Nursing and Midwifery Board of Australia v Tai (Occupational Discipline) - [2016] ACAT 70

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NURSING AND MIDWIFERY BOARD OF AUSTRALIA v TAI (Occupational Discipline) [2016] ACAT 70

OR 41 of 2015
Catchwords: OCCUPATIONAL DISCIPLINE – Nurses – unsatisfactory professional performance – failure to comply with asserted unwritten organisational policy – no evidence as to existence or terms of unwritten policy – activity alleged to be outside scope of practice – context is relevant to scope of practice – failure to communicate to health care team information necessary for optimal nursing care – breach of National Competency Standards

Legislation cited: ACT Civil and Administrative Tribunal Act 2008
Health Practitioner Regulation National Law (ACT) ss 4, 5, 39, 41, 193, 195, 196
Mental Health (Secure Facilities) Act 2016

Cases cited: Dekker v Medical Board of Australia [2014] WASCA 216

Gupta v Australian Capital Territory [2011] ACTSC 39
Nitschke v Medical Board of Australia [2015] NTSC 39

List of
Texts/Papers cited: Code of Ethics for Nurses in Australia (2008)

Code of Professional Conduct for Nurses in Australia (2006)
National Competency Standards for the Registered Nurse (2008)

Tribunal: President M-T Daniel

Member L Williams

Date of Orders:  30 June 2016
Date of Reasons for Decision:         30 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          OR 41 of 2015

BETWEEN:
NURSING AND MIDWIFERY
BOARD OF AUSTRALIA
Applicant

AND:
DIANNE TAI
Respondent

TRIBUNAL: President M-T Daniel

Member L Williams

DATE: 30 June 2016

ORDER

The Tribunal being satisfied that the respondent acted in a way that constitutes unsatisfactory professional performance, it is ordered that:

The respondent is cautioned.

The parties are to advise the Tribunal by 29 July 2016 if they wish to be heard in relation to costs.

………………………………..

President M-T Daniel
for and on behalf of the Tribunal

REASONS FOR DECISION

In these proceedings the Nursing and Midwifery Board of Australia (the Board) seeks orders for occupational discipline against the respondent practitioner, on the basis that the practitioner has engaged in conduct that amounts to unsatisfactory professional performance.
While many of the facts of the matter are agreed, the practitioner disputes the characterisation of her conduct and opposes the orders sought.

Background to the proceedings

On 7 August 2013 the Australian Health Practitioner Regulation Agency (AHPRA) received a notification about the practitioner’s conduct which related to a vaginal examination[1] conducted by the practitioner on an inpatient at the Adult Mental Health Unit (AMHU).
[1] Much of the documentation filed by the Board referred to the procedure as an ‘internal search’. The Tribunal considers, given the undisputed clinical context in which the procedure occurred, that the procedure is better described as a ‘vaginal examination’ and will adopt that terminology in these reasons
The notification was investigated by AHPRA and considered by the Board on a number of occasions over the following two years.
On 31 July 2015 the Board and Health Services Commissioner jointly considered the matter, as required by the National Law. There being no agreement as to the appropriate action to take, the view of the Board, being the most serious, prevailed. On 19 August 2015 the respondent was advised that the matter would be referred to the ACT Civil and Administrative Tribunal (ACAT) under section 193(2)(b) of the National Law.

The conduct of the matter and the hearing

In the ACT, the referral of a matter to the responsible tribunal occurs by the filing of an application for occupational discipline. Such an application was filed on 21 October 2015. The application alleged that the practitioner had engaged in professional misconduct, or in the alternative, unprofessional conduct or in the further alternative, unsatisfactory professional performance. The application sought that the practitioner be reprimanded or cautioned, and that her registration be subject to conditions requiring mentoring.
The practitioner filed a response on 8 December 2015 in which she denied the characterisation of her conduct and opposed the orders sought.
The parties filed an agreed statement of facts on 22 March 2016.
The matter was heard by the Tribunal on 14 April 2016. Both parties were legally represented.
For the hearing, the Tribunal had before it a bundle of documents filed by the Board with the application, consisting of the documents relating to the AHPRA investigation, extracts of Board minutes, and copies of various policies, procedures and codes.[2]
[2] Exhibit A-1
The Board did not put forward any written witness statements nor did the Board call any witnesses – expert or lay – at the hearing.
On the part of the practitioner, the Tribunal had before it the response[3] and a written witness statement of the practitioner filed in the proceedings[4], as well as written responses to the AHPRA investigation which were included in the bundle of documents. The practitioner also gave evidence at the hearing and was asked questions by the Board’s solicitor and the Tribunal.
[3] Exhibit R-1
[4] Exhibit R-2
The Tribunal had before it the agreed statement of facts.[5]
[5] Exhibit A-2
Both parties had filed comprehensive written submissions in advance of the hearing, and oral submissions were made at the conclusion of the hearing.
The Tribunal reserved its decision.
On 9 May 2016, at the request of the Tribunal, the parties’ solicitors appeared before the Tribunal for a short mention of the matter. The Tribunal advised the parties solicitors that the Tribunal had concerns about the practitioner’s conduct because of the practitioner’s concession, given in the course of her oral evidence, that the procedure she undertook was inadequate to meet the clinical needs of the patient, because it was not a full or ‘deep’ vaginal examination. It seemed to the Tribunal that this fact coupled with an apparent failure to raise this issue with the subsequent nursing team could be grounds for disciplinary action, however the case as particularised by the Board had not included this ground. The matter was adjourned to allow the parties’ solicitors to take instructions, and advise the Tribunal in writing of any further directions sought for the conduct of the matter, including any resumption of the hearing.
In the end, the parties agreed that the hearing need not resume, however further written submissions limited to the fresh ground were provided by each parties’ solicitor.

Findings of Fact

The respondent’s qualifications and experience

The qualifications, training and experience of a practitioner are relevant both to the determination of a practitioner’s scope of practice, and to assessment of whether the practitioner’s performance was below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
The practitioner’s qualifications and length of experience were set out in the agreed statement of facts. The practitioner also gave evidence as to her qualifications and experience. From this information the Tribunal is satisfied of the following facts.
The practitioner has been a qualified nurse for over 25 years. She graduated from the Footscray Institute of Technology in 1989 with a Diploma of Applied Science in Nursing and was first registered to practise nursing in Australia in 1990.
No conditions, undertakings or reprimands currently attach to the practitioner’s registration. On AHPRA’s enquiry of her employer, no previous concerns or complaints about the practitioner’s performance were identified.
After qualifying as a nurse in 1989 the respondent worked as a registered nurse in various fields but predominately as a theatre nurse. She worked for two years at the Royal Womens Hospital, then at the Royal Childrens Hospital for about 13 months before moving to the Mercy Hospital where she gained most of her experience. The practitioner explained that this was a nursing hospital for women and at that time she was trained up in anaesthetic nursing. She was involved in emergency caesarean procedures. She was expected to routinely undertake catheterisation of patients. She worked alongside midwives and trainee doctors, gynaecological and obstetric staff. The practitioner says that in this practice she became very familiar with female anatomy and surgery. The practitioner also worked for two years at Monash Medical Centre in theatre, for both male and female surgery.
After moving to Canberra in April 2009 the practitioner worked in community health, performing catheterisations (male and female), inserting suppositories both anal and vaginal, before moving into work in falls prevention.
In around 2012 the practitioner became an agency nurse with the goal of getting back into theatre work. It was in this role that she undertook some nursing at Calvary Hospital and at the AMHU.
In relation generally to working at the AMHU, the practitioner was not given a formal induction when she commenced work at that unit. She was not provided with copies of TCH or AMHU written policies or procedures. At the time of the incident she was not familiar with any specific high dependency unit (HDU) standards nor had she regularly worked with patients experiencing mental health issues.
As a consequence of her experience the practitioner knew how to perform the limited procedure that was undertaken on 24 June 2013, but she had not previously performed that procedure in an adult mental health facility.

The incident on 24 June 2013

The parties filed a statement of agreed facts about the incident which took the form of recording not what happened during the incident, but rather how the incident had later been described by the practitioner (respondent) to the notifier:
(a)   On 24 June 2013, the respondent conducted an internal vaginal search of a patient in the HDU of the AMHU, which was observed by another nurse (Nurse B), due to concerns the patient, also known as the consumer in the AMHU context, had been inserting objects into her vagina.
(b)   The respondent told the notifier that at the commencement of her afternoon shift on 24 June 2013, she attended a handover with the morning shift staff.
(c)    During that handover, a nurse stated that a consumer at the AMHU had been inserting foreign objects internally and that “at the end of each shift, a female staff needs to check this”.
(d)   At around 14:30 on 24 June 2013, the respondent handed a mobile phone to the consumer to allow her to talk to her boyfriend.
(e)    After the consumer spoke to her boyfriend, the respondent said the consumer said “I have got a cup with bullets up my vagina” and that the consumer said something about the “cup being stapled in”.
(f)     The respondent indicated the consumer was chatting but stated that she could not really understand what the consumer was saying.
(g)   The respondent indicated the consumer’s comments made her concerned and alarmed and that she was worried the consumer was “self-harming; without [her] knowing” and “placing dangerous/foreign material into her private parts”.
(h)   The respondent thought it was her duty as a registered nurse and the only female on the shift to check and make sure the consumer was not self harming and if there was any foreign material “near her private parts”.
(i)     The respondent stated there was no way to check this properly unless you do a vaginal exam.
(j)     The respondent first asked a male staff member, [name redacted], to accompany her to the consumer’s room. The respondent subsequently asked [name redacted] to find a female staff member to accompany her to the consumer’s room. A female night nurse, Nurse B, accompanied the respondent to the consumer’s room.
(k)   The respondent asked the consumer if she could “have a word with her”. The respondent discussed with the consumer whether it was “ok to check her private parts (vaginal and anal areas) for foreign material”.
(l)     The respondent stated the consumer agreed and gave the respondent and Nurse B her verbal consent to the vaginal exam.
(m) The respondent and Nurse B went with the consumer back to the consumer’s room and closed the door. The consumer removed her pants and underpants.
(n)   The respondent asked the consumer to take the respondent’s gloves to wear and to use her finger to check her vagina for any objects or foreign material stuck there.
(o)   The respondent stated the consumer said “I can’t see where I’m going. You do it”.
(p)   The respondent stated that Nurse B asked the consumer again and that verbal consent to the examination was given by the consumer.
(q)   The respondent stated there was a discussion between the respondent and Nurse B, during which the respondent said “it’s better that you [Nurse B] do the vaginal exam because you are regular staff and I’m an agency staff”.
(r)    The respondent stated that Nurse B mumbled something to her that may have indicated Nurse B was not sure what to do. The respondent stated the consumer said “I want the cup out, so I can get pregnant”.
(s)    The respondent stated she and Nurse B communicated what they were going to do and the consumer verbally agreed to the procedure.
(t)     The respondent stated she put gloves on and performed a vaginal examination with her right index finger (inserted less than one inch). The respondent reported that nothing was felt and the index finger was removed. The respondent did not check anal area. The respondent reported that no foreign material was seen or found during the examination.
(u)   The respondent had a discussion with Nurse B and asked Nurse B to transfer her notes onto the TCH electronic record system as the respondent did not have access to this system. This task was completed and the respondent left TCH at the end of her shift at 21:30.[6]
[6] Exhibit 2 Statement of Agreed Facts dated 22 March 2016
The Tribunal is satisfied that the events of 24 June 2013 occurred in the manner described by the practitioner to the notifier, as set out above.
From the further evidence of the practitioner in her witness statement and oral evidence the Tribunal is satisfied of the following matters in relation to the incident on 24 June 2013:
(a)The handover nurse who gave the instruction to perform the examination was an experienced nurse from the AMHU who was a permanent member of staff.
(b)The respondent was one of three nurses rostered in the HDU for the shift, the other two nurses were male.
(c)At the end of the shift both of the other nurses in the HDU were occupied due to demands in the HDU and the nurse who was the team leader was not free to speak with the practitioner about conducting the vaginal examination. The practitioner went into the team leaders room but there was nobody there.
(d)Nurse B was arriving to commence the night shift in the HDU. The practitioner knew Nurse B worked in the HDU and assumed Nurse B would be familiar with any policies applicable to the procedure.
(e)The patient seemed familiar with the procedure required and to understand what she was asked by the practitioner and Nurse B.
(f)The patient appeared to the practitioner to have capacity to consent to the procedure, she was not drug affected or sleepy and appeared cognisant of what was going on.
(g)The patient gave verbal consent to the procedure on more than one occasion.
(h)The practitioner when conducting the examination noted that there were no tears, redness or discharge. The procedure was not a ‘deep’ vaginal examination but rather an inspection for bleeding, incisions or redness at a superficial level.
(i)The procedure undertaken would not have discovered the presence of foreign objects at a depth of more than one centimetre.
(j)The practitioner made handwritten notes of the examination which were entered onto the computerised health records by Nurse B. The practitioner was not given access to the computerised health records system in order to enter her notes directly.
(k)The practitioner’s concern and focus at all times was for the patient. The practitioner was worried the patient might be injured and felt it was her duty of care to ensure the patient was cared for.

Legal framework

When a Board forms a view that the conduct of a practitioner may amount to professional misconduct, the Board is required by the National Law to refer that matter to the responsible Tribunal. That is what occurred in this case. However, at the hearing of the matter the Board retreated from this characterisation of the conduct, and instead submitted that the conduct of the respondent amounted to ‘unsatisfactory professional performance’.
Section 5 of the National Law defines ‘unsatisfactory professional performance’ as follows:
the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
Sub-section 196(1)(b)(i) of the National Law empowers the Tribunal to decide that a practitioner has behaved in a way that constitutes unsatisfactory professional performance.
In detailing the ways in which the practitioner’s conduct fell below the required standard, the Board’s application had alleged the following:
(a)The respondent was not directed or asked to conduct the internal search by a senior colleague or supervisor.
(b)The respondent did not seek advice from, or consult with, any other staff member before commencing the internal examination.
(c)The respondent did not consider whether the patient had the capacity to consent to the examination.
(d)By her conduct the respondent acted outside the scope of her clinical practice.
(e)The respondent failed to exercise independent professional responsibility in the performance of her practise as a registered nurse.
(f)The respondent failed to comply with TCH policies and procedures in relation to internal searches of patients.
(g)The respondent’s conduct failed to meet the standard of practice articulated in the following relevant codes of conduct:
(i)      Clauses 1.1; 1.2; 1.3; 2.2; 5.1; of the Code of Ethics, Nursing and Midwifery Board of Australia (Code of Ethics).
(ii)      Clauses 1.2; 2.3; 3.1; 3.2 of the Code of Professional Conduct, Nursing and Midwifery Board of Australia (Code of Conduct).
(iii)     Clauses 1.2; 1.3; 2.1; 2.2; 2.5 of the Nursing and Midwifery Board of Australia, National Competency Standards for the Registered Nurse (2006) (Standards).
At the hearing, however, the Board’s focus narrowed to two bases on which the actions of the practitioner were submitted to amount to unsatisfactory professional performance, subsuming paragraphs (d) – (g). Paragraphs (a) – (c) were not pressed. The grounds relied upon at the hearing were:
(a) undertaking an activity outside of the nurse’s scope of practice; or
(b) failure to comply with/breach of an applicable Code or Standard.

Was the procedure outside the practitioner’s scope of practice?

In order to determine whether a procedure is outside a practitioner’s scope of practice, it is first necessary to identify that practitioner’s scope of practice.
The term ‘scope of practice’ is not formally defined in the National Law, nor in the Codes or Standards to which the Tribunal was referred. However, the concept is referred to in clause 1.1 of the Code of Conduct, which states “...scopes of practice are based on each nurse’s education, knowledge, competency, extent of experience and lawful authority.” The parties’ lawyers agreed that ‘scope of practice’ was to be interpreted in this subjective fashion.
There was limited objective evidence as to the practitioner’s scope of practice. On the records the practitioner has been a registered nurse for 25 years. The only other evidence of the practitioner’s scope of practice was that given by the practitioner herself.

In her email to the AHPRA investigator on 25 February 2015 the practitioner had written:
To clarify, I believed that [Nurse B] was up to date and had knowledge of what was involved for the procedure. ... That is why I had requested [Nurse B] to perform the vaginal procedure; because she was a regular staff member and I had not come across this procedure or the Patient before. I was unsure how they carried out this procedure.
... I didn’t hear a word of what [Nurse B] was saying; because she was mumbling... I guessed [Nurse B] was unsure of the procedure too. I had also asked [the patient] to carry out the vaginal procedure to which she replied that I do it. At this stage I was confused, tired and believed I had to make a decision. I allowed my background knowledge to kick in and since coming to ACT had worked in a variety of nursing areas/settings.
Unfortunately, now, I realized that I had made the wrong decision because I went beyond the scope of my practice. In future, I would abandon this procedure and seek advice and get support from a senior member of staff first and find out relevant policy and procedures beforehand. ...[7]
[7] Bundle of documents Tab 18, Exhibit A-1
The oral evidence of the practitioner was that that she knew how to perform the limited vaginal examination that was undertaken on 24 June 2013, but she had not previously performed that procedure in an adult mental health facility. When questioned about her written concession of 25 February 2015, she explained that the reference to going outside her scope of practice was a reference to her scope of practice working in an adult mental health facility.
The Tribunal does not consider that a concession or ‘admission’ of the kind made by the practitioner in her email of 25 February 2015 is binding upon the Tribunal. A practitioner’s scope of practice is, when the matter is the subject of a referral to the Tribunal, a question of fact for the Tribunal to determine. A concession by the practitioner is however highly relevant evidence, to which the Tribunal has regard in determining that issue.
The Tribunal is satisfied that the practitioner was experienced in and capable of performing the limited and superficial vaginal examination which was conducted on 24 June 2013, and is also satisfied that the practitioner had never conducted such a procedure in an adult mental health facility.
This raises the question: to what extent is a practitioner’s ability to perform a procedure to be limited to the context within which that procedure is learned or initially performed? For example, if the procedure to be undertaken is the removal of stitches at the outpatient area of a major hospital, is it outside the scope of practice if the practitioner has expertise and experience removing stitches but only in a community health centre?
On behalf of the practitioner it was submitted that the procedure was clearly within her scope of practice because of her experience as adverted to earlier. On behalf of the Board it was submitted that the procedure was not within her scope of practice, because as the practitioner herself had conceded, she had not previously performed that procedure in an adult mental health facility.
There is no clear guidance on this question to be found in the Codes or Standards to which the parties referred. The parties’ lawyers did not rely on any authorities on this point, nor was the Tribunal able to identify any earlier cases dealing with this question.
The Tribunal is satisfied that, given the requirement of the Codes and Standards that a practitioner must incorporate organisational policies into their practice and work within the applicable legal framework, that the context in which a particular procedure is performed may be relevant to the scope of practice. Specifically, context will be relevant whenever the manner in which the procedure is to be undertaken, or the organisational policies or legal authority applicable to the procedure, vary with the change in context.
The factual question for the Tribunal, then, is whether the HDU, AMHU or hospital context imported specific organisational policies and procedures or a different legal framework for the conduct of the procedure.
A number of written organisational policies were provided to the Tribunal, specifically those relating to ‘internal searches’, however it was conceded at the outset of the hearing that these policies were not relevant as they applied only to non-clinical searches. While an oral directive had been given to the practitioner that the examination was to be conducted by female staff, the Board did not submit that this formed any part of a policy applicable to the procedure. The directive was, in any event, complied with.
It was submitted on behalf of the Board that the practitioner erred in undertaking the procedure because this was in breach of an unwritten policy of ACT Health about the conduct of vaginal examinations. There was no direct evidence put before the Tribunal as to the terms of this asserted policy[8], its application to the case, or indeed as to its existence.[9]
[8]For example, whether it applied across all ACT Health facilities, or only in hospitals, or only in the AMHU or HDU
[9]The situation is reminiscent of the opening words of his Honour Refshauge J in Gupta v Australian Capital Territory [2011] ACTSC 39: “What ‘everyone knows’ is, on closer inspection, not always based in fact and the reality may be somewhat different to the common expectation. This case has resulted from relevant people assuming that they understood the circumstances of the procedures and issues with which they were dealing, but when the relevant documentation was considered a different picture emerged.”
Contained in the bundle of documents filed by the Board was a record of the joint consideration of the matter between the Board and the Health Services Commissioner conducted on 31 July 2015. At page 18 of that record it was noted “the Board stated that vaginal examination was outside the practitioner’s scope of practice as it is the exclusive domain of a registered midwife, sexual health nurse or a medical practitioner only to perform internal vaginal search.”
It is not clear whether this was a reference to the asserted unwritten policy of ACT Health, or a reference to a well known and established professional limitation. If the former, the Tribunal is unable to conclude that there is an unwritten ACT Health policy, on the basis of this record, in the absence of, at the least, some oral evidence as to its existence. If the latter, despite this record the Tribunal is not prepared to conclude that such a demarcation exists within the health professions, in the absence of a written policy, code or standard issued by the Board, or expert evidence, to that effect.
Overall, there was no evidence before the Tribunal on which it could be satisfied that a vaginal examination of the type conducted by the practitioner in June 2013 was to be conducted in the AMHU or HDU in a different manner, or subject to different policies or lawful authority[10], as in the practitioner’s previous nursing experience. The change in context, therefore, had no implications for the practitioner’s scope of practice.
[10] While the fact that the patient was at the AMHU might raise a flag as to her capacity to consent to a particular medical procedure, the legal framework in relation to consent was not necessarily affected by the location. The situation might have been different had the Mental Health (Secure Facilities) Act 2016 been in force at that time.
It follows that the Tribunal is not satisfied that in conducting the examination at the AMHU the practitioner went outside her scope of practice.

Did the practitioner breach the applicable codes, policies and procedures?

The Board referred the Tribunal to the Code of Ethics, Code of Conduct, and Standards. These Codes and Standards have been adopted by the Board pursuant to section 39 of the National Law. Section 41 of the National Law then provides that the Codes and Standards are admissible as evidence of what constitutes appropriate professional conduct or practice for a health profession.
While there is no question that the Codes and the Standards are admissible as evidence, this does not mean that expert evidence is thereby rendered superfluous.
As was pointed out in Nitschke v Medical Board of Australia [2015] NTSC 39, while the Codes provide a reference point for the practitioner this is often from a broad perspective, setting out imperatives that may even conflict depending upon the circumstances of the case.[11] Consequently in determining whether the conduct of a nurse fails to meet the requirements of the Codes it may still be necessary to hear from an expert witness as to the actions that would ordinarily be performed, or not performed, by a nurse in those circumstances in order to meet those requirements.
[11] Nitschke v Medical Board of Australia [2015] NTSC 39 at [122]
While the Standards tend to provide a more specific framework against which performance of a nurse may be assessed, there may still be aspects in which the action necessary to meet the requirement of the Standards, in a particular case, requires expert evidence.
Of course, there will also be those cases in which the facts speak for themselves, and the application or requirements of both Codes and Standards to the circumstances are clear.[12] In those cases, there is no need for expert evidence to bridge a gap between the language of the Codes and Standards, and the particular matter.
[12] Nitschke v Medical Board of Australia [2015] NTSC 39 at [134]; Dekker v Medical Board of Australia [2014] WASCA 216 at [73]
Relevantly for the current matter, both the Codes and Standards clearly set out the responsibility of a nurse to practise only within their scope of practice, to incorporate workplace policies and procedures into their practice, to actively question or seek clarification in relation to a procedure which appears inappropriate, and to communicate with the relevant members of the health team. Failure by a nurse to comply with these obligations can have serious ramifications for the consumer.
It is not necessary in these reasons to set out the specific clauses of the Codes and Standards relied upon by the Board – these are referenced at paragraph 33(g) and are publically available documents.
In relation to those clauses that require a practitioner to practice only within his or her scope of practice, the Tribunal is not satisfied that these requirements of the Codes and Standards have been breached in this case, for the reasons set out above.
In relation to those clauses that refer to the obligation to incorporate organisational policies and procedures into a practitioner’s practice, again for the reasons outlined above the Tribunal is not satisfied that such a failure occurred in this case.
In relation to the adequacy of the procedure performed, the Board’s solicitor submitted; “the respondent should not have performed the procedure but rather, arranged for a consultant doctor or midwife to perform the examination, even if that required postponing the vaginal search to the next shift.”
It was submitted on behalf of the practitioner that:
even though in hindsight it may have been appropriate to wait for a consultant doctor or midwife to perform the procedure, the respondent was not aware to what extent there was damage or trauma to the consumer’s vagina and therefore determined it was in the best interests of the consumer to perform the procedure.
The Tribunal considers that the practitioner was, on 24 June 2013, placed in a situation where a failure to act may have breached her obligations under the Codes and Standards. If she had failed to act, and there had been foreign objects inserted within the patient’s vagina potentially causing lacerations or leading to infection, the practitioner could have been in breach of those clauses of the Codes and Standards which prioritise the duty of care to the patient, and oblige a practitioner to undertake decisions within their scope of practice without reference to senior staff.[13]
[13] See for example clauses 1.2 and 2.5 of the Standards
In this case, the practitioner chose to perform a vaginal examination that was within her scope of practice, and has by those actions been criticised for failing to meet the very same Codes and Standards.
The Tribunal does not accept the Boards submissions that the decision by the practitioner to perform the procedure was further evidence that the knowledge, skill or judgment possessed by the practitioner was below that reasonably expected of a health practitioner of an equivalent level of training or experience.
However, the Tribunal is satisfied that having conducted the procedure, the practitioner then failed to meet the requirements of the Codes and Standards in relation to proactive communication in relation to patient care.[14] The practitioner acknowledged in her evidence that the procedure she performed was inadequate in the clinical context. What was required for optimal care of the patient was a full vaginal examination. Such a procedure was outside the practitioner’s scope of practice and she quite properly did not conduct it. The practitioner undertook a limited and superficial examination to identify any immediate signs of injury or harm.
[14] Specifically clauses 7.8, 8.2 and 10.2 of the Standards
However, the Tribunal is of the view that in circumstances where it was clear that:
(a)     the other nurse did not fully understand the procedure, or its limitations;
(b)    it fell to the other nurse to enter the notes into the electronic record; and
(c)     it would be the other nurse taking over care for the patient due to the end of shift;
the practitioner was required to take proactive steps to communicate to the incoming health team the limitations of the procedure she had undertaken and any further steps necessary for patient care.
The practitioner’s failure to take the lead in communicating the limitations of the procedure, and revisit the adequacy of the care plan, in the view of the Tribunal amounted to a breach of the Standards[15], and was conduct below the standard reasonably expected of a practitioner of an equivalent level of training and experience. In this, it amounted to unsatisfactory professional performance.

What orders should be made?

[15] Clauses 7.8, 8.2 and 10.2

Sub-section 196(2) of the National Law details the powers the Tribunal has after making a finding under sub-section 196(1)(b). These include cautioning the practitioner and imposing a range of conditions on the practitioner’s registration, including requiring the practitioner complete further education, training or counselling.
It is well established that the purpose of disciplinary proceedings is protective rather than punitive. In relation to health practitioners, section 4 of the National Law sets out that functions under the Law are to be exercised with regard to the objectives and guiding principles set out in section 3. A key objective is to provide for the protection of the public by ensuring only health practitioners who are suitably trained are registered. One of the principles to be applied in taking action under the National Law is that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure that health services are provided safely and to an appropriate standard.
The Board submitted that the practitioner should be cautioned, and her registration subject to conditions relating to training.
It was submitted for the practitioner that if the conduct did amount to unsatisfactory professional performance, it was a one-off incident and came about due to a concern for the care of the patient. It was submitted that the investigation of the incident, and then these proceedings, had been hanging over the practitioner’s head for almost three years, and that the impact of the one incident upon the practitioner was significant. The practitioner had reflected upon the incident, had changed her area of practice, was conscientious about undertaking further training and had given evidence that in future she would always find a more senior person to ask about anything she was not sure about.
The Tribunal has considered the seriousness of the incident, the broader circumstances of the investigation and the bringing of proceedings in the Tribunal, and the effect these have had on the practitioner. The Tribunal notes also that this is one incident in an otherwise unblemished 25 year career. The practitioner stated that on the day in question she was tired and confused. She has expressed remorse and demonstrated a willingness to learn and readiness to change her practice as a result of this incident.
The Tribunal considers that this is an appropriate case in which to caution the practitioner, which expresses to both the practitioner and to the profession more generally the Tribunal’s view of the potential seriousness of a failure by a practitioner to speak up to ensure good continuity of care.
Recalling that the Tribunal should put in place only those restrictions necessary to ensure that health services are provided safely and to an appropriate standard, the Tribunal is not minded to require the practitioner to engage in further training. The Tribunal is satisfied that further education is not necessary to achieve the objects of the legislation, given the changes the practitioner has made to her practice and the learning informally acquired in the course of the investigation and these proceedings.

Costs of the proceedings

Section 195 of the National Law provides a costs power to the Tribunal which is additional to that contained in the ACT Civil and Administrative Tribunal Act 2008. At the hearing, neither party wished to make any submissions about costs. It would have been premature to do so, when the Tribunal’s decision and reasons for decision were not known. The Tribunal will give the parties liberty to make any application for costs within 28 days of this decision.

………………………………..
President M-T Daniel
for and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	OR 41/2015
PARTIES, APPLICANT:	Nursing and Midwifery Board of Australia
PARTIES, RESPONDENT:	Dianne Tai
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	ACT Government Solicitor
SOLICITORS FOR RESPONDENT	A Backhouse & Associates
TRIBUNAL MEMBERS:	President M-T Daniel
DATES OF HEARING:	9 May 2016