriately, and considered that a registered nurse with her experience should have been able to defuse the clinical situation without the use of violence. Are there mitigating factors that may have impacted on Ms Aird's conduct? 1. The Nursing and Midwifery Council considered: 1. Information contained in the complaint and the supporting documentation from the LHD advised that Ms Aird said that the resident had grabbed her arm with both his hands. In doing so, the resident was trying to drag her hand towards his mouth and she thought he intended to bite her. Ms Aird advised that she felt that she had slapped the resident as a matter of self‑defence. 2. The documentation that the delegates considered, noted that Ms Aird advised that the resident was hurting her and that she slapped him to stop him hurting her. Ms Aird had previously broken her left arm, the arm she stated that the resident had hold of and that she felt in danger of being injured or being further hurt. 3. The delegates noted that Ms Aird has been working in a permanent part‑time position undertaking seven shifts each fortnight and has been doing so since January 2012. The delegates noted that she advised the Performance Interview members that she usually works evening shifts. The delegates noted the incident occurred at the end of the shift as the patient refused recommended treatment for several previous shifts. Is there a risk to the health and safety of any persons? 1. The Nursing and Midwifery Council considered: 1. Ms Aird has admitted to slapping a resident. She stated he was grasping her arm with both of his hands and was trying to get her hand into his mouth. She thought he was intending to bite her. 2. The delegates considered the circumstances surrounding the events advised and the complaint. They found that the complaint raises concerns about a potential risk to the health and safety of any person/persons should Ms Aird be placed in a similarly stressful clinical situation. It is noted that the incident occurred at the end of a night duty shift when Ms Aird and another nurse were providing care for a resident who has a history of refusing nursing care. 3. As Ms Aird did not attend, the delegates had no information before that that allayed their concerns. Are any restrictions required to decrease the risk and if so, what are they? 1. The delegates considered whether Ms Aird could safely practise with no restrictions on her registration. The delegates were satisfied that conditions on registration were necessary to decrease the risk to patient safety for the reasons provided above. EXPERT EVIDENCE 1. The Applicant provided an expert report to the Tribunal. In the expert report, the expert has confirmed that he was provided with various documents for his perusal and for consideration in his expert report. The expert was asked to provide his opinion on various matters which he did as follows: 5.1 Please provide your opinion in relation to the appropriateness or otherwise of RN Aird's comments below at the nightshift handover and prior to commencement of rounds: a. In relation to Patient A's non-compliance with suppositories, "Well he will have them tonight." While for his own comfort it is necessary for Patient A to maintain regular bowel habits, it appears his normal pattern, as documented in his medical record, is every 4-5 days (last prior to this incident on 12 July). Therefore, there appears to be no real sense of urgency in giving Patient A a suppository that night, particularly when his medical record for that evening states he was tolerating food and fluid well and had a pain score of 0, both of which indicate he was not suffering from constipation. RN Aird's comment suggests she was making a decision which was not based on any clinical assessment. The Registered Nurse Standards for Practice, Standard 5.1 states that registered nurses must use assessment data and best available evidence to develop a plan of care. RN Aird's statement indicates she was not going to undertake any assessment of Patient A before implementing the care. This is in breach of this Standard. b. "He is getting the supplements if he likes it or not." RN Aird's comments above suggest that she was prepared to go against the agreed plan of care that had been established for the safety of staff which clearly stated that staff were to walk away if Patient A did not want care attended and became aggressive. This is in breach of Standard 6 of the Registered Nurse Standards for Professional Practice which states that nurses must provide safe, appropriate nursing practice that is responsive to the needs of people. A decision to provide care to Patient A "whether he likes it or not" is not responding to his needs and is potentially unsafe for her and her colleague Nurse 2. Making a decision to provide care that Patient A may not wish to have is also a breach of the Registered Nurse Standards for Professional Practice (Standard 2.7) which requires the registered nurse to foster a culture of safety and learning and practice that supports person-centred care. Her comments suggest she was not concerned about placing her colleague at risk and was not concerned about providing person centred care or preserving Patient A's rights and dignity. As such she presents as a poor role model for other staff. RN Aird's comments at handover are below the standard reasonably expected of a registered nurse. However, as they are verbal comments and not in themselves actions, I do not consider them to be significantly below the reasonably expected standard and they do not invite my strong criticism. 5.2 Having regard to Patient A's care plan, please provide your opinion in relation to the appropriateness or otherwise of RN Aird's statement at the hearing on 16 April 2018 that she had concerns regarding cardiac arrest and further agitation given Patient A had not opened his bowels for several days. In discussing aggressive behaviours for people with cognitive impairment Dementia Australia note one of the physical causes of such behaviour may be constipation. This is due to abdominal discomfort. Patient A's medical record suggests that on the day of this incident he had not had his bowels open for possibly 6 days. However, a review of Patient A's record for the month prior to this incident, shows this to be a fairly normal pattern for him and therefore it is unlikely that withholding the suppositories for another day would have been detrimental. There is also no evidence that his agitation is increasing as a result of him not having his bowels open, with no episodes of aggression being noted in his progress notes for the preceding week. Severe constipation has been known to result in a cardiac event, including cardiac arrest. However this occurs when there is a tensely distended abdomen resulting in increased intra-abdominal pressure or when there is a combination of cardiac disease and extreme straining (Starnes et al, 2016). Patient A's medical notes suggest neither of these conditions applied to him. RN Aird has many years of nursing experience, including aged care experience. Standard 4.2 of the Registered Nurse Standards for Practice states that a nurse is expected to make use of a range of assessment techniques to systematically collect relevant and accurate information and data to inform practice. For RN Aird to suggest Patient A was at risk of cardiac arrest had he not received suppositories on the morning of the 16th" July shows that she did not make an assessment of his condition and her practice was not informed by any assessment. This failure to comply with the Standard and the fact that she had exaggerated this risk in an attempt to justify her care and actions is significantly below the standard reasonably expected of a registered nurse and it invites my strong criticism. 5.3 Assuming Nurse 2's version of events, please provide your opinion in relation to the appropriateness or otherwise of RN Aird's conduct of slapping Patient A across the left side of his face. In your response, please address what (if any) alternatives were available to RN Aird. Nurse 2's court evidence states that when she entered Patient A's room on the morning of 16 July 2017 and explained to him that she was going to give him suppositories, Patient A was "compliant", "normal", "just nodded his head". This indicates that he was not aggressive at that time. Nurse 2 says she inserted the suppositories while RN held Patient A in position. Nurse 2 describes Patient A making a growling noise and his hands moving but stated she did not see whether or not he had hold of RN Aird's wrist and did not hear RN Aird say anything that indicated Patient A was trying to bite her. Nurse 2 says that at no time did RN Aird say she was in pain from Patient A holding her wrist and nor did she ask for help from Nurse 2 to extricate herself from Patient A's grip. She then saw Patient A spit in the face of RN Aird and her slap him on the face with her right hand. In her court evidence and during the MLHD investigation she describes the slap as a "hard slap", a "firm slap", a "real whack". Assuming Nurse 2's version of events is correct, RN Aird was not in any danger from Patient A and the slap was a reaction to him spitting in her face. The Registered Nurse Standards for Professional Practice require the registered nurse to comply with legislation, common law, policies, guidelines and other standards or requirements relevant to the context of practice when making decisions (Standard 1.4). By slapping a person in her care, RN Aird has broken the law, as evidenced by a case of Common Assault against her being proven in Cootamundra Local Court. Standard 2 explains the expectation that nurses will engage in therapeutic and professional relationships, with 2.2 of this Standard requiring the registered nurse to communicate effectively and be respectful of a person's dignity. RN Aird's action of slapping Patient A does not assist in the development of a therapeutic relationship and is not respectful of him. The Australian Government Charter of Care Recipients Rights and Responsibilities - Residential Care states each care recipient has the right to "be treated with dignity and respect, and to live without exploitation, abuse or neglect" (Point 1 (d)). Slapping Patient A does not afford him dignity or respect and may be considered a form of abuse. Therefore RN Aird has failed to uphold his rights. Value Statement 4 of the Code of Ethics for Nurses in Australia Nurses states that nurses value "non-harmful, non-discriminatory care provide nursing care appropriate to the individual that recognises their particular needs and rights." In slapping Patient A RN Aird has failed to recognise and respond appropriately to the needs of Patient A, and she has potentially caused him physical and or emotional harm. Therefore, she is in breach of this value statement. Conduct Statement 2 of the Code of Conduct for Nurses in Australia requires nurses to practise in accordance with the standards of the profession and broader health system. In failing to adhere to the Registered Nurses Standards for Professional Practice, the Code of Conduct for Nurses in Australia, the Code of Ethics for Nurses and the Australian Government Charter of Care Recipients Rights and Responsibilities, RN Aird has not acted in accordance this Conduct Statement. It is understandable that RN Aird be upset by Patient A spitting in her face. However, rather than slap him there were a number of alternative actions available to her. Firstly, as per the Communication Care Plan developed by the facility for Patient A, she could have walked away from him. This would have provided her with an opportunity to regain her composure and then respond to him appropriately when she returned, rather than react as she did. It was also noted in Patient A's care plan that he had been the victim of a home invasion which left him fearful at night. Staff were advised that when approaching him at night they should softly call his name so that he would realise they were familiar with him and not a stranger posing a threat. There is nothing in any statement by RN Aird to indicate she took this approach. Due to this recognised behaviour another alternative would have been to not attend this invasive procedure in the early hours of the morning when Patient A may not have been fully awake and able to understand what was happening. Patient A also had hearing impairment and cognitive impairment which limited his ability to know and understand what was being said. This was also covered in his care plan with staff being advised to make sure he understood what was being said before attending care for him. There is nothing in any statement by RN Aird to indicate she took this approach. The NSW Health Guidelines for Working with People with Challenging Behaviours in Residential Aged Care Facilities (2006) which were in effect at the time advises using strategies such as reassurance, remaining calm, responding to the resident's feelings, ensuring appropriate lighting, diversion and distraction. RN Aird has not provided any evidence that she attempted to use any of these strategies. Assuming Nurse 2's versions of events RN Aird has breached the Registered Nurse Standards for Practice (1.4 & 2.2), the Australian Government Charter of Care Recipients Rights and Responsibilities, the Code of Ethics for Nurses in Australia (Value Statements 2 & 4) and the Code of Conduct for Nurses in Australia (Conduct Statement 2). For this reason I find her conduct to be significantly below the standard reasonably expected and it invites my strong criticism. 5.4 Assuming RN Aird's version of events, please provide your opinion in relation to the appropriateness or otherwise of RN Aird's conduct of slapping Patient A across the left side of his face. In your response, please address what (if any) alternatives available to RN Aird. RN Aird's version of events is that Patient A had hold of her arm and she was unable to get away from him. At the same time she believed he was trying to bite her hand. As detailed in 5.3 above, there were alternative actions she could have tried to remove his grip. Firstly she could have tried to reassure him and speak calmly to him, knowing he had been the victim of a home invasion and was particularly fearful when approached at night, explain what they were doing (NSW Health Guidelines for Working with People with Challenging Behaviours in Residential Aged Care Facilities). Given he had hearing and cognitive impairment she should have tried to ascertain whether he heard and understood what she and Nurse 2 had said to him about the care they were providing and whether he realised who they were and where he was. RN Aird states that she normally had a good rapport with Patient A. She could have used that rapport to de-escalate the situation — speak encouragingly to him, remind him who she was, talk about something familiar with him. Another alternative would be to ask Nurse 2 for help. Nurse 2 may have been able to calm or distract Patient A to enable RN Aird to free herself. If not, Nurse 2 may have been able to provide something to cover RN Aird's hand to prevent him biting her. Whether any of these strategies would have been successful is unknown as RN Aird failed to try any of them. Slapping him was not an appropriate strategy for dealing with the situation. Standard 1.4 of the Registered Nurse Standards for Practice states that the nurse must comply with common law. In slapping Patient A RN Aird has assaulted him and broken the law. Therefore she does not meet this required Standard. There is also a requirement for a nurse to develop a therapeutic relationship with patients, communicate effectively and respect a person's dignity (Standard 2.2). RN Aird did not try to establish such a relationship, did not communicate effectively and did not respect Patient A's dignity. Therefore she is in breach of this Standard. Similarly, the Australian Government Charter of Care Recipients Rights and Responsibilities — Residential Care states each care recipient has the right to "be treated with dignity and respect, and to live without exploitation, abuse or neglect" (Point 1(d)). RN Aird has failed to respect this right. The Code of Ethics for Nurses in Australia states that nurses must care for people "through practised kindness" (Value Statement 2). RN Aird's action are far from kind and therefore in breach of this code. Value Statement 4 of the Code of Ethics for Nurses in Australia Nurses states that nurses value "non-harmful, non-discriminatory care provide nursing care appropriate to the individual that recognises their particular needs and rights." Patient A was a man with complex needs, both physical and emotional. In slapping him RN Aird has failed to recognise and respond appropriately to those needs. RN Aird's actions are in breach of the Registered Nurse Standards for Practice (1.4 & 2.2), the Australian Government Charter of Care Recipients Rights and Responsibilities, the Code of Ethics for Nurses in Australia (Value Statements 2-& 4) and the Code of Conduct for Nurses in Australia (Conduct Statement 2). For this reason I find her conduct to be significantly below the standard reasonably expected and it invites my strong criticism. 5.5 Please provide your opinion in relation to the appropriateness-or otherwise of RN Aird's decision not to ask Nurse 2 for assistance when she was held by Patient A. Patient A's management plan was clear that two people were to attend to him due to his previous episodes of aggression. This management plan would have been implemented for the safety of staff, ensuring that a second staff member could provide assistance should a nurse be placed at risk by Patient A's behaviour. RN Aird states on several occasions that she felt trapped by Patient A having hold of her and that she believed he was going to bite her. That being the case her personal safety was at risk. The plan to manage such risks was clear – a second staff member was present to provide assistance. All employees are expected to comply with Workplace Health and Safety regulations to protect their own safety and that of others. RN Aird failed to comply with that regulation by not asking for assistance. She has also placed Nurse 2 at risk by not alerting her to a situation that had the potential to escalate. Conduct Statement 6 of the Code of Ethics for Nurses in Australia states that nurses must value a culture of safety, including safety for their colleagues. By not alerting Nurse 2 to the situation at hand RN Aird has breached this Conduct Statement. In summary; by not asking for assistance RN Aird has failed to comply with Workplace Health and Safety regulations and breached the Code of Ethics for Nurses in Australia. For this reason I find her conduct to be significantly below the standard reasonably expected and it invites my strong criticism. 5.6 Please provide your opinion in relation to the appropriateness or otherwise of RN Aird's conduct in not recording the incident in Patient A's notes at the time of the incident. In your response, please address RN Aird's comments at the section 150 proceedings on 30 July 2018 that "I was going to do it but I was running late that morning and was going to do it that night." The Registered Nurse Standards for Professional Practice require a nurse to maintain accurate, comprehensive and timely documentation (Standard 1.6). While RN Aird acknowledges the importance of documentation she states that she intended to document in Patient A's notes the following night. This is not considered timely documentation. That she was at the end of her shift and running late is not an acceptable reason for failing to document in Patient A's notes. It raises questions as to her perception of the seriousness of the situation. In failing to undertake any documentation or reporting of the incident RN Aird has not met Standard 1.6. The seriousness of this incident makes a failure to document even more concerning. Standard 2.2 of the Registered Nurse Standards for Professional Practice requires nurses to report notifiable conduct of health professionals. Slapping a patient is considered notifiable conduct and RN Aird should therefore have reported her own conduct as soon as it happened. This would include documenting in Patient A's notes, completing an incident report and verbally reporting the incident to the manager before leaving the facility that morning. RN Aird failed to do any of these things and therefore does not meet this Standard. Standard 6.6 of-the Registered Nurse Standards for Practice states that nurses must use the appropriate processes to identify and report potential and actual risk related system issues and where practice may be below the expected standards. RN Aird has provided several statements in which she says she believed she was trapped by Patient A and was in danger of being bitten. That being so, there was the potential for other staff to be at risk of similar behaviour. By not documenting the incident or reporting it to the manager RN Aird has placed other staff at risk. This is a failure to meet Standard 6.6. Similarly the Code of Professional Conduct for Nurses in Australia requires nurses to practise in accordance with standards relating to safety and quality in health care and accountability for a safe health system, such as those relating to health documentation and information management, incident reporting and participation in adverse event analysis and formal open disclosure procedures (Conduct Statement 2.2). RN Aird's Failure to document this is in breach of this Conduct Statement. In not reporting the incident at the time and not documenting in Patient A's notes, RN has failed to meet the Registered Nurse Standards for Practice (1.6, 2.2 and 6.6) and has breached Conduct Statement 2.2 of the Code of Professional Conduct for Nurses in Australia. For these reasons I consider her conduct to be significantly below the standard reasonably expected and it invites my strong criticism. 5.7 Please provide your opinion in relation to the appropriateness or otherwise of RN Aird's handover to the changeover staff following the incident with Patient A. Following the incident in which Patient A was slapped it was Nurse 2 who was providing handover to the morning staff, RN Piper and EN Mears who were present at the handover say in their interviews with MLHD and their police statements that Aird intervened during that handover saying that Patient A spat at her and she slapped him in the "ten second rule". In her court evidence RN Aird explained that the "ten second rule" was an old saying that meant "if somebody hits you, you had 10 seconds to react". RN Aird made no further contribution to the handover and no comment on Patient A's clinical condition. These statements suggest that RN Aird slapped Patient A in retaliation for him spitting at her. She makes no mention of him grabbing her or feeling threatened by him. The statements sound flippant or defensive and lack any real insight into the seriousness of her actions. Registered nurses are role models for other nurses. This is inherent in the Registered Nurse Standards for Practice (2.7) which says that the registered nurse fosters a culture of learning to share knowledge and practice that supports person-centred care. RN Aird's handover is in direct contrast to such culture and is potentially detrimental to the professional development of her colleagues who were present. Therefore she has breached this Standard. The Code of Professional Conduct for Nurses in Australia has similar statements with Conduct Statement 10.4 saying that nurses "contribute to the professional development of colleagues". Role modelling plays a significant part in professional development. RN Aird's conduct at handover is modelling a behaviour that in no way contributes to the professional development of her colleagues and is not in accordance with the Code of Conduct. Value Statement 4 of the Code of Ethics for Nurses in Australia states that nurses "value the health of colleagues and foster supportive and constructive relationships". RN Aird's colleagues who were present at handover describe being shocked by her admission that she slapped Patient A. EN Mears states "I was just shocked. I noticed Nurse 2 was visibly upset". RN Piper states, "I was in shock after she said that". Through her actions at the handover, RN Aird has caused distress to her colleagues which is in direct contrast to what would be described as a supportive and constructive relationship. Therefore she has breached the Code of Ethics for Nurses in Australia. RN Aird's inappropriateness at handover is in breach of the Registered Nurse Standards for Practice (2.7) Code of Professional Conduct for Nurses (10.4) and the Code of Ethics for Nurses in Australia (4). For these reasons I consider her conduct to be significantly below the standard reasonably expected and it invites my strong criticism. 5.8 Please provide your opinion in relation to the appropriateness or otherwise of RN Aird's response following the incident. in your response, please address the following: a. Statement to the section 150 delegates on 30 July 2010 "I had no other way of getting away." RN Aird is a nurse of considerable experience and would have been aware of strategies to try to remove herself from Patient A's grip without slapping him. The alternatives to consider have been detailed in 5.3 and 5.4 of this report and include speaking calmly, providing reassurance and asking for help from her colleague. RN Aird failed to try any of these strategies so it is difficult to understand how she can say she had no alternative to slapping him. Standard 3 of the Registered Nurse Standards for Professional Practice says that nurses are responsible for ensuring they have the capability for practice and for their own professional development. For RN Aird to suggest that she knew of no other way to remove herself from Patient A's grip, other than slapping him, suggests that she has not maintained her capability for practice in caring for people with cognitive and behavioural issues. Therefore she does not meet this Standard. For this reason I find her response to be significantly below the standard reasonably expected and it invites my strong criticism. b. Statement to the section 150 delegates on 30 July 2018: "I don't think he [Patient A] was very vulnerable. I think I was more vulnerable." The Oxford Dictionary defines a vulnerable person as one "in need of special care, support, or protection because of age, disability, or risk of abuse or neglect." Patient A was indeed vulnerable due to all of these factors. He was aged 91 years at the time of the incident, had suffered a cerebral vascular accident which left him non-ambulant. He had cognitive impairment and a hearing and speech impairment making it difficult for him to communicate. He was dependent on the assistance of two people for his mobility and required full assistance for his activities of daily living. Patient A had previously been the victim of a home invasion which had left him fearful at night and it was noted in his care plan that "when approaching Patient A at night softly call his name so that he realises you know him and are not a stranger". In the weeks prior to this incident his care plan shows a need to increase his level of care due to his deteriorating condition: requiring pureed food and assistance with feeding (7 July 2017), full assistance by two staff for mobility (13 July 2017) and an air mattress and regular repositioning due to his decreasing mobility (14 June 2017). His increasing care needs are indicative of his increasing dependence on others and are likely to have given rise to frustration at the loss of control over his life. At the time of this incident he was also physically exposed and receiving invasive care, further increasing his vulnerability. In contrast RN Aird was independent and physically and cognitively capable of holding a responsible job. It is difficult to conceive how she could describe herself as more vulnerable than Patient A. Even if he did in fact have hold of her wrist at the time of the incident, she had a colleague present who could have assisted her to free herself. She also had one hand free (with which she slapped him) so would have been able to move at least an arm's distance from him. While her frustration at being spat on is understandable, it did not place her in a position of greater vulnerability. Value Statement 2 of the Code of Ethics for Nurses in Australia (2008) states that nurses value respect and kindness for self and others. This statement requires nurses to actively preserve the dignity of people through practised kindness and by recognising the vulnerability and powerlessness of people in their care. RN Aird's statement that she was more vulnerable than Patient A is in breach of this. Standard 3.4 of the Registered Nurse Standards for Practice (2016) states that a nurse must accept accountability for decisions, actions and behaviours inherent in their role. In describing herself as the more vulnerable, RN Aird appears to be making excuses for her actions and behaviour, rather than accepting accountability for it. RN Aird's conduct in relation to the vulnerability of Patient A is in breach of Value Statement of the Code of Ethics for Nurses in Australia and Standard 3.4 of the Registered Nurse Standards for Practice. For this reason, I find her conduct to be significantly below the standard reasonably expected and it invites my strong criticism. 5.9 Please provide your opinion of RN Aird's compliance with the Code of Conduct for Nurses, and the ethical standards of the nursing profession, MLHD and NSW Health Policies and Procedures in relation to her management of Patient A on 16 July 2017. RN Aird has failed to comply with each of these Codes and Standards are my reasons for drawing this conclusion are outlined in the previous sections of this report. I find her failure to comply with these to be significantly below the standard reasonably expected and it invites my strong criticism. 5.10 Please make any other comments about RN Aird's conduct in relation to Patient A that you consider relevant. RN Aird has been required to recount her actions at several inquiries. In none of her evidence does she appear to show remorse for her actions. I find this attitude to be very concerning. 1. The expert was asked to clarify issues in relation to paragraph 5.1 of the report and provided an amended comment on 5.1(a) and (b). In an interview provided to the Tribunal with the Respondent and various parties at the Boorowa MPS Day Centre Building, the Respondent was asked various questions particularly in relation to the slapping. The Respondent informed the interviewer that she slapped Patient A because he was holding onto her left arm with both his hands and was trying to get them into his mouth. She stated that she kept asking him not to bite her but was in any event trying to get her hand away from his mouth. She stated that it was for the purposes of freeing herself from Patient A's hands and after he spat in her face that she slapped him. At that point, he released and the matter was over. CRIMINAL PROSECUTION 1. The Tribunal had available to it the transcript of a hearing before Magistrate O'Brien in the Local Court of Cootamundra dated Monday 16 April 2018. 2. The evidence led by the prosecution from each of the witnesses whose statements were available to them regarding the incident and the conduct thereafter. In essence, the evidence given by all the witnesses was largely consistent with the statements that they made and in cross‑examination by the Respondent's solicitor remained so. The prosecution closed its case and the Respondent was called to give evidence. 3. The Respondent was called to give evidence and her evidence remained largely consistent with what she had indicated previously and which will be recorded in greater detail below. The cross‑examination of the Respondent centred very much on the claim by the Respondent that her left arm was being held very tightly by Patient A, that she felt that he was going to bite her and was trying to take her hand into his mouth and that in self‑defence after Patient A spat in her face, she slapped him and he released her arms. 4. In his judgment, the Magistrate stated that having reviewed the evidence it is clear that the accused was dealing with a patient who is deemed to be aggressive. He was the subject of a policy which required two persons to be present. Clearly two persons were present so that one can assist the other if difficulties arise. 5. On the accused's evidence, Patient A grabbed her and she told the court that she feared that he was going to bite her and her response to that on her evidence was after he had spat at her – which is a separate action, that she then slapped him on the face. 6. Certainly the evidence of Nurse 2 is that – she recalled that he was on his back at the time the spitting occurred and it was thereafter that he received a firm and sharp slap from the accused. 7. He stated that he heard the submissions made by her counsel, Ms Moody, in relation to those matters and whilst he understands the two position he has to say that in relation to the entirety of the evidence, the versions given by Nurse 2 – certainly he found it to be not so much preferred over but she gave a fairly clear and spontaneous narrative about what she recalled taking place. She certainly did not appear to obfuscate or dissemble in the face of rigorous and thorough cross‑examination about the matters that she raised in her evidence and certainly at the changeover the accused indicated that she had slapped the patient and clearly that had been something that had been observed. 8. In his view, the Magistrate said it would have been an opportune time to at least have explained that she had done so in circumstances where she felt she had no other alternative given his behaviour when she had held him at that time. 9. In all the circumstances, he stated that he is satisfied that self‑defence is not raised on the evidence before him. Being satisfied in those circumstances that self‑defence is not raised he is satisfied that the elements of the offence have been proved to the required standard. 10. The Magistrate then called on the Respondent and stated "I have found you guilty of the offence notwithstanding the defence that you have raised and I'm not suggesting for a moment that the defence that you raised was not one that you believe was a legitimate defence in all of the circumstances. Having found you guilty of the offence it then remains for me to impose what would be an appropriate sentence. Now, I have taken into account the fact that you are a person of otherwise good character that has not found themselves before the courts before. It is also the case that by pleading not guilty that is something that is your right. You're entitled to test the evidence to determine whether or not an offence has been proven and if an offence is proven you are not to receive any greater penalty for having pleaded not guilty to that offence. In all the circumstances I note that the offending falls at the lower end of the range albeit that it has occurred in circumstances where you were providing care and treatment for this patient and that you had discharged your responsibilities to this patient and other patients over many years of service without incident and you are entitled to the benefit of that. In the circumstances so far as today's proceedings are concerned and even though I've made a finding of guilt, I am not going to record a conviction. You will be required to sign a promise not to reoffend for the next six months which I am sure is unlikely to be – that situation is unlikely to occur. So you leave the court today with your history intact." RESPONDENT'S EVIDENCE 1. The only evidence provided by the Respondent is a folder marked documents served by the Respondent. The documents include a statement by the Respondent and of particular relevance her reply to the complaint filed by the Applicant. 2. The Respondent confirms that she surrendered her registration as a midwife in 2017 and surrendered her registration as a nurse in December 2019. Her name has been removed from the National Register of Health Practitioners effective 18 December 2019. 3. She confirms that her reply to the application for disciplinary findings were served on the Health Care Complaints Commission and filed in the NSW Civil and Administrative Tribunal (the Tribunal) on 6 November 2019. 4. The Respondent states that on reflection she understands that it is not appropriate in any circumstances to slap a patient. At the time of the incident she reacted by slapping a patient when he spat in her face, had a hold on her arm and was trying to bite her. In hindsight, she should have asked for assistance to release his grip and then just walked away. 5. She deeply regrets her actions on 16 July 2017. She did not intend to harm the patient, it was a reflex action to the patient spitting in her face. 6. On 7 May 2018, she sent an email to the Nursing and Midwifery Council NSW (the Council) confirming the outcome of her court appearance at the Cootamundra Local Court NSW. 7. On 7 May 2018, she received a reply email from the Council requesting a copy of the court documents and attaching a notice of certain events to be completed and sent to AHPRA. She attached a copy of the emails to and from the Council. 8. She states that on 15 May, she completed the notice of certain events which she believes she sent to AHPRA with a copy of the outcome of the Cootamundra Local Court proceedings on 16 April 2018 when she was found of common assault with no conviction recorded. A copy of the notice of certain events and the Cootamundra Local Court proceedings are also attached to the documents provided by her. 9. She accepts that she selected the response "No" in the online renewal form on 23 May 2018 in circumstances where she reasonably believed that she had already made a disclosure to AHPRA on 15 May 2018 regarding the outcome of the Cootamundra Local Court proceedings on 16 April 2018. 10. She stated that she would not be attending the Tribunal hearing and that she understands that the Tribunal will make findings in her absence. 11. Contained in the papers provided by the Respondent is an exchange of emails between the Respondent and the Council on 7 May 2018 and of relevance is the content of each of those emails. The email from the Respondent dated 7 May 2018 at 2:58pm states: "To whom it may concern I was found guilty of common assault in a court with no recorded conviction. Regards, Debbie Aird" 1. The email in reply from the Council to the Respondent dated 7 May 2018 at 3:40pm states: "Dear Ms Aird, Thank you for your email. The council requests that you provide a copy of the court documents regarding the outcome please. Please note that you are also required to notify AHPRA about the court outcome. I have attached a notice of certain events forms which you will need to complete and send to AHPRA." 1. There is nothing on the papers which indicates that the notice of certain events was sent to AHPRA. 2. In the Respondent's reply to the complaint made by the Applicant, the Respondent admits Ground 1 in that she was the subject of a criminal finding of an offence of common assault of Patient A, contrary to section 61 of the Crimes Act 1900. 3. The Respondent admits the particulars of Complaint One. 4. The Respondent admits the particulars of Complaint Two in that she contravened section 130(1) of the National Law in that she failed to give the national board written notice within seven days after becoming aware of being charged upon 7 December 2017 with a criminal offence punishable by 12 months' imprisonment or more, namely one count of common assault contrary to section 61 of the Crimes Act 1900, and that on and from 23 April 2018 she contravened section 130(1) in that she failed to give the National Board notice within seven days after becoming aware of being the subject of a criminal finding on 16 April 2018 for an offence punishable by imprisonment, namely one count of common assault contrary to section 61 of the Crimes Act 1900. 5. In regard to Complaint Three that she submitted an online form to the Australian Health Practitioner Regulation Agency (AHPRA) to renew her annual registration as a nurse in that in response to the question "Since your last declaration to AHPRA has there been any change to your criminal history in Australia that you have not declared to AHPRA", the practitioner selected the response "No". In that regard she admits that she selected the response "No" in her online renewal form on 23 May 2018 in circumstances where she held a reasonable belief that she had already made a disclosure to AHPRA regarding her conviction for common assault on 15 May 2018. She states that she did not intend to mislead or provide false information to AHPRA. 6. She goes on to say that on 7 May 2018, she sent an email to the Council disclosing she had been convicted of common assault in the Local Court on 16 April 2018. She states that Ms Ellie Meshouris, professional officer, replied by email. 7. The Respondent states that she attended an Impaired Registrants' Panel (IRP) meeting at the Council. At that time she completed a notice of certain events form. She signed the form with a copy of the Cootamundra Local Court outcome document which was then sent to AHPRA. This notice is an Attachment B to the Registrar, NSW Civil and Administrative Tribunal Occupational Division in the documents provided by the Respondent to the Tribunal. 8. In regard to Complaint Four which alleges unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law. The particulars of Complaint Four which are referred to as the same as for Complaint One, the Respondent admits the particulars of claim four and states that "on 29 December 2016 the care plan for Patient A was updated to state that Patient A 'often becomes aggressive by attempting to hit and kick staff when he does not want to be attended to. When this occurs staff are to walk away and return at a later time'." In regard to the particulars of Complaint Four the Respondent therefore admits that between approximately 0600 hrs and 0659 hrs on 16 July 2017 the practitioner used her hand to slap the face of Patient A in circumstances where: 1. Patient A was 91 years old; 2. Patient A was non‑ambulate and had communication and cognitive issues associated with dementia; 3. Patient A was lying on his bed facing the practitioner; 4. Nurse 2 administered suppositories to Patient A; 5. Patient A growled and spat at the practitioner's face; 6. the practitioner failed to walk away; 7. the practitioner failed to seek assistance from Nurse 2. 1. At around 0700 on 16 July 2017, the practitioner failed to complete an appropriate handover regarding Patient A to the day nurses in circumstances where: 1. the practitioner stated words to the effect that "he spat at him so I slapped him in the 10 second rule"; 2. the practitioner failed to comment on Patient A's condition. 1. On 16 July 2017, the practitioner failed to complete adequate health care records for Patient A in that she failed to document that: 1. suppositories had been administered to Patient A; 2. Patient A had growled and spat at her; 3. the practitioner had slapped Patient A's face. 1. In respect of Complaint Five that the practitioner is guilty of professional misconduct under section 139E of the National Law, the Respondent admits Complaint Five. 2. That concludes the evidence of the Respondent and concludes the evidence in the matter. AGREED STATEMENT OF FACTS 1. An order was made for the parties to file an Agreed Statement of Facts which is set out below. Part 1: Agreed Facts The respondent 1. On 23 November 1976, the respondent was first registered as a nurse. 2. On 12 November 1986, the respondent was first registered as a midwife. 3. Between about 1986 and 1995, the respondent worked as a registered nurse at hospitals in Penrith and Canberra. 4. In May 1995, the respondent commenced employment as a registered nurse at the Boorowa Multipurpose Hospital ("the facility"). 5. The facility consists of a twelve patient residential aged care section, an accident and emergency section and a six bed acute care section. 6. On 4 September 2012, the respondent accepted a permanent position at the facility and agreed to read and comply with the Code of Conduct. 7. The respondent usually worked night shifts. The night shift consists of one registered nurse and one enrolled nurse. 8. It is common practise at the facility that only two staff members work during the night shift to care for the patients in the residential aged care facility and any ward patients within the hospital. 9. On 2 April 2014, the respondent completed training on the Code of Conduct. 10. On 8 April 2015 and 12 October 2015, the respondent completed training on Violence Prevention and Management. 11. On 30 August 2015, 29 February 2016, 1 March 2016 and 1 June 2017, the respondent completed training on Safe Patient Handling. Patient A 12. On 7 June 2016, Patient A became an aged care resident at the facility. Patient A received care from the respondent and other nurses. 13. The respondent provided care to Patient A on dates including 7, 9, 12 and 19 June 2016, 4, 7 and 20 July 2016, 9 August 2016, 29 December 2016, 21 June 2017 and 1 July 2017. 14. On 17 August 2016, the Care Plan for Patient A titled "Communication" was updated to include the following: Decreased ability to communicate effectively...Approach resident directly... Look directly at [Patient A] when speaking to him. 15. On 25 August 2016, the Care Plan for Patient A titled "Sleep and Settling" was updated to include the following: Staff to approach [Patient A] slowly and softly call his name when approaching during the night. 16. On 29 December 2016, the Care Plan for Patient A titled "Communication" was updated to include the following: [Patient A] communicates verbally less frequently now. When he does it is difficult to comprehend what he is trying to tell you. [Patient A] often becomes physically aggressive by attempting to hit and kick staff when he does not want to be attended to. This is used as another form of communication. When this occurs staff are to walk away and return at a later time. 17. On 29 December 2016, the Care Plan for Patient A titled "Personal Hygiene Care Plan" was updated to include the following: Fully assisted by 1 to 2 staff for all hygiene needs. 18. On 13 March 2017, the Care Plan for Patient A titled "Communication" was updated to include the following: When approaching [Patient A] at night softly call his name so that he realizes that you know him and are not a stranger. 19. On 25 April 2017, the Care Plan for Patient A titled "Medications" was updated to include the following: Most medications have been ceased because of continuous refusals. 20. On 25 April 2017, the Care Plan for Patient A titled "Comprehension - ADLs" was updated to include the following: [Patient A] is fully reliant upon staff for all ADLs 21. On 14 June 2017, the Care Plan for Patient A titled "Bowel Management-Constipation" was updated to include the following: [Patient A] is now fully incontinent of faeces Wears A10 continence aids at all times Bowels to be charted daily Aperients to be given PRN as charted on medication chart Pre and post toileting adjustment of clothing attended by 2 staff Post toileting hygiene attended by 2 staff. 22. On 13 July 2017, the Care Plan for Patient A titled "Mobility and Transfer" was updated to include the following: Full assist by 2 staff with all mobility needs. 23. The respondent was aware that Patient A had a Care Plan and was instructed to walk away if he became non-compliant. 24. As at July 2017, Patient A had previously suffered a stroke, could not move from his bed without assistance and could not talk. Patient A was non-ambulant and had communication and cognitive issues associated with dementia. Patient A was known to become aggressive at times so nursing staff used strategies including leaving him to calm down for a while before returning, telling him what they were going to do and asking his permission before doing anything. Patient A had previously been the victim of a home invasion and could be hostile towards nursing staff so nursing staff used strategies including being loud to wake him up when going into his room at night. The respondent knew that Patient A had dementia, was combative and refused personal care so would usually walk away from him until he settled down. 25. In early July 2017, Patient A was 91 years old, 180cm, weighed about 59.4 kilos, was bed bound and doubly incontinent. 26. Patient A had irregular bowel patterns, opening his bowels on dates including 6, 7, 11 and 12 July 2017. Assault 27. On 15 July 2017, the respondent was rostered on night duty at the facility with an enrolled nurse ("Nurse 2"). From about 2315 on 15 July 2017, the respondent and Nurse 2 were the only staff inside the facility. 28. Around 0555 on 16 July 2017, the respondent and Nurse 2 went to the pan room to collect the trolley and start the morning rounds. 29 Nurse 2 informed the respondent that Patient A needed two suppositories and that he had been non-compliant the previous night. 30. The respondent replied with words to the effect of "He is getting the suppositories if he likes it or not" or "He's having them tonight and that's it." Nurse 2 explained to the respondent that if Patient A became aggressive she would walk away. 31. Nurse 2 went into Patient A's room and explained to him that they were there to attend to his care and to check his pad and that he had not had his bowels open for a number of days and suggested suppositories. The respondent walked into the room and Nurse 2 explained to the respondent that if Patient A became aggressive and non-compliant that she would be leaving the room. 32. Nurse 2 elevated the bed and respondent was on Patient A's right side in the front and Nurse 2 was on the left side at the back of Patient A. Patient A was rolled over to his side and Nurse 2 gave Patient A two suppositories. 33. Patient A started making growling noises. Patient A was lying on his bed, facing the respondent. 34. Patient A spat on the respondent's face. 35. The respondent then slapped Patient A's face (Complaint Four, Particular 1). The respondent slapped Patient A across the left side of his face using her right hand. It was a hard, firm, audible slap. There was a small amount of blood on the back of Patient A's wrist. Patient A did not sustain any apparent physical injuries as a result of the slap. 36. Before the slap, the respondent did not ask Nurse 2 for help and did not walk away. 37. After the slap, Nurse 2 stopped what she was doing, pulled the sheets back over Patient A, picked up the pad and walked out of the room. Shortly afterwards the respondent left Patient A's room, the respondent said words to the effect of "how dare he" and Nurse 2 said words to the effect of "I am disgusted in what happened in there and I do not want to talk about it". Handover 38. At about 0700 on 16 July 2017, the respondent and Nurse 2 attended the routine handover at the nurses station with the day shift staff, consisting of another registered nurse, an enrolled nurse and an assistant in nursing. Nurse 2 explained that Patient A had been given two suppositories. 39. The respondent then said words to the effect of "He spat in my face so I slapped him". The respondent then said words to the effect of "It was the ten second rule" (Complaint Four, Particular 2). 40. During the handover on 16 July 2017, the respondent did not suggest that Patient A had grabbed her or attempted to bite her. 41. During the handover on 16 July 2017, the respondent did not comment on Patient A's clinical condition. 42. On 16 July 2017, the respondent did not complete a progress note. 43. On 16 July 2017, the respondent did not complete an incident report. 44. On 16 July 2017, the respondent did not document (Complaint Four, Particular 3) that: a. suppositories had been administered to Patient A; b. Patient A had growled and spat at her; c. the respondent had slapped Patient A's face. 45. During the days following the slap, Patient A appeared to be scared, flinched when nursing staff approached him, did not eat much, looked pale and was more withdrawn than normal. Patient A did not sustain any apparent physical injuries as a result of the assault. Investigation 46. On 19 July 2017, the respondent was suspended from clinical duties. 47. On 3 August 2017, the respondent attended an interview with the LHD investigator. During the interview, the respondent said words to the effect of: a. he grabbed my arm ...With both his hands. ...and was trying to get my hand into his mouth ... I was trying to stop him and I said 'please don't bite me, please don't bite me' b. he would not let me go ...I couldn't go anywhere ...he had such a tight grip on me, ... he was bringing me closer and closer to him ... he was dragging me ...he spat in my face....) just reacted ...I just slapped him and he let go of my hand... otherwise I don't know how I was going to get away...I just slapped him enough, I didn't hit him hard c. He hurt ...my back and it hurt my arm, cause he had such a tight grip on it.... I had a few bruises on my arm ... where his fingers were ...Indented in my arm. ...And my back [is] sore [from that incident] d. it was just ...a ten second time frame where I just whacked to get him to let go... it was just a reflex action...when he spat in my face and tried to bite me I thought, this is the last straw I can't take any more of this. e. I did have a reason to do it, to get him to let me go and stop ... trying to bite me f. it was ...self-defence ... I had no other way of getting away. g. I don't think the other nurse would've been able to help me either. h. it would've been a good ten minutes he had a hold of my arm. i. I just, reflex, smacked him .. not very hard. 48. On 24 August 2017, the respondent attended a Performance Interview relating to alleged conduct regarding a different patient at the facility. The respondent did not mention the allegations about Patient A. 49. On 24 August 2017, the respondent completed a form to surrender her registration as a midwife which was received by AHPRA on 28 August 2017. The respondent retained her registration as a nurse. Charge 50. On 7 September 2017, the respondent was charged with the common assault of Patient A pursuant to section 61 of the Crimes Act 1900. 51. Common assault is a criminal offence punishable by two years' imprisonment. 52. The respondent was required to notify the National Board seven days after she was charged. 53. The respondent did not notify the Nursing and Midwifery Board ("the National Board") of her charge within seven days (Complaint Two, Particular 1). 54. On 17 October 2017, the respondent's employment was terminated and her name remained on the NSW Health Service Check Register. 55. On 23 October 2017, the first section 150 proceedings were conducted. The respondent was notified of the proceedings but did not participate. The delegates imposed conditions on the respondent's registration, requiring her practice to be supervised and restricting her from working night duty. 56. On 22 January 2018, the first mention of the criminal proceedings was conducted at Cootamundra Local Court. 57. On 28 February 2018, the respondent attended a health assessment with Dr Fukui. During the assessment, the respondent said words to the effect of: a. The incident on 16 July 2017 was the result of "self-defence" ...that [Patient A] disliked Nurse 2 and became uncooperative, that Patient A became aggressive and tried to bite her, that she was unable to get away from him, that he spat in her face and that it was "just a reaction" when she slapped him in the face, that she did not feel that it was necessary for the Area Manager to report the incident on 16 July 2017 to the police, that "they wanted me out of there", that her employer was motivated for her dismissal and that she did not mention the allegation regarding the other patient to the performance interview members because she did not feel that there was anything to discuss. 58. The respondent saw a psychologist in Yass before Christmas 2017 and then decided to cease treatment in March 2018. Cootamundra Local Court Proceedings 59. On 16 April 2018, the respondent attended the hearing at Cootamundra Local Court. During the hearing, the respondent gave evidence to the effect of: a. he just grabbed my left hand with both his hands b. Around my wrist and around my forearm...it was hurting a bit .. he's trying to pull my hand towards his mouth. c. he was forcing my hands up and his mouth was open he was dragging me closer and closer... Nurse 2 was busy and I didn't think she could do anything for me... my arm was trapped between the railing ... and his body d. I couldn't get away...I just slapped him e. I didn't have a choice because I couldn't get away...[the ten second rule is]...an old saying that we - the older nurses, we used to say, "Oh, if they knife you or hit you, you've got ten seconds to retaliate". ...I've got fractures in my spine and it wasn't doing that any good, and he had a hold of my arm quite aggressively, ... tight, and ... it wasn't doing my back a lot of good f. it's very dangerous for him not to have his bowels open for a long time ...the longer he goes without having his bowels open the more aggravated he gets...I felt that he needed [suppositories] and as caregivers we need to look after our patients and not just walk away from them g. [the ten second rule is] an old saying that we always had throughout my nursing ... that if somebody hits you, you had 10 seconds to react...I was just trying to get away from the man. And after he spat in my face I thought he's never going to let me go, I'm never going to get out of here. h. he had his mouth open trying to bite my knuckles... i. [when he spat] wasn't my main concern, it was getting my - getting away from him. j. [didn't tell the people at the changeover that he was trying to bite] Because I hadn't finished my notes, they hadn't asked and I was going to do an incident report that night but Jocelyn got in before me...I was tired and I didn't feel like elaborating at the time. k. my hand was close to his face...lt was the only area that I could reach...I slapped him because he was hurting me and then he spat on me and he wouldn't let me go. I. I didn't have any other options. 60. At the conclusion of the hearing, the Magistrate rejected self‑defence. On 16 April 2018, the respondent was found guilty of common assault of Patient A contrary to section 61 of the Crimes Act 1900 (NSW) at Cootamundra Local Court (Complaint One). 61. The respondent was found guilty without proceeding to a conviction under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and discharged with a good behaviour bond for six months. 62. The respondent was required to notify the National Board seven days after her criminal finding. 63. The respondent did not notify the Nursing and Midwifery Board ("the National Board") of her criminal finding within seven days (Complaint Two, Particular 2). 64. On 7 May 2018, the respondent sent an email to the Nursing and Midwifery Council, NSW (NMC) notifying that she had been found guilty of common assault. 65. On 7 May 2018, the respondent received an email from NMC stating "Thank you for your email. The Council requests that you provide a copy of the court documents regarding the outcome please. Please note that you are also required to notify AHPRA about the court outcome. I have attached a Notice of Certain Events Form which you will need to complete and send to AHPRA. 66. On 15 May 2018, the respondent attended an Impaired Registrants Panel. 67. On 15 May 2018, the respondent completed a Notice of Certain Events form and attached the court outcome to notify AHPRA that she had been found guilty of common assault. Whether the form was sent to AHPRA is a matter in dispute (see below). Renewal 68. On 23 May 2018, the respondent submitted an online form to AHPRA to renew her annual registration as a nurse. On 23 May 2018, the respondent made a statement to AHPRA in her online renewal form (Complaint Three): a. in response to the question "Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?", the respondent selected the response "No". Whether the statement was false is a matter in dispute (see below). 69. On 30 July 2018, the second section 150 proceedings were conducted. RN Aird gave oral evidence during the hearing. during the hearing, the respondent said words to the effect of: a. I've never been put in such a horrible situation where I'm held down and felt very restricted. ...[Patient A] had a hold of my arm....Trying to bite my hand. b. I couldn't think of any other way to get out of it....I just tapped him. I said slapped but I say when I slap the dogs if they're chewing at something, you know, I wouldn't hurt them. I didn't hurt him either....this particular man is well known for his abuse, his lashing out and kicking. ... I couldn't get away and I was jammed between the rail and him and then he spat in my face, so I just went like this and he let go so I could get away from him....Just on the face I didn't hit him hard. Never even left a mark or anything. c. it was just impulsive, I just — when he spat in my face it was just all too much. d. I don't think he was very vulnerable, I think I was more vulnerable. 70. The delegates imposed conditions on the respondent's registration, including that she must practice under supervision, must not engage in agency nursing, must not be the nurse in charge, must not work night duty and must immediately notify her employer of her conditions. 71. On 17 September 2018, the section 150 decision was published. 72. On 29 March 2019, the Commission sent a letter to the respondent inviting her to make submissions. The respondent did not respond. 73. On 1 November 2019, the respondent completed a statutory declaration confirming she had sent a Notice to AHPRA to surrender her registration as a nurse and undertake not to seek registration as a nurse in Australia. 74. The respondent's registration was surrendered, effective 18 December 2019. 75. The respondent has not worked as a nurse since she was suspended from duties at the facility in July 2017. Part 2: Facts in Dispute 76. The respondent states that she believes she sent the Notice of Certain Events form dated 15 May 2018 to AHPRA. AHPRA has no record of receiving the Notice of Certain Events form. The Commission alleges that the respondent did not notify AHPRA of her charge or her criminal finding (Complaint Two). 77. The respondent states that she selected the response "no" in the online renewal form on 23 May 2018 in circumstances where she reasonably believed that she had already made a disclosure to AHPRA on 15 May 2018 and states that she did not intend to mislead or provide false information to AHPRA. The Commission alleges that the respondent's response was false in that she had been charged with common assault on 7 September 2017 and had been found guilty of common assault on 16 April 2018 and she had not declared that change to her criminal history to AHPRA. DECISION AND REASONS 1. The matter was decided on the papers. Having read the evidence contained in the exhibits provided to the Tribunal, having read the evidence of the Respondent and having taken account of the Agreed Statement of Facts, the decision of the Magistrate in the order dated 16 April 2018 finding the Respondent guilty of common assault, having been directed to enter into a good behavior bond for six months pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and having read and considered the expert report filed in Exhibit 1, the Tribunal is comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct and that she has been found guilty of a criminal charge albeit with no conviction recorded. 2. The Tribunal is satisfied that the central issue in this case is whether the Respondent should be entitled to continue practising as a nurse and what disciplinary action would be appropriate in the particular circumstances of the matter. 3. In considering appropriate disciplinary findings, the Tribunal had regard to a number of factors. These included the decision of the Magistrate in rejecting the defence by the Respondent of self‑defence and finding the Respondent guilty of common assault and the explanations given by the Respondent as to her reaction to the behaviour of Patient A. 4. The Tribunal was also concerned that on the evidence before it, when the Respondent completed her AHPRA renewal form and in answer to the question as to whether there had been any change to be reported, she ticked "No", when she knew full well that she had been charged and convicted of common assault. This was a lie and something which calls into question whether she is a fit and proper person to be registered as a nurse. The Tribunal did not accept her explanation that (on her version) she had advised AHPRA of the charge. 5. In coming to this conclusion, the Tribunal was faced with the fact that the Respondent did slap in the face a vulnerable 90 year old dementia patient albeit that she claims to have done so as a reflex reaction based on something that she referred to as the "10 second rule" and claimed in her statement to the section 150 delegates on 30 July 2018 "I don't think he (Patient A) was very vulnerable. I think I was more vulnerable". This statement alone reflects a complete lack of insight into her behaviour and is of considerable concern to the Tribunal. 6. The Tribunal did have some concern about the evidence of the various witnesses whose evidence surrounded the actual incident and the subsequent reporting of it, however, on any basis including the evidence of the Respondent herself, the Tribunal is comfortably satisfied that the Respondent's behaviour was significantly below the standard expected of a nurse of the age and experience of the Respondent. 7. The Tribunal was concerned that although Patient A was regarded as demonstrating aggressive behaviour from time to time and although the nursing home had put in a place a rule that Patient A was not to be seen or attended to by one nurse alone, the Respondent completely ignored the fact that Nurse 2 was in the room. If the Respondent felt that she was in danger, it would have been expected that she would call for assistance from the person who was standing directly opposite her in the room when she alleges that she was being held tightly by her left hand which Patient A was seeking to bring to his mouth in order to bite her. The Tribunal was also concerned that following the incident and when the Respondent reported it to the morning shift, she simply stated that Patient A had spat in her face and did not mention anything relating to his holding of her left arm until sometime after the event. 8. The Tribunal held the view that her behaviour was particularly offensive in that she was working in an aged persons environment dealing with vulnerable patients and that for a nurse to slap a patient in the face is totally unacceptable. 9. In the circumstances, the Tribunal is satisfied that had the Respondent still been a registered nurse, it would have cancelled her registration and provided for a non‑review period of two years. The Tribunal believes it is appropriate and necessary to send a message to the profession and the public that the protection of the public and the standing of the profession is significant. It also allows the Respondent to do whatever may be necessary to achieve a result that on expiry of her non‑review period she will be in a position to make an application to continue to practice as a nurse should she decide to do so. The Tribunal believes that the Respondent is in need of counselling to understand the gravity of what she has done rather than seeking to explain it away and also will benefit from some ethical training to overcome or avoid such an event occurring again. 10. In respect of costs, the Tribunal believes that having regard to the serious nature of the allegation against the Respondent and the charges brought against her, it was appropriate for the Applicant to make its application for a non‑review period as it would be inappropriate to leave the issue of a re‑application by the Respondent open at her discretion. The Tribunal therefore believes that it is appropriate to award the Applicant its costs of the conduct of this matter. 11. Accordingly, the Tribunal makes the following orders: ORDERS 1. The Respondent having been found guilty on a criminal charge of common assault, is guilty of professional misconduct. 2. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct in respect of the action perpetrated by her. 3. Consequent upon the finding that the Respondent is guilty of professional misconduct, under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if the practitioner was still registered as a nurse the Tribunal would have cancelled her registration. 4. Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the Tribunal requires the National Board to record the fact that had the Respondent been registered the Tribunal would have cancelled the respondent's registration for a period of two years from the date of this decision. 5. The Respondent shall not be entitled to apply for registration as a nurse for a period of two years from the date of this decision. 6. The Respondent be subject to a prohibition order which will prevent her from providing the following health services on a public, private or volunteer basis until she is registered as a nurse: 1. medical, hospital, nursing or midwifery services; 2. mental community health services; 3. health education services; 4. aged care services. 1. The Respondent shall pay the costs of the Applicant as assessed or agreed. ********** 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 Amendments 15 May 2020 - Final Orders revised 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: 15 May 2020