Health Ombudsman v Vale

[2020] QCAT 363

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Vale [2020] QCAT 363

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

MELANIE ISOBELLA VALE

(respondent)

APPLICATION NO/S:

OCR316-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 September 2020

HEARING DATE:

30 September 2020

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

Assisted by:

Ms Laura Dyer
Dr Kim Forrester

Mr Paul Murdoch

ORDERS:

1.   The Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct in respect of the conduct the subject of the referral.

2.   The Tribunal imposes a condition on the registration of the respondent that the respondent refrain from working as a nurse in a correctional facility.

3.   The Tribunal decides that the National Law Part 7 Division 11 Subdivision 2 applies to the condition, and that the review period for the condition be two years.

4.   The parties bear their own costs of the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – professional misconduct - registered nurse working in correctional facility – inmate with head injury – failure to monitor adequately – failure to transfer to hospital - sanction

Health Ombudsman Act 2013, s 103(1)(a), s 104, s 107, s 109

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Ombudsman v Brown [2019] QCAT 218
Health Ombudsman v Hardy [2018] QCAT 416
Health Ombudsman v Kimpton [2018] QCAT 405
Health Ombudsman v Le Garde [2019] QCAT 260
Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149
Medical Board of Australia v Blomeley [2018] QCAT 163
Medical Board of Australia v de Silva [2016] QCAT 63
Medical Board of Australia v Martin [2013] QCAT 376
Nursing and Midwifery Board of Australia v Gibbons [2014] QCAT 412
Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549
Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161
Pharmacy Board of Australia v Thomas [2011] QCAT 637

Psychology Board of Australia v GA [2014] QCAT 409

APPEARANCES & REPRESENTATION:
Applicant:	A R Forbes of Turks Legal
Respondent:	Self-represented

REASONS FOR DECISION

1. This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with the Act I sat with assessors Ms L Dyer, Dr K E Forrester and Mr P Murdoch.[1] On 30 September 2020 the Tribunal made the orders set out above, and said it would publish reasons in due course. These are those reasons.

   [1]Health Ombudsman Act 2013 s 126. For their function, see s 127.

2. The respondent is and was at relevant times a registered nurse, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (National Law). The applicant alleges that the respondent engaged in professional misconduct in that, while working as a registered nurse in a correctional facility, she did not properly assess and document the condition of a prisoner who had suffered a head injury, did not intervene when he was being inappropriately dealt with by others, and did not take steps to have the prisoner removed to a hospital in a more timely way.

Facts

1. The parties have provided the Tribunal with an agreed statement of facts, an agreed set of documents, and joint submissions. The respondent has not been legally represented in this proceeding, and cooperated with the applicant in its investigation, and in this proceeding. There are no factual matters in dispute in this proceeding. An affidavit by the respondent, sworn on 25 September 2019, was before the Tribunal, and she also gave brief oral evidence.

2. The Tribunal accepts the facts set out in the agreed statement of facts. They, and some additional information before the Tribunal, may be summarised as follows: The respondent was born in 1956 and is now 64. She was first registered as a registered nurse and a midwife in 1993; she had previously worked as what is now called an assistant in nursing. From May 2015 to October 2016 she worked at the offender health service in a correctional centre, although she had a period of six months leave to care for two ill relatives, returning to work in July 2016.

3. On 8 October 2016, a Saturday, she was one of five nurses working at the health centre. Because it was a weekend there was no Nurse Unit Manager on duty, and there was no particular nurse in charge of the unit; she was rostered in a position where she had responsibility for providing medication to some hundreds of prisoners, a task which kept her busy. She was distributing medication at about 8.45 am when she was called to attend a prisoner who had been assaulted in an exercise yard, and had suffered a head injury.

4. The prisoner was lying on the ground, awake, alert and answering simple questions, and she assessed him as having suffered a low risk head injury. She arranged for him to be taken to the health centre, where she took observations and telephoned the hospital to report. A doctor told her the prisoner sounded fine, and authorised pain relief, and the prisoner was given paracetamol and ibuprofen. At about 9.27 am the respondent was told by a correctional service officer that the prisoner had been putting his fingers down his throat. She went to where he was and found him on the bed, without a shirt, and with an emesis bag, which she helped him with; she took no observations, and did not document this attendance.

5. At about 9.50 am the respondent returned to where the prisoner was, by which time he was on the floor. She took his vital observations, but was unable to complete neurological observations, and left another nurse to complete them; she documented these observations as advised by that nurse. After 11.00 am the respondent returned to the room, where the prisoner was on the floor, having vomited. She cleaned his vomit, assisted to place him on the bed and took his vital observations, but was unable to perform a neurological examination because he was uncooperative and verbally aggressive. She considered that he had deteriorated, and suggested to the other nurse that he needed to go to hospital, but the other nurse claimed that the prisoner was “faking it”. The respondent did not press the matter, and said she felt intimidated by the other nurse. As well, she was not aware of the prisoner’s usual demeanour. She did not seek advice by telephone from the hospital.

6. Shortly before 1.00 pm the respondent again took the prisoner’s vital observations, and again suggested to the other nurse that the prisoner should go to hospital, but the other nurse again asserted that he was “faking it”, and the respondent did not press the matter, and continued with her other duties. She was not involved in the decision of the other nurse that the prisoner could return to his cell, or the transfer of him by correctional service officers, using a wheelchair and carrying him.

7. The respondent did not see the prisoner again until she was doing a medication round in the afternoon, and she was asked to see to the prisoner because he was frothing from the mouth, and incontinent. She went to his cell at 4.52 pm where she found him unresponsive even to a vigorous sternal rub, with no purposeful limb movement. She sought assistance and others, including the other nurse, attended. The other nurse still asserted that the prisoner was pretending to be ill, and attempted to test that, to which the respondent objected, and said that the prisoner had to go to hospital. The prisoner was taken to the health centre, and an ambulance was called, which took him to hospital. Investigations revealed that he had suffered a subdural haemorrhage in the incident, which produced brain damage. He remained in hospital until March 2017.

8. As a result of this incident the respondent lost her employment. On 10 November 2016 the respondent’s registration was suspended by the applicant, but that suspension was lifted and conditions were imposed on 7 March 2017, including that she not practice in a role requiring direct or indirect clinical patient contact without the approval of the applicant. The respondent has not in fact worked as a nurse since she lost her position at the prison. She never sought such approval from the applicant, and applied for non-practicing registration in June 2018, which took effect from 5 July 2018, after which the conditions were removed. For a time she again cared for ill relatives; more recently she has worked as a carer for an organisation providing assistance to elderly people still living at home. She said in evidence that she had some interest in working again as a nurse, probably in aged care or palliative care.

9. The respondent was interviewed by the applicant’s investigators on 8 December 2016 and provided a detailed account of the circumstances of the incident, in which she made admissions to the conduct summarised above. She cooperated with the investigation, and demonstrated remorse for her actions and failings, and insight into the reasons for such conduct. She has also cooperated with this proceeding, and would have been ready for the matter to be dealt with much sooner, although the applicant wanted to deal with it at the same time as the proceeding involving the other nurse.[2] During her oral evidence the respondent again demonstrated remorse and insight, explaining that at the time she had had difficulty in confronting others because of a history of domestic violence to which she was subjected as a child. This had made her seek to avoid conflict, by physically withdrawing, avoiding or trying to placate a person who was intimidating her. In these circumstances, it was difficult for her to persevere when the prisoner was uncooperative, or to stand up to the other nurse who was resisting sending the prisoner to hospital.

   [2]In the event, she gave evidence for the applicant in the proceeding involving the other nurse.

Applicant’s case

1. The applicant alleged, and the respondent accepted, that the assessment conducted by the respondent at about 9.51 am was inadequate because of a failure to complete a comprehensive physical assessment, to conduct a pain assessment, to assess the effect of the analgesia provided, and to conduct neurological observations including a limb power assessment; that the assessments conducted at about 10.00 am and 11.00 am were inadequate because of a failure to complete a comprehensive physical assessment, to conduct a pain assessment, to assess the effect of the analgesia provided, to conduct neurological observations including a limb power assessment, to attempt to ascertain why he was uncooperative and what he said about his condition, and to check the vomit to see if it included blood; that the assessment conducted at about 1.00 pm was inadequate because of a failure to conduct neurological observations including a limb power assessment, and to assess whether his condition was deteriorating. As well, the respondent had failed adequately to document the assessments conducted at around 9.00 am, about 9.51 am, about 10.00 am, about 11.00 am and about 1 pm, in various respects. As well, the respondent had failed adequately to advocate for the prisoner, and ensure that he was taken to hospital, once she realised at about 11.00 am that his condition had deteriorated. The respondent ought to have recognised the possibility of a closed head injury, and that transfer to a hospital was required.

2. The applicant provided to the Tribunal the opinion of an independent expert in clinical nursing, who expressed the opinion that the actions of the respondent in totality fell substantially below the appropriate standard of a Clinical Nurse with the same level of training and experience on several instances.[3] The opinion was expressed that the conduct of the assessment at about 9.00 am, and the failure to document it adequately, amounted to unsatisfactory professional performance, and that the failure to recognise and respond appropriately to the deterioration of the prisoner’s condition was substantially less than the minimum acceptable standard for a nurse with her experience and qualifications. Her failure to correct the unsafe attribution of the behaviour of the prisoner to deliberate fabrication of symptoms was substantially less than the minimum acceptable standard for a nurse with her experience and qualifications. She had also failed to provide safe emergency care, and failed adequately to document clinical details.

   [3]Report p 2; hearing book, p 207.

3. It was also submitted that the respondent’s conduct breached provisions in the Code of Conduct, the Code of Ethics and the Registered Nurses Standards of Practice, as set out in the joint submissions. The codes and standards are admissible in these proceedings.[4]

   [4]National Law, s 41.

Characterisation of the conduct

1. It was common ground that the conduct be characterised as professional misconduct. The applicant sought a finding that it fell within all three limbs of the definition, but in circumstances where it clearly falls under the first and second limb, I do not consider that it is necessary to decide whether it also falls under the third limb.[5] The essential function of a nurse is to take care of the patients in the care of the nurse, and for a nurse to neglect to do that properly over a period of some hours, where the appearance of the patient suggested that there might be something seriously wrong with him, must involve conduct which is significantly below the standard to be expected of a nurse of the respondent’s training and experience. I find that the conduct amounted to professional misconduct.

   [5]Health Ombudsman v Brown [2019] QCAT 218 at [21].

Sanction

1. The parties provided joint submissions to the Tribunal. The significance of joint submissions was discussed by Horneman-Wren DCJ in Medical Board of Australia v Martin [2013] QCAT 376 at [91]-[93] by reference to authorities, in terms with which I respectfully agree. I would merely add reference to the later decisions in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, in particular at [59], and Medical Board of Australia v de Silva [2016] QCAT 63 at [29]-[31]. Ultimately, it is a matter for the Tribunal to determine what sanction to impose.

2. In imposing a sanction, the health and safety of the public are paramount.[6] Disciplinary proceedings are protective, not punitive in nature.[7] Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.[8] Insight and remorse on the part of the respondent are also relevant. [9] What matters is the fitness to practice of the respondent at the time of the hearing.[10]

   [6]Health Ombudsman Act 2013, s 4(1).

   [7]Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 at [122].

   [8]Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Health Ombudsman v Kimpton [2018] QCAT 405 at [79].

   [9]Medical Board of Australia v Blomeley [2018] QCAT 163 at [140] – [143].

   [10]Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [31].

3. In the present case the respondent made extensive admissions in her interview with investigators, and it is not suggested that those admissions were not genuine. Further in her evidence before the Tribunal the respondent demonstrated insight into the cause of her behaviour, and contrition for having acted in that way. She has not worked as a nurse since she was suspended by her employer, and has now been away from nursing for almost four years. She sought non-practicing registration, and said in evidence that for a time she could not face returning to nursing because of this incident. I consider that that is a relevant factor.

4. The applicant submitted that the respondent should not get credit for this time as a de facto suspension, since to a large extent she had simply chosen to do other things during this period. The solicitor for the applicant would concede credit only for the period of four months that the respondent’s registration had been suspended by the applicant.[11] There have been a number of decisions of the Tribunal about the effect of a de facto suspension, and generally such time has been taken into account, although not always in terms of mathematical equivalence.

   [11]I suspect that if she had not applied for non-practicing registration, her registration would simply have remained suspended, but that is not verified by the evidence.

5. In Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 a nurse working in a correctional centre had a platonic but inappropriate relationship with a prisoner which was characterised as professional misconduct. The Hon J B Thomas QC said at [21]:

   Ms Tainton has already in a sense punished herself by relinquishing her registration. This apparently made it unnecessary for the Board to consider any “immediate action” under section 156 of the adopted national law.

6. He discussed other matters, and concluded at [36] that the preclusion period sought by the Board of twelve months was too long, “having regard to the nature of the conduct involved and to the fact that she has already relinquished registration for more than two years, partly spun out by reason of the leisurely pace at which proceedings were conducted.” A preclusion period of three months was imposed.

7. In Psychology Board of Australia v GA [2014] QCAT 409 the Hon J B Thomas QC said at [39], [40]:

   The Tribunal cannot order a retrospective suspension, but the parties, correctly in my view, submitted it is appropriate to take into account the fact that the respondent disqualified herself from the profession for a period in excess of six months.…It will not always be appropriate to regard voluntary cessation of practice as equivalent to a de facto suspension, as a practitioner might take a convenient holiday and seek to obtain benefit from it. But in the circumstances of the present case there would appear to have been a genuine self-imposed discipline that has been conscientiously followed, which has been subject to surveillance by the Board. In this case, then it is reasonable to regard a de facto suspension in excess of six months as having already taken place.

8. The reference to the “convenient holiday” requires some care, since I do not understand the Judicial Member to have been suggesting that any time spent on holiday during the period of de facto suspension must be disregarded. A practitioner cannot simply take a holiday and then ask for the time to be treated as a de facto suspension, but a practitioner who withdraws from practice voluntarily is not confined to sitting at home and doing nothing to enable the period to qualify. Commonly a practitioner will do other work, or expand the time devoted to other activities, but such time will still be counted. It has been said that time when the practitioner was prevented from practicing for other reasons should not be taken into account, and that each case needs to be considered on its own facts. It is not necessarily a direct mathematical exercise, although it is fairly common for that to be the outcome.[12]

   [12]See for example Health Ombudsman v Antley [2016] QCAT 472 at [49], [50] where the period after surrender of registration was taken into account in essentially a mathematical way. I have also seen in decisions from other states that periods of time away from the profession have been commonly deducted from proposed periods of suspension or preclusion periods.

9. In Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549 a registered nurse had administered medication inappropriately to residents of an aged care facility. Since then her registration had been subject to conditions which had made it difficult for her to obtain employment. Horneman-Wren DCJ, the then Deputy President of the Tribunal, said that although it was not a case where the nurse has voluntarily withdrawn herself from practice in recognition of her own misconduct, it was appropriate to reduce to six months what would otherwise have been a suspension for twelve months to make “some allowance … for the period in which she was unable to secure work after the conditions were imposed by the Board.”[13]

   [13][2015] QCAT 549 at [30], [31]. Both personal and general deterrence were considered relevant.

1. In Health Ombudsman v Hardy [2018] QCAT 416 a nurse had stolen a prescription pad from her employer and forged a number of prescriptions to obtain prescription drugs. When this was discovered her employment was suspended, and she had not worked as a clinical nurse in the four years since then. For a time her registration was subject to conditions on the basis of an impairment, but the Board had later removed those conditions, and the absence of clinical work was said to have been voluntary. Sheridan DCJ, the then Deputy President of the Tribunal, characterised this as voluntary suspension of practice, which bespoke insight and remorse, and referred at [35] to a number of earlier decisions where that approach had been taken. No suspension was imposed by the Tribunal.

2. In Health Ombudsman v Brown [2019] QCAT 218 a nurse had been in effect prevented from practicing by conditions imposed on the basis of impairment, and later applied for non-practicing registration. The Deputy President considered that it was not a case of voluntary cessation of practice, indicative of insight and remorse [29], but that some allowance should be made for the substantial period, about four years, the nurse had been unable to secure employment because of the conditions imposed by the Board, and that because of this and such insight and remorse as had been shown it was not necessary to impose any suspension.

3. In Health Ombudsman v Le Garde [2019] QCAT 260 a nurse was dealt with for an offence not related to nursing, and for not disclosing the conviction. She had also been dealt with for an impairment, and as a result she had not practiced for about eighteen months. The Deputy President suspended her registration for six months, as submitted by both parties, and said at [25]:

   The past period of preclusion from practice was really by reason of the respondent’s impairment, and her inability and/or unwillingness to comply with conditions upon her registration directed towards the issue of her impairment. I would not regard the period of non-practising registration as being equivalent to a de facto suspension of practice. Whilst some regard should be had to such period of time during which the respondent has been unable to practise her profession, it has less significance than in those cases where such preclusion from practice is as a direct consequence of the conduct, and only for that conduct, for which sanction is being imposed.

4. There are different purposes relevant to length of suspension or preclusion period, and they can operate differently. Sometimes it is a matter of allowing time for a practitioner to develop sufficient insight and understanding of the obligations and duties of the profession for the Tribunal to be confident that the safety of the public will not be threatened by a return to practice. I expect that any time spent away from the profession is likely to be effective for that purpose, and the length of time required is likely to depend largely on the indicia of rehabilitation before and at the time of the hearing.[14] If the purpose is one of personal or general deterrence, it may be more a matter of identifying whether the practitioner has been away from the profession for a period during which, if the relevant events had not occurred, the practitioner would have been practicing the profession. The position would be the same if the purpose is the maintenance of the standards of the profession, assuming that that consideration does not require the deregistration of the practitioner.

   [14]When a matter is dealt with on the papers the material before the Tribunal will usually, for practical reasons, be some months out of date, and the Tribunal may not be in a position to say definitely that at the time of the hearing the practitioner had rehabilitated, or would do so at a particular time.

5. In the present case, there is good evidence of remorse and rehabilitation at a very early stage, and the relevant purpose of any period of suspension would be general deterrence. The proposal put forward in the joint submissions was put on the basis that the only past period for which credit should be given was the period when the respondent’s registration was suspended by the applicant, a period of about four months. On that basis the proposed period of suspension overall was seven to sixteen months, much less than the four years during which the respondent has in fact been away from the profession. I expect that for much of that time she would have been working as a registered nurse had it not been for the events the subject of this proceeding, so that she has already served an effective suspension longer than sixteen months. It is therefore not appropriate to impose any additional period of suspension on the respondent.

6. The submissions referred to the decision in Nursing and Midwifery Board of Australia v Gibbons [2014] QCAT 412. In this case there were disciplinary proceedings against a former nurse in relation to an incident where a patient died, for a number of reasons including that the nurse had failed to check on the patient regularly during a period when that should have occurred, and had not responded appropriately when a check revealed serious problems; in fact the patient had developed aspiration pneumonia. The incident occurred in April 2005, he ceased practice as a nurse immediately and his registration had lapsed the following June, and not been renewed.[15] The Tribunal imposed various conditions to be satisfied prior to any renewal of his registration, but did not impose any preclusion period. It noted that “but for voluntary cessation of practice by the respondent and the lapsing of his registration, it may reasonably be presumed that the Tribunal would have cancelled the registration.” There is some similarity with the present case, but there are also differences, particularly that in this case there are mitigating features, including that the respondent was intimidated by the other nurse at the time, and that the respondent has shown contrition and rehabilitation from an early stage, whereas there was little evidence of that in Gibbons.

   [15]A large part of the delay was due to criminal proceedings, ultimately discontinued.

7. The joint submissions also sought the imposition of conditions for further education to be satisfied by the respondent prior to her regaining practicing registration. The parties had not defined with precision the conditions of this nature which were sought, which I regard as an unsatisfactory situation, and the Tribunal required the parties to take this step, bearing in mind considerations such as availability of courses and the cost involved, so as not to impose a burden on the respondent which became punitive. Following an adjournment, the applicant withdrew the proposal for any such condition. Nevertheless, the Tribunal considers that a condition should be imposed on the registration of the respondent, requiring her to refrain from working as a nurse in a correctional facility. The respondent said in her evidence that she should never have allowed herself to be placed in a position where something like this could have occurred, particularly in the light of her background, and in those circumstances the Tribunal considered that such a condition would be a safeguard to the safety of that part of the public in such a facility. Although it was not proposed in the joint submissions, she did not object to such a condition.

8. The Tribunal also raised the question of whether the respondent should be reprimanded, something also not proposed in the joint submissions. The respondent asked that that not occur, pointing out plausibly that it might be an additional difficulty in her securing employment as a nurse in the future, and noting that she had had a long unblemished career in nursing prior to this incident. In all the circumstances, the Tribunal decided not to reprimand the respondent. In the end therefore the sanction imposed was quite different from that proposed in the joint submissions, but in the particular circumstances of this case, the Tribunal considers that such an outcome is justified.

9. For the reasons set out above, on 30 September 2020 the Tribunal made the following decisions:

   1.     The Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct in respect of the conduct the subject of the referral.

   2.     The Tribunal imposes a condition on the registration of the respondent that the respondent refrain from working as a nurse in a correctional facility.

   3.     The Tribunal decides that the National Law Part 7 Division 11 Subdivision 2 applies to the condition, and that the review period for the condition be two years.

   4.     The parties bear their own costs of the proceeding.