Health Ombudsman v Fickling[2024] QCAT 207

REASONS FOR DECISION

1. [1]
   The respondent was registered as an enrolled nurse on 5 August 1999 and a registered nurse on 25 March 2013.
2. [2]
   The respondent worked at various places in Queensland and was working in Townsville from about 7 November 2016.
3. [3]
   The applicant received notification about the respondent from her workplace on 30 November 2017. Investigation was commenced on 7 December 2017.
4. [4]
   On 9 May 2019, pursuant to s 58 of the Health Ombudsman Act 2013 (‘HO Act’), the applicant having formed a reasonable belief that the respondent posed serious risk to persons decided to take immediate registration action by imposing conditions on the respondent’s registration:

which limited the respondent’s involvement in end of life palliative care unless certain conditions regarding review by a medical practitioner and conference with family has occurred, records are maintained, and administration of medication for palliative care is approved by medical practitioner. The respondent was required to provide logs of palliative care treatment and medication administration, provide confirmation from her employer that they were aware of the conditions and notify the applicant of any changes to her employment and/or residential address.^[1]

5. [5]
   On 31 March 2021, the applicant referred the matter to the Director of Proceedings for a decision to be made under s 103 of the HO Act. The Director of Proceedings referred the matter to the Tribunal pursuant to ss 103(1)(a) and 104 of the HO Act. The referral alleged that the respondent had engaged in professional misconduct, alternatively unprofessional conduct, alternatively unsatisfactory professional performance, within the meaning of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). An amended referral was filed on 11 November 2022 with leave of the Tribunal.
6. [6]
   The parties have agreed the following position:

3. (a)
   the respondent engaged in unprofessional conduct within the meaning of the HO Act and the National Law in that she:

3. (i)
   failed to maintain appropriate records in relation to care provided by her to three patients; and

3. (ii)
   administered the highest dose of morphine sulphate in the prescription range prescribed to two patients without documenting any pain assessment or the reasons to justify the dose administered;

3. (b)
   the respondent’s unprofessional conduct, considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience and constitutes professional misconduct.

3. (c)
   the Tribunal ought reprimand the respondent;

3. (d)
   the Tribunal ought impose conditions on the respondent’s registration; and

3. (e)
   there be no order as to costs.

The Conduct

7. [7]
   It is alleged that the events the subject of the amended referral took place between November 2016 and December 2017 whilst the respondent was practising as a clinical nurse consultant at the Fairfield Grange residential aged care facility in Townsville.
8. [8]
   The agreed conduct is set out in a statement of agreed facts and can be broadly summarised as inadequate record keeping. It is submitted by the respondent and the Tribunal acknowledges that:

the agreed findings do not impugn the actual care provided by the respondent to the patients but rather the documentation important aspects of that care and in particular end-of-life care.^[2]

9. [9]
   The respondent accepts that the criticisms of her record keeping justify a conclusion of professional misconduct having regard to the context in which it occurred. To support this the respondent relies on the decision in Medical Board of Australia v Carr (Review and Regulation).^[3]
10. [10]
    The respondent accepts that as the documentation was about end of life care, including justification for taking particular steps in the end of life care process, it is vitally important that the documentation adequately describes not only what is being done but why it is being done.
11. [11]
    Whilst the respondent relies on a number of mitigating factors. The applicant says that this is inconsistent with reports from the former Executive Manager Aged Care Services for the group which managed the Fairfield Grange. In the circumstances of an agreed position, it is not necessary to further explore this issue.
12. [12]
    In the circumstances, the Tribunal notes that the parties jointly submit that the respondent should be reprimanded, and that her registration should be subject to a condition requiring education in relation to medication and maintaining appropriate records in a palliative care setting, and consultation with a senior practitioner on a monthly basis, for the purpose of reviewing a sample of the respondent’s records kept during the preceding month.
13. [13]
    The Tribunal notes this submission made by the applicant that, the Tribunal will not depart from a proposed sanction unless it falls outside the permissible range of sanctions for the conduct.^[4]

Conclusion

14. [14]
    In this case, the Tribunal is satisfied that the agreed sanction and conditions are appropriate, having regard to the respondent’s conduct.
15. [15]
    However, the Tribunal notes that:

    1. it is concerned that some of the fault must fall on systemic issues and not solely on the respondent; and 
    2. insofar as the conditions are concerned, the Tribunal is sceptical that they will, given the time that has elapsed since the events the subject of the allegations took place, and the significant time the respondent has had for self-reflection, have much beneficial effect.
16. [16]
    Noting these observations, the Tribunal considers that the proposed sanction does not fall outside of the permissible range.

Orders:

3. 1.
   Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.

3. 2.
   Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. 3.
   Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), conditions are imposed on the respondent’s registration as follows:

3. (a)
   the respondent shall undertake education and successfully complete a program/s of education, approved by the Nursing and Midwifery Board of Australia, including a reflective practice report in relation to medication and maintaining appropriate records within the palliative care setting; and

3. (b)
   the respondent shall be, when practicing as an enrolled or registered nurse, required to consult with a registered nurse of not less than 10 years’ experience in the area of practice of the respondent, approved by the Board, on a monthly basis, for the purpose of reviewing a sample of the respondent’s records kept during the preceding month and receiving feedback and guidance as to those records for a minimum of six months and until the supervising registered nurse is satisfied with the respondent’s record keeping.

3. 4.
   Pursuant to s 196(3) of the Health Practitioner Regulation National Law (Queensland), the conditions imposed on the respondent’s registration are subject to a review period of 12 months.

3. 5.
   Pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate action imposed by the Health Ombudsman (effective from 9 May 2019 and varied on 11 July 2019) is set aside.

3. 6.
   No order as to costs.