Nursing and Midwifery Board of Australia v Bates
[2011] QCAT 662
•7 December 2011[1]
| CITATION: | Nursing and Midwifery Board of Australia v Bates [2011] QCAT 662 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant/Appellant) |
| v | |
| Stephanie Patricia Bates (Respondent) |
| APPLICATION NUMBER: | REO007-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Noel Muller Debra Nizette Justine Powell |
| DELIVERED ON: | 7 December 2011[1] |
[1]This decision was corrected on 20 February 2012, to correct some errors arising from an accidental slip: Queensland Civil and Administrative Tribunal Act 2009, s 135.
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The following conditions are imposed on Ms Bates’ registration: Employment 1.1 Ms Bates is prohibited from undertaking employment through a nursing agency or working in an intensive care unit; 1.2 Ms Bates can only provide nursing care under the indirect supervision of a registered nurse, such nurse to be senior to Ms Bates in terms of years of experience or position (‘the supervisor’); 1.3 The supervisor must be approved in writing by Ms Bates’ employer prior to Ms Bates providing any nursing care; 1.4 Ms Bates must cause a writing logbook to be kept (and provided to the Board upon request) recording each shift worked and the name of the supervisor for each shift with each entry to be signed off by the supervisor; 1.5 Ms Bates must, within two business days of gaining employment as a nurse notify the Board in writing of: 1.5.1 The name and address of the employer; 1.5.2 The address of her place of employment as a nurse; 1.5.3 The position description at the place of employment; and 1.5.4 The name and contact telephone numbers of her supervisors at the place of employment; 1.6 Ms Bates must notify the Board within two business days of a change in any of the details required by paragraph 1.5 of these orders; 1.7 Ms Bates must provide a copy of these orders and the Tribunal’s reasons to her employer, within seven days of commencing employment, as well as a written authority to the employer to provide a written report to the Board about Ms Bates’ ability to practice competently and safely on the following occasions: 1.7.1 At intervals of three months from the commencement of her employment; 1.7.2 If the employer holds a concern about Ms Bates’ ability to practice competently and safely; and 1.7.3 If requested by the Board. Psychiatric Treatment 1.8 Ms Bates must undergo treatment with a consultant psychiatrist (‘the psychiatrist’), to be nominated by Ms Bates no later than 14 days after the date of these orders and approved in writing by the Board, as recommended by Dr Prior in his report dated 28 March 2011 or as otherwise recommended by the psychiatrist; 1.9 Ms Bates must provide to the psychiatrist, by no later than 14 days after being notified of the Board’s approval of the psychiatrist, a copy of this order and the documents referred to in the schedule to this order; 1.10 Ms Bates must provide a written authority to the psychiatrist to provide a written report to the Board: 1.10.1 At the commencement of the treating relationship detailing the recommended treatment; 1.10.2 If the psychiatrist holds a concern about Ms Bates’ ability to practice competently and safely; 1.10.3 If Ms Bates does not comply with the treatment recommended by the psychiatrist; and 1.10.4 At the end of the treating relationship. Counselling 1.11 Ms Bates must undertake counselling with a clinical psychiatrist or clinical psychologist (‘the counsellor’), to be nominated by Ms Bates no later than 14 days after the date of these orders and approved in writing by the Board, to address anger management issues, communication skills and interpersonal skills, and to enable Ms Bates to develop greater insight into the behaviour which was the subject of these proceedings, such counselling to take place at a frequency determined by the counsellor. 1.12 Ms Bates must provide to the counsellor, by no later than 14 days after being notified of the Board’s approval of the counsellor, a copy of this order and the documents referred to in the schedule to this order. 1.13 Ms Bates must provide a written authority to the counsellor to provide a written report to the Board: 1.13.1 At the commencement of the therapeutic relationship detailing the recommended counselling; 1.13.2 If the counsellor holds a concern about Ms Bates’ ability to practice competently and safely; 1.13.3 If Ms Bates does not comply with the counselling recommended by the counsellor; and 1.13.4 At the end of the therapeutic relationship. Costs of compliance with conditions 1.14 Ms Bates must comply with these conditions at her own cost including, but not limited to, the fees of the psychiatrist and counsellor including their fees for reporting to the Board; 2. The conditions referred to in paragraph 1 shall remain in place for a period of two years from the date of this Order. |
| CATCHWORDS: | HEALTH PROFESSION – NURSE – REVIEW – Where conditions were imposed on a nurse’s registration after a disciplinary proceeding – where the Tribunal had the function of reviewing whether further action was required – where a health assessment indicated that the nurse required further treatment – whether the conditions jointly proposed were adequate – where the Tribunal made different orders to the ones proposed Health Practitioner Regulation National Law Act 2009, s 289 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Bates’ registration to practice as a nurse was subject to conditions imposed by the former Nursing Tribunal on 19 December 2007 for a period of two years. Except for non-compliances excused by the Nursing Tribunal, Ms Bates has complied with the conditions. The Board asked the Tribunal to review the conditions. Although the Nursing Act 1992 has been repealed, its provisions apply to this application.[2]
[2] Health Practitioner Regulation National Law Act 2009, s 289.
On review, the Tribunal’s task is to determine whether to take any further action.[3] That involves consideration of Ms Bates’ current fitness to practise. When this matter first came before the Tribunal for hearing, it was evident that the information about Ms Bates’ current fitness to practise was inadequate. Statements made by Ms Bates and by her counsellor in a report, suggested Ms Bates may be suffering from a condition that requires further treatment.
[3] Nursing Act 1992, s 116(2)(a).
The Tribunal’s concern about proceeding then was heightened by evidence that Ms Bates was subject to another disciplinary investigation in relation to conduct of a similar nature to the conduct that led to the conditions under review.
During these proceedings the Board invited Ms Bates to undergo a health assessment at the its cost but Ms Bates declined to do so.
The Tribunal abandoned the hearing so the parties could obtain proper information about Ms Bates’ fitness to practice. Since the hearing Dr Prior, a Consultant Psychiatrist, interviewed Ms Bates and prepared a health assessment report for the Board. Following discussion between them, the parties made a joint submission asking the Tribunal to proceed on the papers, without an oral hearing, and to make certain orders.
The original disciplinary proceedings involved Ms Bates’ treatment of a patient in an intensive care unit. She accepted that she had not respected his rights and dignity, wrongly over medicated him, restrained him without authorisation and left the unit without excuse. The former Tribunal determined this constituted unsatisfactory professional conduct. The orders it imposed were, in the large part, agreed to by Ms Bates:
a) She could only practice under supervision;
b) She could not work for a nursing agency;
c) Her registration was subject to:
i) Notification to her employers;
ii) Further training; and,
iii) Counselling by a psychologist, who would provide reports to the Council.
The Tribunal suspended an order to suspend Ms Bates’ registration, subject to compliance with these conditions.
Save to the extent the former Nursing Tribunal excused her non-compliance, Ms Bates has complied with the conditions. Her psychologist reported that she was satisfied Ms Bates was fit to return to unrestricted practice.
The health assessment by Dr Prior[4] is comprehensive, measured and discriminating. The Tribunal placed substantial reliance on his uncontested opinions in deciding the outcome of this review. In summary, he reached the following conclusions:
a) Contrary to the view of Ms Bates’ psychologist, he saw no evidence Ms Bates suffered from Post Traumatic Stress Disorder at the time of the first incident;
b) He noted she was experiencing a high level of distress at the deaths of a number of patients, but this did not amount to a psychiatric disorder;
c) After she was suspended, she experienced signs and symptoms consistent with an Adjustment Disorder with anxious and depressed mood;
d) Currently she shows some mild anxiety related symptoms secondary to stress associated with her more recent suspension and this review. These do not amount to an Adjustment Disorder, but are understandable responses secondary to current stressors.
[4] Report of Dr Nigel Prior, Psychiatrist, dated 28 March 2011.
Accepting Dr Prior’s opinion, the Tribunal is satisfied Ms Bates does not suffer from any psychiatric condition that would prevent her nursing. However, there are other factors that indicate that it is necessary to take further action.
In her first report,[5] Mrs Bates’ psychologist reported a number of statements made to her by Ms Bates. She regretted having pled guilty at the Tribunal hearing. Her psychologist reported that: Ms Bates felt there was a huge injustice, citing a statement to the Health Quality and Complaints Commission made by the wife of the patient, that one of the nursing staff…told the wife several days after the patient had passed away that “an agency nurse overdosed and killed your husband…”[6] The psychologist observed that she continued to display anger and distress about how she had been treated.
[5] Report of Kathy Uzsoki, Psychologist, dated 21 March 2010.
[6] Report of Kathy Uzsoki, Psychologist, dated 21 March 2010.
In a later report,[7] her psychologist clarified that Ms Bates expressed regret at pleading guilty because she thought that, at a full hearing, the Tribunal would have examined the actions of other staff that night. She felt she had been the scapegoat because she was the only person prosecuted and other staff that night had acted unprofessionally. Her psychologist considered Ms Bates did regret her over-reactive behaviour and was developing strategies for more appropriate responses to stressful situations.
[7] Report of Kathy Uzsoki, Psychologist, dated 25 July 2010.
After the first incident, Ms Bates has had two further workplace complaints. The first occurred before the Nursing Tribunal hearing. She was then not working in an intensive care unit. Other staff alleged she bullied them.
More recently, in August 2010, Ms Bates was working in an intensive care unit when the Board received a complaint about her care of another patient. The Board determined to investigate the matter. It seems that matter is still under investigation. It involves strikingly similar conduct, which she strenuously denies. The Tribunal cannot assess the allegations in this process. However, the fact Ms Bates is again facing allegations about the way in which she treated a patient and communicated with a colleague is concerning.
Dr Prior observed that Ms Bates’ expressions of remorse about the first incident were unconvincing and her insight into her actions on the night and the implications for that patient appeared to be limited. She continued to rationalise some of her actions and blamed other staff for the poor care.
He considered Ms Bates shows evidence of a Personality Disorder of a mixed type, showing narcissistic and borderline traits. He did not consider the personality disorder was of such a degree that it would make her unfit to practice as a nurse.
Dr Prior said the treatment to date, a supportive cognitive behavioural approach with attention to communication styles and problem solving strategies, was limited. He recommended further expert treatment for the Personality Disorder using a Dialectic Behavioural Psychotherapy approach.
Ms Bates has not quarrelled with the conditions Dr Prior recommended nor with the approach he adopted in assessing her current fitness to practise.
The further conditions he recommended involved:
a) Treatment by a Consultant Psychiatrist who must report to the Board;
b) Work under supervision, directly if that work occurred in the setting of an intensive care unit; and,
c) Further counselling to address anger management, communication skills and to develop more effective interpersonal skills.
The parties submitted a form of orders that reflected those recommendations.
The Tribunal is largely satisfied with the orders proposed. However, it has determined that Ms Bates should not work in an intensive care unit, until there is evidence the issues of concern to Dr Prior have been addressed. As he observed, critical care nursing requires a cooperative team approach, good communication skills, a high level of technical expertise and an ability to respond appropriately under significant pressure. He expressed concern about her ability to communicate effectively, work within a team setting, respectfully manage patients within an Intensive Care Unit and to respond appropriately when under significant personal pressure.
In practical terms, the recommendation that Ms Bates must be directly supervised if she works in an intensive care unit is likely to prevent her securing work in that capacity. Nevertheless, the Tribunal considers it preferable to ensure that Ms Bates works in non-clinical settings or less acute areas of clinical care until further health assessment indicates that she is suitable to work in that highly demanding and stressful environment. The order the Tribunal has made will prohibit Ms Bates from working in that environment for two years.
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