Nursing and Midwifery Board of Australia v Faulkner
[2017] QCAT 141
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Nursing and Midwifery Board of Australia v Faulkner[2017] QCAT 141
- Add to List
Nursing and Midwifery Board of Australia v Faulkner[2017] QCAT 141
Nursing and Midwifery Board of Australia v Faulkner[2017] QCAT 141
CITATION: | Nursing and Midwifery Board of Australia v Faulkner [2017] QCAT 141 |
PARTIES: | Nursing and Midwifery Board of Australia (Applicant) v Karen Faulkner (Respondent) |
APPLICATION NUMBER: | OCR028-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 19 July 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Judge S Sheridan, Deputy President Assisted by: Ms M Barnett Ms C Elliot Mr S Lewis |
DELIVERED ON: | 15 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the registrant was allocated to care for a patient – where the registrant had pre-signed medication charts – where the registrant failed to administer medication to the patient – where the registrant had signed the patient’s medication chart to indicate she had administered the medication – where the registrant stated she had administered the medication – whether the provision of that information was false, inaccurate and/or misleading – whether the combined conduct constitutes professional misconduct PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the registrant was charged with stealing a colleague’s handbag – where the charge was ultimately discontinued following justice mediation – where the registrant agreed to pay restitution – whether the registrant knowingly took the handbag – whether the conduct constitutes professional misconduct Health Practitioner Regulation National Law (Queensland), s 193(1)(a), s 196, s 226(3) Briginshaw v Briginshaw (1938) 60 CLR 336, applied Collins v Medical Practitioners Board [2003] VCAT 1755, considered Ha v Pharmacy Board of Australia [2002] VSC 322, considered Medical Board of Australia v Chandra [2014] QCAT 271, cited Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 395, cited Nursing and Midwifery Board of Australia v Morley [2014] SAHPT 17, cited Nursing and Midwifery Board of Australia v Cummins (Unreported, Western Australia State Administrative Tribunal, Member Eddy, 6 November 2014), cited Medical Board of Australia v Jones [2012] QCAT 362, applied Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria Practice Court, Marks J, 19 January 1994), applied |
APPEARANCES: |
|
APPLICANT: | J Rosengren of counsel instructed by Moray & Agnew Lawyers |
RESPONDENT: | J Allen QC of counsel instructed by Hall Payne Lawyers |
REASONS FOR DECISION
Background
- [1]On 4 March 2015, the Nursing and Midwifery Board of Australia (Board) referred to the Queensland Civil and Administrative Tribunal (Tribunal) disciplinary proceedings against the registrant, Ms Karen Faulkner. The referral was made pursuant to s 193(1)(a) of the Health Practitioner Regulation National Law (Queensland) (National Law) on the basis that the Board reasonably believed Ms Faulkner had behaved in a way that constituted professional misconduct and/or unprofessional conduct.
- [2]There are four separate allegations of misconduct. The allegations relate to the conduct of Ms Faulkner whilst she was:
- Employed at the Brisbane Private Hospital from May 2012 to 17 July 2012; and
- Working as an agency registered nurse at the Wesley Hospital on 26 October 2012.
- [3]In summary, it is alleged that:
- Between May and July 2012, Ms Faulkner signed patient medication charts in advance of the medications having in fact been administered;
- On 17 July 2012, Ms Faulkner failed to administer the prescribed dose of medication to Patient A, despite having signed the patient’s medication chart to indicate she had administered the medication as ordered;
- On 17 July 2012, Ms Faulkner orally advised another nurse, Ms Edwards, that medication had been administered to Patient A in circumstances where it had not, in fact, been administered; and
- On 26 October 2012, Ms Faulkner took without lawful authority and/or permission the handbag of another nurse, Ms Mullavey.
- [4]The parties have been able to agree upon many aspects of the proceedings, but there remain a number of factual disputes, and the parties have been unable to agree upon the categorisation of Ms Faulkner’s conduct. Ms Faulkner does not accept the Board’s categorisation of her conduct as constituting professional misconduct, instead contending she has engaged in unprofessional conduct.
- [5]The statement of agreed facts filed 27 November 2015 details the admissions made and the issues requiring determination.
Incidents between May and July 2012
- [6]Evidence was given by a number of nurses who had worked with Ms Faulkner at the Brisbane Private Hospital in the period between May and July 2012. The nurses gave evidence of having been on shifts with Ms Faulkner when they had observed her practice of signing the medication charts prior to giving the medication to patients.[1]
- [7]Ms Faulkner accepts that while working at the Brisbane Private Hospital between May and July 2012, she had recorded the giving of the prescribed medications in advance of the medications having been, in fact, administered.[2] During cross-examination, she explained:
When I first started working at Brisbane Private, I was pre-signing medication charts and the nurse unit manager came to me and said that, “We don’t do it like that here,” so I stopped doing it once she spoke to me about it.[3]
- [8]In her affidavit sworn 29 February 2016, Ms Faulkner stated that by the date of the incident involving Patient A she had ceased the practice of signing patient medication charts in advance of the administration of the medication.[4]
- [9]Ms Faulkner specifically denied that she had pre-signed the medication chart of Patient A on the night of 16 July 2012 or the morning of 17 July 2012. The medication was recorded in the chart as having been given at 6.00am on 17 July 2012.
- [10]Given the evidence accepted by the Tribunal, as detailed below in relation to Patient A, Ms Faulkner must have pre-signed the medication chart of Patient A on that occasion. Given that was Ms Faulkner’s last shift at the Brisbane Private Hospital, the Tribunal also does not accept that Ms Faulkner had ceased the practice of pre-signing the medication charts once she had been spoken to. Indeed, in giving evidence, Ms Faulkner appeared to have a cavalier approach in her answers in relation to the pre-signing of medication charts. The Tribunal does not accept her evidence nor that, during her period at Brisbane Private Hospital, her practice had changed.
- [11]With the exception of the entry made by Ms Faulkner for Patient A, it is not alleged that Ms Faulkner failed to administer the drugs contained in the medication charts of any other patients.
- [12]The Tribunal finds the allegations made in relation to the premature signing of patient medication charts proven.
Incident on 17 July 2012
- [13]Patient A was admitted to the Brisbane Private Hospital on 16 July 2012 for a total left hip replacement.[5] Ms Faulkner was allocated to care for Patient A, along with six other patients. Her shift commenced at 6.30pm on 16 July 2012, and finished at 7.00am on 17 July 2012.
- [14]On 16 July 2012, orthopaedic surgeon Dr David Morgan ordered Patient A be administered the antibiotic Vancomycin pre-operatively as a prophylaxis against infection.[6] The medication chart for Patient A indicates that she was administered Vancomycin by Ms Faulkner at 6.00am on 17 July 2012. It is accepted that Ms Faulkner had not, in fact, administered the Vancomycin.[7]
- [15]Ms Edwards took over care of Patient A at the conclusion of Ms Faulkner’s shift. Ms Edwards became concerned Patient A had not been administered the Vancomycin, despite Ms Faulkner having signed the medication chart to indicate she had. The reasons for her concern were that the cannula looked untouched, the patient could not recall any medications having been administered, and there was no baxter pump, IV fluid bag or line connection to indicate intravenous antibiotics had been administered.[8]
- [16]Given her concern, Ms Edwards telephoned Ms Faulkner seeking to clarify whether the Vancomycin had been administered. At this time, Ms Faulkner was still in the hospital, although not in the orthopaedic ward. It is not in dispute that during the course of the telephone call Ms Faulkner told Ms Edwards that she had administered the Vancomycin to Patient A.[9]
- [17]On the morning of 17 July 2012, given her concern, Ms Edwards arranged for Patient A’s blood to be collected for the purposes of measuring the Vancomycin level. The subsequent pathology report obtained indicated a level of Vancomycin in Patient A’s blood which meant the Vancomycin could not have been administered to Patient A. Ms Faulkner accepted the Vancomycin was not administered to Patient A and that her failure to administer the Vancomycin placed Patient A at risk of harm.[10]
- [18]Having observed Ms Faulkner and listened to her give evidence, there is no reason to doubt that when she first spoke to Ms Edwards on the morning of 17 July 2012, Ms Faulkner believed that she had administered the drug to Patient A. The Tribunal accepts that the failure by Ms Faulkner to administer the drug was inadvertent and that initially Ms Faulkner did not intentionally provide false information to Ms Edwards about that subject matter; as was alleged against her by the Board.
- [19]Ms Edwards gave compelling evidence. It is true that during cross-examination it appeared that Ms Edwards was confused about the time that Ms Faulkner says that she administered the drug but this was a relatively minor part of her evidence. The timing itself was not significant. The important aspect of her evidence was her clear statement that Ms Faulkner had said she had given the medication. In my view, her credit was not affected by this part of the cross-examination.
- [20]In her evidence, Ms Edwards stated that she carefully explained to Ms Faulkner the basis of her concern. Despite the explanation given by Ms Edwards, Ms Faulkner would not acknowledge the possibility that she had made a mistake. By the end of the conversation with Ms Edwards, a reasonable person in the position of Ms Faulkner would have concluded that she might have been wrong and that to maintain her position was misleading. It is fortuitous that no harm was caused to Patient A as a result of Ms Faulkner’s conduct.
- [21]It is also troubling that in giving evidence in these proceedings, Ms Faulkner says that she must have administered the drug to another patient by mistake. In her affidavit, Ms Faulkner says she recalls all the antibiotics for her allocated patients being prepared on trays and checked by two registered nurses, labelled and signed and placed on top of the fridge in the treatment room, ready for administration.[11] Ms Faulkner gave evidence that the second registered nurse was an agency nurse.
- [22]Evidence was given on behalf of the Board that no other agency nurses were working on that ward that night. Certainly, no evidence was given by another registered nurse to support the process that Ms Faulkner says she adopted. The Tribunal does not accept that Ms Faulkner had prepared the antibiotics for the patients in the manner in which she states.
- [23]The probability is that Ms Faulkner wrote the medication chart up prior to the administration of the drug, a process she admitted to having done previously, and that she inadvertently failed to subsequently administer the drug to any patient.
- [24]The Tribunal finds the allegations made in relation to Patient A and the provision of misleading information about Patient A’s care proven.
Incident on 26 October 2012
- [25]On 25 October 2012, Ms Faulkner worked a night shift in Ward 7E of the Wesley Hospital. Her shift concluded at approximately 7.15am on 26 October 2012. Ms Mullavey was working the morning shift in the ward on that day. She arrived on the ward at approximately 6.50am, and placed her handbag underneath a desk in the nurses’ station. At approximately 7.30pm that day, Ms Mullavey realised her handbag was missing. She notified hospital security, who reviewed the CCTV footage.[12]
- [26]The CCTV footage captures Ms Faulkner as she picks up two handbags at the nurses’ station and then at various points as she walks through the corridors of the hospital to the car park entrance. The first piece of footage in time shows Ms Faulkner picking up the two bags from under the desk at the nurses’ station. The footage shows Ms Faulkner at the desk for some 5 seconds. Ms Faulkner said, in cross-examination, that she did not look at the bags. In response to a question, “[Y]ou weren’t looking at what you were picking up,” she said, “I wasn’t thinking.”[13]
- [27]The next piece of footage shows Ms Faulkner shifting the two bags to carry them over her left shoulder; evidence being given that her own bag was black and the bag belonging to the other nurse was tan. Ms Faulkner admitted her own overnight bag, which she claimed she thought she was picking up, was blue.
- [28]After leaving the ward, she shifts the bags to her right hand. By reference to the CCTV footage it would seem she deliberately placed the black bag in front and the tan bag behind. By the time of the next footage, the black bag is on her right shoulder and the tan bag is being carried in the other hand and is covered by her jumper, which she was previously wearing and has now been taken off.
- [29]By reference to the CCTV footage, the jumper appears very deliberately to be covering the tan bag as she continues to walk through the hospital. In cross-examination, Ms Faulkner stated she had removed her jumper because she had become hot as she walked through the hospital. The footage clearly shows Ms Faulkner adjusting the jumper around the bag. Ms Faulkner appears to be looking down at the bag. She said that she was adjusting the jumper because it was falling. She stated that at no point on her walk through the hospital did she realise it was not her bag.
- [30]Ms Faulkner said she only realised the bag was not hers when she was driving out of the car park. She stated she went to get her Navman out of her bag. At that moment, she alleges she said, “That’s not my bag.”[14] Ms Faulkner admits she opened the wallet in the bag and realised the bag belonged to the nurse with whom she had worked; it was her picture. She said at that moment she pulled over.
- [31]She said she considered returning to the car park but she had no money, although she admitted to having a credit card; she then said she thought she would take the handbag to the front of the hospital to the drop off zone but she could not find the entrance to the hospital. She said she did put the address of the hospital in her Navman but it simply said, “Destination here, arrived.”[15]
- [32]Instead of making any genuine attempt to return the handbag, what Ms Faulkner admits to doing is dropping the handbag outside a block of units. Ms Faulkner admits she made no attempt to contact the hospital nor did she ring her employment agency or the police. She stated she was in a “panicked mode”.[16]
- [33]On 27 October 2012, a member of the public handed the handbag into the Dutton Park Police Station. Missing from the handbag were a pair of Rayban sunglasses and $80.[17]
- [34]On 13 November 2012, Ms Faulkner was issued with a Notice to Appear at the Brisbane Magistrates Court in relation to the alleged theft of the handbag.[18] The charge of stealing was ultimately discontinued following justice mediation, at which Ms Faulkner agreed to pay the nurse who owned the handbag restitution of $537.[19]
- [35]Ms Faulkner admits that she took the handbag from under the counter at the nurses’ station.[20] She stated she took it by mistake. That evidence is inconsistent with her attempts to hide the handbag. Her subsequent conduct in disposing of the handbag is also not conduct consistent with the behaviour of an honest person. Indeed, Ms Faulkner’s explanation is contrived and unbelievable.
- [36]In giving her evidence on this issue, she did not impress as a witness. The story surrounding her failure to return to the hospital with the handbag is simply beyond belief.
- [37]The CCTV footage and the concocted story after the event are sufficient evidence, on the balance of probabilities, to conclude that Ms Faulkner also took the sunglasses and the cash out of the handbag before she disposed of it. In making that finding, the Tribunal accepts that it must be satisfied to the requisite standard as referred to by Justice Dixon in Briginshaw v Briginshaw.[21]
- [38]In summary, the Tribunal finds the allegations in relation to the taking of the handbag, the sunglasses and cash proven.
Categorisation of Conduct
- [39]The Board’s position is that even if the Tribunal finds no element of dishonesty in relation to one or other of the charges, the conduct still constitutes professional misconduct and a period of suspension is called for. Ms Faulkner, on the other hand, accepts that her conduct constituted unsatisfactory professional performance and, on her behalf, it is submitted that a reprimand would be appropriate. In the course of the hearing, in addition to suspension, it became apparent that the Board’s position was that conditions should be imposed on Ms Faulkner’s registration on her return to work.
- [40]On behalf of Ms Faulkner, Mr Allen submitted that her conduct in 2012 must be seen in the context of her psychological functioning at that time. He said her psychological functioning was clearly compromised by her financial stresses and work stresses. In 2012, Ms Faulkner was working in a full time position at the Robina Hospital and in addition was performing various additional shifts as an agency nurse. Ms Faulkner was working on average between five and seven night duty shifts per week.[22] Ms Faulkner said the consequence was that she was fatigued and that her fatigue led to poor decision making. Ms Faulkner explained the medication error on Patient A and the poor decisions made in the course of her panic regarding the disposal of the handbag as having been caused by fatigue.
- [41]Mr Allen submitted that in determining the appropriate sanction, the Tribunal needed to have regard to a number of factors and that the impact of those matters would ultimately mean that the Tribunal’s factual findings would not significantly impact the determination of sanction.
- [42]Mr Allen referred to the number of supportive references. Those references refer to Ms Faulkner being an experienced and well regarded nurse; a valued member of the health care team. It is not clear whether those referees had been made aware of the criminal charge nor these proceedings. The Hospital Nursing Co-ordinator at Robina Hospital, who had worked with Ms Faulkner for approximately ten years up until January 2016, had been shown the referral and Ms Faulkner’s response. He spoke of Ms Faulkner being an exceptional registered nurse and described the conduct the subject of the referral as being “extremely out of character for the women and RN that I know.”[23]
- [43]Mr Allen referred to the delay in the bringing of these proceedings and their finalisation. It is certainly true that unfortunately, as a result of a number of matters, it is now over five years since the events in question. Mr Allen submitted that the effect of that delay is twofold; one, the Tribunal has the benefit of observing the conduct of the practitioner for some significant period after the events in question and two, the practitioner has had to live with the uncertainty of the proceedings for a significant period.
- [44]Ms Faulkner stated she has rid herself of her financial pressures by selling her investment properties and has deliberately reduced the hours she works. She said she now works a maximum of 30 hours per week and does not perform any agency work.
- [45]
- [46]Mr Allen submitted that the Tribunal’s imposition of a reprimand satisfies the protective purposes of sanction. He submitted the isolated nature of the behaviour, even if found to involve dishonesty, and the fact that there does not seem to be any continuing problem with medication administration, do not compel a conclusion that the protective purposes of sanction require a suspension.
- [47]The Tribunal accepts that Ms Faulkner has made changes in her life, which it would certainly seem were both necessary and appropriate. She has acknowledged the effects of fatigue including, as she says, its effect on her ability to make proper decisions.
- [48]Unfortunately, given the Tribunal’s findings, Ms Faulkner has not reached a point where she is prepared to admit her failings. She has not admitted to having deliberately taken the handbag, nor any of its contents. Further, in her evidence to the Tribunal she has not been truthful with respect to her practices at that time in relation to pre-signing medication charts. Clearly, at that time, her practice of pre-signing medication charts was very ingrained. Finally, when challenged regarding the possible non-administration of medication, she would not acknowledge the possibility that she had not administered the drug.
- [49]Ms Faulkner continues to show a degree of lack of insight into her behaviours at that time. Nevertheless, in terms of the stealing of the handbag and its contents, she has been prepared to pay restitution.
- [50]With the changes made to her working hours and having regard to the numerous references provided, if she continues to work in the manner she is working now, it would be unlikely there would be re-offending.
- [51]Given the Tribunal’s findings in relation to all the allegations, the Tribunal is satisfied that Ms Faulkner has behaved in a way that constitutes professional misconduct.
Comparative Cases
- [52]In submissions, reference was made by Mr Allen to a decision of the Victorian Civil and Administrative Tribunal where the doctor’s dishonest conduct involved deceiving financial institutions in applying for loans, the amount of which exceeded $300,000.[26] In that case, the doctor pleaded guilty to five counts of indictable offences in respect of which he was sentenced to two years imprisonment wholly suspended. On appeal, the Tribunal considered a reprimand and fine to be appropriate and cancellation or suspension unnecessary. In giving its decision, reference was made by the Tribunal to the decision in Ha v Pharmacy Board of Victoria.[27] In that decision, his Honour Justice Gillard noted the pharmacist had been dealt with by the criminal law and been punished, and commented that the Board, when imposing penalty after a finding of professional misconduct, is not concerned with punishment, and that the penalty powers are there for the protection of the public and protection of the profession itself.
- [53]In that case, the behaviour the subject of the decision of the Board and the criminal charges related to indecent assaults by the practitioner on two female prospective employees. The pharmacist had pleaded guilty to three charges of indecent assault and on appeal was fined $1,500 without conviction and sentenced without conviction to a community based order for two years.[28]
- [54]Justice Gillard noted:
“The appellant had been punished through the criminal law system. He has been charged and found to have committed three serious offences. He has come before the courts. He has been punished in accordance with the criminal law. In addition, he has incurred substantial legal costs.
On any view, he has been severely punished for his stupidity and serious misconduct. His reputation has been tainted. What he has experienced to date should be a constant reminder to him of what he has risked by his stupidity, namely, the permanent loss of reputation, position in the community and his business.”[29]
- [55]Justice Gillard did not consider a period of suspension was warranted where it would cause financial ruin and where the experience through the courts and punishment meted by the court could serve as a constant reminder not to transgress. Justice Gillard went on, “The ultimate issue for the decision maker on penalty is the risk of repetition of the misconduct.”[30]
- [56]Ms Rosengren for the Board in her submissions, in referring to the cases relied on by Mr Allen, referred to the fact that the decision provided was a 2003 decision. The age of the decision would be a relevant factor, if the change in the legislative regime meant that different considerations now applied. There was no submission made in that regard and in fact, the change in regime which has occurred does not, in the Tribunal’s view, alter the relevance of the philosophical approach which was taken and is detailed by the decision of Justice Gillard and applied in the Victorian Tribunal decision involving Dr Collins.
- [57]Ms Rosengren referred the Tribunal to a number of other decisions involving dishonesty. Ms Rosengren referred to the decisions in Medical Board of Australia v Chandra,[31] Nursing and Midwifery Board of Australia v Fankhauser,[32] Nursing and Midwifery Board of Australia v Morley[33] and the decision of the Nursing and Midwifery Board of Australia v Cummins.[34]
- [58]The conduct in all cases referred to by Ms Rosengren was quite different and involved more prolonged and more serious acts of dishonesty. In Chandra, there was the forging of documents coupled with numerous boundary violations and non-compliance with chaperone conditions previously imposed by the Board. In Fankhauser, the nurse had falsified the hospital records following the death of a newborn. In Morley, there was deliberate and repeated dishonest use of a patient’s credit card with the aggravating factor of non-disclosures in applying for re-registration over a number of years. In Cummins, there were repeated failures in the non-administering of medication recorded as having been administered, coupled with an assault on a patient.
- [59]Those cases resulted in cancellations or suspensions with orders that the practitioners not re-apply for registration for extended periods. However, given the very different factual scenarios, the Tribunal does not find any of those decisions particularly helpful in guiding the Tribunal as to the appropriate sanction in this case.
- [60]In the circumstances, the Tribunal is of the view that a reprimand is an appropriate sanction and a suspension is not necessary. As observed by the Supreme Court of Victoria in Peeke v Medical Board of Victoria, a reprimand is not a trivial penalty and has the potential for serious adverse implications.[35]
- [61]In Medical Board of Australia v Jones, Judge Kingham, Deputy President said the sanction of reprimand was not trivial as it was a public denunciation of the professional conduct which is recorded on the public register of practitioners.[36] Further, under the National Law, the reprimand will remain on the register until the National Board “considers it is no longer necessary or appropriate for the information to be recorded on the Register.”[37]
- [62]The Tribunal considers, having regard to the conditions proposed by the Board, that the imposition of some conditions would be appropriate and would help to serve as a reminder to Ms Faulkner as to the consequences of her transgressions. The Tribunal also considers it is important Ms Faulkner understands the critical importance of medication charts.
- [63]Having reviewed the conditions proposed by the Board, the Tribunal considers that conditions in accordance with the attached would be adequate. The Tribunal believes that the next 12 months will be an important period for Ms Faulkner. Ms Faulkner will no longer have these proceedings looming and it will be important that she continue to reflect on her behaviours which led to the criminal charges and to these proceedings.
- [64]Having imposed conditions on Ms Faulkner’s registration, under s 196(3) of the National Law the Tribunal is also required to impose a review period for the conditions. As the mentoring period is 12 months, it would be appropriate at the end of that time for the conditions in question to be reviewed.
- [65]So as to avoid the parties bringing a further application to this Tribunal at that time, it is necessary to make a further order permitting the Board to deal with the review of the conditions. An order will be made to allow that to occur.
- [66]Orders are made requiring the parties to make submissions on costs.
Schedule of Conditions
Limitation on practice
- For a period of 12 months:
- the Practitioner may practise only at Robina Hospital or such other place of practice approved by the Board; and
- the Practitioner must not engage in agency work, without the approval of the Board;
Undertake education
- The Practitioner is to undertake and successfully complete a program of education, approved by the Board and including a reflective practice report, in relation to responsibilities and duties in respect of the administration, documentation and management of medicines.
- Within 28 days of the notice of the imposition of these conditions, the Practitioner must nominate to the Board for approval, in writing, an education course, assessment or program (the education) addressing the topics required. The Practitioner must ensure she provides with her nomination, as a minimum:
- if a course of education is chosen, a copy of the curriculum.
- if the education is to be a tailored program conducted by an individual, the Practitioner must provide a detailed plan of the training program and a copy of the curriculum vitae of the individual to provide the training.
- The Practitioner must complete the education within 6 months of the notice of Board's approval of the education.
- Within 28 days of the completion of the education, the Practitioner is to provide:
- evidence of successful completion of the education.
- a reflective practice report to the Board demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner's practice and confirmation that the Practitioner has not included this education or the preparation of this written report to satisfy her continuing professional development requirements.
- The Practitioner must not use the education and/or reflective practice report undertaken in compliance with these restrictions to satisfy the practitioner's CPD requirements.
Attend for mentoring
- The Practitioner must be mentored by another registered health practitioner. For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.
- The mentoring must be for a period of 12 months and performed:
- for at least 1 hour per fortnight for a period of 3 months; and
- for at least 1 hour per month for a period of 9 months.
- Within 28 days of the notice of the imposition of these conditions, the Practitioner must nominate, in writing, the name of a mentor(s) to be approved by Board. The Practitioner must ensure:
- the nominated mentor(s) is a registered nurse who holds unrestricted registration;
- the nomination is accompanied by the contact details of each nominated mentor(s) together with a detailed copy of each of the nominated mentor(s) curriculum vitae which demonstrates that the mentor is senior to the Practitioner by either years of experience or position and has additional training, experience and/or qualifications in order to provide the mentoring required.
- that the nominated mentor(s) is not in a close collegiate, family, social or financial relationship with the Practitioner.
- the nomination is accompanied by written confirmation from the proposed mentor(s) that they have read these conditions and agree to the nomination, they are not in a relationship with the Practitioner as described in (c) and they agree to provide the report outlined in (f).
- the nomination is accompanied by a written mentoring plan outlining the form the mentoring will take including as to how it is proposed to address the allegations which gave rise to the reprimand by the Board and the imposition of these conditions and the proposed schedule for mentoring.
- the nomination is accompanied by written acknowledgement from the Practitioner that AHPRA may require reports to be provided from the mentor. These reports will be provided by APHRA to the Board and should include details of the number of mentoring session(s) including details of whether or not the Practitioner has, in the opinion of the mentor, satisfactorily participated in and understood the focus of the mentoring. The reports may be obtained at any or all of the following occasions:
- every 3 months;
- at the conclusion of the mentoring relationship in order to confirm the outcomes of mentoring;
- whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner's conduct or professional performance; and
- when requested either verbally or in writing by AHPRA or the Board.
- In the event the mentor is no longer willing or able to provide the mentoring required the Practitioner is to provide a new nomination to the Board in the same terms as previous nominations. Such nomination must be made by the Practitioner within 7 days of becoming aware of the termination of the mentoring relationship.
- At the conclusion of the mentoring the Practitioner is to provide to the Board a written report demonstrating to the satisfaction of the Board that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the mentoring and confirming that the Practitioner has not included the mentoring or the preparation of this written report to satisfy their continuing professional development requirements.
Other requirements
- If, in the event of a medical emergency, the Practitioner is unable to comply with a condition, any such incident must be notified to AHPRA within two business days. The condition must be such that compliance with it would directly impact upon the Practitioner's ability to provide care that would have a direct benefit to a patient in a medical emergency. For the purposes of these conditions a medical emergency is an event where it is not possible or reasonable to have a patient with a serious or life threatening condition seen by another practitioner or transferred to the nearest hospital. Any non compliance with a condition due to medical emergency not notified to AHPRA within two business day will be treated as a breach of these conditions and reported to the Board who may take further action in relation to a breach of conditions.
- An AHPRA Manager or Team Leader may approve the nominated education course or program and/or nominated mentor in accordance with these conditions.
- All costs and expenses in relation to the terms set out in these conditions are to be at the registrant's expense.
- The registrant will provide to the Board any documentary evidence required by these conditions, within the timeframes specified.
- Failure to comply with these conditions may be a ground for health, conduct or performance action against the registrant.
Review of Conditions
- The review period for these conditions is 12 months.
Footnotes
[1] Affidavit of Elizabeth Clinton sworn 10 September 2015, [14]; Affidavit of Elizabeth Clinton sworn 19 April 2016, Exhibit EC1; Affidavit of Karen Maniquiz sworn 8 September 2015, [9]; Affidavit of Raewyn Cooper sworn 12 November 2015, [21]-[23]; and Affidavit of Sarah Edwards sworn 30 November 2015, [20].
[2] Statement of agreed facts and issues in dispute filed 27 November 2015, [10].
[3] Transcript of Proceedings 19 July 2016, 1-21 LL27-30.
[4] Affidavit of Karen Lea Faulkner sworn 29 February 2016, [57].
[5] Agreed bundle of documents filed 12 May 2016 on behalf of the Applicant and the Respondent, Document 14, 42.
[6] Ibid, 115.
[7] Statement of agreed facts and issues in dispute filed 27 November 2015, [4].
[8] Affidavit of Sarah Edwards sworn 30 November 2015, Exhibit “SE1”.
[9] Statement of agreed facts and issues in dispute filed 27 November 2015, [7].
[10] Statement of agreed facts and issues in dispute filed 27 November 2015, [6].
[11] Affidavit of Karen Lea Faulkner sworn 29 February 2016, [39].
[12] Agreed bundle of documents filed 12 May 2016 on behalf of the Applicant and the Respondent, Document 17, 125.
[13] Transcript of Proceedings 19 July 2016, 1- 24 L37.
[14] Ibid, 1-29 L13.
[15] Ibid, 1-30 L36.
[16] Ibid,1-31 L28.
[17] Transcript of Proceedings 19 July 2016, 1-31 L28.
[18] Agreed bundle of documents filed 12 May 2016 on behalf of the Applicant and the Respondent, Document 17, 125.
[19] Affidavit of Karen Lea Faulkner sworn 29 February 2016, Exhibit KLF 16, 121.
[20] Statement of agreed facts and issues in dispute filed 27 November 2015, [9].
[21] (1938) 60 CLR 336.
[22] Affidavit of Karen Lea Faulkner sworn 29 February 2016, [84].
[23] Affidavit of Allan Henry Harvie sworn 27 February 2016, [17].
[24] Transcript of Proceedings 19 July 2016, LL1-2.
[25] Affidavit of Karen Lea Faulkner sworn 29 February 2016, [96].
[26] Collins v Medical Practitioners Board [2003] VCAT 1755.
[27] [2002] VSC 322.
[28] The community based order was on conditions that he:
(a) Perform 150 hours of unpaid community work within 12 months;
(b) Undergo psychological or psychiatric treatment and assessment as directed; and
(c) Continue to be treated by his psychiatrist.
[29] Ha v Pharmacy Board of Victoria [2002] VSC 322, [98]-[99].
[30] Ibid [101].
[31] [2014] QCAT 271.
[32] [2013] QCAT 395.
[33] [2014] SAHPT 17.
[34] Unreported, Western Australia State Administrative Tribunal, Member Eddy, 6 November 2014.
[35] Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria Practice Court, Marks J, 19 January 1994).
[36] [2012] QCAT 362, [14].
[37] National Law, s 226(3).