Health Ombudsman v Hewitt[2024] QCAT 334

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   These disciplinary proceedings were referred to the Tribunal by the applicant Director on 29 September 2023.
2. [2]
   The respondent practitioner represents herself.
3. [3]
   By her response to the referral, the practitioner, who at the time of these events was an endorsed enrolled nurse of a little over 7 years standing, admitted that, whilst she was on a day shift as an agency supplied nurse at an aged care facility she:

   1. mishandled 53 medications prescribed for patients at that facility;
   2. failed to administer 46 medications prescribed to patients of that facility, as they were prescribed or at all; and
   3. falsified medical records by marking 45 medications prescribed for patients as having been administered when they were not administered.
4. [4]
   There is a statement of agreed facts signed by the applicant’s legal officer and the respondent personally dated in January 2024.
5. [5]
   The respondent was 53 years old when she engaged in the conduct which resulted in the referral. Her registration lapsed on 31 May 2022 because she did not renew it and at the time of this determination the respondent is unregistered.  I infer from the lack of any reference to a disciplinary history in the Ombudsman’s submissions that the practitioner has no disciplinary history prior to this proceeding.^[1]
6. [6]
   Having reviewed the hearing brief, the Tribunal asked the parties by email to confirm if they sought to make oral submissions. The applicant confirms it did not seek to make oral submissions and there was no reply from the respondent. In those circumstances the Tribunal has proceeded to deal with the matter on the papers in accordance with s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

The conduct the subject of the referral 

7. [7]
   The conduct giving rise to the referral occurred on 30 November 2021.
8. [8]
   The practitioner was rostered on a day shift (from 6am to 2 pm) at an aged care facility where she had not previously worked. Her role during the shift was to administer medications and other pharmaceuticals to the 46 residents of two of the wings of the facility. They were high care patients. There were specified times for medication rounds and other medications due at times which were charted for time sensitive medications.
9. [9]
   There was an electronic medication system on a laptop on the medication trolley which was pre-stocked with the residents’ medications. The medications were variously in prepacked parcels marked with the resident’s name, the packet’s contents (which in some cases included multiple tablets) and the date and time for medication administration, or in webster packs or organised in drawers according to the resident’s room number.  The electronic medication system contained each resident’s electronic medication chart, a photograph of each resident for identification purposes and administration details.  
10. [10]
    To perform her duties the practitioner had to:

    1. locate the resident on the medication list;
    2. identify the resident using the photograph on the resident’s medication chart;
    3. locate the relevant medication on the trolley; and
    4. administer the medication to the resident.
11. [11]
    If a medication was not given by the end of the allocated time for the medication round, the electronic mediation record automatically generated an incident report.
12. [12]
    At the end of the allocated time for the medication round, the practitioner marked off that she had provided the medication to all of the residents in the electronic medication record. However, the practitioner disposed of medications for 17 residents. 15 residents did not receive their medication and the practitioner falsified the records when she recorded she had given the medications in the resident’s medication records. The practitioner also disposed of medication for two residents that were due to be administered on a later day.   The medication was for various conditions including treatment of pain, psychological or psychiatric issues and physical issues such as chronic heart conditions, high blood pressure, gout, Parkinson’s disease, diabetes and epilepsy.
13. [13]
    Later that day, another staff member at the facility discovered packets of medication in a rubbish bin, which was not a secure sharps disposal unit, a medical waste bin or a bin that was otherwise locked or in a locked room. 
14. [14]
    The practitioner did not tell the aged care facility, or her employer that she had disposed of medication, failed to administer medication or falsified patient records.
15. [15]
    The next day, one of the residents suffered from abdominal pain and vomiting, which was considered to be due to the medications that were not administered during the practitioner’s shift.
16. [16]
    The practitioner’s employer notified the Office of the Health Ombudsman of the practitioner’s conduct on 9 December 2021. Several months later, the Health Ombudsman decided to investigate the conduct and ultimately, on 29 September 2023 the referral was filed.

The parties’ submissions 

17. [17]
    The applicant has filed written submissions dated 15 March 2024.
18. [18]
    The applicant submits the respondent’s conduct constitutes professional misconduct being conduct which is substantially below the standard which might reasonably be expected of a registered health practitioner of an equivalent level of training or experience. The applicant contends that the practitioner’s conduct involved a significant breach of her professional responsibilities to vulnerable patients in her care, which was further exacerbated by the deceptive action she took to cover up the breach. It was conduct which had an impact directly and indirectly on a very vulnerable group in the community, being vulnerable elderly residents with cognitive impairments, with some who had an inability to speak. The conduct occurred over the course of one shift.
19. [19]
    Aggravating circumstances of the conduct include:

    1. the practitioner was an experienced enrolled nurse;
    2. the patient cohort she was responsible for was one of the most vulnerable in the community, suffering from cognitive impairments and communication difficulties;
    3. one patient experienced direct consequences from the failure to receive her medication and others were placed at risk, given the nature and variety of medications involved and the conditions for which they were to be provided;
    4. subsequent steps to falsify the records increased the risk;
    5. the disposing of medications into an unsecure bin posed a potential for additional risk, if residents or visitors had inadvertently accessed the medications from the rubbish bin.
20. [20]
    The applicant also points to a number of standards for practice and provisions of the code of conduct for nurses, which it submits the practitioner’s conduct was a serious departure from, including:

    1. demonstrating competence in the provision of person-centred care;^[2]
    2. acting to ensure safe outcomes for others by recognising the need to protect people and reporting the risk of potential for harm;^[3]
    3. providing accurate and appropriate information to enable informed decision making by others;^[4]
    4. nurses embodying integrity, honesty, respect and compassion;^[5] and
    5. nurses having a responsibility to maintain their … mental health to practice safely and effectively;^[6]
21. [21]
    As to sanction, the applicant submits the appropriate sanction is:

    1. a finding of professional misconduct;
    2. a reprimand;
    3. disqualification from applying for registration for nine (9) months;
    4. prohibition from providing any health service in a paid or unpaid capacity in a clinical or non clinical capacity until the practitioner is registered as a health practitioner; and
    5. no order as to costs. 
22. [22]
    The practitioner has not provided written submissions, however, she has provided material in the referral.
23. [23]
    The practitioner, in her response to the referral, admitted the allegations and provided some matters by way of context. They included:^[7]

    1. she was told she was not dealing with the S8 controlled drugs or the residents’ insulin because the shift she would be working would be extremely busy;
    2. the intra-communication device she was given was difficult to use within the facility, with dead spots;
    3. residents were located together in the dining room, not easy to identify by reference to their photographs and most of them were unable to verbally confirm their identity;
    4. she could not easily locate facility staff to assist her, so administered the medications she could safely administer to residents in the dining room but ran behind schedule then repeated the process with the midday medications, which was no more successful;
    5. she made the decisions to dispose of the medications and falsify the documents after a very difficult and stressful morning, when her decision making capacity was sadly lacking; and
    6. she unreservedly apologises to the management, staff, residents and family members for her lack of judgment on the day. 
24. [24]
    In an affidavit dated 6 March 2024 and filed in the proceeding, the practitioner sets out the impact that these events had on her personally including:

    1. that she has been unable to return to work of any type;
    2. she has a long history of anxiety. The difficult shift coupled with the anxiety she experienced when she failed to manage the shift was the root cause of her conduct that day;
    3. she has been seeing a psychologist for the last several months to better understand her anxiety, its causes, triggers and techniques for management;
    4. she has renewed her subscription to Ausmed, a site providing online clinical training to assist with maintaining a clinician’s continuing professional development; and
    5. she is beginning to contemplate returning to work. 
25. [25]
    The practitioner has also provided examples of occasions in her professional life when she says she has provided a high standard of clinical care to those in her care. She states she is thankful that none of the residents suffered any long term ill-effects from her actions and she apologise for any trauma they or their families have experienced.
26. [26]
    The practitioner asks that the Tribunal view her severe lapse in judgment as an aberration rather than an example of her overall professional conduct and abilities as a clinician.
27. [27]
    There is no medical material verifying the practitioner’s diagnosis of anxiety. 

Discussion and Sanction

28. [28]
    It is necessary for the Tribunal to determine, pursuant to s 107 of the Health Ombudsman Act 2013 (Qld) (HO Act):

    1. whether the respondent’s conduct constitutes one of:
       1. unsatisfactory professional performance;
       2. unprofessional conduct; or
       3. professional misconduct; and
    2. the appropriate disciplinary sanction.
29. [29]
    I observe that from print outs of the electronic medication system manual it appears it was possible to select, as an outcome, that medication was ‘not given’.^[8] Even allowing for the suggestion that the shift was one where the workload was too great for an agency nurse to manage (a fact about which there is no significant evidence and which I do not expressly find), there can be no reasonable explanation for the practitioner’s failure to accurately record the true position as to the administration of the medication in the residents’ electronic medication records. For this reason, and the reasons set out in the applicant’s submissions, the Tribunal is comfortably satisfied that the practitioner’s conduct constitutes professional misconduct, as conduct which is substantially below the standard which might reasonably be expected of a registered health practitioner of an equivalent level of training or experience.
30. [30]
    Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
31. [31]
    When turning to sanction, it is important that these proceedings are protective in nature and not punitive. The Tribunal must regard the health and safety of the public as paramount.^[9]
32. [32]
    The purpose of disciplinary proceedings is to maintain professional standards and public confidence in the profession and to protect the public. Determinations should not be punitive.
33. [33]
    The Tribunal considers a number of factors when determining what sanction is appropriate including:^[10]

    1. the seriousness of the conduct;
    2. whether the practitioner acknowledges culpability and is remorseful;
    3. what needs for specific or general deterrence arise;
    4. evidence of character;
    5. evidence of rehabilitation;
    6. whether there has been delay from the time the investigation started to the conclusion of the matter in the Tribunal; and
    7. any other mitigating factors.
34. [34]
    The Tribunal accepts the practitioner’s conduct was a serious breach of her professional obligations:

    1. she did not tell those at her workplace that she had not administered the medication or that she had disposed of the medication; and
    2. she falsified the electronic patient records, thereby jeopardising the health of vulnerable elderly members of the community. One resident suffered actual harm and the patient cohort was one which, as the applicant submits, was put at risk of suffering pain and discomfort which they would not be able to understand or explain.
35. [35]
    This was a serious failure to observe the duties of an enrolled nurse and a breach trust and obligations owed to her employer, members of her workplace, the residents and their families.
36. [36]
    The Ombudsman seeks a reprimand. A reprimand, which the authorities recognise is not a trivial sanction, is appropriate and the Tribunal will impose one.
37. [37]
    General deterrence is an important aspect of disciplinary proceedings because of the need to send a message to other professionals that to behave in this way is apt to bring the profession into disrepute and to lower public respect for and confidence in the nursing profession. This type of conduct towards vulnerable residents in the aged care sector is to be strongly deprecated.
38. [38]
    It seems clear from the practitioner’s various written submissions that:

    1. she has recognised, after the event, that she should have dealt with the circumstances on shift very differently;
    2. she is regretful about and very remorseful for her actions, having expressed an apology in writing to the aged care facility, staff, residents and their families; and
    3. that she has been consulting a clinical psychologist to understand her anxiety, its causes, triggers and techniques for ongoing management. 
39. [39]
    Given these matters, personal deterrence is a less relevant consideration on these facts. This information also suggests the respondent is remorseful and has some insight into her conduct.
40. [40]
    Whilst the practitioner refers to suffering from anxiety, both historically and on the day of the shift where the events occurred, there is no independent medical evidence which sets out for the Tribunal the nature or extent of any such condition, its duration or the practitioner’s prognosis. In those circumstances the Tribunal does not act on the basis that the practitioner was experiencing anxiety on the day of the shift, or on the basis that anxiety is an ongoing consideration.
41. [41]
    The Ombudsman has referred the Tribunal to Nursing and Midwifery Board of Australia v Nelsen^[11] for some comparative consideration, in seeking a 9 month disqualification on top of a reprimand. In that case an enrolled nurse working on a four hour night shift failed to administer medication to eight residents of an aged care facility who were described as “… elderly and had cognitive impairments and/or were non-verbal”.^[12] The residents suffered from similar physical and psychological conditions to those in this proceeding. As in this case, the nurse in that case recorded falsely on the medication charts that the medication had been administered. In that case, the practitioner had been out of practice for approximately 3 years and six months at the time of hearing the disciplinary referral. This appears to have weighed on the Tribunal to some extent, as it observed this duration away from practice meant that it was highly likely the practitioner in that case would need to completely retrain before becoming eligible for registration.  She had surrendered her registration a day or two after receiving a letter from AHPRA which proposed to suspend her registration. The Tribunal observed this “had the flavour of seeking to avoid any direct discussion of her conduct”, as did her failure to attend the Tribunal for a hearing of the referral, without seeking an adjournment.^[13]  There were no long term consequences for the patients involved, although they were put at risk in various ways by not receiving their medication. The Tribunal observed that “this was a serious failure by the respondent to observe her duties as an enrolled nurse”.^[14] The Tribunal imposed a reprimand, a period of 6 months of disqualification for applying for registration and a prohibition from providing any health service for six months from the date of the order.
42. [42]
    Whilst the matter before the Tribunal today involved a default against more residents over a longer shift than in Nelsen, like Nelsen it was relatively unsophisticated conduct on one occasion and always likely to be detected. It also involved a similar deception in respect of patient records. There is nothing in the material before the Tribunal which indicates that the practitioner was uncooperative in the investigation, unlike the practitioner in Nelsen.
43. [43]
    The final consideration is delay. As at the time of this hearing, the respondent has not practiced for a period of 2 years and three months, having let her registration lapse on 31 May 2022. She has not worked as a nurse or otherwise in the health profession since December 2021, a period of approximately 2 years and 8 months. Weighing all these considerations the Tribunal determines that a disqualification period of six months from today is appropriate.
44. [44]
    The Ombudsman had imposed conditions on the respondent’s registration on 27 June 2022 by way of immediate action.  The Ombudsman removed the immediate registration action on 10 August 2023, as the respondent’s registration had lapsed and she was no longer registered.
45. [45]
    Whilst the Ombudsman seeks a prohibition order to run concurrently with any disqualification period, there are no written submissions made in support of that order. Whilst the respondent is not registered, she is not technically permitted to administer medication. A prohibition order does not seem to be particularly suited to or appropriate to address the practitioner’s default and it is not otherwise apparent what purpose it would serve. 
46. [46]
    There is presently no order protecting the confidentiality of patient information. The Tribunal may act on its own initiative to make a non publication order.^[15]
47. [47]
    Authority in this tribunal recognises that information about the health and/or treatment of patients is properly regarded as either confidential information or information whose publication would be contrary to the public interest and thereby caught within the terms of s 66(2)(d) of the QCAT Act and a discretion arises to make a non-publication order in relation to the identity of patients. Such orders are commonly, if not invariably, made in matters of this type.^[16] Given the nature of the information in this referral, the Tribunal will make an order protecting the identify of the patients the subject of the allegations in the referral.
48. [48]
    The Tribunal has derived assistance from the assessors on questions of fact and thanks the assessors for their thoughtful engagement and assistance.

Orders

49. [49]
    The Tribunal orders that:

1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
   1. the contents of a document or thing filed in or produced to the Tribunal;
   2. evidence given before the Tribunal;
   3. any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of any patient the subject of the allegations in the referral.

2. Order 1 does not apply to publication to the extent that it is for the purposes of:
   1. the parties to engage in and progress these proceedings or any appeal or review arising from these proceedings; or
   2. the applicant to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the Health Ombudsman Act 2013 (Qld).
3. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
   1. a judicial member;
   2. a tribunal member;
   3. an associate to a judicial officer or tribunal member appointed under relevant legislation;
   4. any assessor appointed to assist the Tribunal;
   5. the staff of the Tribunal registry;
   6. any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings;
   7. the parties to these proceedings or any appeal or review arising from these proceedings.

50. [50]
    The Tribunal decides that:

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.

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of six months from the date of this order.

4. Each party bears its own costs of the proceedings.