Health Ombudsman v Mberi[2022] QCAT 179

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The subject of the disciplinary referral to the Tribunal by the Director of Proceedings on behalf of the Health Ombudsman (the applicant) is the respondent’s conduct during a  night shift at New Farm Clinic (NFC) in July 2018, during which a patient attempted to commit suicide. 
2. [2]
   The referral was filed on the 24th of September 2020.  At the relevant time, the respondent was a registered nurse with extensive experience in mental health care and was working with enrolled Nurse Bobbermien, at the NFC. 
3. [3]
   During the shift, the patient (patient A), was under the direct care of both nurses, the respondent being the senior nurse.  The applicant alleges, and the respondent accepts, that because of her failure to conduct required^[1] 15-minute observations of patient A during the shift, and her conduct in nevertheless recording that the observations had been made (in her case she signed the sighting chart against 16 of the scheduled observation times when she had in fact sighted patient A on only five occasions), constitutes professional misconduct as defined in section 5 of the National Law.
4. [4]
   The parties have signed and filed an agreed statement of facts.  They agree that the respondent should be reprimanded and that her registration be subject to mentoring conditions.  The applicant submits that the respondent’s registration should be suspended for a period of up to 12 months, whereas the respondent argues that the protection of the health and safety of the public in all the circumstances of this case does not require her registration to be suspended for any period. 

Background

5. [5]
   The respondent is currently 42 years of age.  She is a registered nurse with the Nursing and Midwifery Board of Australia (Board), being first registered in March 2012.  Prior to that, she had been registered as a nurse in the United Kingdom since 2008.  She completed a Diploma of Higher Education in nursing (mental health) at the University of Hertfordshire (United Kingdom) in 2008. 

Respondent’s employment

6. [6]
   From 2012 until 2014, the respondent was employed at Townsville Hospital and Health Service and Logan Hospital as an RN in Mental Health Services.  In April 2014, she commenced part-time employment at the Royal Brisbane and Women’s Hospital (Psychiatric Emergency Centre), (PEC). 
7. [7]
   She told the Tribunal today in evidence that since 2014 until the present time, as well as her nurse navigator job, to which reference will be made later in these reasons, she has worked casually in the adult mental health unit at the Pine Rivers Private Hospital on night shift.  Although her patient cohort are primarily in hospital for detoxification, and the risk category is generally low, nevertheless patients at moderate risk are placed on hourly observations, and she has never encountered the “practices” she encountered in her short time at NFC.  She told me that any high risk patient at the Pine Rivers Private Hospital is transferred into the public health system.
8. [8]
   From January to July 2008, in parallel with her role at PEC and, I infer, her role at the Pine Rivers Private Hospital, the respondent was casually employed as an RN by NFC.  Following events the subject of this referral, she resigned from NFC on the 16th of July 2019.
9. [9]
   She is currently employed in a full-time capacity at Gold Coast Hospital and Health Service as an RN (nurse navigator) in child and youth mental health services.  In her evidence today she described her role as being, as it were, a conduit between the emergency services of the Gold Coast Hospital and Health Service and community facilities designed to assist young people with mental health issues.  She described her role as involving dealing often with young people with highly complex mental health issues and families in crisis.

Previous disciplinary action

10. [10]
    The respondent was the subject of disciplinary proceedings while registered as a nurse in the UK.  In February 2012, she was dismissed from her employment and suspended by the nursing and midwifery council (UK) in relation to the misappropriation and use of a patient’s bank card on two occasions withdrawing 75 pounds and 100 pounds from the patient’s account. 
11. [11]
    In Australia, the Board referred the respondent to this Tribunal in relation to her insufficient disclosure of the UK matter on her renewal application.  In December 2016, the Tribunal found (agreeing with the joint submission) that the respondent’s disclosure to Ahpra, while insufficient, was not deliberately deceptive, “but rather misleading and careless or reckless”. ^[2] She was found to have engaged in unprofessional conduct, reprimanded, required to complete an ethics course, and ordered to pay the applicant’s costs of $10,000.

The relevant conduct

12. [12]
    The events the subject of the referral to the Tribunal occurred during a night shift on 11/12 July 2018 at NFC, which is an acute Mental Health Service in Brisbane.  NFC is comprised of five units.  Relevant to these proceedings is unit 3, primarily the eating disorder unit, but one which also cares for patients with general mental health issues.  Today in cross-examination, by reference to a floor plan annexed to the affidavit of Mr Dupree, the solicitor for the applicant, the respondent identified the room in which patient A was residing on that particular night, room 314, as being in close proximity to the nurse’s station in unit 3.
13. [13]
    On the night in question, the respondent and EN Bobbermien, were responsible for the care of patients in unit 3, one of whom was patient A.  There was also a night manager, situated on the ground floor of the facility.  Patient A had been diagnosed with anorexia nervosa associated with complex symptoms of PTSD related to childhood sexual abuse and sexual assault when she was a teenager.  She had been an inpatient at NFC on several previous occasions. 
14. [14]
    As recorded in her patient records, leading up to the night in question, patient A had expressed strong suicidal ideation.  On the day of the 11th of July 2018, that is the shift before the night shift in question, she had reported, inter alia, attempted suicide by hanging the previous day, self-harm, and that she was “enjoying the feeling of attempting suicide due to the relief of ‘escaping’”. 
15. [15]
    She was categorised as a Category 4 patient by her treating psychiatrist.  That categorisation required her to be observed at intervals of 15 minutes.  These observations were, in accordance with the relevant NFC policy and guidelines, to be recorded in the patient signing chart.  The respondent told the Tribunal this morning in evidence that the chart was kept in a folder at the nurse’s station. 
16. [16]
    There were 21 patients in unit 3 that night.  In terms of category 4 patients, in addition to patient A, there were approximately three to five patients that were undertaking overnight nasal gastric feeding.  These patients were also categorised as Category 4 until the nasal gastric feeding was completed.
17. [17]
    It is not contentious that from 9.45 pm through to 4.30 am that night and the following day, in accordance with their category 4 status, patient A should have been observed on 28 occasions.  It is also not contentious that she was in fact observed on only 10 occasions.  The periods of time for which patient A was not observed range from 10 minutes to one hour and 10 minutes.  On two occasions, she was not observed for at least one hour.  Her sighting chart indicated that all of the required observations had been undertaken, as completed by either the respondent or EN Bobbermien.
18. [18]
    While the respondent had signed the sighting chart against 16 of the scheduled observation times, she had in fact sighted patient A on only five occasions. 
19. [19]
    At 3.54 am, patient A left her room and spoke to the respondent at the nurse’s desk in the nurse’s station.  She requested diazepam.  However, as this further dose was not authorised, the respondent offered her quetiapine.  Patient A declined this alternative medication and returned to her room at 3.57 am. 
20. [20]
    At some time between 3.57 am and approximately 4.34 am, during which time no observations were undertaken, patient A attempted to commit suicide by hanging herself from the bathroom door of her room, by using a cord from an item of clothing in her possession as a ligature.
21. [21]
    She remained in a coma for several days at the Royal Brisbane and Women’s Hospital, but ultimately survived. There is no evidence of permanent harm to her.
22. [22]
    In relation to the observation and sighting chart requirements, the respondent, in her response to the referral which was filed on 14th of April 2021, says this: 

1.5.  The respondent agrees that under the observation policy, Category 4 observations require face-to-face sightings of patients at intervals of 15 minutes and if asleep, patient to be observed to be breathing with respiratory rate within normal range.  However, it was common practice at NFC to not sight category 4 observation patients every 15 minutes or at intervals of 15 minutes. 

1.6.  In response to particular 1.6, the respondent admits the observations must be documented in the category sighting chart (the sighting chart).  However, the sighting chart requires the actual time of the sighting to be recorded.  It was common practice at NFC for observations to be recorded on the hour and for category 4 observations at each 15-minute interval thereafter. 

23. [23]
    The respondent has filed three affidavits in these proceedings.  In those affidavits she doesn’t refer to these “common” practices apart from stating, at paragraph 22 of her first affidavit, affirmed 23rd of July ’21, “By reference to patient A”: 

22.  As a category 4 patient, observations were to be undertaken at 15-minute intervals.

24. [24]
    This morning she gave evidence about this, and other issues.  She was required for cross-examination by the applicant.  In passing, I observe that she was a most impressive witness.  She is still obviously deeply affected by the events of July 2018.  In answer to questions this morning, she confirmed these “common practices” at the NFC at the time, and I accept her evidence.  She also contrasted the culture at NFC at the time with the culture in relation to sightings of vulnerable patients in mental health care units in other settings in which she has worked prior to and since July 2018.  For example, in relation to the Public Hospital system in which she was working at the time of the incident, she told me that where there are patients under observation protocols because of risk factors, eg, for 15-minute or 30-minute intervals, a nurse will be on duty, whose sole purpose is to conduct those observations.  She gave an example of a setting similar to that which pertained at NFC in July 2018, where if there were between seven to 15 patients in acute inpatient mental care, health care, in the high risk category, there would be at least three nurses on duty to care for them and to attend to all other necessary tasks.  She made it clear that she was not attempting to excuse her failings on that night shift, rather, she was attempting to place her failings in context.

Characterisation

25. [25]
    As Ms Robb submits in her written submission filed with the Tribunal, her client admits all the allegations of fact made against her in referral, so the applicant has satisfied the responsibility of proving those facts.  In her submission, she also says this: 

    1. (a)
       Ms Mberi accepts that her conduct the subject of allegations 1 and 2 is globally properly described as professional misconduct within the meaning of section 5 of the National Law, as:

       1. (i)
          it is unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of equivalent level of training or experience; or
       2. (ii)
          more than one instance of unprofessional conduct, that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or appearance.
26. [26]
    The conduct of the respondent, an experienced mental health care specialist nurse, clearly breaches a number of provisions of the Board’s Code of Conduct for Nurses (Code of Conduct), the ICM Code of Ethics for nurses affected from the 1st of March 2018 (ICM code of ethics), and the Registered Nurses Standards for Practice (the standards for practice).  The respondent accepts that her proved conduct does indeed breach a number of provisions of those codes and guidelines.  Such codes and guidelines are admissible in proceedings such as these as evidence of what constitutes appropriate professional practice for a health practitioner.
27. [27]
    At the heart of these instruments is the need for nurses to act ethically, professionally and appropriately for the primary purpose of caring safely and appropriately for patients.  This reflects the paramount principle and that is that the health and safety of the public are paramount. 
28. [28]
    The applicant commissioned a report from an expert mental health nurse in relation to the conduct of the respondent on the relevant night shift.  Ms Muller’s opinions are not challenged nor is her expertise.
29. [29]
    In her report she notes: 

The primary role of the RN is on direct patient care and the direct and indirect supervision of the EN.  Other responsibilities and tasks are secondary as the patient is always the primary focus of care.  The RN remains accountable for the care of the patients, under their care, whether the work is completed by themselves or the tasks delegated. 

30. [30]
    The respondent unequivocally accepted this opinion in her evidence today. 
31. [31]
    In her first affidavit affirmed on the 23rd of July ’21, the respondent (by reference to the night shift in question) states at 40: 

I read and review every chart. 

32. [32]
    Her last interaction with patient A between 3.54 and 3.57 am on the 12th of July 2018, before discovering at 4.35 am that she was not in her bed, was the subject of an opinion expressed by Ms Muller in her report who notes (by reference to the clinical records): 

7.4.3.  RN Mberi spent less than three minutes with patient A in assessment of her suicide risk, level of distress and need for medication.  RN Mberi did not seem to be aware of the safety strategy for patient A to spend time in the nurse’s station. 

7.4.4.  RN Mberi’s clinical documentation offers no insight into patient A’s mental state at the time she asked for PRN, that is P-R-N, medications.  It is difficult to determine what actions were employed or if risk of harm to self and protective factors were explored.

33. [33]
    Without criticising Ms Muller, the expert, these comments by her have to be read in light of the practices or culture that developed at NFC around issues of sightings and recording in the sighting chart.  I accept the respondent’s evidence that there was nothing in patient A’s presentation at 3.54 am that caused her alarm.  As she frankly told the investigators from the Health Ombudsman, she knew patient A from her past interaction with her at PEC, and she has always accepted that patient A was “a chronic high risk”.  It has to be asked rhetorically, then, what else could she have done – force patient A to stay in the nurse’s station; of course not; given her diazepam, which the expert says “would have been an appropriate option”, when giving that drug was contrary to the prescribing notes in the chart - of course not.  She saw nothing to alert her at that time over the three minutes that caused her to believe that patient A was at some sort of crisis point.
34. [34]
    The respondent has, from the outset, expressed regret for what occurred, but she has always attributed (in part) what happened to work load and the culture that existed at NFC at the time, whilst also admitting matters that underline the seriousness of her conduct.  For example, in a file note from NFC in the agreed bundle, described as “Serious incident – suicide attempt (patient A) 12th of July ’18.  Post incident meeting”; dated the 13th of July 2019, that is, very shortly after the incident, the respondent is recorded as saying a number of things:

    1. (a)
       she knew patient A from the PEC at RBH and knew she was a chronic high risk.  She also said she was on a shift at PEC when patient A had a previous attempt to hang herself;
    2. (b)
       she was “told by someone” that generally if all patients are settled we check 30-minute observations, that is an “unsaid” thing, not a policy.  When asked who said this, she stated she could not remember; and
    3. (c)
       she recognised she’d made a mistake and said she took ownership of what she had done.
35. [35]
    That file note also records a note to the effect that the people at that meeting with the CEO and the nurse unit manager and two other senior staff members, the respondent said that patient A was identified at handover as having issues relating to suicidal ideation.  As I have noted earlier, the respondent has always denied saying that.  No reason has been advanced as to why any of the four very senior people at the meeting could not have been made available to give evidence to the contrary and none has been put on before the Tribunal.  I accept the respondent’s evidence on this point without question. 
36. [36]
    In her interview with the Health Ombudsman investigators on the 2nd of June 2020, she mentioned that despite her risk status, patient A was allowed to have her personal possession in her room and to leave her room to smoke in one of the two smoking areas, particularly during the day shifts.  The very policy which the respondent admits breaching states that category 4 patients are “restricted to the ward”, and “patients considered to be at high risk of self-harm require belts, shoe laces ... and other articles that they may be able to harm themselves with removed and placed into safe keeping”.  In relation to that last requirement, self-evidently, that was not complied with, as patient A was able to use some form of cord from an item of her clothing as a ligature.  It has never been suggested, nor could it be, that the respondent or her colleague were responsible for permitting this clear breach of the policy.  It suggests the flavour of double standards, as without the cord, patient A could not have attempted to hang herself. 
37. [37]
    In her interview, she referred to the work load on that night shift as being one of the “challenges” in conducting visual observations on patients in the unit.  In her affidavit, after referring to her duties at night she states at 52: 

I am sorry I missed the observations but believe that this was, in part, due to my work load.

38. [38]
    Mr Templeton cross-examined her today (based on her first affidavit) to demonstrate that her work load that night was not such as to contribute very much to her admitted failing.  Frankly, I don’t think it is very helpful to mathematically, as it were, break down each task referred to in her affidavit into a time measure, to demonstrate what she has always said and that is the work load, in part, was a contributing factor.  Clearly in the public hospital setting in acute mental health care in which she has worked in the past, the sighting of patients at high risk is regarded so seriously as to require a full-time nurse to undertake that task only.  She also accepts that she took an extended break that evening because she got talking to another staff member in the staff room on the ground floor of the facility.  She said that she found the work load on the day shift even more intense than that on the night shift.
39. [39]
    The Tribunal has no hesitation in finding that the proved conduct amounts to professional misconduct under both limbs a and b of section 5 of the National Law.

Sanction

40. [40]
    As is well-established, the purpose of disciplinary proceedings is to protect and not to punish.  As I have noted, the main principle for administering the Health Ombudsman Act is that the health and safety of the public is paramount. That principle underpins the discretionary power of this Tribunal to sanction health care providers who have engaged in professional misconduct.
41. [41]
    In deciding the appropriate sanction in a particular case, the Tribunal will consider factors including: 

    1. (a)
       the nature and seriousness of the practitioner’s conduct;  
    2. (b)
       insight and remorse shown by the practitioner; 
    3. (c)
       the need for specific deterrence or general deterrence; 
    4. (d)
       evidence of rehabilitation and/or steps taken by the practitioner to prevent re-occurrence of the conduct;  
    5. (e)
       matters giving context to, and or an explanation for the conduct, for example mental health issues; and
    6. (f)
       other matters including past disciplinary history, police history, character evidence and things such as periods of preclusion and non-practice, delay and the effluxion of time and cooperation during disciplinary proceedings.
42. [42]
    As set out in the relevant jurisprudence, for example Craig v Medical Board of South Australia [2001] 79 SASR 545 at 553-555; and see also Health Ombudsman v Jolley, [2019] QCAT 173 at [75]-[76]; any sanction may serve one or more of various circumstances that arise in a particular case: 

    1. (a)
       preventing practitioners who are unfit to practice from practising;
    2. (b)
       securing maintenance of professional standards;  
    3. (c)
       assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct or unprofessional conduct will not be tolerated;  
    4. (d)
       bringing home to the practitioner the seriousness of their conduct;  
    5. (e)
       deterring the practitioner from any future departures from appropriate standards;  
    6. (f)
       deterring other members of the profession who might be minded to act in a similar way; and
    7. (g)
       imposing restrictions on the practitioner’s right to practice so as to ensure that the public is protected. 
43. [43]
    The respondent’s misconduct during this night shift was very serious, as she accepts.  In the opinion of the expert, her actions that night, in not undertaking visual observations of patient A (particularly after their interaction between 3.54 and 3.57 am) falls substantially below the required standard.  Mr Templeton today in his oral argument does not maintain the argument articulated in his written outline (based on the opinion of the expert), that the presentation of patient A at the nurse’s station at 3.55 am on the 12th of July 2019 should have acted as a trigger for the respondent, particularly given her past experience and knowledge of patient A and her problems.  I think that concession is properly made on the evidence and material now before the Tribunal. 
44. [44]
    In her interview with the Health Ombudsman investigators, the respondent said: 

“So when she came up for that medication and I wasn’t able to give her the medication, so even though she was not presenting as distressed or as agitated, to me, I was a little more mindful then at that point ... to be sure she was okay”.

45. [45]
    I also accept that the retrospective initialling of the sighting chart on 11 occasions (including 4.15 pm and 4.30 am), was unethical and improper.  It can be expected that during a busy shift, a strict adherence to such a policy may be difficult, but, despite her saying her failings were due to work load and culture, in her interview with the Health Ombudsman, she does not suggest any particular difficulty with any of the 21 patients under the care of herself and the EN on that particular night, and she was able to have an extended break some 23 minutes beyond the allotted time of one hour. 
46. [46]
    The expert opines that if work load was impeding the respondent’s ability to properly care for her patients, then she should have “escalated” her concerns about the issue which I take to mean, take it up with her employer or at least the night manager on duty that night.
47. [47]
    As I note in argument this morning, that observation is unrealistic given the potential implications to her for her employment.  Mr Templeton questioned her closely about her contention that although the entries in the sighting chart were false, she had not set out to deliberately falsify the record.  This is hard to accept, although the context of the culture and practices that existed at the clinic at that time reasonably, I think, feeds into the view that she has that she did not act with deliberate dishonesty.
48. [48]
    Her past history in the UK and before this Tribunal has a relevance to the seriousness of her conduct in the sense that it reveals an ongoing tendency to engage in improper and unethical behaviour in her professional capacity. 
49. [49]
    In answer to questions from Mr Templeton this morning, the respondent said that she had undertaken the courses in professional ethics required by the 2016 order within six months of the date of the order.  She told him that it was an online course, and involved a review of the Code of Conduct, but she did not think it involved a section on clinical record keeping.  She frankly acknowledged that she has understood at all relevant times that the focus of the Code is on the primary care and safety of the patient above all other duties. 
50. [50]
    The Tribunal accepts that the respondent has demonstrated insight into and remorse for her conduct.  During her evidence this morning, in the face of what was a professional and quite mild cross-examination of her by Mr Templeton, she became 
51. [51]
    obviously distressed and emotional when talking about the events of that night.  In my opinion her obvious display of remorse today and her many statements of remorse since July of 2018 are genuine and are demonstrative of real insight. 
52. [52]
    She has also cooperated with the regulator’s investigation and with the proceedings in this Tribunal.  That in itself can be regarded as a demonstration of remorse and insight.
53. [53]
    Clearly, the conduct (and that of her colleague) had potential to lead to serious harm.  It is fortunate that, despite what was obviously a genuine attempt to kill herself during the period when she was not being observed, patient A survived.  As Mr Templeton observed, it was the visual sighting at 4.34 am that ultimately led to the discovery of patient A.  Both nurses then reacted appropriately and in particular EN Bobbermien whose initial cool headed response under enormous pressure undoubtedly saved the patient’s life. 
54. [54]
    As the applicant fairly points out in the written submission, there were points in her interview with the Health Ombudsman investigator where the gravity of her conduct clearly weighed on her mind.  For example, towards the end of the interview she said: 

“This incident really, really did affect me and I did not take myself to task, again, you know, looking at what I could have done differently.  Could I have said or done anything differently, to try to avoid this ... it’s not something you ever want to face ... you want the patients to be safe as much as you can.”

55. [55]
    The applicant again submits against her that she has not undertaken any additional education or professional development in respect of these aspects of patient care and clinical record keeping, or otherwise in relation to her professional and ethical responsibilities, or had any engagement with a professional mentor, or “other proactive, educative and rehabilitative” steps.  I infer that the respondent’s third affidavit, filed on the 24th of November 2021, was in response to this submission.  In that affidavit she affirms: 

3.  I joined the health care improvement community and practice which was established to support and inspire improvement practitioners (SIC) within Queensland Health to work together to solve problems, share knowledge, agree best practice and foster innovation.  Members are from a range of health care backgrounds including medical, nursing, midwifery, allied health, and administration. 

4.  I have learnt from (this body) webinars on “human factors [indistinct] series” – I will highlight team work, effective communication, cultural change as factors I am cognisant of when I am at work.  Human factors aims to identify what aspects of work are challenging or may be “wrong action” seem reasonable in context and modify these aspects of system design to help me promote safety in the workplace. 

5.  I have attended and completed training on post incident analysis with mental health and specialist services at the Gold Coast Hospital and Health Services which means that I can now be allocated an incident to co-facilitate and write up a comprehensive review.  The workshop helped me understand how incidents are viewed (in hindsight), how they are managed and the importance of restorative adjustment culture process.

6. I have been consistently working on improving myself and my practice using lessons and issues that O have bought to the fore as my failing.  I have adopted a forward looking accountability approach in planning for shifts, where I look at roles, responsibilities and processes that need to be undertaken to meet goals for the shift.  This holds me and others accountable for our future actions. 

56. [56]
    Although that description smacks of highly bureaucratic language (for which I do not blame the respondent, language that I have read in many health policies, the question has to be asked what else could the respondent do.  The applicant is proposing now only mentoring conditions.  It is not proposing any other type of rehabilitation or proactive educative programs, to use the words in the submission. 
57. [57]
    As can be seen from these reasons, the respondent resigned from NFC on the 16th of July 2018.  The evidence now is that she has not spent any time otherwise not working as mental health care nurse.  Her current role is clearly a highly responsible one, and in an area of critical need, that of Child and Youth Mental Health Service.  I think I can safely take judicial notice of a critical lack of nurses like the respondent in an area of enormous community need and concern.  I am fortified in that view by the very helpful confirmatory input from the professional assessors.  Appropriately in his role as Counsel for the applicant, a model litigant, Mr Templeton acknowledged these factors as relevant to the issue of sanction. 
58. [58]
    In the almost four years since her failings, it is not suggested the respondent has behaved unprofessionally or in an improper and unethical way, despite working in two highly taxing mental health roles.  Clearly the Health Ombudsman did not see fit to take immediate registration action against her under section 58 of the HO Act by imposing conditions on her registration of the kind now proposed.  Although this is not relevant to the Tribunal’s task now, because the law prescribes a completely different test, I can infer that the regulator did not reasonably believe that she then or at any time post notification pose a serious risk to the public.  I am satisfied that she does not presently pose any ongoing risk to the health and safety of the public. 
59. [59]
    In relation to specific deterrence I accept that her prior disciplinary history is a factor to consider.  As against that, in the four years that have elapsed, there is no evidence of any similar behaviour or any unprofessional behaviour at all.
60. [60]
    General deterrence is clearly a highly relevant factor in imposing sanction in the circumstances of this case.  Mental health nurses play a critical role in our health care system in a very difficult and demanding area.  It is important that the Tribunal in exercising its discretion to sanction a health professional who has behaved in an unprofessional way constituting professional misconduct, acts in a way that upholds the dignity of the profession and confirms public confidence in it which is apt to be undermined by conduct of this kind. 
61. [61]
    As against that, neither party has been able to find any Tribunal decision from this State (and presumably any decision of the various iterations of this tribunal that preceded it) that deals with circumstances such as these.
62. [62]
    The Applicant has referred the Tribunal to a number of decisions in the New South Wales Tribunal which are relevant, bearing in mind the different disciplinary framework that operates in that State. 
63. [63]
    Ms Robb, in her submission on behalf of the respondent sets out to point to factors in those cases that are relevant to and supportive of her submission.  She also refers to the cases of Health Ombudsman v Vale [2020] QCAT 363 and Health Ombudsman v Fletcher [2021] QCAT 4.  In my view, as I think Ms Robb concedes in her submissions, neither of these cases are particularly helpful as comparable decisions.  The cases are related in that both respondents were on duty nurses at a correctional facility with three others, when a prisoner was assaulted and suffered head injuries.  Vale proceeded on the basis of agreed facts and submissions whereas Fletcher was in some factual respects contested.  Both nurses had failed to properly document observations of the prisoner’s condition over a lengthy period.  Vale had attempted unsuccessfully on a number of occasions to have him seen by a doctor, but was told by another nurse that the prisoner was faking his symptoms.
64. [64]
    Ultimately after a very lengthy period of time the prisoner’s condition had deteriorated to a point where he was virtually comatose, and frothing at the mouth.  Only then was he transferred to a hospital where it was found that he had suffered a subdural haemorrhage in the assault and a subsequent brain bleed.  Personal circumstances of each nurse, eg, time out of practice since the incident, relevant culpability, also make it difficult to draw any meaningful assistance on the issue of sanction in this case. 
65. [65]
    The cases referred to by Mr Templeton in his submission include a series of cases against five nurses which essentially involved failure by the nurses, in the context of an Acute Mental Health Unit to undertake patient observations, and the making of associated false or misleading entries in the  patients’ charts in circumstances in which a highly vulnerable patient committed suicide.  The cases are annotated in Mr Templeton’s submission as Health Care Complaints Commission (HCCC) v Brown [2021] NSWCATOD 57; HCCC v Dudhela [2021] NSWCATOD 59; HCCC v Egbufor [2021] NSWCATOD 60; and HCCC v Watkins [2021] NSWCATOD 61.  The case against the fifth nurse was dismissed as not being proved. 
66. [66]
    While each has its own particulars, like the present matter, those decisions essentially concern failures by nurses in an acute mental setting to undertake patient observations and to falsify or make entries which were misleading in patient charts.  
67. [67]
    The particular case involving the four nurses is referred to in Mr Templeton’s submission globally as Brown et al and I will adopt that terminology.
68. [68]
    Four out of the five practitioners were found to have engaged in conduct which was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, constituting unsatisfactory professional conduct and professional misconduct. 
69. [69]
    The patient had a recent history of suicide attempts and depression in the preceding days, and during his admission at hospital he had expressed suicidal ideation and was on 30-minute observations.
70. [70]
    In respect of Nurse Brown, who was the team leader, the Tribunal said: 

    1. (a)
       Ms Brown made a record indicating that an observation had taken place when she knew it had not, and on two occasions, she made entries on the observation sheet without personally assessing that patient A was alive. 
    2. (b)
       This conduct posed a risk to the safety of a vulnerable involuntary mental health patient.  This risk was ultimately realised.
    3. (c)
       Ms Brown’s conduct was particularly serious because she was the team leader and as such was responsible for clinical leadership. 

As submitted by the Commission, a nurse-in-charge should be guided in clinical practice by professionalism, diligence, knowledge of patient needs, implementation of the correct policies that govern a patient’s care, not assumption and naivety.  Further, a nurse-in-charge has a responsibility to be well orientated to the patient’s needs and to demonstrate clinical expertise, care and leadership.  While there may be sympathy for the strains created by decreased staff levels, sub-standard nursing care cannot be sanctioned on this basis, particularly when deficits are found in fundamental levels of basic nursing, including observing appropriately and making honest and contemporaneous notes.

71. [71]
    In respect of Nurse Dudhela, the tribunal said: 

    1. (a)
       Mr Dudhela referred to an entrenched practice with the unit on night shift to only conduct hourly observation rounds.  This meant that although they were required, half hourly rounds were not actually conducted.  In hindsight Mr Dudhela regretted following this poor practice and not complying with the mental health’s care level policy. 
    2. (b)
       He was the nurse allocated to patient A.  He had significant information about patient A’s involuntary status and his behaviour in recent days from the handover and from reading the previous notes.  He should have been alert to the necessity to maintain half hourly observations overnight. 
    3. (c)
       Mr Dudhela made an entry indicating an observation of patient A at 11.30 pm which had not in fact taken place.  He did not personally conduct any observations for patient A over an eight-hour period or take steps to ensure they occurred.  He made a progress note suggesting patient A was asleep during all rounds in circumstances where he had last sighted the patient almost seven hours previously.  He was unaware whether the patient was sleeping during the hourly rounds and he was aware that half hourly rounds did not occur.
72. [72]
    In relation to sanction, Nurse Brown was disqualified for a period of two years given her leadership role and responsibilities.   Nurse Dudhela and one of the other nurses were disqualified for 18 months.  Nurse Egbufor was disqualified for a period of 12 months. 
73. [73]
    As Ms Robb fairly notes in her submission, by reference to the facts in these cases, in the circumstances, the patient (because of equivocal evidence about the time of death) was deceased for between two and eight hours when he was found, potentially between 11 pm and 5.30 am, indicating the potential window within which he was not sighted.  As she states correctly, the difference in outcome for the patient in the matter before this Tribunal speaks to the difference in the outcomes in Brown et al. 
74. [74]
    While the respondent’s conduct was outside the prescribed observations regime, and included improper recording of sightings that had not been made, serious misconduct amounting to professional misconduct did not mean the patient’s attempted suicide was ultimately missed. 
75. [75]
    Mr Templeton in his written submission also refers to another case before the New South Wales Tribunal which involved two nurses in comparable circumstances.  The cases are Health Care Complaints Commission v Cooper; Health Care Complaints Commission v Higgins [2018] NSWCATOD 17.  Both cases were heard together and concerned the conduct of Nurse Cooper, who was the nurse-in-charge, and clinical nurse specialist Nurse Higgins, during a shift at the mental health inpatient unit at a regional hospital, and in particular their failures to undertake required 15-minute observations in accordance with the relevant policy, and the making of misleading entries in the patient’s charts in relation to observations that were not conducted.  One of the patients died during the night of natural causes.
76. [76]
    Nurse Cooper was found to have engaged in unsatisfactory professional conduct on the basis that he had signed observation charts on three occasions when those observations were not undertaken, and had failed to adequately supervise staff to  ensure the 15-minute observations were completed.  Cumulatively his conduct was characterised by the Tribunal as professional misconduct.
77. [77]
    Higgins was found to have engaged in unsatisfactory professional conduct, on the basis he had not undertaken observations properly (giving only a cursory glance) and failed to undertake all required 15-minute observations (leaving the patient unobserved for periods ranging from 30 minutes to one hour and 20 minutes), and had signed observation charts on some15 occasions through the shift when observations were not undertaken.  Cumulatively, his conduct was characterised as professional misconduct. 
78. [78]
    Nurse Cooper was reprimanded.  The Tribunal accepted his expression of remorse and contrition as being genuine, noting that suspension or cancellation would deprive a rural area of Western Australia of a skilled senior nurse; and noting the absence of complaints in the four and a half years since the incident.  It considered a reprimand would sufficiently protect the public.  Conditions requiring education and ethics and record keeping were also imposed.
79. [79]
    Nurse Higgins’ registration was suspended for four months.  The Tribunal made a distinction between his role as a senior specialist clinician with higher responsibility in terms of patient care and Cooper’s role as a manager.  It also noted Higgins had not undertaken observations on all occasions he said he did, falsely completed observations and falsely told a colleague he had undertaken observations.  Conditions requiring education and ethics and record keeping were also imposed.
80. [80]
    HCCC v Sloane; HCCC v Hayles [2018] NSWCATOD 37 (Sloane and Hayles) concerned a nurse-in-charge (Sloane) and a registered nurse (Hayles) during a night shift at an acute mental health ward of a hospital.  The conduct involved failing to complete required patient observations, falsely recording they had been done, and (Sloane) failing to properly supervise the observations and conduct ERN Hayles. 
81. [81]
    The Tribunal found the conduct constituted professional misconduct on the basis of its serious nature, endangerment of a patient and intentional dishonesty.  One of the patients was found the following day lying on the floor, lying in a puddle of urine with pressure marks on his face, arm, hip and on his right side. 
82. [82]
    In Sloane and Hayles, the various steps taken by Nurse Sloane to remedy her failings (training and mentoring from a  clinical nurse educator, removing herself from nursing charge roles and only working day shifts) were taken into account by the Tribunal, which decided to reprimand her and place conditions on her registration rather than suspend or cancel her registration (to which serious consideration was given).  The Tribunal ultimately decided these orders would send a sufficiently strong message to the practitioner, and the profession in general, that behaviour of the type proved would not be tolerated.
83. [83]
    With respect to Mr Hayles, the Tribunal was hampered by his failure to participate in the Tribunal’s proceedings.  It noted that he had not stated what mistakes he had made other than accepting the culture of the ward and being insufficiently assertive.  The Tribunal considered that he was not, at the time of the hearing, demonstrating sufficient insight into the importance and significance of his failure to accept that his conduct constituted unsatisfactory professional conduct or professional misconduct.  In the circumstances it decided to cancel his registration and disqualify him from reapplying for at least two years.
84. [84]
    As noted, the New South Wales decisions have to be read in light of the different disciplinary framework in that State, but nevertheless the cases are of assistance particularly in the absence of comparable cases in the Queensland jurisdiction.  I agree with the respondent that it is difficult to reconcile the outcomes in these cases with the facts and circumstances, but ultimately, that is not uncommon because cases vary so much from case to case.  In this case, ultimately, in my opinion, having regard to those authorities, ordinarily the respondent’s conduct here would call for a period of suspension, but certainly not of the order of 12 months.
85. [85]
    The determination of the appropriate sanction in this matter has caused the assessors and I, a great deal of anxious thought.  While recognising the seriousness of the conduct and the need for an order that impresses upon the profession the need to behave ethically, particularly in relation to highly vulnerable patients in acute mental health settings, and the need to uphold the valuable and highly regarded reputation of the profession in the eyes of the public, the imposition of a period of suspension now on such a highly qualified health practitioner whose skills are desperately needed and scarce in one of the most difficult areas of health care will not, in my opinion, add anything to the health and safety of the public being protected.  In my opinion this case is quite exceptional for the reasons that I have articulated, and does not serve well as a vehicle for general deterrence.  The shame and ongoing distress that this highly valued health practitioner clearly demonstrates now, and has always demonstrated, should serve as a reminder to all health practitioners who work in this area, that despite the pressures, despite the culture and practice of a particular workplace, focus on the care of the patient should always be central.
86. [86]
    As has often been said, a reprimand is not a trivial penalty.  It serves as a public denouncement of the respondent’s conduct.  The mentoring conditions, for such a highly qualified and experienced nurse will  I think, have a salutary effect on her and will probably be humbling and certainly positive for her and ultimately positive for the health and safety of the public whom she serves. 

Orders

87. [87]
    In those circumstances, the orders and findings of the tribunal are as follows: 

1. (a)
   Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;

1. (b)
   Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;

1. (c)
   Pursuant to section 107(3)(b) of the HO Act, conditions are imposed on the respondent’s registration in terms of the conditions annexed to the  submission of the applicant filed in the Tribunal appearing on pages 25 to 26 of the submission; and

1. (d)
   Each party must bear their own costs of the proceedings.