Nursing and Midwifery Board of Australia v Finlay
[2018] QCAT 275
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- Unreported Judgment
- Nursing and Midwifery Board of Australia v Finlay[2018] QCAT 275
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Nursing and Midwifery Board of Australia v Finlay[2018] QCAT 275
Nursing and Midwifery Board of Australia v Finlay[2018] QCAT 275
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v Finlay [2018] QCAT 275 |
PARTIES: | NURSING AND MIDWIFERY BOARD OF AUSTRALIA (applicant) v AMANDA FINLAY (respondent) |
APPLICATION NO/S: | OCR191-17 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 27 August 2018 |
HEARING DATE: | 21 August 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Sheridan, Deputy President Assisted by: Mr S Lewis Ms M Armstrong Mr P Zimon |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where registrant’s treatment of patients was conduct comprising multiple instances of unprofessional conduct – where registrant made full admissions and fully cooperated in the proceedings – where registrant admitted that her conduct amounted to professional misconduct – where registrant had been subject to conditions following immediate action – where a statement of agreed facts and joint proposal on sanction are submitted – whether the sanction is appropriate Drugs Misuse Regulation 1987 (Qld) Health Practitioner Regulation National Law (Queensland), s 5, s 159, s 190(2), s 193(1)(b), s 193(2)(b), s 193B, s 196, s 196(1)(b), s 196(2)(a), s 196(2)(b)(i), s 196(3) Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77 Medical Board of Australia v Jones [2012] QCAT 362 Medical Board of Australia v Martin [2013] QCAT 376 Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria Practice Court, Marks J, 19 January 1994) |
APPEARANCES & REPRESENTATION: |
|
Applicant: | J Attenborough, solicitor of Moray & Agnew Lawyers |
Respondent: | E Bassingthwaighte, solicitor of Hall Payne Lawyers |
REASONS FOR DECISION
Background
- [1]On 30 August 2017, the Nursing and Midwifery Board of Australia (Board) referred to the Tribunal disciplinary proceedings against the registrant, Ms Finlay, pursuant to s 193B of the Health Practitioner Regulation National Law (Queensland) (National Law).
- [2]The initial complaint was made by the Executive Director of Nursing and Midwifery Services at the Dalby Hospital (the Hospital) to the Australian Health Practitioner Regulation Agency (AHPRA) on 29 August 2013. AHPRA conducted an investigation, and the Board imposed conditions upon Ms Finlay’s registration by way of immediate action on 2 October 2013. The conditions imposed due to the immediate action required that Ms Finlay only work under the supervision, direct or indirect, of a senior registered nurse approved by the Board. She was also required to submit regular reports to AHPRA from her supervisor relating to her competence.
- [3]During this period, the Darling Downs Hospital and Health Service (the DDHHS) also undertook its own investigation of the complaints. This investigation took over a year to complete and resulted in Ms Finlay’s demotion from a clinical nurse to that of a registered nurse. Ms Finlay was placed on a performance improvement plan, and was required to complete further education and training.
- [4]The AHPRA investigation also continued throughout this period. On 19 May 2016, the Board’s notification committee decided to refer the matter to a performance and professional standards panel under s 182 of the National Law.
- [5]That hearing took place on 14 September 2016, and resulted in the panel notifying the Board pursuant to s 190(2) of the National Law of its belief that Ms Finlay may have behaved in a way that constituted professional misconduct.
- [6]In line with the panel’s notification, the Board referred the matter to the Health Ombudsman pursuant to s 193(1)(b) on 17 October 2016. Ultimately, the Board was asked pursuant to s 193(2)(b) of the National Law to continue to deal with the matter.
- [7]The grounds for the referral to the Tribunal relate to Ms Finlay’s treatment of 34 patients between 3 May 2013 and 9 August 2013.
Facts and circumstances
- [8]Ms Finlay first obtained registration as a nurse in 1991 and has practised as a nurse since that time. Throughout most of this period, she has worked in regional hospitals.
- [9]Ms Finlay practised as a registered nurse at the Hospital, where she was employed by the DDHHS. Between 2010 and August 2013, she worked as the clinical nurse coordinator in the emergency department of the Hospital.
- [10]The events the subject of the referral relate to the general practices adopted by Ms Finlay in the treatment of 34 patients who attended at the emergency department at the Hospital between 20 May 2013 and 19 August 2013.
- [11]In the amended referral it is alleged that Ms Finlay:
- (a)failed to adequately document undertaking clinical examinations and treatment of the majority of those patients;
- (b)did not seek or obtain medical practitioner assessment when she was required to do so in relation to a large number of the patients;
- (c)practised outside the scope of her practice as a nurse in relation to a large number of the patients in one or more of the following ways:
- by administering medications which required medical practitioner approval or review in accordance with the protocol adopted by the hospital[1] (none of which, it was agreed, were dangerous drugs as the term is defined in the Drugs Misuse Regulation 1987 (Qld));
- by discharging patients without obtaining medical practitioner approval;
- by failing to properly assess patients including by not monitoring patients for a sufficient time; and
- by not documenting the provision of the necessary education information to patients either about treatment being provided or their presenting conditions.
- (d)on one occasion, undertook a procedure, namely, syringing an ear, which was required by the Hospital’s protocol, to be approved by a medical practitioner;
- (e)on one occasion, failed to arrange a necessary procedure to be undertaken;
- (f)on one occasion, failed to properly triage a patient (patient RB) according to the proper categorisation of the patient as to the care required; and
- (g)on one occasion, when a Ventolin puffer was given to a patient without doctor approval (as required by the Hospital’s protocol), falsely documented that a medical officer had authorised the supply of the medication.
- (a)
- [12]Ms Finlay admits all the allegations in the amended referral.
- [13]There is no evidence before the Tribunal that any patients were harmed as a result of the treatment provided by Ms Finlay. This position is accepted by the Board.
- [14]The professional assessors expressed concern that, particularly in relation to 10 of the 34 patients the subject of the referral, there was significant potential for adverse outcomes in view of the treatment provided.
- [15]By reference to the individual patient records included in the bundle of documents tendered before the Tribunal, there are a number of examples of patients being discharged by Ms Finlay without being monitored for a sufficient time and, in some cases, without being seen by a medical practitioner. In fact, three of the four patients who attended at the emergency department by ambulance were discharged by Ms Finlay without having been seen by a medical practitioner.
- [16]In respect of patient RB, it was accepted by both parties at the hearing that the treatment provided by Ms Finlay could have had a significantly more adverse outcome. The patient had presented with a blood pressure reading of 212/120 and was only given medication some one and a half hours later, there being an unexplained delay in Ms Finlay obtaining the necessary approval from a medical practitioner.
- [17]In the course of hearing, it was also accepted that there were a number of paediatric patients who had not been monitored for a sufficient time who likewise could have had an adverse outcome as a result of the treatment provided. Of the seven paediatric patients included in the referral, six were discharged within the hour and five were discharged without having been consulted by a medical practitioner.
Sanction
- [18]The Tribunal finds that grounds exist for taking disciplinary action against Ms Finlay. Ms Finlay’s treatment of each of the individual 34 patients amounted to conduct properly described as “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers”.[2] The numerous instances of unprofessional conduct collectively amounts to conduct properly described as professional misconduct. This has been conceded by Ms Finlay, and appropriately so.
- [19]The parties have agreed that the appropriate order is a formal reprimand together with the imposition of mentoring conditions with a review period of 12 months. The parties have agreed a draft set of mentoring conditions. The parties confirmed at the hearing that the mentoring conditions are proposed to replace the supervision conditions currently on Ms Finlay’s registration.
- [20]For the purposes of assessing the appropriate sanction, the parties have submitted that the environment within which the conduct occurred is an important mitigating factor. The Tribunal accepts that submission.
- [21]The parties have submitted that there is sufficient evidence before the Tribunal to conclude that there were cultural challenges at the Hospital which may have, at least in part, contributed to Ms Finlay’s professional practices. The Tribunal has evidence from various professionals who worked at the Hospital at the relevant time to this effect.
- [22]The Director of Nursing at the relevant time in the course of conducting the Hospital investigation had sympathised with Ms Finlay’s lack of desire to contact medical officers in the middle of the night to seek approval to administer medications. Other nurses referred to being “heavily persuaded to work outside our scope of practice after hours by most of the permanent doctors” and to “not contact them [medical staff] out of hours … for anything they [the nurses] perceived as non urgent”. One described the workplace as “a clinical setting that has an intimidating and threatening approach against some employees”.
- [23]One of the doctors reported that he was not concerned that he had not been contacted to approve a Ventolin puffer being given to a patient. In fact, the evidence was that it was not uncommon for the doctors on call to sign the medication charts the next morning.
- [24]Two medical practitioners referred to “heavy clinical loads with little senior nursing support”. A reference provided to Ms Finlay and attached to her affidavit by a senior medical officer at the Hospital dated 25 September 2013, stated, relevantly:
Whilst Amanda acknowledges that she has worked outside her scope of practice at times, we feel that this is due to a deeply ingrained culture in the hospital. This has been propagated by overworked, overtired medical staff and under-resourced nursing and medical practitioners.
- [25]Ms Finlay’s conduct must undoubtedly be considered against that background.
- [26]Despite those systemic cultural issues, Ms Finlay has nevertheless admitted that her conduct in treating the 34 patients, when viewed as a whole, amounts to professional misconduct. In her affidavit, she says she is “extremely regretful and remorseful that her performance and conduct over the period fell short of the standard of care and treatment to which I hold myself”.
- [27]Ms Finlay accepts that she was aware of the current practices approved by the Hospital, as documented in the PCCM. She admits that her conduct did not comply, in a number of respects, with the treatment guidelines in that document.
- [28]As a result of her conduct, Ms Finlay has been subjected to proceedings before both the Board, the Hospital and now this Tribunal. She has practised subject to onerous supervision conditions for five years, was demoted and has suffered both the humiliation and financial consequences associated with her demotion. She has been supervised and managed as a level 1 registered nurse, which is usually held by new graduate registered nurses, in circumstances where she has practised as a nurse for over 27 years. In her affidavit, Ms Finlay refers to having suffered depression and considerable anxiety.
- [29]Ms Finlay’s references from current and former colleagues, former supervisors and senior clinicians speak highly of Ms Finlay’s professionalism in her work.
- [30]It is also clear, both from the submissions of the parties and the references provided, that Ms Finlay was passionate about emergency care and had dedicated a large part of her professional career to that field. The parties agreed that Ms Finlay has demonstrated a high level of insight into her conduct; she has acknowledged where her conduct was below professional standards, and committed herself to addressing her conduct through further education.
- [31]The parties submit that with the imposition of the mentoring conditions proposed, the Tribunal would find that Ms Finlay presents no future risk to the public. The parties also submit that the mentoring conditions will assist Ms Finlay in her transition to autonomous practice and will provide her with the support which appears to have been previously lacking at the Hospital.
- [32]In determining the appropriateness of any sanction, protection of the public is paramount. The public must be protected from the risk of future misconduct or incompetence by erring practitioners or similar misconduct or incompetence by other practitioners. The public must also be able to maintain confidence in the standards of the profession. Potentially, there may be a need for both personal and general deterrence.
- [33]Further, where, as here, the parties have reached an agreement as to the appropriate sanction the Tribunal should be slow to interfere with the agreed position. As stated by Deputy President Judge Horneman-Wren SC:
The Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.[3]
- [34]In all the circumstances, the Tribunal considers the sanction of a reprimand and imposition of mentoring conditions as proposed by the parties is appropriate and clearly falls within the permissible range of sanction. A reprimand is not a trivial sanction.[4] It remains on the registration of the practitioner until removed by the Board.
- [35]The Tribunal is satisfied that the concept of mentoring conditions for a period of 12 months will assist Ms Finlay’s transition back to autonomous practice. Having reviewed the proposed conditions, the Tribunal considers that with some minor amendment the proposed conditions are appropriate.
- [36]At the end of 12 months, provided a satisfactory report is given by the mentor and a satisfactory reflective report is given by Ms Finlay, it would be appropriate for the mentoring conditions to be removed at that time. By then, it would be expected that Ms Finlay would have had sufficient time to transition back to autonomous practice.
- [37]The Tribunal notes that the onerous supervision conditions which have been on Ms Finlay’s registration since 2 October 2013 are still on her registration. Those conditions were imposed by the Board pursuant to its immediate action power under s 156 of the National Law. At the hearing of this matter before the Tribunal, the parties acknowledged that the Tribunal does not have the power to remove the conditions imposed through immediate action in referral proceedings.[5]
- [38]Since the imposition of those conditions almost five years ago, in addition to complying with the conditions imposed over that lengthy period, during which time no concerns have been raised by any supervisors, Ms Finlay has completed a performance improvement plan with her employer and undertaken further education and training.
- [39]There appears no justification for the continuation of the current conditions, or in fact any conditions requiring continuing supervision. Both parties are agreed that the current conditions are no longer necessary. The Tribunal supports that position.
- [40]In imposing the mentoring conditions, the Tribunal has made it clear that it considers 12 months to be the appropriate period of mentoring. So as to avoid the parties bringing a further application to this Tribunal at that time, it is necessary to make a further order permitting the Board to deal with the review of the mentoring conditions. An order should be made to allow that to occur.
Orders
- [41]Accordingly, the Tribunal orders that:
- Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland), the Tribunal finds Ms Finlay has behaved in a way that constitutes professional misconduct.
- Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland), Ms Finlay is reprimanded.
- Pursuant to s 196(2)(b) of the Health Practitioner Regulation National Law (Queensland), Ms Finlay’s registration shall be subject to the conditions set out in the attached schedule.
- Pursuant to s 196(3) and for the purposes of Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland), the relevant review period for the conditions is 12 months, commencing from the date hereof.
- For the purposes of s 127(3)(b) of the Health Practitioner Regulation National Law (Queensland), Part 7, Division 11, Subdivision 2 applies.
SCHEDULE A
Schedule of Conditions
- Ms Finlay must be mentored by another registered health practitioner in relation to:
- Adherence to nursing policies and procedures; and
- Communication and assertiveness.
For the purposes of these conditions, ‘mentoring’ is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.
- The mentoring must comprise a minimum of 12 sessions with each session being of no less than 1 hour duration occurring over a 12 month period.
- Within 28 days of the imposition of these conditions, Ms Finlay must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. Ms Finlay must ensure that the nomination is accompanied by an acknowledgement, on the approved form (HPNA16), from the nominated person.
- Within 28 days of the imposition of these conditions, Ms Finlay must provide to AHPRA, on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:
- every 3 months;
- at the conclusion of the 12 sessions of mentoring or at the conclusion of the mentoring relationship, if that occurs earlier, in order to confirm the outcomes of the mentoring;
- whenever the mentor has a concern or becomes aware of a concern regarding Ms Finlay’s conduct or professional performance, and
- when otherwise requested by AHPRA or the Board.
- Within 28 days of receipt of the nomination, or any renomination if one becomes necessary, the Board must notify Ms Finlay of its decision in relation to the nominated mentor, with any refusal of approval to be on reasonable grounds.
- In the event an approved mentor is no longer willing or able to provide the mentoring required, Ms Finlay is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by Ms Finlay within 21 days of becoming aware of the termination of the mentoring relationship.
- Within 28 days of the conclusion of the 12 sessions of mentoring, Ms Finlay must provide a report demonstrating, to the satisfaction of the Board, acting reasonably, that Ms Finlay has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how Ms Finlay has incorporated the lessons learnt in the mentoring into their practise.
- The costs of compliance with the conditions are to be borne by Ms Finlay.
Footnotes
[1] The protocol is a Queensland Health policy document which contains clinical guidelines for best practice, and is known as the Primary Care Clinical Manual (PCCM), 7th edition (2011), as referred to in the referral.
[2] National Law, s 5.
[3] Medical Board of Australia v Martin [2013] QCAT 376, [91].
[4] Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria Practice Court, Marks J, 19 January 1994); Medical Board of Australia v Jones [2012] QCAT 362, [14].
[5] Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77.