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Nursing and Midwifery Board of Australia v Laughlan[2017] QCAT 388

Nursing and Midwifery Board of Australia v Laughlan[2017] QCAT 388

CITATION:

Nursing and Midwifery Board of Australia v Laughlan [2017] QCAT 388

PARTIES:

Nursing and Midwifery Board of Australia

(Applicant)

v

Jodi Laughlan

(Respondent)

APPLICATION NUMBER:

OCR278-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

27 July 2016

HEARD AT:

Brisbane

DECISION OF:

Judge S Sheridan, Deputy President

Assisted by:

Dr Mary Sidebotham

Mr Andrew Urquhart

Mr Bradley Thomas

DELIVERED ON:

20 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (National Law), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
  3. Pursuant to s 196(2)(d) of the National Law, the respondent is suspended for a period of three months, which suspension will commence on 4 December 2017. 
  4. Pursuant to s 196(2)(b)(i) of the National Law, the registration of the respondent shall be subject to the conditions set out in the attached schedule.
  5. Pursuant to s 196(3) of the National Law, the review period for the conditions is 12 months from the date hereof.
  6. Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions.
  7. The applicant is to file its submissions on costs by 4:00pm on 4 December 2017.
  8. The respondent is to file her submissions on costs by 4:00pm on 18 December 2017.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the Nursing and Midwifery Board of Australia referred disciplinary proceedings against the practitioner to the Tribunal – where the referral alleged that the practitioner misappropriated and/or failed to account for a Schedule 8 drug – where the referral alleged that the practitioner had taken the Schedule 8 drug to administer to herself – where the referral alleged the practitioner had replaced the Schedule 8 drug with water – where the referral alleged the practitioner had attempted to influence another health practitioner not to report the discrepancy in the level of Schedule 8 drug – where the referral alleged the practitioner threw away a note recording the discrepancy in the level of Schedule 8 drug – where the referral alleged the practitioner had not acted in accordance with professional standards in failing to properly measure and record the level of Schedule 8 drug – where the practitioner admitted to some of the conduct alleged – where the practitioner denied misappropriating and self-administering the Schedule 8 drug – where the practitioner denied replacing the Schedule 8 drug with water – whether the practitioner had engaged in professional misconduct

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102

Health Practitioner Regulation National Law (Queensland), s 3A

Briginshaw v Briginshaw (1938) 60 CLR 336, applied

Craig v Medical Board of South Australia (2001) 79 SASR 545, cited

Health Ombudsman v Macdonald [2016] QCAT 473, considered

Medical Board of Australia v Jansz [2011] VCAT 1026, cited

Medical Board of Australia v Wong [2017] QCA 42, cited

Nursing and Midwifery Board of Australia v Lahey [2014] TASHPT 4, cited

Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403, considered

Nursing and Midwifery Board of Australia v Mundy [2012] SAHPT 5, cited

Rejfek v McElroy (1965) 112 CLR 517, considered

Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123, considered

APPEARANCES:

 

APPLICANT:

J Rosengren of counsel instructed by Moray & Agnew Lawyers

RESPONDENT:

The respondent appeared on her own behalf

REASONS FOR DECISION

Nature of Proceedings

  1. [1]
    On 12 December 2014, the Nursing and Midwifery Board of Australia (Board) referred to the Tribunal disciplinary proceedings against the registrant, Ms Jodi Laughlan.  The referral was made pursuant to s 193(1)(a)(i) of the Health Practitioner Regulation National Law (Queensland) (National Law) on the basis that the Board reasonably believed Ms Laughlan had behaved in a way that constituted professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance.
  2. [2]
    There are six separate allegations of misconduct contained in the referral.  The allegations relate to the conduct of Ms Laughlan whilst she was employed by Blue Care as a registered nurse at their Salvin Park Aged Care Facility. 
  3. [3]
    The allegations relate to events that occurred during weekend shifts at the Facility on 16 and 17 July 2011.  The allegations concern a discrepancy identified during that weekend between the amount of a Schedule 8 drug contained in a bottle and the amount of the drug recorded in the Drug Record Sheet.  Ms Laughlan was one of the registered nurses working at the Facility that weekend.
  1. [4]
    In the referral, it is alleged that:
    1. On 16 July 2011, Ms Laughlan misappropriated and/or failed to account for (in that she took without lawful authority) approximately 7 mL of morphine (paragraph 5);
    2. On 16 July 2011, Ms Laughlan had taken the morphine and administered the morphine to herself (paragraph 6);
    3. On 17 July 2011, Ms Laughlan replaced the morphine by injecting 7 mL of water into the bottle of morphine (paragraph 7);
    4. On 17 July 2011, Ms Laughlan had influenced or attempted to influence another registered nurse to not report the discrepancy (paragraph 8);
    5. On 17 July 2011, Ms Laughlan had thrown away a ‘post-it-note’ on which the discrepancy had been noted (paragraph 9); and
    6. On 16 July 2011, Ms Laughlan had not acted in accordance with accepted professional standards in failing to compare the amounts of morphine as recorded in the Drug Record Sheet with the actual amount in the bottle, in failing to document the discrepancy and in failing to report the discrepancy (paragraph 10).
  2. [5]
    In the Statement of Agreed Facts, Ms Laughlan has admitted that on Saturday, 16 July 2011 at around 3:00pm she had failed to:
    1. Compare the amount of morphine recorded in the Drug Record Sheet against the level in the bottle when notified of the discrepancy;
    2. Document the morphine discrepancy in the Drug Record Sheet; and
    3. Report the discrepancy to a supervisor and/or complete an incident report.
  3. [6]
    Ms Laughlan further admits that on the morning of Sunday, 17 July 2011, she removed a ‘post-it-note’ stuck to the Drug Record Sheet which recorded the discrepancy of 7 mL in the level of Ordine in the bottle and threw the note away. 
  4. [7]
    The admissions made by Ms Laughlan mean that she has effectively admitted paragraphs 9 and 10 of the referral.
  5. [8]
    Relevantly, Ms Laughlan denied that:
    1. she misappropriated or took the 7 mL of morphine;
    2. she self-administered the 7 mL of morphine; and
    3. she replaced the removed morphine by injecting water into the bottle of morphine.
  6. [9]
    The allegations of misconduct are primarily dependent on the evidence of Ms Bhavsar, a registered nurse, and Ms Medway, an enrolled nurse, both of whom worked at the Facility and were working over the course of the weekend of 16 and 17 July 2011.  Both witnesses swore affidavits in the proceedings, gave evidence before the Tribunal and were cross-examined by Ms Laughlan.
  7. [10]
    Affidavit evidence was also given by Ms Lao and Ms Musial, both of whom worked as registered nurses at the Facility and had worked over the course of the weekend of 16 and 17 July 2011.  Ms Laughlan did not require them for cross-examination.

Background   

  1. [11]
    The uncontested evidence established that when morphine, or any Schedule 8 drug, was to be dispensed to a resident at the Facility, a Drug Record Sheet was required to be maintained.  The Drug Record Sheet was to be completed on each occasion a Schedule 8 drug was dispensed to a resident.
  2. [12]
    Resident MD had been prescribed Ordine, a liquid form of morphine, and as required, a Drug Record Sheet had been created for him and maintained in relation to the dispensing to him of the liquid morphine.[1]
  3. [13]
    Schedule 8 drugs were required to be kept in a locked cabinet, separated from all other medication.  The cabinet was to be unlocked in the presence of two registered staff, one of whom was required to be a registered nurse. 
  4. [14]
    The drug was to be dispensed to the patient in the presence of both registered staff.  At the time of dispensing the drug, the Drug Record Sheet was to be updated and both staff were required to sign the Drug Record Sheet.
  5. [15]
    On any particular shift, the registered nurse on duty for that shift kept the keys to the dangerous drug cupboard.  If there was more than one registered nurse on duty, the staff could decide between them who would keep the keys to the dangerous drug cupboard.
  6. [16]
    Each day at the 3:00pm shift handover, the quantity of Schedule 8 drugs in the cabinet were required to be checked.  The checking would be conducted by the registered nurse from the morning shift and the registered nurse commencing for the afternoon shift.  At that time, the keys to the dangerous drug cupboard would be handed over.

Events on Saturday, 16 July 2011

  1. [17]
    The evidence of registered nurse Lao was not challenged.  Her evidence was that between approximately 7:00am and 7:30am on Saturday, 16 July 2011 she signed the Drug Record Sheet for resident MD and the amount of Ordine in the bottle was the same as that recorded in the Drug Record Sheet.  Ms Lao did not explain, however, the process undertaken in checking the quantities of morphine in the bottle when dispensing the drug to resident MD.
  2. [18]
    In cross-examination in these proceedings, when asked about whether there was any discrepancy in the quantity of morphine that morning, Ms Laughlan answered, “Not that I noticed.”  However, prior to answering the question, Ms Laughlan said, “as you’d probably gathered, we’d gotten into a bad habit of just taking the Ordine for granted and just going, yeah, that’s Ordine, and just calculating it off the number..”

[19]

  1. Later in the cross-examination, Ms Laughlan did not accept that she knew none was missing at that time.  Counsel for the Board asked, “What we know is that none was missing on the morning of the 16th at 7:00am?”   Ms Laughlan responded, “That I don’t know.”  Counsel then said to Ms Laughlan that she had provided a number of different versions on a number of different occasions and that in none of those documents had she ever suggested that any Ordine was missing on the morning of 16 July, to which Ms Laughlan responded, “No”.
  2. [20]
    In cross-examination, Ms Laughlan did accept that she was the registered nurse who had the keys to the dangerous drugs cabinet during the Saturday shift.  However, Ms Laughlan said that RN Lao had arrived earlier for the Saturday morning shift and that it was RN Lao who had handed her the keys at the start of that shift.
  3. [21]
    It is clear that a discrepancy was noted at the handover at 3:00pm on Saturday, 16 July 2011.  On the afternoon of 16 July 2011, a changeover  occurred between registered nurse Bhavsar and registered nurse Laughlan. 
  4. [22]
    At the changeover, Ms Bhavsar’s evidence was that she was required to sign a page in the dangerous drug book after completing the global count of all drugs.  Ms Bhavsar said she was not “100 per cent sure” of what she signed but said “I think there was a system where we did sign at the back of the page” that the global check for all the drugs had been done.
  5. [23]
    The Tribunal was not provided with the dangerous drug book or the relevant extract from the book, but this evidence of Ms Bhavsar did not seem to be particularly controversial.
  6. [24]
    Ms Bhavsar’s evidence was that she had taken the bottle out of the cupboard at the time of conducting the count at the changeover.  Ms Bhavsar explained that, as she was short, she was unable to conduct the necessary check unless the bottle was removed from the cupboard.  Ms Bhavsar did not accept, as was put to her by Ms Laughlan, that the bottle was not removed from the cupboard.  Ms Laughlan had said it was not something they did when conducting the counts at changeover.  She said, “it was just left in the cupboard and we go, ‘Oh, yeah, that’s the Ordine,’ and then keep counting.”
  7. [25]
    Ms Bhavsar’s evidence was that she had the bottle in her hand and said to Ms Laughlan, who was standing next to her, that the level of Ordine in the bottle was lower than what was recorded in the Drug Record Sheet.  In her affidavit, Ms Bhavsar said that she observed that the Ordine bottle was “approximately 7 to 7.5 mL less than the documented amount on the Drug Record Sheet.”  In giving her evidence before the Tribunal, when Ms Bhavsar was asked whether she mentioned to Ms Laughlan the quantity, she said, “I don’t recall that now, but it was obviously lower.” 
  8. [26]
    Ms Laughlan disputed whether Ms Bhavsar had said the level was “lower”; rather her evidence was that Ms Bhavsar had said the contents of the bottle “appeared to be lower”.
  9. [27]
    Ms Bhavsar said Ms Laughlan told her that “because it’s in liquid, it’s okay that the amount is lower because it’s hard to measure.”
  10. [28]
    Ms Bhavsar said that she did not do anything further about it.  She said she had been reassured by Ms Laughlan that it was okay.  She said if she had not been reassured she would have gone to the senior RN.  Ms Bhavsar said that as the junior nurse she had accepted what she had been told by Ms Laughlan.  Ms Bhavsar said that this was her first job since graduating as a registered nurse. 
  11. [29]
    Ms Laughlan put to Ms Bhavsar that she (Ms Laughlan) had said to her it was normal for the contents of the bottle to be higher than the Drug Record Sheet.  Ms Bhavsar did not accept that statement was made.
  12. [30]
    Under cross-examination, Ms Laughlan said that from the beginning she had admitted that she did not check the bottle.  She said she had just said it was higher because that’s what she believed it to be.  In continuing questioning, she again said that she did not check the bottle but also maintained she said to Ms Bhavsar that “the liquid amount in the bottle was higher than is shown on the actual marker.”   
  13. [31]
    Ms Laughlan maintained that she recounted the story to Ms Bhavsar of being with RN Lao when resident MD was going on leave and she (Ms Laughlan) was just going to give MD the bottle as there was 50 mL remaining in the bottle and that was the quantity he needed.  RN Lao told her to measure the quantity out because, despite what the bottle said, there would be more left.  Ms Bhavsar denied having been told that story.
  14. [32]
    Ms Laughlan admitted that she did not afford Ms Bhavsar proper respect regarding the concern she had raised with Ms Laughlan about the quantity of morphine in the bottle and did not check the quantity.
  15. [33]
    In cross-examination, Ms Laughlan was reluctant to say that the evidence that Ms Bhavsar had given of having checked the bottle was wrong.  Ms Laughlan said that she did not see the bottle in Ms Bhavsar’s hand and said that when Ms Bhavsar had said it “appears down”, she was looking into the cupboard and not at the bottle in her hand.  She did not accept, however, the evidence of Ms Bhavsar that Ms Laughlan was standing next to her when Ms Bhavsar had the bottle in her hand.
  16. [34]
    Ms Laughlan denied that she would have ever said it was less or ever said it was okay for the contents to be lower.  Ms Laughlan maintained that she had always said that she had said the contents of the bottle would be higher.  She denied that the first time she had raised that was during these proceedings and, in particular, in completing the statement of agreed and disputed facts.  In questioning by counsel, she denied that she had not raised it in the record of interview with Blue Care or the police.  Ms Laughlan did not accept that the record of interview as prepared by the Human Resources manager of Blue Care was an accurate record.  The record of interview was never signed by Ms Laughlan.  Ms Laughlan accepted, however, that she had never raised an issue previously as to the accuracy of its contents.
  17. [35]
    Ms Bhavsar’s evidence was that she only appreciated there was a real problem when preparing to dispense the drug to resident MD at 7:00pm that evening.  On that occasion, Ms Bhavsar said she was on duty with registered nurse Lim.
  18. [36]
    When the drug was being prepared to be dispensed to MD at 7:00pm, Ms Bhavsar said that she and Ms Lim had noted the quantity in the bottle was 7 mL less.  She said the quantity was 68 mL and not 75 mL as recorded in the Drug Record Sheet.  Ms Bhavsar said that, as far as she could tell, it appeared that the same amount was missing from the bottle as at 3:00pm.
  19. [37]
    Ms Bhavsar gave evidence that Ms Lim did not agree that the fact of a discrepancy was okay.  Ms Bhavsar gave evidence of Ms Lim noting the discrepancy on a post-it-note and attaching the post-it-note to the Drug Record Sheet.  Ms Bhavsar could not recall the colour of the note nor its contents nor whether she had signed the note.
  20. [38]
    Ms Bhavsar could not explain why she and Ms Lim did not complete the Drug Record Sheet to indicate the actual amount remaining, rather than the amount which should have been remaining.  She simply said that she was the junior nurse on duty.
  21. [39]
    Ms Bhavsar said that Ms Lim reported it to the Nurse Supervisor who was on for that shift.  She said registered nurse Musial then attended in the  treatment room to check the bottle. 
  22. [40]
    RN Lim did not give evidence in these proceedings.  A hand-written file note signed by RN Lim and dated 18 July 2011 formed part of the formal report prepared by Blue Care.[2]  The file note confirmed the discrepancy referred to by Ms Bhavsar but did not explain the failure to correct the amount on the Drug Record Sheet.  In the note, Ms Lim also referred to having worked the Friday evening, 15 July 2011, and having noted at that time “the actual remain was 1-2 mL more than the number on the DD book.”
  23. [41]
    Ms Lim completed an Incident Report form, which also formed part of the formal report prepared by Blue Care.
  24. [42]
    Ms Musial swore an affidavit in these proceedings. She confirmed that on the evening of Saturday, 16 July 2011, she was contacted by Ms Lim.  She was working in a different section of the Facility at the time but, upon being contacted, she attended in the treatment room with Ms Lim and Ms Bhavsar and that together they had checked the contents of the bottle.  She confirmed that the contents of the bottle were less than that recorded in the Drug Record Sheet.
  25. [43]
    Ms Musial said that she later reported the incident to the Service Manager, Jane Wilson.  The Service Manager did not give evidence in these proceedings.  In the report prepared by Blue Care, there is reference to statements made by Ms Wilson.  Ms Wilson had attended at the Facility on Sunday, 17 July at around 10:00am.  Ms Wilson said that, upon checking the Ordine bottle, the quantity in the bottle was the same as the quantity recorded in the Drug Record Sheet.  That evidence does not appear to be disputed.
  26. [44]
    There is no reason to doubt the evidence given by Ms Bhavsar.  Ms Bhavsar was a considered witness who gave careful evidence.  She was prepared to make appropriate concessions and admit when she simply was unable to recall events.
  27. [45]
    Ms Bhavsar’s evidence as to the events that occurred on Saturday evening at 7:00pm are consistent with the other unchallenged evidence in the proceedings.
  28. [46]
    The evidence given by Ms Laughlan on those events was most unsatisfactory.  She has given different versions of events on different occasions.  She was very reluctant to suggest that Ms Bhavsar was not telling the truth but did not accept her evidence wholly either.  Her evidence about the events simply cannot be relied upon.
  29. [47]
    The Tribunal accepts that by 3:00pm on Saturday, 16 July 2011, the quantity of Ordine in the bottle was less than the quantity recorded in the Drug Record Sheet.  This position was confirmed by those dispensing the medication to resident MD at 7:00pm on Saturday, 16 July 2011.

Events on Sunday, 17 July 2011

  1. [48]
    The next opportunity to observe the quantity of liquid morphine in the bottle was at 7:00am on Sunday, 17 July 2011 when resident MD was next due to be given his medication.  On that occasion, by reference to the Drug Record Sheet, the medication was dispensed by Ms Laughlan and Ms Medway.
  2. [49]
    Ms Medway was an enrolled nurse employed at the Facility.  She swore an affidavit in these proceedings dated 15 September 2015 and was cross‑examined by Ms Laughlan in the Tribunal.  Ms Medway first became qualified in 1972 as an enrolled nurse and had been working at the Facility for 22 years.  She continued to work at the Facility until it was sold in January 2014.
  3. [50]
    On Sunday, 17 July 2011, Ms Medway was rostered on the morning shift at the Facility.  Ms Medway commenced work at around 6:30am.  She was working the shift with registered nurse Laughlan.
  4. [51]
    She recalled resident MD attending at the treatment room for his 7:00am dose of morphine.
  5. [52]
    Ms Medway said that the medication would be removed from the locked cabinet when both nurses were present.  She said that she would then complete the first five columns of the Drug Record Sheet and then the medication would be given.
  6. [53]
    Ms Medway said that she could recall seeing a post-it-note when she commenced writing the register up for the 7:00am medication.  Ms Medway confirmed that it was her writing against the entry in the first five columns of the Drug Record Sheet for 17 July 2011.
  7. [54]
    Ms Medway could recall the post-it-note was yellow.  In her affidavit, she said the note stated that the amount in the bottle was not the same as recorded in the Drug Record Sheet.  She said the note said that there was 7mL less.  In giving her evidence, she confirmed that the note said there was a discrepancy of 7 mL.  Ms Laughlan’s evidence was that the note had simply recorded on it “68 mL”.
  8. [55]
    Ms Medway recalls leaving the treatment room at some point before the medication was given to resident MD.  Ms Medway gave mixed accounts of whether she was present in the room when the post-it-note was thrown away.  There is no doubt with the passage of time, Ms Medway’s  recollection as to the precise sequence of events was a little hazy.  Ultimately, Ms Medway said that she could not recall; though she acknowledged that, in the interview with Blue Care and in her earlier affidavit, she had said she was not in the room when the post-it-note was thrown away.  Ms Medway agreed her recollection would have been better at the time of swearing her affidavit.
  9. [56]
    Ms Laughlan has always admitted she was the one who had thrown away the post-it-note.  At the time of the first interview with Blue Care, when asked why she threw it away, she answered, “I don’t really know.  It was just stupid.”
  10. [57]
    Ms Laughlan was asked in cross-examination about certain statements made in the police interview.  In the police interview, Ms Laughlan said that Ms Medway, in discussing the note with her, had said “Oh, fucking idiots”.  Ms Laughlan said that she then picked up the note and threw it away and said to Ms Medway, “Yeah, they’re over-reacting.”
  11. [58]
    Ms Laughlan’s evidence was that Ms Medway had then suggested to add water to the Ordine.  Ms Laughlan said that she had responded “No”.  Ms Laughlan said she did not take Ms Medway seriously.  In giving evidence, Ms Laughlan also mentioned a case manager having once removed some Ordine using a syringe and having tipped the excess Ordine down the drain.
  12. [59]
    When Ms Laughlan was reminded that Ms Medway had denied saying those things,  Ms Laughlan responded, “She did.”  She said Ms Medway was present in the room when she threw away the note but confirmed her admission that she was the one who threw it away.
  13. [60]
    There was no dispute that both nurses were present when resident MD was given his morning medication.  Ms Medway said he was given his medication in the waiting room.  Ms Medway explained that, as resident MD was in a wheelchair, he could not come into the treatment room and was always given his medication in the waiting room.
  14. [61]
    Ms Medway recalled that Ms Laughlan completed the column containing the quantity remaining in the Drug Record Sheet.  Ms Medway believed that the Drug Record Sheet would have been signed before the medication was given, as that was the usual practice.  In fact, Ms Medway said that the bottle containing the Ordine would have been put away before the medication was given.
  15. [62]
    Ms Medway gave evidence that she recalled the bottle being taken out again when the dangerous drug cupboard was opened for more residents.  It was at that time that Ms Medway recalled Ms Laughlan adding water to the bottle.
  16. [63]
    Ms Medway says she recalls Ms Laughlan using a 5 mL syringe.  Ms Medway said that Ms Laughlan placed tap water into a medicine cup and then drew the water into a syringe and placed the water into the bottle.  Ms Medway could not recall whether Ms Laughlan did that once or twice. However, she said, “Well, it seemed to be the right amount going back into the bottle because it came level to the right amount apparently.”
  17. [64]
    Ms Medway said that she did not say anything to Ms Laughlan as she was in total shock.  Ms Medway said Ms Laughlan said, “I don’t know what I did that for.  Got to catch the person who did this?”  Ms Medway said that she did not know what Ms Laughlan meant by that statement.
  18. [65]
    Immediately after leaving the treatment room after the incident, Ms Medway rung the Nurse manager, Ms Lao. Ms Lao, in her affidavit, corroborated the evidence given by Ms Medway in relation to the making of the phone call.
  19. [66]
    Ms Medway accepted at the time the Drug Record Sheet was completed and signed by her and Ms Laughlan there would have been a discrepancy between the amount stated in the Drug Record Sheet and the actual amount of liquid morphine in the bottle.
  20. [67]
    In her evidence before the Tribunal, Ms Laughlan denied having placed any water into the bottle of Ordine.  When asked about diluting the bottle of Ordine, Ms Laughlan had responded that it would be “inhumane”.
  21. [68]
    Ms Laughlan further said that during the course of the shift at approximately 9:00am to 9:30am she had given the keys to the dangerous drug cupboard to Ms Medway.  Ms Laughlan accepted that, when working that shift with Ms Medway, she was the registered nurse in charge of the keys but said that she had given the keys to Ms Medway to obtain the wound camera which was kept in the dangerous drug cupboard.  She said she was attending to a patient with stroke like symptoms and accepted that she should not have given the keys to just Ms Medway.
  22. [69]
    Ms Medway could not recall being given the keys, nor could she recall whether that was where the camera was kept.  In any event, Ms Medway said she would have never opened the dangerous drug cupboard alone.
  23. [70]
    Whilst independent evidence showed that at the time the wound camera was sometimes kept in the dangerous drug cupboard, there was no independent evidence confirming that the camera was used that day.
  24. [71]
    Counsel for the Board asked Ms Medway whether she had any issues with Ms Laughlan while they were both working together at the Facility.  She was also asked whether she had any issues with Ms Laughlan’s mother who also worked at the Facility.  Ms Medway said she did not and that she had never made any complaints about Ms Laughlan or her mother.
  25. [72]
    Ms Laughlan put to Ms Medway that, in her record of interview, she had complained about Ms Laughlan spending her time “drinking coke, smoking cigarettes and not giving people their medications”.  Ms Medway responded, “And I think I wasn’t the only one that was picking up on that.”
  26. [73]
    Ms Laughlan asked why Ms Medway had not reported her.  Ms Medway said, “I can’t answer that.”
  27. [74]
    In giving her evidence, Ms Laughlan referred to the fact that the quantity of Ordine was taken for granted.  She said that when medication was given it was not checked the way it should have been. 
  28. [75]
    Ms Laughlan did not accept that none was missing at 7:00am on Saturday, 16 July 2011.  As noted above, in her affidavit RN Lao did not explain the process undertaken to measure the quantities remaining in the bottle at that time, or in fact whether any process was undertaken at all.
  29. [76]
    Ms Laughlan seemed to accept that by 3:00pm on Saturday, 16 July 2011, some Ordine was missing.  Three nurses gave evidence of 7 mL being missing by 7:00pm on Saturday 16 July 2011 and there was no contradictory evidence.  It was not challenged that a quantity of 7 mL was still missing from the bottle at 7:00am on Sunday, 17 July 2011 and that by 10:00am on Sunday, 17 July 2011 the quantity of Ordine in the bottle was the same or slightly higher than the quantity recorded on the Drug Record Sheet.
  30. [77]
    The Tribunal found the evidence of Ms Medway to be both believable and credible.  Ms Medway was a very nervous witness who appeared to become quite confused but that is no reason to think that she was not telling the truth.  Her recollection as to the sequence of events had become hazy, though that is not surprising given the significant passage of time.
  31. [78]
    Ms Medway was prepared to make concessions where she could no longer precisely recall certain events.
  32. [79]
    The suggestion made in the course of cross-examination by Ms Laughlan that she did have some issues with Ms Laughlan was partially accepted by Ms Medway.  The Tribunal does not consider her evidence should be discounted by that admission.  That admission needs to be weighed against the veracity of the other evidence.
  33. [80]
    Soon after the events, Ms Medway had reported the incident and her evidence of that is corroborated by the evidence of RN Lao.  There is no reason to conclude that these events were reported as an act of vindictiveness by Ms Medway. 
  34. [81]
    Both Ms Laughlan and Ms Medway had worked at the Facility for a considerable period together and there was certainly no evidence of any recent occurrence which would have led Ms Medway to report such events, if they had not occurred.
  35. [82]
    On the other hand, Ms Laughlan has given a number of implausible explanations, seeking to blame others, in particular Ms Medway.  In giving her evidence surrounding these events, Ms Laughlan displayed a cavalier attitude, showing little regard to any systems for the management of dangerous drugs.  Her admitted action of throwing out the post-it-note and her responses to questions showed a complete disregard for any relevant processes at the time of this incident.  The Tribunal does not accept Ms Laughlan’s denial of having added water in order to top up the quantity of liquid morphine in the Ordine bottle of resident MD.

Taking and self-administering the morphine

  1. [83]
    Despite disbelieving Ms Laughlan in comparison with the other evidence (in particular the evidence of Ms Bhavsar and Ms Medway) that is not a sufficient basis for concluding that she had taken the morphine and/or had self-administered it.
  2. [84]
    There is no evidence relating to those allegations apart from the circumstance that Ms Laughlan was the person who had access to the dangerous drug cupboard during the period from 7:00am to 3:00pm on the Saturday.
  3. [85]
    The Tribunal does not accept the evidence of Ms Laughlan that during that period she had given the keys to Ms Medway.  Whilst the Tribunal does not accept that evidence and therefore there is no evidence of anyone else having access to the dangerous drug cupboard, the allegation that Ms Laughlan took the morphine and self-administered it is a very serious one and not an allegation the Tribunal should accept lightly.
  4. [86]
    Whilst the standard of proof is the civil standard, the Tribunal must be satisfied to the requisite standard referred to by Dixon J in Briginshaw v Briginshaw.[3]  Dixon J there said, “…“reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”[4]  In Rejfek v McElroy, the High Court said,  “[t]he “clarity” of the proof required… may vary according to the gravity of the fact to be proved.”[5]
  5. [87]
    In the matter of Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2), the Federal Court said:

When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found.  Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact.  Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court.  However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact to be proved.  The seriousness of an allegation is made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court.[6] 

  1. [88]
    There was no evidence supporting an allegation that Ms Laughlan had taken the morphine for her own purposes.  There was no suggestion that Ms Laughlan had a drug habit.
  2. [89]
    Whilst the Tribunal accepts that the quantity of morphine in the bottle was less than the Drug Record Sheet and that the quantity was replenished by the addition of water to the bottle, the Tribunal does not accept that the Drug Record Sheet is a reliable measure of the quantities of morphine in the bottle which were stored in the dangerous drug cupboard. 
  3. [90]
    There was no clear evidence before the Tribunal as to how the quantities in the bottle were properly measured.  There was some suggestion that the bottle had markers on the side but no detailed evidence given as to how the quantities were actually measured. 
  4. [91]
    It would seem that the nursing staff, including very experienced registered nurses, were reasonably casual about the accuracy of the information recorded on the Drug Record Sheet.  It seemed there was a view that the relevance of the sheet was to precisely record the quantity of the drug being given to a resident, rather than as a means of keeping a check on the quantities of Schedule 8 drugs in the dangerous drug cupboard.
  5. [92]
    The evidence as to what precisely happened and what measurements were made at the 3:00pm changeover each day was also not clear.  The Tribunal accepts the evidence of Ms Bhavsar as to what she noticed at 3:00pm on the Saturday but the Tribunal is not otherwise satisfied as to precise quantities in the bottle at any time prior to that.
  6. [93]
    In all the circumstances, the Tribunal finds the allegations in paragraphs 7, 8, 9 and 10 proven but not the allegations in paragraphs 5 and 6.

Categorisation of Conduct

  1. [94]
    There can be little doubt that the allegations against Ms Laughlan which the Tribunal has found proven amount to professional misconduct, as that term is defined in the National Law.  Professional misconduct is defined to include “unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.”
  2. [95]
    In particular, the finding that the registrant had diluted prescribed pain relief medication of a resident, to adopt the words of the registrant, is “inhumane”.  It places the patient at risk of harm and undermines the patient’s management. 
  3. [96]
    Ms Laughlan’s admitted conduct of failing to compare the amount of morphine recorded in a Drug Record Sheet against the actual amount of morphine in the bottle, of failing to document the discrepancy and report the discrepancy, of influencing a junior staff member not to report a discrepancy and of having thrown away a record recording the discrepancy, was in clear breach of the Code of Professional Conduct and the Code of Ethics.[7]  The registrant admits that conduct amounts to unsatisfactory professional performance.
  4. [97]
    When that conduct is considered with the more serious conduct of diluting medication, the overall conduct is clearly professional misconduct.

Sanction

  1. [98]
    In considering the issue of sanction, the guiding principle in the administration of the National Law is that the health and safety of the public are paramount.[8]  The jurisdiction is essentially protective rather than punitive.  Nevertheless, upholding the standards of the profession is a matter of relevance and the Tribunal must also be concerned with issues of general deterrence.[9] 
  2. [99]
    The Board submitted that the appropriate order for the Tribunal to make is that Ms Laughlan be reprimanded and that she be suspended for a period of between six to 12 months and, upon her return to work, undertake an education course on controlled medications. 
  3. [100]
    The Board submitted that it was in the interests of general deterrence to reinforce to the public the unacceptability of this type of conduct and to ensure public confidence in the nursing profession.
  4. [101]
    The Board acknowledged that some five years had passed since the offending behaviour.  Unfortunately, the delay in the Tribunal’s decision has resulted in that period now being some six years. 
  5. [102]
    The Board relied on the comments by the Chief Justice in Craig v Medical Board of South Australia, where the Chief Justice said:

But delay, and the fact that the practitioner may have had the matter hanging over the practitioner’s head for some time, has no real weight in deciding what the public interest requires.[10]

  1. [103]
    The Chief Justice acknowledged that the absence of any complaint during the period of delay might indicate that the public does not require protection from the practitioner. 
  2. [104]
    Here, the evidence is that immediately following the conduct, Ms Laughlan was suspended and subsequently resigned.  Ms Laughlan’s evidence was that she took “six months to get myself back together.”  She said in that period she was suffering from anorexia and depression but she is fine now.
  3. [105]
    Ms Laughlan has maintained her registration at all times.  For the last two years, she has been working full-time at Bethany Christian Care, half on the floor and half in the office.
  4. [106]
    As submitted by the Board, it is relevant that there has been no expression of remorse.  The Board further says there is no indication of action by Ms Laughlan to mitigate the risk of similar future conduct. 
  5. [107]
    Whilst the Tribunal does not accept the evidence of Ms Laughlan, there were times in giving her evidence where there appeared to be some reflection.  Ms Laughlan referred to the importance of ensuring the proper checking is done in performing the dangerous drug count.  Ms Laughlan spoke of the bad habits which had developed and the fact of just calculating the amount remaining off the numbers on the sheet.
  6. [108]
    It certainly appeared that there had been certain incidents at the Facility which had resulted in Ms Laughlan being apathetic and resentful.  It appeared that she had allowed those feelings to impact the way that she performed her duties as a registered nurse, which negatively impacted those for whom she was responsible.  Sadly, it would seem she has not reached a stage where she is able to accept responsibility for what occurred and is still seeking to blame others.
  7. [109]
    The Board referred in particular to previous decisions involving the Nursing and Midwifery Board of Australia in the cases of Mahon,[11] Lahey[12] and Mundy.[13]
  8. [110]
    Unfortunately, the facts in the cases of Lahey and Mundy are so different that they can provide little guidance to the Tribunal in determining appropriate sanction.  The Victorian Civil and Administrative Tribunal decision in Mahon, concerning a registrant who had stolen medication and self-prescribed, offers some guidance in terms of possible sanction, though that case is a more serious example of misconduct. 
  9. [111]
    The registrant in Mahon was a 71 year old registered nurse who had had a 40 year unblemished career.  The admitted conduct concerned the stealing of a vial of Morphine from her workplace in 2010 for self-administration for pain.  In 2011 she also stole between 4 and 6 Oxycontin tablets from a patient’s medication pack, replacing them with crystal tablets.  The registrant had been criminally charged and fined $500 with no conviction being recorded.  The registrant had not worked since the second offending and the evidence was that she did not intend to return to work. 
  10. [112]
    The Tribunal ordered the she be reprimanded and disqualified from applying for registration for a period of six months from the date of the Tribunal’s orders.  It was noted that the six month period would have been insufficient if the practitioner had not already not been practising for two and a half years before the hearing.
  11. [113]
    Independent searches for case authorities have not resulted in the identification of any particular authorities where the facts are sufficiently similar to provide a useful guide.  In many, like Mahon, the registrant’s conduct has resulted in the bringing of criminal charges.  While the police investigated the incidents at the Facility, no charges were ever laid.
  12. [114]
    In Health Ombudsman v Macdonald,[14] the registrant was a 63 year old registered nurse who had stolen 11 boxes of Seroquel, a Schedule 4 drug.  The Tribunal’s decision was based on a statement by the registrant that the drugs stolen were intended for her niece, whom she said could not afford them.  She said she intended to supply the full quantity at the one time. As the Tribunal commented, such action suggested an element approaching recklessness.  Whilst the conduct in question involved a single transgression, the Tribunal found the conduct included elements of both dishonesty and recklessness. The matter proceeded to hearing on the basis of an agreed position as to sanction and costs.  The registrant was suspended for six months and, by consent, ordered to pay the Health Ombudsman’s costs.  As the Tribunal noted that would have resulted in a “very heavy financial burden.”  The registrant, through immediate action, had conditions imposed on her registration for a 26 month period.  The registrant was charged with unlawful possession and placed on a good behaviour bond.  The charge of stealing was withdrawn at the request of her employer.
  13. [115]
    In all the circumstances, the Tribunal considers that the seriousness of the conduct of diluting medication does warrant a period of suspension, notwithstanding it appears the registrant has worked since these incidents without further complaint.  The Tribunal considers a suspension for a period of three months together with a reprimand is appropriate in the circumstances. 
  14. [116]
    The Tribunal considers that it is appropriate Ms Laughlan undertake an education course in dealing with controlled medication, and that course be undertaken either during the period of suspension or upon return to work.  The course should be completed within six months of the registrant’s return to work.

Costs

  1. [117]
    In making its oral submissions, the Board sought its costs.  Counsel for the Board stated, “one would imagine that in a case such as this, that it would be very difficult to suggest that they are not entitled to them if the factual findings are resolved in the Board’s favour.”  No submissions were made by the registrant in relation to costs.
  2. [118]
    The current proceedings were filed after the introduction of the Health Ombudsman Act 2013 (Qld) (HO Act).  Following the introduction of the HO Act, the previous unfettered discretion under the National Law afforded to the Tribunal to to award costs was removed.  The Tribunal’s power to award costs now falls under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  3. [119]
    The effect of the legislative change is that the parties must each pay their own costs unless “the interests of justice require”[15] the Tribunal to make a costs order against a party.
  4. [120]
    Subsequent to the hearing of this matter, the Court of Appeal in Medical Board of Australia v Wong,[16] in considering an appeal on the question of costs, described an order that each party pay their own costs as “the default position.”[17]  Following the decision in Wong, there have been more recent Tribunal decisions which have considered the language used in Wong.[18]
  5. [121]
    It is appropriate that the Board be given an opportunity to make further submissions as to why the interests of justice require that an order be made for costs in its favour.  Ms Laughlan should be given an opportunity to respond.

Orders

  1. [122]
    The Tribunal orders that:
    1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (National Law), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct;
    2. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded;
    3. Pursuant to s 196(2)(d) of the National Law, the respondent is suspended for a period of three months, which suspension will commence on 4 December 2017;
    4. Pursuant to s 196(2)(b)(i) of the National Law, the registration of the respondent shall be subject to the conditions set out in the attached schedule;
    5. Pursuant to s 196(3) of the National Law, the review period for the conditions is 12 months from the date hereof;
    6. Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions;
    7. The applicant is to file its submissions on costs by 4:00pm on 4 December 2017; and
    8. The respondent is to file her submissions on costs by 4:00pm on 18 December 2017.

Schedule of Conditions

Undertake education

  1. The Registrant 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, including the management of schedule 8 drugs.
  2. Within 28 days of the notice of the imposition of these conditions, the Registrant must nominate to the Board for approval, in writing, an education course, assessment or program (the education) addressing the topics required. The Registrant must ensure she provides with her nomination, as a minimum: 
  1. if a course of education is chosen, a copy of the curriculum;
  2. if the education is to be a tailored program conducted by an individual, the Registrant must provide a detailed plan of the training program and a copy of the curriculum vitae of the individual to provide the training.
  1. The Registrant must complete the education within 6 months of recommencing work after the end of the period of suspension.
  2. Within 28 days of the completion of the education, the Registrant is to provide:
  1. evidence of successful completion of the education; and
  2. a reflective practice report to the Board demonstrating, to the satisfaction of the Board, that the Registrant has reflected on the issues that gave rise to this condition and how the Registrant has incorporated the lessons learnt in the education into the Registrant's practice and confirmation that the Registrant has not included this education or the preparation of this written report to satisfy her continuing professional development requirements.
  1. The Registrant must not use the education and/or reflective practice report undertaken in compliance with these conditions to satisfy the Registrant's CPD requirements.

Other requirements

  1. An AHPRA Manager or Team Leader may approve the nominated education course in accordance with these conditions.
  2. All costs and expenses in relation to the terms set out in these conditions are to be at the Registrant's expense.
  3. The Registrant will provide to the Board any documentary evidence required by these conditions, within the timeframes specified.
  4. Failure to comply with these conditions may be a ground for health, conduct or performance action against the Registrant.

Review of Conditions

  1. The review period for these conditions is 12 months.

Footnotes

[1] Exhibit 3, Dangerous Drugs Record Sheet pg. no. 3104788.

[2] Agreed Bundle of Documents, p 35.

[3] (1938) 60 CLR 336.

[4] Ibid, 362.

[5] (1965) 112 CLR 517, 521-2.

[6] [2011] FCA 1123, [48].

[7] Code of Professional Conduct for Nurses in Australia; Code of Ethics for Nurses in Australia.

[8] National Law, s 3A.

[9] Medical Board of Australia v Jansz [2011] VCAT 1026, [367].

[10] (2001) 79 SASR 545, 556.

[11] Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403.

[12] Nursing and Midwifery Board of Australia v Lahey [2014] TASHPT 4.

[13] Nursing and Midwifery Board of Australia v Mundy [2012] SAHPT 5.

[14] Health Ombudsman v Macdonald [2016] QCAT 473.

[15] QCAT Act, s 102.

[16] [2017] QCA 42.

[17] Ibid, [35].

[18] Nursing and Midwifery Board of Australia v Morey [2017] QCAT 249; Nursing and Midwifery Board of Australia v Faulkner (No 2) [2017] QCAT 273; Medical Board of Australia v Azam (No 2) [2017] QCAT 206.

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v Laughlan

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v Laughlan

  • MNC:

    [2017] QCAT 388

  • Court:

    QCAT

  • Judge(s):

    Sheridan DP

  • Date:

    20 Nov 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123
2 citations
Jump To
Cite 1 - [2011] FCA 1123
Cite 2 - [2011] FCA 1123
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Craig v Medical Board of South Australia (2001) 79 SASR 545
2 citations
Jump To
Cite 1 - (2001) 79 SASR 545
Cite 2 - (2001) 79 SASR 545
Health Ombudsman v Macdonald [2016] QCAT 473
2 citations
Jump To
Cite 1 - [2016] QCAT 473
Cite 2 - [2016] QCAT 473
Medical Board of Australia v Azam (No 2) [2017] QCAT 206
1 citation
Jump To
Cite 1 - [2017] QCAT 206
Medical Board of Australia v Jansz [2011] VCAT 1026
2 citations
Jump To
Cite 1 - [2011] VCAT 1026
Cite 2 - [2011] VCAT 1026
Medical Board of Australia v Wong [2017] QCA 42
3 citations
Jump To
Cite 1 - [2017] QCA 42
Cite 2 - [2017] QCA 42
Cite 3 - [2017] QCA 42
Midwifery Board of Australia v Lahey [2014] TASHPT 4
2 citations
Jump To
Cite 1 - [2014] TASHPT 4
Cite 2 - [2014] TASHPT 4
Nursing and Midwifery Board of Australia v Karen Faulkner (No 2) [2017] QCAT 273
1 citation
Jump To
Cite 1 - [2017] QCAT 273
Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403
2 citations
Jump To
Cite 1 - [2014] VCAT 403
Cite 2 - [2014] VCAT 403
Nursing and Midwifery Board of Australia v Mundy [2012] SAHPT 5
2 citations
Jump To
Cite 1 - [2012] SAHPT 5
Cite 2 - [2012] SAHPT 5
Nursing and Midwifery Board of Australia v Simone Margaret Morey [2017] QCAT 249
1 citation
Jump To
Cite 1 - [2017] QCAT 249
Rejfek v McElroy (1965) 112 CLR 517
2 citations
Jump To
Cite 1 - (1965) 112 CLR 517
Cite 2 - (1965) 112 CLR 517

Cases Citing

Case NameFull CitationFrequency
Nursing and Midwifery Board of Australia v Laughlan (No.3) [2020] QCAT 3612 citations
1

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