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Nursing and Midwifery Board of Australia v Bates[2017] QCAT 479

Nursing and Midwifery Board of Australia v Bates[2017] QCAT 479

CITATION:

Nursing and Midwifery Board of Australia v Bates [2017] QCAT 479

PARTIES:

NURSING AND MIDWIFERY BOARD OF AUSTRALIA
(applicant)

v

STEPHANIE PATRICIA BATES
(respondent)

APPLICATION NUMBER:

OCR023-13

MATTER TYPE:

Occupational Regulation Matters

HEARING DATE:

23 and 24 November 2014

HEARD AT:

Brisbane

DECISION OF:

Judge Horneman-Wren SC DCJ
Assisted by Ms Justine Powell, Ms Barbara Soong and Mr Paul Murdoch

DELIVERED ON:

15 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Application dismissed
  2. The parties are to file and serve any submissions they wish to make with respect to costs within 14 days
  3. The issue of costs will be determined on the papers

CATCHWORDS:

OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – NURSE – DISCIPLINARY PROCEEDINGS – where the board has a reasonable belief that the respondent has behaved in a way that constitutes professional misconduct or, alternatively, unprofessional conduct  – whether the respondent directed another nurse verbally to administer a drug when she knew, or ought to have known, that no oral or written instruction to administer the drug had been given in accordance with s 175(1)(b) of the Health (Drugs and Poisons) Regulation 1996 – whether the respondent administered drugs on two occasions when not authorised or when contrary to accepted professional standards – whether the respondent administered a drug after refusal of an order on her request from a doctor – where there is unreliability of the alleged directed persons statement – where the Tribunal cannot be satisfied that the alleged verbal direction was made – where the Tribunal is satisfied that the respondent had authority to administer the drug on two separate occasions – where no grounds for disciplinary action have been established – where application is dismissed   

APPEARANCES:

APPLICANT:

Mr R Dickson of counsel, instructed by Rogers Barnes and Green, Lawyers

RESPONDENT:

Mr G Rebetzke of counsel, instructed by Roberts & Kane, solicitors

REASONS FOR DECISION

  1. [1]
    On 21 January 2013 the Nursing and Midwifery Board of Australia filed in the Tribunal an application for disciplinary action to be taken against Ms Stephanie Patricia Bates pursuant to s 193(1)(a) of the Health Practitioner Regulation National Law Act 2009 because the Board reasonably believed that Ms Bates had behaved in a way that constitutes professional misconduct or, alternatively, unprofessional conduct.
  2. [2]
    The application set out the facts and circumstances giving rise to the ground for disciplinary action in three paragraphs.  Those facts and circumstances will in these reasons be referred to as, respectively, grounds 1, 2 and 3.
  3. [3]
    The three grounds concern events involving Ms Bates during a rostered shift at the Intensive Care Unit of Logan Hospital on 6 August 2010.  The allegations centre upon the administration of the restricted drug Midazolam to a patient during, and shortly following, his extubation in the Intensive Care Unit.
  4. [4]
    The Board’s first ground is that Ms Bates “verbally directed” Ms Smith[1]  to administer Midazolam 2mg to the patient between 4.30 pm and 6.30 pm when Ms Bates knew, or ought to have known, that no oral or written instruction to administer the drug had been given in accordance with s 175(1)(b) of the Health (Drugs and Poisons) Regulation 1996 by, relevantly, a doctor, and/or when it was contrary to accepted professional standards.
  5. [5]
    The second ground is that Ms Bates herself administered 5 mg of Midazolam at 6.55 pm and 7.00 pm when not authorised to do so, there being no doctor’s order to administer it and or it being contrary to accepted professional standards.
  6. [6]
    The third ground is that the circumstances concerning Ms Bates administration of Midazolam, as alleged in ground 2, followed a refusal by Dr Cohen to issue such an order on her request at or about 3.30 pm that day.

The Patient’s Circumstances

  1. [7]
    The patient had suffered from cardiac arrest and was brain damaged. An endotracheal tube and ventilator assisted the patient’s breathing.  At approximately 3.00 pm on 6 August 2010 a meeting was held with medical staff and the patient’s family.  Whether Ms Bates was present at this meeting is unclear. She, for her part, contends that she was.[2]  What is apparent from Dr Sane’s and Dr Vohra’s affidavit material[3] is that it was determined that after the patient’s family had said their goodbyes the endotracheal tube would be removed.

A request for a Midazolam Order?

  1. [8]
    A discussion took place between Ms Bates and Dr Cohen, a resident doctor, sometime between 3.30 pm and 4.30 pm[4] concerning the patient’s medication.  The evidence of there having been a discussion which involved Ms Bates requesting an order for Midazolam comes from Ms Smith.  Ms Smith says that she heard such a request and that Dr Cohen responded that he was not comfortable ordering a sedative for a patient with a brain injury.  She says there was further explanation provided by Dr Cohen as to why he would not order Midazolam.  Following this explanation Ms Smith says that Ms Bates said words to the effect of “doctors don’t know what they are doing in this place”, after which she slammed the patient’s bedside folder on the table.  Ms Smith says that Dr Cohen then looked at her (Ms Smith) and said words to the effect of “Oh my god”.[5]
  2. [9]
    Ms Bates contends that the conversation with Dr Cohen related specifically to an increase in the dosage of morphine which was then currently prescribed and that at no stage did Dr Cohen mention Midazolam to her, and at no stage did she mention Midazolam to him.[6]  She does not recall Ms Smith being present when that discussion took place.
  3. [10]
    What is clear is Ms Bates was of the view that the current morphine medication provided to the patient, as it stood, was not sufficient to maintain the patient’s comfort levels.[7]  It was Dr Cohen’s view that he was not comfortable with prescribing higher doses of morphine to the patient as “outward manifestations of pain could themselves represent a component of neurological recovery”.[8]
  4. [11]
    Dr Cohen said in his affidavit that at the time of his discussion with Ms Bates, “the plan was to assess the patient for signs of recovery, not palliate the patient”, but conceded, in cross examination, that this was inconsistent with Dr Sane’s note following the family meeting that suggested a plan to palliate the patient.[9]
  5. [12]
    Dr Cohen cannot recall an order for Midazolam being requested but states that, had it been asked for, he would not have consented on the same basis as denying the increase in morphine.[10]  When put to Dr Cohen that his being unable to recall was due to Ms Bates, in fact, never having asked for an order for Midazolam, his frank response was, “Yep.  That could – that’s perfectly possible”.[11]
  6. [13]
    On 11 August 2010 Dr Cohen sent an email regarding this discussion to the Nurse Unit Manager of the ICU, Kelly Sosnowski, in which he set out facts similar to those in his affidavit.  No mention was made in this email of Midazolam.  The email only referred to a disagreement between Dr Cohen and Ms Bates as to the amount of morphine that should be prescribed.[12]  The email also makes mention of the “charge nurse” becoming involved, that being a reference to Ms Smith, when the “nurse in question”, Ms Bates, was not satisfied with Dr Cohen’s decision.
  7. [14]
    In respect of Ms Smith’s evidence that Ms Bates in her discussion with Dr Cohen also sought an order for Midazolam, a similar statement was made by her in a statement given to hospital investigators on 28 February 2011.  In that statement, in recalling the conversation between Ms Bates and Dr Cohen, Ms Smith said “Stephanie disagreed with Dr Cohen’s rationale for not ordering Midazolam”.[13]
  8. [15]
    In cross-examination, however, Ms Smith accepted that in an earlier statement attached to an email sent to Ms Sosnowski in 10 August 2010, she did not state that Dr Cohen had refused a request for Midazolam for Ms Bates.
  9. [16]
    Ms Smith’s affidavit also made mention of Dr Vohra and Ms O'Brien being present in the nurse’s station although not parties to the conversation.[14]  In cross-examination Ms Smith believed that they were at “the other end of the nurse’s station so it is quite a long nurses’ station.  I am not sure if they were privy to that conversation”.[15]  Neither Dr Vohra nor Ms O'Brien made mention of being present or overhearing the particular conversation in their evidence.
  10. [17]
    The evidence overall does not support a finding that Ms Bates requested an order of Midazolam from Dr Cohen on the afternoon of 6 August 2010, or that there was a discussion about Midazolam on that occasion. 
  11. [18]
    Neither of the most contemporaneous records, being the email of Dr Cohen to Kelly Sosnowski and the statement of Ms Smith provided to Ms Sosnowski, make mention of any request for Midazolam.  Dr Cohen frankly states that he cannot recall if Ms Bates asked for a Midazolam.  By contrast, Dr Cohen remembers clearly, and recorded in his email, the detailed discussions concerning morphine.  If events had occurred as set out by Ms Smith in her affidavit, including his reaction to them, it is unlikely that Dr Cohen would not later recall them.
  12. [19]
    The consequence of this finding is that the third of the grounds in the referral cannot be made out, no matter what the finding is in respect of ground 2.  That is, even if it were to be found that Ms Bates did administer Midazolam to the patient without authorisation, it cannot be found that she did so after Dr Cohen had refused a verbal request from her for a midazolam order earlier that afternoon.

The extubation of the patient

  1. [20]
    At approximately 6.00 pm to 6.30 pm Ms Bates indicated to Ms Smith that extubation of the patient was ready to proceed.  Both nurses were involved in the extubation process.
  2. [21]
    A kidney dish in which sat two syringes, one containing morphine and the other containing Midazolam, was in the room.
  3. [22]
    The evidence concerning how those two, drawn up, syringes came to be in the kidney dish is unclear.  Ms Bates in her affidavit said that immediately prior to the extubation she walked into the patient’s room and Ms Bates pointed to, then picked up, the kidney dish handing it Ms Smith saying “here is the morph midaz 10 in 10”.[16]  Ms Smith assumed from that statement that Ms Bates had prepared a 10 mg syringe of morphine and a 10 mg syringe of Midazolam.  Ms Smith says she knew that there was an order for morphine.  She says also that she was aware that there had been discussion earlier in the afternoon with Dr Cohen about an order for Midazolam and did not ask Ms Bates if there had been an order for it assuming that there had been.[17]  That, however, is a reference to the discussion which the Tribunal does not accept as having occurred.  Ms Smith was not cross-examined in respect of her statement that Ms Bates had handed the dish saying “here is the midaz, 10 in 10”.  Ms Bates, however, denied both having handed Ms Smith the kidney dish and having said those words.[18]
  4. [23]
    Ms Bates’ evidence concerning the preparation of the two syringes which were in the kidney dish was that the morphine had been obtained by the person who had checked it and got it out of the drug room.[19]  As to the Midazolam, she did not know how it ended up in the room.  She said that occasionally ampoules of drugs can be left over from previous patients.  She also speculated that someone on shift earlier in the day may have grabbed an ampoule of Midazolam in case somebody needed it.  These explanations seems improbable.  Nonetheless, her evidence was that having found the ampoule of Midazolam in the room she drew it up, labelled it, and put it in the kidney dish.  She knew that Ms Smith had the kidney dish containing the syringes with the two drugs on the bench in the room during the extubation. 
  5. [24]
    That evidence was elicited from questions asked by the tribunal.  Ms Bates had earlier said in cross-examination that it was Ms Smith who had obtained the morphine from the dangerous drug cupboard in the drug room and brought it into the patient’s room and that she was “pretty sure” that it was herself (Ms Bates) who prepared it.[20]
  6. [25]
    Although the precise circumstances in which the drugs were prepared, and by whom, is unclear, the evidence, particularly that of Ms Bates herself, establishes that it was her actions in drawing up the Midazolam into the syringe and placing it in the kidney dish which caused the Midazolam to be available to be administered when the extubation took place; even if it was not drawn up by her with the intention to make it available for that purpose. 

The Patient is extubated and Morphine and Midazolam are administered

  1. [26]
    The process of extubation is such that one nurse, in this case Ms Bates, had the responsibility of removing the endotracheal tube, whilst the second nurse, Ms Smith, had the responsibility of administering medications.  The process also involves the deflation of a balloon that, whilst inflated in the airways, secures the tube in the mouth.  Deflation of the balloon was part of Ms Bates responsibilities.
  2. [27]
    Ms Smith’s evidence is that morphine and Midazolam are medications which are commonly used during the extubation of a patient.[21]  This seems uncontroversial.
  3. [28]
    On Ms Smith’s account, after she was handed the kidney dish containing medications, she placed the dish on the patient’s bed near his head so that it would not fall off the bed.[22]  She assumed her position on the right hand side of the bed (viewed from the foot of the bed).  She says that she then administered a small dose of medication via the central venous line, although she cannot recall which medication was administered initially.
  4. [29]
    To this point, the only possible verbal direction which Ms Bates could have given Ms Smith to administer Midazolam to the patient was the statement attributed to her by Ms Smith at the time of passing Ms Smith’s kidney dish of “here’s the morph midaz, 10 in 10”.
  5. [30]
    Ms Smith then described the process which Ms Bates undertook to extubate the patient.  She describes Ms Bates beginning to remove the tube from the patient’s airway, but that before Ms Bates was able to remove the tube the patient clamped down on it with his teeth, preventing her from removing it.[23]
  6. [31]
    Ms Smith says that at this point Ms Bates said to her words to the effect of “give him more”, which she understood to be a reference to giving the patient more morphine.  Ms Smith says that she then administered a further does of medication.  She cannot recall which medication, or what dose.[24]  She says that Ms Bates was then able to remove the tube[25], although the patient commenced Cheyne stoking, which is an abnormal breathing pattern, and frothing at the mouth.  The patient’s condition was apparently distressing to his family members who were present.  At this stage Ms Smith says that Ms Bates told her to “get me some more morph and midaz now”.[26]
  7. [32]
    Ms Smith then left the patient’s room and went toward the secure treatment room where the controlled and restricted medications were kept.  On the way she enlisted the assistance of another nurse, Ms O'Brien.  She says that she and Ms O'Brien then went to the treatment room and signed out another 10 mg of morphine and another 10 mg of Midazolam.  It was Ms Smith who drew the medications up into syringes and Ms O'Brien who checked them and signed the drug register.[27]  Ms Smith says that at this point Ms Bates came to the treatment room and said “how long does it fucking take”.  She says that Ms Bates then entered the treatment room taking the two syringes containing morphine and Midazolam from Ms Smith’s hands and directing her to make up a further syringe of morphine.[28]
  8. [33]
    Ms Smith says that after Ms Bates left she determined that it would be more appropriate to prepare a morphine infusion rather than another 10 mg syringe.[29]
  9. [34]
    Ms Smith says that she began to draw up the morphine infusion as Ms Bates left.[30]  That is inconsistent with her evidence that she only determined that it would be more appropriate to prepare a morphine infusion after Ms Bates left the treatment room.
  10. [35]
    She says that as she was completing drawing up the morphine infusion Ms Bates returned to the treatment room and said “fucking hurry up”, to which Ms O'Brien had responded “we’re going as fast as we can”.  Ms Bates is then said to have said “it doesn’t take that long to make up fucking morphine”.  Ms Smith says that at that time she assumed that Ms Bates must have already administered the second syringes of morphine and Midazolam to the patient.[31]
  11. [36]
    On Ms Smith’s account, she gave the morphine infusion to another nurse, Mr Kevin Smith, who happened to have come in to the treatment room for an unrelated reason.[32]  Ms Smith says that she and Ms O'Brien then walked towards the patient’s bed to sign for medication and at that point, upon looking at the medication chart, realised that there was no order for the Midazolam.[33]
  12. [37]
    She says that following this realisation she went and spoke with Dr Vohra and explained to him that Midazolam had been administered to the patient during extubation and that there did not appear to be an order for it.  Dr Vohra is said to have responded that he did not know that the patient was being extubated, and nor did he know that Midazolam had been administered.  Ms Smith says that she asked Dr Vohra to review the patient’s situation as soon as possible.  She says that Dr Vohra then walked towards the patient’s room.[34]
  13. [38]
    Ms Smith says that she spoke to Dr Vohra shortly afterwards and he indicated that he was going to telephone Dr Sane to discuss the issue.[35]
  14. [39]
    Ms Smith’s affidavit provides little evidence of the timing of these events, although she says it was between 4.30 pm and 5.00 pm that Ms Bates first approached her and informed her that they were going to extubate the patient.  Ms Smith’s affidavit suggests that the extubation commenced shortly thereafter.[36]  When cross-examined about the timing of events, Ms Smith indicated that the timing as set out in her affidavit was taken from notes which she had written at the time of the events, but that she could not then, when giving evidence, recall exactly what time the events took place.[37]
  15. [40]
    Ms Bates in her evidence has events around the extubation commencing at 6.20 pm, the patient’s family having been informed at 6.00 pm.
  16. [41]
    Ms Bates deposes to having disconnected the tube from the ventilator and having commenced to pull the tube out after the balloon had deflated.  She says that as she did so the patient bit down on the tube and opened his eyes.  It was then that Ms Bates says that she asked Ms Smith to give the patient some morphine from the syringe which was drawn up and which was in the kidney dish together with the syringe of Midazolam.  She says that the kidney dish was, at that stage, still on the bench in the patient’s room.  She says that Ms Smith brought the kidney dish to the bedside and administered the morphine in a number of increments.  Ms Bates says that the morphine was having little effect upon the patient, who was still clamping down on the tube.[38]  She says that following that Ms Smith administered the Midazolam.  Then, still unable to remove the tube, she asked Ms Smith to get some more morphine.[39]
  17. [42]
    On Ms Bates’ account, Ms Smith then left the patient’s room.  Because Ms Smith seemed to be taking a long time, and because the patient was distressed, Ms Bates says that she decided to leave the patient’s room and saw Ms Smith and Ms O'Brien checking out the morphine.  She asked them to hurry up as she needed the morphine quickly.  After they drew up the morphine they handed it to Ms Bates who says she administered 5 mg at 6.40 pm at which time she removed the tube and placed oxygen prongs on the patient.  She deposes to having administered a further 5 mg of morphine at 6.45 pm.[40]
  18. [43]
    Ms Bates says that as she was administering the second dose of morphine she noticed Dr Vohra standing at the desk just outside the patient’s room.  She approached him and told him of the circumstances around the patient’s extubation, that the patient had been given Midazolam, and asked Dr Vohra to write up an order for Midazolam.  Dr Vohra then looked at the patient from the doorway of the room and wrote up an order for Midazolam.[41]
  19. [44]
    Ms Bates then administered morphine at 6.50 pm and Midazolam at 6.55 pm and 7.00 pm.[42]
  20. [45]
    Ms O'Brien deposes in her affidavit to being approached by Ms Smith at the nurses station about 6.40 to 6.45 pm, who directed Ms O'Brien to come with her to the dangerous drug room to draw up morphine and Midazolam.[43]  When in the secure room Ms Bates entered the room and said words to the effect “hurry up with the fucking morphine”.[44]
  21. [46]
    She recalls that either herself or Ms Smith was holding the syringe of morphine which Ms Bates then took.[45]  She does not recall if the Midazolam had been prepared or if Ms Bates took it when she took the morphine.[46]  Ms O'Brien says that she and Ms Smith remained in the secure room and that Ms Smith directed her to take another 10 mg of morphine out of the drug cupboard and to meet her outside the patient’s room.  Ms Smith then left the secure room.[47] 
  22. [47]
    Ms O'Brien then met Ms Smith at the desk outside the patient’s room.[48]  She says that Ms Bates then came out of the patient’s room and said something like “hurry up with the fucking morphine”.[49]  Again, she recalls Ms Bates taking the syringe of morphine, but not from whom.  Ms Bates then walked back into the patient’s room.[50]
  23. [48]
    She recalls then being directed, perhaps by Ms Smith, to prepare a morphine infusion which she did with Ms Smith back in the secure room.  She and Ms Smith gave the morphine infusion to Mr Smith and directed him to give it to Ms Bates.[51]
  24. [49]
    Ms O'Brien then emailed her supervisor, Ms Sosnowski, about Ms Bates’ behaviour.[52]  That email was sent at 6.54 pm.[53]

Did Ms Bates give a verbal direction for the administration of Midazolam?

  1. [50]
    In its submissions, the Board identifies a number of bases upon which it relies to establish that ground 1 has been made out: that Ms Bates gave a verbal direction for the administration of Midazolam when she knew or ought to have known that there was no written instruction to do so.
  2. [51]
    The first is the statement attributed to Ms Bates that she said to Ms Smith “here is the morph midaz, 10 in 10” when handing Ms Smith the kidney dish containing a syringe of each of morphine and Midazolam.
  3. [52]
    The second is that Ms Bates said to Ms Smith words to the effect of “give him more”, which the Board submits “is a direction sufficiently broad to encompass both administration of morphine and administration of Midazolam”.[54]
  4. [53]
    The third is that Ms Bates said to Ms Smith “get me some more morphine midaz now”.  The Board submits that this statement attributed to Ms Bates “is indicative that at least the Midazolam which was in a syringe within the kidney dish when the dish was given by the respondent to Ms Smith had been used up or was about to be used up such that more was called for by the respondent”.[55]
  5. [54]
    The Board submits that Ms Bates herself administered the second syringe of Midazolam, which Ms Smith says Ms Bates took from her.[56]
  6. [55]
    The fourth basis upon which the Board seeks to establish ground 1 is Ms Bates evidence given in the hearing which is recorded at p 2-58 of the transcript.  The Board submits “the effect of the evidence … is of a direction to Ms Smith”.[57]  The aspects of that evidence upon which the Board relies are:

“(a) somehow the respondent came to find Midazolam in room 7 or close to it;

  1. (b)
    the respondent elected to prepare the Midazolam for use in the exhubation [sic];
  1. (c)
    the respondent knew the Midazolam was in a syringe in a kidney dish with the morphine;
  1. (d)
    the respondent has self-labelled the Midazolam syringe;
  1. (e)
    the kidney dish was for use by Ms Smith;
  1. (f)
    the respondent directed Ms Smith when medication was to be given;
  1. (g)
    the respondent knew that in her presence the actual injection of Midazolam did occur;
  1. (h)
    the respondent did not tell Ms Smith not to use the Midazolam.”
  1. [56]
    Each of these four bases, in order to be established, require an acceptance of the evidence of Ms Smith, and a preference of her evidence over that of Ms Bates.  The Tribunal has concluded that the evidence of Ms Bates concerning the relevant events is more reliable than that of Ms Smith. 
  1. [57]
    In reaching this conclusion, the Tribunal has been mindful of the fact that the burden of proof rests upon the Board to establish its case against Ms Bates on the balance of probabilities.  The Tribunal also has been mindful of the statement of the Court of Appeal in Ooi v Medical Board of Queensland,[58] that proceedings such as these are “sui generis in which the standard of proof varies according to the gravity of the fact to be proved”.  By that statement the Tribunal does not understand the Court of Appeal to have been suggesting a standard of proof other than the civil standard.  That is clear from the court’s reasons.  Rather, the Tribunal understands the court to have been stating that a Tribunal of fact in determining whether it has been satisfied of an allegation on the balance of probabilities will, in applying that standard, consider, amongst other things, the seriousness of the allegation and the gravity of the consequences flowing from a finding that the allegation has been proved.[59]
  1. [58]
    In that regard, the Board referred in its submissions to what was said by the plurality of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[60].  The Tribunal does not understand anything said there by their Honours, and particularly that in some circumstances such as the case with which the court was there dealing, in which “generalisations about the need for clear and cogent evidence to prove matters of gravity of fraud or crime are, even when understand as not directed to the standard of proof, likely to be unhelpful and even misleading”, to in anyway detract from the application of the civil standard of proof in the way already described in a case such as this.
  1. [59]
    It is convenient to deal with the various bases relied upon by the Board in respect of ground 1 in the reverse order of how they are listed above.
  1. [60]
    The fourth basis identified by the Board faces the immediate difficulty that none of the identified conduct includes any verbal statement, let alone direction, by Ms Bates. 
  1. [61]
    The charge brought against Ms Bates in ground 1 of the referral is not one of having facilitated the administration of Midazolam.  Nor is it that she failed to direct Ms Smith not to administer that drug.  The charge is that she gave a verbal direction to Ms Smith to do so. 
  1. [62]
    Recognition that none of the identified conduct establishes the charge is evident from the Board’s submission that, even in combination, “the effect of the evidence … is of a direction” having been given to Ms Smith.
  1. [63]
    Furthermore, the particular aspect of the alleged conduct identified in paragraph 31(f), that Ms Bates “directed Ms Smith when medication was to be given”, is not evidence which Ms Bates gave in the passage relied upon.  To the contrary, Ms Bates said of Ms Smith “she had administered some morphine”, without in anyway suggesting that she, herself, had directed Ms Smith as to when that was to be given.  Ms Bates’ evidence in that regard is consistent with what Ms Smith herself said at paragraph 14 of her affidavit where she refers to her first administration of medication during the extubation.  Ms Smith refers to administering a small dose of medication, although she cannot recall whether morphine or Midazolam.  She does not refer to Ms Bates having given her any direction as to when to do so.
  1. [64]
    For these reasons, the Tribunal is not satisfied that the fourth basis identified by the Board has been made out.
  1. [65]
    The third basis identified by the Board is Ms Bates having allegedly said to Ms Smith “get me more morph and midaz now”.  Again, even if it were accepted that this statement was made by Ms Bates, it is not a direction to administer Midazolam.  It is perhaps in recognition of that fact that the Board frames its submission as being “indicative at least the Midazolam …had been used up or was about to be used up”.
  1. [66]
    In the tribunal’s view, that statement, if it had been made by Ms Bates, could not, of itself, be found to have been a verbal direction by her to Ms Smith to administer Midazolam.
  1. [67]
    However, the Tribunal is not satisfied that Ms Bates did make that statement attributed to her by Ms Smith.  Although Ms O'Brien in her affidavit refers to Ms Smith having directed her to assist to draw up some morphine and Midazolam, which would be consistent with Ms Bates having directed Ms Smith to get more of both drugs, it would be as consistent with Ms Smith herself deciding to draw up more of both drugs, each having recently been administered by her, albeit in a mistaken belief that the administration of each was supported by an extant order.
  1. [68]
    Ms Bates says that she only asked Ms Smith to go and get more morphine and that she did not mention Midazolam.  That is consistent with Ms O'Brien’s evidence.  Ms O'Brien says that when Ms Bates came to the secure room she said “hurry up with the fucking morphine”.  On Ms O'Brien’s account, Midazolam was not mentioned by Ms Bates.  This suggests, consistently with Ms Bates’ evidence, that she had sent Ms Smith for more morphine only.  Ms O'Brien’s recollection that Ms Bates only asked after morphine is supported by her contemporaneous note of the events.
  1. [69]
    Furthermore, although Ms O'Brien referred in her affidavit to Ms Smith asking her to assist with drawing up both morphine and Midazolam, in her contemporaneous note made at 9.00 pm on the night in question, Ms O'Brien said Ms Smith “came out of the room after they extubated the patient and grabbed me quickly to get 10 mg of morphine from the dangerous drug cupboard for the dying patient”.[61]
  1. [70]
    That account is consistent with Ms Bates version of events and with Ms Bates later asking, or telling, Ms Smith and Ms O'Brien to hurry up with the preparation of morphine; as Ms O'Brien recalls.
  1. [71]
    There is other evidence which suggests that Ms Smith’s recollection of events may not be reliable.
  1. [72]
    Ms Smith’s evidence is that she went to Dr Vohra and reported the fact that Midazolam had been administered to the patient without there being an order for it in place.  Dr Vohra’s evidence, however, is that it was Ms Bates who informed him that the patient had been administered Midazolom and who asked for an order to regularise the administration.  In his affidavit he makes no mention of Ms Smith having approached him or having so informed him.  Consistent with his affidavit, his evidence at the hearing establishes that he spoke only to Ms Bates about the issue.  In cross-examination he was clear that it was Ms Bates who told him.[62]  It was only in re-examination that he expressed any reservation when he said it was “likely” Ms Bates.[63]  He also said he thought that he was asked by only one nurse to write an order for Midazolam.
  1. [73]
    From that evidence it should be found that it was Ms Bates, and only Ms Bates, who discussed with Dr Vohra that during the extubation of the patient there had been an unauthorised administration of Midazolam. 
  1. [74]
    Ms Bates’ evidence is to be preferred to that of Ms Smith.  Ms Bates did not direct Ms Smith to prepare more Midazolam.
  1. [75]
    The second basis identified by the Board to support ground 1 is that Ms Bates, in the course of the extubation, said to Ms Smith “give him more”.  The contention that this statement was a verbal direction to Ms Smith to administer Midazolom should also be rejected.
  1. [76]
    Ms Bates accepts that she said words to the effect of “the patient requires more morphine”.[64]  Although Ms Smith does not say that Ms Bates specified morphine when she said “give him more”, her evidence is that this is what she understood Ms Bates to have meant. 
  1. [77]
    On that evidence, it could not be found that by the statement which Ms Smith says Ms Bates made she was being directed to administer Midazolam.
  1. [78]
    The first basis upon which the Board refers is, on the evidence, the most contentious.  It is that Ms Bates handed Ms Smith the kidney dish saying “here is the morph midaz, 10 in 10”.
  1. [79]
    It was certainly through Ms Bates’ actions that the syringe containing Midazolam was in the kidney dish.  The circumstances by which that came about might be considered unsatisfactory.  The presence of the syringe of Midazolam in the kidney dish put in place the circumstance by which it may have come to be administered during the extubation.  But it did not amount to a direction to do so.
  1. [80]
    The unreliability of Ms Smith’s evidence for reasons already discussed, and the resultant preference for Ms Bates’ evidence, taken with the fact that all Ms Bates’ subsequent statements as to the patient’s requirements for medication referred to morphine, and in the case of “give him more” was understood by Ms Smith to be in reference to morphine, leave the Tribunal not to be satisfied that the statement alleged was made.
  1. [81]
    Therefore, none of the bases identified by the Board as proving ground 1 have been established.  The referral in respect of ground 1 must be dismissed.

Unauthorised administration of Midazolom by Ms Bates?

  1. [82]
    Ground 2 of the referral alleges that Ms Bates twice administered Midazolam to the patient when not authorised to do so by either an oral or written instruction.  The two administrations were at 6.55 pm and 7.00 pm.
  1. [83]
    It is the tribunal’s conclusion that the administrations of Midazolam at those times were authorised by the order of Dr Vohra. 
  1. [84]
    Although Ms Bates had asked Dr Vohra for a retrospective order to authorise the earlier administration of Midazolam during extubation, Dr Vohra wrote the order in the PRN prescriptions for the patient in his chart rather than the once only prescriptions.  Had it been recorded in the latter, only the previously given Midazolam would have been authorised.  The writing of the order in the PRN chart also authorised future doses to be given in accordance with the order.  Nursing staff would then be entitled, within their scope of practice, to assess whether there was a need for administration of Midazolam in the circumstances.[65]
  1. [85]
    At some point Dr Vohra specified a frequency for the administration as being hourly, however, he said in evidence that when first he wrote the order he only specified the dosage, 5 mg, and that the frequency was recorded at a later time.[66] 
  1. [86]
    Dr Vohra subsequently revoked the continuing order for Midazolam after having spoken to Dr Sane, the Intensive Care Unit Consultant.  However, the evidence establishes that the revocation would have occurred after the administrations of Midazolam by Ms Bates at 6.55 pm and 7.00 pm.  Dr Sane’s evidence was that he received a call from Dr Vohra at approximately 7.00 pm.[67]  It was only after the telephone conversation that Dr Vohra revoked the order.[68]
  1. [87]
    There is other evidence which establishes that the two administrations of Midazolam by Ms Bates occurred subsequent to Dr Vohra having given the prospective order authorising such administration.
  1. [88]
    Both Dr Vohra and Ms Bates gave evidence of there having been a separate conversation between them about the prescription of another drug, Hyoscine.  The timing of that conversation places each of the administrations of Midazolam by Ms Bates as having occurred after the Midazolam order was made by Dr Vohra, and before that order was revoked by him following his telephone conversation with Dr Sane which commenced at about 7.00 pm.
  1. [89]
    In his first affidavit, Dr Vohra says that soon after having been informed by Ms Bates that the patient had received two doses of Midazolam during extubation he looked at the patient’s chart and saw that the patient had received the 6.55 pm and 7.00 pm doses.  His affidavit suggests that he understood those to have been the two doses administered during extubation.[69]  He says that he then signed the order.
  1. [90]
    However, in a subsequent affidavit, Dr Vohra said that he could not then recall if the two entries to the right of the order for Midazolam recorded on the drug chart, being the 6.55 pm and 7.00 pm doses, were written before or after he wrote the order.  He does say, though, that it was his understanding from his discussion with Ms Bates that he was being asked to write an order for Midazolam that had already been administered to the patient.[70]  That is not inconsistent with there being no entries on the drug chart at the time of his writing the order. 
  1. [91]
    Dr Vohra goes on to say in his second Affidavit that he recalled that the discussion with Ms Bates about Hyoscine and his order for that drug both occurred after he had made the order for Midazolam.[71]  In his oral evidence he said it was “almost certainly” that the Hyoscine order was after the discussion about Midazolam.[72]
  1. [92]
    From Dr Vohra’s order for Hyoscine on the drug chart it is apparent that he signed that order at either 6.45 or 6.48 pm.[73]
  1. [93]
    Therefore, if the Hyoscine order was signed, at the latest, at 6.48 pm, and the discussion about Midazolam and the prospective order for it was made earlier, the inevitable conclusion is that the Midazolam order had been made, and not revoked, prior to those two administrations.  As already noted, Dr Vohra’s evidence was that the original entry may not have specified a frequency.
  1. [94]
    All of that is also consistent with Ms Bates’ evidence that the extubation was over at 6.40 pm.
  1. [95]
    For those reasons, ground 2 of the referral has not been established.

Ground 3

  1. [96]
    As already discussed, no matter what the finding in respect of ground 2, ground 3 cannot be established.

Other matters

  1. [97]
    Although the referral only alleged that Ms Bates’ conduct, if proven, constituted professional misconduct or, alternatively, unprofessional conduct, there being no further alternative allegation that it constituted unsatisfactory professional performance, the Board’s submissions left open such a finding.[74]
  1. [98]
    Ms Bates submits that an allegation of unsatisfactory professional performance was not part of the case brought against her and that the Tribunal should not consider it.[75]  She refers to the legislative requirements for a respondent to disciplinary proceedings to be given notice of the grounds for the Tribunal making a disciplinary decision, and that the hearing notice provided to her indicates that the purpose of the hearing is “to decide the application”, which application does not nominate unsatisfactory professional performance as a ground.[76]
  1. [99]
    Whilst the Tribunal is inclined, as a matter of law, to accept the submissions on behalf of Ms Bates, we find it unnecessary to determine that issue.  It is unnecessary because we would not find, as a matter of fact, that any conduct of Ms Bates constituted unsatisfactory professional performance.
  1. [100]
    The conduct of Ms Bates which could be commented upon adversely is that of which mention has already been made: her having put in place the circumstances whereby the patient may have been administered Midazolam during extubation.  Those circumstances arose through her having drawn up the initial dose of the drug –her explanation for doing so being unsatisfactory.  She also failed to inform Ms Smith of the absence of an order for Midazolam at the time Ms Smith administered the drug.
  1. [101]
    However, that conduct must be viewed in the context of the extubation being conducted with 14 people, being relatives or friends of the patient, being present in the room who were distressed by what was occurring,[77] and Ms Bates’ evidence that this occurred at a “critical juncture”, in a “pretty drastic situation”.[78]
  1. [102]
    Her conduct must also be viewed in light of the fact that it was she who brought the administration of the Midazolam to the attention of Dr Vohra and arranged for an order retrospectively to authorise it; not Ms Smith who had actually administered it.  She also documented all the drugs which she administered, whereas Ms Smith did not do so, even though she knew that she ought to have.[79]  It is also relevant in considering that conduct that Dr Vohra did, albeit with some reluctance, authorise the administration of the Midazolam which had taken place and, indeed, further doses which were given subsequent to his order being made.
  1. [103]
    For those reasons, even if it were appropriate for the Tribunal to consider making a finding of unsatisfactory professional performance in the absence of an allegation of such in the grounds stated in the referral, the Tribunal would not make such a finding.

Disposition

  1. [104]
    No grounds for disciplinary action having been established, the application is dismissed.
  1. [105]
    The parties are to file any submissions which they wish to make on costs within 14 days.  The issue of costs will be decided on the papers.

Footnotes

[1]Ms Smith is variously referred to in the evidence as Ms Smith, Ms Marr-Smith and Team Leader or TL Marr.  In these reasons, Ms Smith shall be uniformly referred to by that name.

[2]Bates affidavit at para 6.

[3]Sane at para 5 and Vohra at para 6.

[4]Bates affidavit at para 11; Cohen affidavit at para 6.

[5]Smith affidavit at para 6.

[6]Transcript 2-25, LL 40-45.

[7]Bates affidavit at para 11.

[8]Current affidavit at para 8.

[9]Transcript 1-14, LL 39-44.

[10]Cohen affidavit at para 8.

[11]Transcript 1-12, LL 16-19.

[12]Exhibit 1.

[13]Transcript 1-9, LL 44 to 1-10, L 7.

[14]Smith affidavit at para 7.

[15]Transcript 1-9, LL 35-39.

[16]Affidavit of Smith at para 11.

[17]Affidavit of Ms Smith at para 12.

[18]Transcript 2-7, LL 35-39.

[19]Transcript 2-57, LL 24-35.

[20]Transcript 2-28, LL 7-12.

[21]Smith affidavit at para 12.

[22]Smith affidavit at para 13.

[23]Smith affidavit at para 15.

[24]Smith affidavit at para 16.

[25]Smith affidavit at para 17.

[26]Smith affidavit at para 17.

[27]Smith affidavit at paras 18-19.

[28]Smith affidavit at para 20.

[29]Smith affidavit at para 21.

[30]Smith affidavit at para 22.

[31]Smith affidavit at para 22.

[32]Smith affidavit at para 23.

[33]Smith affidavit at para 24.

[34]Smith affidavit at para 25.

[35]Smith affidavit at para 26.

[36]Smith affidavit at paras 9-11.

[37]Transcript 1-5, LL 1-5.

[38]Bates affidavit at para 18.

[39]Bates affidavit at para 19.

[40]Bates affidavit at paras 21-22; Transcript 2-45, L 37.

[41]Bates affidavit at para 22.

[42]Bates affidavit at para 23.

[43]O'Brien affidavit at paras 14-15.

[44]O'Brien affidavit at para 19.

[45]O'Brien affidavit at paras 21-22.

[46]O'Brien affidavit at para 23.

[47]O'Brien affidavit at para 24.

[48]O'Brien affidavit at para 28.

[49]O'Brien affidavit at para 31.

[50]O'Brien affidavit at para 32.

[51]O'Brien affidavit at para 36-41,

[52]O'Brien affidavit at para 46.

[53]See 1-46, LL 19-27.

[54]Board’s written submissions, para 30(f).

[55]Board’s written submissions, para 30(i).

[56]Board’s written submissions, paras 30(k)-(m).

[57]Board’s written submissions, para 31.

[58][1997] 2 Qd R 176-178, referred to in the written submissions filed on Ms Bates’ behalf.

[59]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J.

[60](1992) 110 ALR 449 at 450.

[61]Transcript 1-43, LL 45-48; 1-45, LL 32-34.

[62]Transcript 1-21, L 13 and 25-26; 1-29, LL 36-38.

[63]Transcript 1-36, L 37.

[64]Transcript 2-28, L 25.

[65]Evidence of Dr Vohra, Transcript 1-23, L 24; 1-24, LL 16-27.

[66]Transcript 1-29, LL 28-34.

[67]Sane affidavit at para 9.

[68]Vohra affidavit at para 11.

[69]Dr Vohra’s first Affidavit, paras 8 and 9.

[70]Dr Vohra’s second Affidavit, para 2(a).

[71]Dr Vohra’s second Affidavit, para 2(b).

[72]Transcript 1-26, LL 40-45.

[73]The writing is difficult to read, but it is accepted that it was one or other of those times which is recorded.

[74]Board’s written submissions, para 57(c).

[75]Ms Bates’ written submissions, para 60.

[76]Ms Bates’ written submissions, paras 60-68.

[77]Transcript 2-38, LL 7-9.

[78]Transcript 2-63, LL 1-10.

[79]Transcript 1-7, LL 1-24.

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v Stephanie Patricia Bates

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v Bates

  • MNC:

    [2017] QCAT 479

  • Court:

    QCAT

  • Judge(s):

    Horneman-Wren DCJ, Ms Justine Powell, Ms Barbara Soong, Mr Paul Murdoch

  • Date:

    15 Jun 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
1 citation
Jump To
Cite 1 - (1992) 110 ALR 449
Ooi v Medical Board of Queensland[1997] 2 Qd R 176; [1996] QCA 530
1 citation
Jump To
Cite 1 - [1997] 2 Qd R 176

Cases Citing

Case NameFull CitationFrequency
Nursing and Midwifery Board of Australia v Bates (No 2) [2018] QCAT 1022 citations
1

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