Ord v Nursing and Midwifery Board of Australia
[2014] QCAT 688
•18 February 2014
| CITATION: | Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688 |
| PARTIES: | Geraldine Ord (Applicant) |
| v | |
| Nursing and Midwifery Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR361-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 20 December 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 18 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | IT IS THE DECISION OF THE TRIBUNAL THAT: 1. The decision of the Nursing and Midwifery Board of Australia of 21 August 2013 is set aside and the conditions imposed on the registration of Ms Ord by that decision are removed. THE TRIBUNAL DIRECTS THAT: 1. The parties must file two (2) copies in the Tribunal and give one (1) copy to the other, of any submissions on costs, by: 4:00 pm on 31 January 2014. 2. The parties must file two (2) copies in the Tribunal and give one (1) copy to the other, of any submissions in reply, by: 4:00 pm on 7 February 2014. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – OTHER MATTERS – respondent took immediate action imposing conditions on the applicant’s registration – applicant allegedly falsified records and misappropriated Schedule 8 drugs – whether the applicant’s actions give rise to a belief that the imposed conditions were necessary for the protection of public health and safety Health Practitioner National Law (Queensland), s 156 Pearse v Medical Board of Australia [2013] QCAT 392 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr P Boyce of Butler McDermott Lawyers |
| RESPONDENT: | Mr R B Dickson instructed by Rodgers, Barnes & Green Lawyers |
REASONS FOR DECISION
Ms Geraldine Ord is a registered nurse. On 21 August 2013, the Nursing Midwifery Board of Australia decided to take immediate action in relation to her pursuant to s 156 of Health Practitioner National Law (Queensland) (‘National Law’). The immediate action taken was the imposition of conditions on Ms Ord’s registration.
Section 156 of the National Law permits the taking of immediate action by a national board if it reasonably believes that because of a practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons, and it is necessary to take immediate action to protect the public health and safety. Ms Ord has sought a review of the Board’s decision.
The conditions imposed by the Board were as follows:
(1)That practitioner is prohibited from undertaking any roles that require her to possess, administer, obtain or supply Fentanyl or any other Schedule 8 drug;
(2)The practitioner must only practice the profession in a supervised position approved in writing by the Board or its delegate;
(3)The supervisor must be nominated in writing by the practitioner and:
(a)be senior to the practitioner in years of experience or by position;
(b)agree to the nomination; and
(c)be approved by the Board or its delegate in writing;
(4)The practitioner’s supervisor is to determine the level of supervision required and may be either direct or indirect;
(5)Every three months from the date of commencing employment, the practitioner must provide written reports to the Board completed by her supervisor, addressing the practitioner’s fitness and competence to practice as measured against the Board’s national competency standards appropriate to the nursing practice position the practitioner is employed, or at other times as negotiated with the practitioner’s AHPRA monitoring case officer;
(6)A representative of the Board and the practitioner’s supervisor/employer are required to exchange information at such time or times as the Board shall determine for the purposes of monitoring compliance with the conditions;
(7)The practitioner must provide any current employer with a copy of these conditions within seven days of their imposition and provide any future employer with a copy of these conditions prior to the commencing any future employment;
(8)The practitioner must further advise the Board within two business days of any change to her place or nature of employment.
The Board’s decision was notified to Ms Ord in a letter from the Australian Health Practitioner Regulation Agency (‘AHPRA’) to her lawyers dated 2 September 2013. The basis for the Board having formed the reasonable belief as to Ms Ord posing a serious risk to persons and the necessity to take immediate action was stated as:
On the basis of the evidence before it, the board reasonably believes that you pose a serious risk to persons and it is necessary to take immediate action to protect public health or safety, because:
(a)You are currently the subject of an investigation by Queensland Health with regards to significant alleged mismanagement of Schedule 8 drugs and breaches of legislation, policy and procedure and the Queensland Health Code of Conduct;
(b)There is a reasonable belief that your alleged conduct, being misappropriation of Schedule 8 drugs, poses a serious risk to persons and it is necessary to take immediate action to protect public health and safety;
(c)There is evidence supplied from Queensland Health that you may have misappropriated Schedule 8 drugs, namely, Fentanyl and there is evidence that the Controlled Drug Register has been tampered with. There are a total of 33 allegations made against you in relation to the Controlled Drug Register;
(d)That your alleged conduct represents a risk to public safety, as in allegedly misappropriating Schedule 8 drugs and falsifying records in a manner that constitutes a significant departure from accepted professional standards, particularly with reference to the Board’s Code of Professional Conduct.
·Conduct statement 3: Nurses practice and conduct themselves in accordance with laws relevant to the profession of nursing – and practice of nursing;
·Conduct statement 9: Nurses remain and build on the community’s trust and confidence in the nursing profession;
·Conduct statement 10: Nurses practice nursing reflectively and ethically;
(e)Imposing the amended conditions on your registration will restrict you from having access to Schedule 8 drugs, particularly Fentanyl when you are working with patients and will require you to practice only under supervision in a board approved position with a board approved supervisor and will act as a protective measure in force until the outcome of the Board’s investigation is known;
(f)You currently hold general registration and although you are currently working in a nonclinical area because of the previously imposed conditions, and are not permitted to perform direct patient care, you are not subject to any limitations should you seek employment as a nurse elsewhere;
(g)The conditions imposed on 8 October 2012 will no longer be necessary as the amended new conditions will provide protection to the public. The new amended conditions will allow you to perform almost all of your duties as a nurse and will also assist the hospital in being able to utilise your skills to care for patients;
(h)The new amended conditions will target the specific concerns of the allegations, that is, the alleged mishandling of the Schedule 8 drug, Fentanyl. Queensland Health has provided no indication that you are incompetent at your job as a nurse, and, therefore, it would seem reasonable that you be allowed to carry out all the functions of a nurse other than that which require you to administer Schedule 8 drugs;
(i)Your submission does not otherwise change the Board’s opinion as to your risk to the public.
As is apparent from those reasons, the Board had previously imposed conditions on Ms Ord’s registration on 8 October 2012. Those conditions were more onerous and restrictive. They included a prohibition upon Ms Ord from undertaking any roles requiring direct or indirect clinical patient contact until approved to do so by the Board. She was also prohibited from working in a sole charge or supervisory capacity. The basis for the Board’s belief that Ms Ord posed a serious risk to persons and that it was necessary to take immediate action in the form of imposition of those conditions, at that earlier time, was expressed to be:
(a)You were charged on 19 August 2012 with four offences, including two offences of stealing as a servant and two offences of falsifying records and you were served by the Queensland Police Service with a notice to appear in the Maroochydore Magistrates Court on 5 September 2012. The matter was deferred for a mention on 26 September 2012;
(b)You are currently the subject of an investigation by Queensland Health with regards to alleged mismanagement of Schedule 8 drugs and breaches of legislation;
(c)There is a reasonable belief that your alleged conduct, being misappropriation of Schedule 8 drugs and falsification of documentation, poses a serious risk to persons and is necessary to take immediate action to protect public health and safety;
(d)Your alleged conduct in the misappropriation of antibiotics, needles and syringes from your workplace in administering these drugs to a person in his home resulting in an infection poses a serious risk to public health and safety;
(e)Although the anonymous caller who made a complaint to Queensland Health has not been identified to you, you have received reasonable particulars from Queensland Health Ethical Standards Unit in relation to the allegations about your conduct;
(f)On 14 September 2012, on the information available to it, the Queensland Board of the Nursing and Midwifery Board of Australia resolved to impose conditions on your registration. It is considered that the submission provided by your solicitors contains no substantive information to suggest that the imposition of conditions would be inappropriate;
(g)Although your solicitors submit that at this stage no action should be taken against you until court proceedings are finalised, and investigation by Queensland Health is completed, it is considered the role of the Board in considering immediate action is not to make findings of fact. It is required to make a judgment as to the risk in allowing you to practice without restriction while the allegations into your conduct are being investigated.
Ms Ord had sought a review of that immediate action decision of the Board in the Tribunal. After the Board made its further decision in August 2013, the Tribunal ordered, pursuant to s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), that the application for review be amended so that the decision to be reviewed was the Board’s decision of 21 August 2013.
The nature of a review of an immediate action decision has been considered in a number of earlier cases. The review is to be conducted as a full de novo hearing on the material before the Tribunal, not that which was before the Board. It permits consideration of matters which have occurred since the decision was taken.[1]
[1]Pearse v Medical Board of Australia [2013] QCAT 392 at [36]-[37] (‘Pearse’).
The purpose of the review is to produce the correct and preferable decision. In WD v Medical Board of Australia,[2] having referred to the Tribunal’s earlier decision in Pearse,[3] in which observations made in other jurisdictions as to the approach to be taken if such proceedings were approved, I summarised the approach as follows:
1.An immediate action order does not entail a detailed inquiry;
2.It requires action on an urgent basis because of the need to protect public health and safety;
3.The taking of immediate action does not require proof of the conduct, but rather whether there is a reasonable belief that the registrant poses a serious risk;
4.An immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5.The mere fact and seriousness of the charges supported by the untested statements of witnesses in a particular case might well be sufficient to create a necessary reasonable belief as to the existence of risk;
6.The material available should be carefully scrutinised in order to determine the weight to be attached to it;
7.A complaint that is trivial and misconceived on its face will clearly not be given weight;
8.The nature of the allegations will be highly relevant to the issue of whether the order is justified.[4]
[2][2013] QCAT 614 (‘WD’).
[3][2013] QCAT 392.
[4]Ibid [40]-[43]; WD [2013] QCAT 614 at [8].
That approach must, of course, be applied in the context and circumstances of each particular case. In some cases the Tribunal’s review will be conducted very soon after the relevant decision was made. In other cases, the review will be conducted after the passage of a longer period of time during which more may have become known about matters upon which the original decision to take immediate action were based. The Tribunal has previously observed that whilst the proceedings before it are not an appeal from the Board’s decision as such, the approach taken by a board as to how it formed the belief it did, can inform the Tribunal’s consideration as to whether it, too, holds that belief.[5]
[5]Pearse [2013] QCAT 392 at [48]; Shahinper v Psychology Board of Australia [2013] QCAT 593 at [17].
It is apparent from the Board’s reasons for its decision of 21 August 2013 that the relevant conduct of Ms Ord, which it considered gave rise to the serious risk to persons, was the alleged misappropriation of Schedule 8 drugs, namely Fentanyl, and the falsification of records in the Controlled Drug Register. It was this mishandling of Schedule 8 drugs which was the specific concern targeted by the amended conditions.
In its submissions in these proceedings, the Board identifies three matters upon which it says a reasonable belief that Ms Ord poses a serious risk to persons can be based. They are, her failure to accurately document administration of Fentanyl; her administration of Fentanyl when not indicated or in contradiction of a medication order; and her allegedly fraudulent entries in the Controlled Drug Register. It is to be noted that only the last of these matters form part of the basis upon which the Board believes that Ms Ord posed a serious risk to persons when making the decision presently under review.
The Board bases its submission that Ms Ord has failed to accurately document administration of Fentanyl upon her admission of three allegations which were the subject of an investigation by her former employer, Queensland Health, and a further three allegations which were denied by Ms Ord, but found by Queensland Health to be substantiated.
33 allegations had been set out in a letter from the Executive Director People and Culture of the Sunshine Coast Hospital and Health Service dated 21 March 2013. The letter was sent following Ms Ord having been found not guilty of two charges of stealing as a public servant, and two charges of fraudulently making a false entry in a record.
The letter offered Ms Ord the opportunity to respond to the allegations. The allegations the subject of the Queensland Health investigation which were admitted by Ms Ord were allegations 1, 4(a) and 8(b). Those allegations, and Ms Ord’s response to them, need to be considered.
Allegation 1 was that:
On 21 April 2012 at 2200 hours, you signed for 100 micrograms of Fentanyl in the Controlled Drug Register. Your entry in the Controlled Drug Register indicated 100 micrograms was to be given to a particular patient. However, you failed to document the administration of 100 micrograms of Fentanyl in the patient’s medication chart.
Allegation 1 was related to allegation 2. The two allegations concerned the same events. Ms Ord’s response to allegations 1 and 2 was:
100 micrograms was signed out of the drug safe into the drug register to be given to the patient. 50 micrograms of the drug was witnessed at the time it was prepared in the syringe. The unused portion was discarded and this was noted in the ‘comments’ column and co‑signed with initials. The order for the drug Fentanyl prescribed on the patient’s medication chart by the doctor was for 50 micrograms.
Queensland Health’s findings from its investigation were set out in a letter to Ms Ord from Mr Rod Margetts, Acting Executive Director People and Culture Sunshine Coast Hospital and Health Service dated 29 May 2013. The findings in respect of allegations 1 and 2 were:
While I acknowledge Fentanyl was prescribed to the patient, there is no record in the patient’s medication chart that any Fentanyl was administered to the patient after you signed for the medication in the Controlled Drug Register at 2200. Further, your entry in the Controlled Drug Register was for 100 micrograms to be given to the patient which is inconsistent with the doctor’s order and your advice that 50 micrograms of Fentanyl was prepared for the patient. As a registered nurse you should understand the importance of complete, accurate and consistent records. It concerns me that you failed to document the administration of medication in the patient’s chart and recorded inconsistent information in the Controlled Drug Register. Therefore, based on the information available to me, I consider allegation 1 and allegation 2 as substantiated on the balance of probabilities.
Mr Margetts’ letter informed Ms Ord that consideration was being given to taking disciplinary action against her in the form of terminating her employment with Queensland Health. She was offered an opportunity to show cause why that disciplinary action should not be taken against her. She availed herself of that opportunity. By letter dated 6 June 2013. (the first page of which I note is dated 6 June 2013 with subsequent pages dated 7 June 2013) Ms Ord’s solicitors made further submissions to Queensland Health. They also provided a document dated 5 June 2013 which Ms Ord made further responses to the allegations.
Her further response in respect of allegations 1 and 2 was:
The Fentanyl order was for 50 micrograms as ordered by the doctor in the medication chart. The entry to the drug register was written in the ‘amount given’ column for 100 micrograms. 50 micrograms was discarded, witnessed by the second nursing staff and this was documented in the ‘comments’ column. Both the second nurse and I have dispensed and prepared the drug from the drug cupboard and we have both signed the drug register to be true and correct at the time indicated on the entry. From my experience, in the emergency department, it is not uncommon for a doctor to give a verbal order or phone order for drugs to be administered prior to the official written order on a medication chart. In a situation like that, the order is given verbally and is confirmed by both nursing staff. The drug is then obtained from the drug safe and entered in the drug register by both nursing staff who received the verbal order or phone order. On this occasion, it is likely the doctor has instructed for 100 micrograms to be given in increments, based on the patient’s pain level. 100 micrograms Fentanyl was dispensed, but only 50 micrograms Fentanyl in total was required. The doctor has then later written the order based on the patient’s needs. The remaining unused 50 micrograms of Fentanyl was then discarded and this was documented in the drug register ‘comments’ column by the nursing staff responsible for the entry. It is also common practice within the emergency department to receive a verbal order from a doctor for Schedule 8 drugs prior to the patient’s arrival by QAS. In most cases the patient’s identity has not yet been established. The entry to the drug register appears without a name. The drugs are prepared in advance and are given to the patient on their arrival, depending on their level of pain. Any unused portions are then discarded. When the medication chart is eventually written by the doctor, the entry into the drug register is then completed with the patient’s name and any unused portions of the drug is then documented in the ‘comments’ column.
In its written submissions the Board refers, at paragraph 22, to Ms Ord having made the submission in these proceedings that her admitted error in respect of allegation 1 was a common practice. The Board then criticises that submission attributed to Ms Ord as misrepresenting and trivialising ‘the importance of accurately documenting the administration of medications which is fundamental to the safe practice of nursing and so demonstrating a lack of insight into the significance of those failures.’
These criticisms of the ‘submission’ of Ms Ord are misplaced. Regrettably, they stem from a summary set out in written submissions filed on behalf of Ms Ord. The summary is contained in a schedule set out in the submissions. The schedule is said to summarise ‘the hospital’s findings and the applicant’s responses as contained in her affidavit.’ Unfortunately, the summary is inelegantly expressed. The affidavit referred to is the applicant’s affidavit filed on 26 November 2013 in these proceedings. At paragraphs 12 to 17 of that affidavit, Ms Ord deposed to matters concerning allegations 1 and 2 in the following terms:
12.The entry to the drug register was written in the ‘amount given or received’ column for 100 micrograms. 50 micrograms was discarded and this was noted in the ‘comments’ column and co‑signed with the initials by the second nursing staff. The reason why the ‘amount given or received’ column states 100 micrograms is because the doctor would have ordered 100 micrograms, however, only 50 micrograms was required and the remaining 50 micrograms was discarded. This happens regularly. For example, the entries on the drug register for a patient on 11 May 2012 at 1150 hours and another patient on 12 May 2012, 1700 hours.
13.The administration of the medication is usually written in the patient’s chart, however, in practice this is not always done in the emergency department due to it always being extremely busy. It is possible to see what medications have been ordered and administered to the patient by reviewing the medication chart which is completed by the doctor.
14.Both the second nurse and I have dispensed and prepared the drug from the drug cupboard and we have both signed the drug register to be true and correct at the time indicated on the entry.
15.From my experience in the emergency department it is not uncommon for a doctor to give a ‘verbal order’ or ‘phone order’ for drugs to be administered prior to the official ‘written order’ on the medication chart. In a situation like this, the order is given verbally or by phone, as confirmed by both nursing staff. The drug is then obtained from the drug safe and entered in the drug register by both nursing staff who staffed the ‘verbal order’ or ‘phone order’.
16.It is also common practice within the emergency department to receive a ‘verbal order’ from a doctor for Schedule 8 drugs prior to the patient’s arrival by QAS. In most cases, the patient’s identity has not yet been established. The entry to the drug register appears without a name. The drugs are prepared in advance and are given to the patient on their arrival depending on their level of pain. Any unused proportions are then discarded. When the medication chart is eventually written by the doctor, the entry into the drug register is then completed with the patient’s name and any used portions of the drug is then documented in the ‘comments’ column.
17.On this occasion, it is likely the doctor has instructed for 100 micrograms to be given in increments based on the patient’s pain level. The patient’s chart shows a pain level of 7/10 at 2200 hours. 100 micrograms Fentanyl was dispensed, but only 50 micrograms Fentanyl in total was required. The remaining unused 50 micrograms Fentanyl was then discarded and this was documented in the drug register comments column by the nursing staff responsible for the entry. The doctor has then failed to write the ‘phone order’ or ‘verbal order’ in the medication chart.
I note that medication charts which are in evidence before me bear a note that telephone orders must be signed within 24 hours of order. This seems consistent with what Ms Ord has said in relation to it not being uncommon for telephone orders or verbal orders to be given prior to their being signed by doctors. As can be seen, Ms Ord’s affidavit essentially deposes to those matters previously set out in her further response of 5 June 2013. Only portions which I have emphasised were additional material.
An examination of Ms Ord’s response of 5 June 2013 and her affidavit reveals that she did not state that the error to which she admitted was common practice. Rather, the common practice to which she referred was the making of verbal and phone orders for drugs by doctors prior to a formal written order being made on the medication chart of the patient. She explained the circumstances in which this occurs. Properly understood, Ms Ord does not state, or submit, that the error to which she admitted in respect of allegation 1 was ‘common practice’. She does not seek to misrepresent or trivialise the importance of accurately documenting the administration of medications.
The suggestion that she lacks insight is misplaced. Rather, her statement demonstrates insight into how the making of these important records may be overlooked.
The second of the allegations which Ms Ord admitted was allegation 4(a). It was that:
On 2 May 2012 at 7.20 and 8.10, you signed for 100 micrograms of Fentanyl in the Controlled Drug Register (your entries in the Controlled Drug Register indicated 25 micrograms was to be given to a patient and 75 micrograms was discarded on each occasion) however:
(a)you failed to document the administration of medication to the patient in the patient’s medication chart.
The response provided by Ms Ord in the letter from her solicitors was:
The medication chart shows the prescription ordered by the doctor for 1x25 micrograms Fentanyl. The drug register indicates that two by separate entries were written out by me and co‑signed by another nurse at 7.20 and 8.10 hours, including the discarded amounts of 75 micrograms in the ‘comments’ column. A likely reason this could have occurred is that the first dose was not given due to a variety of reasons, for example, cannular tissue, patient refused, patient absent from cubicle, pain subsided and patient no longer required narcotic, doctor ordered to withdraw the drug temporarily or I had been relieved by another nurse for a tea break and the 25 micrograms Fentanyl which was handed over to the relieving nurse was not given and discarding amount was not documented.
The findings of Queensland Health in respect of allegation 4(a) were set out in Mr Margetts’ letter of 29 May as follows:
You provided a number of situations where there could be two entries in the Controlled Drug Register against the one medication order, including ‘cannular tissue, patient refused, patient absent from cubicle, pain subsided.’ However, if any of these situations occurred a record should have been made in the patient’s chart and an additional entry made in the Controlled Drug Register to indicate the 25 micrograms of Fentanyl prepared for the patient had been discarded. On this occasion, there was no information on the patient’s medication chart or the controlled register to indicate any of these situations occurred. Therefore, I do not accept your explanation. I consider it is more probable than not that the Fentanyl was given to the patient at 7.20 and 8.10. As the administration of the medication was not recorded in the medication chart and there was a once only order for 25 micrograms of Fentanyl, I consider this allegation is substantiated on the balance of probabilities.
Ms Ord’s further response provided by her lawyers under cover of a letter of 6 June was:
The reasons I have listed are legitimate and I agree that the first entry of Fentanyl which was not given and discarded should have been documented by myself and the other nurse responsible for the entry. I believe this to be human error on both our parts. As I will stress again, the emergency department is an extremely busy area of nursing and although all efforts are made to document appropriately, accurately and safely, there are times when errors may occur due to fatigue. Errors of this nature, although a common practice, are inevitable.
Ms Ord’s affidavit in these proceedings addressing allegation 4 is as follows:
21.The medication chart shows the prescription ordered by the doctor for one by 25 micrograms of Fentanyl. The drug register indicates that two by separate entries were written out by me and co‑signed by another nurse at 7.20 and 8.10 hours, including the discarded amounts of 75 micrograms in the ‘comments’ column.
22.In relation to allegation 4(a), the first entry of Fentanyl which was not given and discarded should have been documented by myself and the other nurse responsible for the entry, however, in practice, this does not always happen as the emergency department is an extremely busy area of nursing and although all efforts are made to document appropriately and accurately, there are times when errors occur which is inevitable. I believe this to be human error on both our parts.
23.The hospital took no further action in relation to allegation 4(b) as the first entry of Fentanyl was not given to the patient. A likely reason this could have occurred is that the first dose was not given due to a variety of reasons. For example, cannular tissue, patient refused, patient absent from cubicle, pain subsided and patient no longer required narcotic, doctor ordered to withhold the drug temporarily or I had been relieved by another nurse for a tea break and the 25 micrograms Fentanyl which was handed over to the relieving nurse was not given and discarded, amount was not documented.
Ms Ord’s observation that the hospital took no further action in respect of allegation 4(b) is pertinent. Allegation 4(b) had been that administering the medication to the patient at 7.20 and 8.10 had contravened the medication order which specified a once only dose of 25 micrograms. That allegation was premised upon the patient having been administered the drug twice. In its written submissions, the Board identifies the repetitious administration of medication to patients as the risk arising from a failure to properly document the administration in a patient’s medical records. Whilst it can be accepted that such a risk does arise, it is also relevant to consider that such a risk did not become manifest in this case, and that the hospital proceeded on that basis.
I do not consider that the responses of Ms Ord to the hospital and her evidence in these proceedings concerning allegation 4(a) trivialises her admitted failings or display the nonchalance which the Board seeks to attribute to her. Ms Ord frankly concedes her error. That she contextualises her error within the busy activity of an emergency department does not, in my view, demonstrate a lack of insight. Indeed, it demonstrates an understanding of how such omissions may occur.
The third admitted allegation was allegation 8(b). That allegation was that:
On 21 May 2012 at 2340 hours, for a patient you recorded inconsistent information when you:
·signed for 100 micrograms of Fentanyl in the Controlled Drug Register;
·recorded in the Controlled Drug Register that 50 micrograms was to be given to the patient; and
·recorded in the patient’s medication chart that you administered 25 micrograms of Fentanyl to the patient.
Ms Ord’s response provided through her solicitors was:
The entry was written by me and co‑signed by Registered Nurse Cooney. 50 micrograms was written in the drug register, not 100 micrograms as alleged. The discarded amount was noted in the ‘comments’ column. Only 25 micrograms was given to the patient and the rest must have been discarded. As the emergency department is an extremely busy environment, at times it is easy to get involved in other procedures and, therefore, not following through with correct protocol.
Queensland Health’s findings in respect of the allegation 8(b) are set out in Mr Margetts’ letter as follows:
In relation to sub-allegation (b) the Controlled Drug Register contains a record that 50 micrograms of Fentanyl was prepared for the patient and 50 micrograms was discarded at 2340. However, the patient’s medication chart contains a record that only 25 micrograms was given to the patient at 2340.
In your response you acknowledge only 25 micrograms was given to the patient and advise ‘the rest must have been discarded.’ However, had this been the case, there should have been an additional record in the Controlled Drug Register that 25 micrograms was discarded. In this case, there is no evidence to suggest this occurred.
While you claim inconsistency is due to the ‘busy environment’ of the department, I do not consider this justifies or excuses your failure to ensure complete, accurate and consistent records are kept of patient care. Based on the information available to me, I consider the allegation substantiated on the balance of probabilities.
Ms Ord provided the following further response through her lawyers on 6 June 2013:
I have no further information to provide regarding the allegation. Registered Nurse Gema Cooney and I were responsible for the entry in the drug register. I cannot comment on the discarded unused amount of Fentanyl as there are many probabilities. I am aware of the correct procedure in relation to documenting any discarded portions of the IV narcotics in the drug register, as I am sure Registered Nurse Cooney is. I have worked with Registered Nurse Cooney on many occasions and she is thorough, concise and safe in all her practices.
In her affidavit Ms Ord addressed this allegation in the following terms:
29.With respect to allegations 8(b), the entry was written by me and co‑signed by Registered Nurse Gema Cooney. I have worked with Registered Nurse Cooney on many occasions and she is thorough, concise and safe in all her practices. 50 micrograms was written in the drug register, not 100 micrograms as alleged. The discarded amount was noted in the comments column.
30.Only 25 micrograms was given to the patient and the rest would have been discarded. I am aware of the correct procedure in relation to documenting any discarded portions of the IV narcotics in the drug register. As the emergency department is an extremely busy environment at times, it is easy to get involved in other procedures and, therefore, not follow through with correct protocol. It was common practice of which the nursing team leaders were aware to leave the additional 25 milligrams in the patient’s tray or at the nurse’s tray and if it was not required later, we would squirt the remaining 25 micrograms into the sharps container. This is always done in front of another nurse and only ever happened in the emergency department due to the time constraints on staff.
Again, I am unable to view these statements by Ms Ord in the way which the Board submits I should. They do not, in my view, seek to misrepresent or trivialise the need for keeping of accurate patient records. Rather, they proceed upon a recognition of that need, whilst identifying circumstances and practices unique to the emergency department in which correct procedure may not always be observed.
In addition to these three admitted allegations, the Board also points to three further allegations denied by Ms Ord, but found by Queensland Health to be substantiated. The first of those further allegations was allegation 2. As noted above, Ms Ord addressed allegation 2 jointly with allegation 1 in her responses to Queensland Health. Even if considered substantiated, my observations above concerning allegation 1 apply equally to allegation 2.
The second further substantiated allegation to which the board points is allegation 6(a). Allegation 6(a) was that:
On 10 May 2012, at 1.10 and 1.40, you signed for 100 micrograms of Fentanyl in the Controlled Drug Register. Your entries in the Controlled Drug Register indicated 25 micrograms was to be given to a patient and 75 micrograms was discarded on each occasion. However:
(a)you failed to document the administration of medication to the patient in the patient’s medication chart.
Ms Ord’s response was as follows:
The first entry 0110 hours is correct and was written by me and has been co‑signed by another nurse. The discarded amount has been noted in the ‘comments’ column. The second entry, 0140 hours, was written by Registered Nurse Cheryl and signed for in the ‘whom given’ box. The signature in the ‘checked by’ column resembles mine, but is not my writing. I believe this is a false signature.
Ms Ord’s denial was not accepted by Queensland Health. Its findings were stated by Mr Margetts in his letter of 29 May 2013 as follows:
In relation to the 0140 entry, you advise it is not your writing. I have reviewed the entries in the controlled drug book and note that there are four similar entries, two on 9 May 2012 and two on 10 May 2012, where your signature appears in either the ’whom given by’ box or the ‘checked by’ box. Given the similarities in the signatures, I consider it is more likely than not that the signature is yours.
There is no record in the patient’s medication chart that Fentanyl was administered to the patient at 0140, nor is there a record that the 25 micrograms of Fentanyl drawn up for the patient at 0140 was discarded. Therefore, I consider it more probable than not that Fentanyl was given to the patient at 0140. As there had already been a 25 microgram dose given to the patient at 0110, the dose at 0140, just 30 minutes later, was in contravention of the medication order which prescribed 10 to 25 micrograms every two hours.
Based on the information available to me, I consider the allegation substantiated on the balance of probabilities.
Ms Ord’s denial that the second entry was not written or signed by her was repeated in her further response of 6 June 2013 and in her affidavit. For my part I have examined the copies of the relevant entries. There are certainly similarities in the entries, but I would be unable to conclude, unassisted by expert evidence, as to whether the entries were made, or likely to have been made, by the same person. I note, however, that the Board’s submission in this regard is based upon the alleged failure to document the administration of Fentanyl, rather than the Fentanyl having been erroneously administered.
The third allegation which had been denied by Ms Ord, but which Queensland Health found to be substantiated, and upon which the Board now relies is allegation 14(b). It was
On 13 June 2013 at 1850, you signed for 100 micrograms of Fentanyl in the Controlled Drug Register. Your entry in the Controlled Drug Register indicated 25 micrograms was to be given to the patient and 75 micrograms was discarded. However:
(b) the patient was ready to be discharged.
Ms Ord’s response in her solicitor’s letter was:
The entry in question was written in the drug register by Registered Nurse Jacinta (casual pool) and signed for in the ‘whom given’ column. The ‘checked by column’ is signed by me. I did not administer this medication to the patient and, therefore, I am not responsible for signing and dating the patient’s medication chart. There is a prescription of 25 micrograms ordered by Dr Hallowell on the patient’s medication chart.
Mr Margetts recorded the finding of Queensland Health in respect of this allegation as follows
In your response you advise that you ‘did not administer the medication to the patient’ and ‘therefore, I am not responsible for signing and dating the patient’s medication chart.’ However, the previous two entries in the Controlled Drug Register at 1700 and 1730 for the patient both have Registered Nurse Jacinta’s signature in the ‘whom given’ column and your signature in the ‘checked by’ column. On both of these occasions you have signed the medication chart indicating you administered the medication to the patient.
Further swipe card records indicate you accessed the drug room on 30 June 2012 on a number of occasions, including 1846, just four minutes before the drug was administered to the patient. There is no record of the Registered Nurse Jacinta accessing the drug room on 30 June 2012. Therefore, I do not accept your explanation.
As Fentanyl was signed for in the Controlled Drug Register and there is no additional record to suggest that the Fentanyl was discarded, it appears the medication was given to the patient and, as such, you should have recorded the administration of the medication in the patient’s medication chart.
Also of concern, the information available to me indicates the patient was discharged at 1905, just 15 minutes after the Fentanyl was administered. According to the Critical Care Drugs Information and Guidelines document, when administering Fentanyl ‘close observation post administration should occur.’ I understand within the Department of Emergency Medicine, half hourly observations are required after the admission of an IV narcotic. On this occasion I do not consider it would have been appropriate to administer a narcotic analgesia to a patient so close to when they were due to be discharged.
Therefore, I consider this allegation is substantiated on the balance of probabilities and that you administered 25 micrograms to the patient at 1850, when he was ready to be discharged.
Again, it is to be noted that in respect of this allegation the Board cites inappropriate record keeping as opposed to inappropriate administration of the drug as the basis upon which a serious risk arises. Ms Ord subsequently provided the following detailed further response on 6 June 2013
As I have stated in my previous response to this allegation, the entry in question was written by Registered Nurse Jacinta (casual pool) and her signature appears in the ‘whom given’ column. My signature appears in the ‘checked by’ column. The medication was administered by Registered Nurse Jacinta to the patient. I did not witness Jacinta giving the medication and, therefore, I take no responsibility for the medication chart not being signed. In regards to the two previous doses of Fentanyl you have mentioned in your allegation, Registered Nurse Jacinta requested on both occasions that I administer the drug while she observed as she was not entirely confident or familiar with giving IV narcotics. As I had given the drugs to the patient, I signed the medication chart entries.
Furthermore, Registered Nurse Jacinta has not been issued with a swipe card from Queensland Health as at the date of this allegation. I am sure records from the security department would show when she was issued and received a swipe card. She had been employed in the casual pool and I had worked with her on numerous occasions prior to this date without a swipe card. The emergency department does not issue staff with temporary swipe cards whilst on shift, therefore, Registered Nurse Jacinta could only access areas by using other staff members’ swipe cards. Whilst on shift that day, Registered Nurse Jacinta inquired about getting a temporary swipe card from the security department, but her request was declined.
Lastly, in response to your comment relating to the discharge of the patient 15 minutes following the administration of Fentanyl by Registered Nurse Jacinta, I will explain in detail the discharge procedure. It is the doctor who decides whether a patient is fit and well enough to be discharged from the department following treatment. In most cases, nursing staff are not forewarned when this will occur. The discharging doctor will inform the patient of their discharge and giving any further instructions relating follow‑up appointments, patient education, etcetera, then inform nursing staff. The discharging doctor is aware of all treatment, tests, procedures and medications given to the patient during their admission to the department. The nurse then informs the nursing team leader and the discharge is entered into the computer. When a patient physically leaves the department, it is generally not recorded in the patient’s notes or computer system. Due to the high demands and the immediate need for an available cubicle, the discharged patient is asked to wait in the corridor or waiting area for their transportation home. If a patient requires ongoing observations following the administration of IV narcotics, it is carried out here in an informal manner. No nursing staff, including myself, would allow a patient to leave the emergency department if they were at risk of harm to themselves or others.
These matters have now been deposed to by Ms Ord in her affidavit. Queensland Health’s determination upon which the Board now relies was not informed by those further matters. I do not consider that I can, in those circumstances, simply adopt, as it were, the determination of Queensland Health.
The matters which have been raised by the Board as to the failure of Ms Ord to document accurately the administration of Fentanyl, either separately or together, do not cause me to believe that she poses a serious risk to persons.
The Board identifies two allegations concerning the administration of Fentanyl when not indicated, or in contravention of a medication order. The first concerns Queensland Health’s determination that on one occasion Ms Ord administered Fentanyl when it was not indicated. This was allegation 15. It was that:
On 2 July 2012 at 2130, after a patient identified a pain level of 2/10, you administered 25 micrograms of Fentanyl, a narcotic analgesia when, given this pain level, a mild level analgesia they have been more appropriate.
Ms Ord’s response was:
The Fentanyl was given to the patient prior to the observations being taken. This is clearly noted in the patient’s chart as a comment, ‘analgesic given’. The patient’s score indicates an improvement in the patient’s pain following administration.
Queensland Health’s findings in respect of allegation 15 were recorded in Mr Margetts’ letter as follows:
The information contained in the nursing assessment sheet indicates observations were undertaken at 2130 and a pain scale of 2/10 was recorded and analgesia given.
I note your advice that ‘Fentanyl was given to the patient prior to the observations being taken’, and the ‘pain score indicates an improvement in the patient’s pain following the administration.’ However, it concerns me you have administered Fentanyl to a patient prior to taking the patient’s observations. According to the Clinical Care Drugs Information and Guidelines document in relation to Fentanyl, ‘Baseline observations must be recorded prior to administration.’ This ensures it is safe for the patient to receive the drug.
It is interesting to note you gave a narcotic analgesia to the patient when a pain scale of 2/10 was recorded, however, just an hour before, another nurse recorded the patient gave a pain scale of 2/10 and no analgesia (narcotic or mild) was provided. Given a pain score was recorded of 2/10 and it is generally more common for a mild analgesia to be given to a patient experiencing this level of pain, I consider this allegation is substantiated on the balance of probabilities.
A number of comments can be made about these findings. First, they find the allegation that Fentanyl was administered after the patient identified a pain level of 2/10 to be substantiated, notwithstanding the apparent acceptance of Ms Ord’s statement that the recording of a pain scale of 2/10 followed the administration of the drug, and indicated an improvement in the patient’s pain level. That acceptance is apparent because it forms the basis for the criticism in the second paragraph quoted above, that the drug was administered prior to the observations being taken. Therefore, the allegation, as made, could not be found to be substantiated upon the acceptance of that statement.
In the final paragraph quoted above, the decision‑maker, quite inconsistently with the earlier apparent acceptance of the fact that the observation of a pain level of 2/10 followed the administration of Fentanyl, proceeds on the basis that that observation preceded the drug’s administration.
Secondly, even at its highest, the allegation was only that, given the observed pain level, a mild analgesia may have been more appropriate. The finding was that ‘generally’ it was ‘more common’ for a mild analgesia to be given to a patient experiencing that pain level. Therefore, the allegation was not that it was inappropriate to administer Fentanyl and the findings imply that this course may be followed even though another course was generally more common.
In my view, the findings of Queensland Health concerning allegation 15 cannot support a belief that Ms Ord poses a serious risk to persons.
The second determination of Queensland Health upon which the Board now relies in support of its admission that Ms Ord administered Fentanyl in contravention of a medical order was allegation 22 which was:
On 13 July 2012 you administered medication in contravention of the medication order which specified 25 micrograms of Fentanyl every two hours (‘Q2H’) when you administered 25 micrograms of Fentanyl to the patient at 1720 and 1830.
Ms Ord’s response provided through her solicitor was:
The prescription of 25 micrograms Fentanyl every two hours was written in the PRN area (back page) of the medication chart by Dr Abbas. There is also an order for Fentanyl on the stat area (front page) of the medication chart for 25 micrograms – 50 micrograms written by Dr Abbas. (25 microgram Fentanyl of this stat order was given to the patient previously leaving a further 25 micrograms Fentanyl available if required). Later, when the patient continued to complain of pain, after been given 25 micrograms from the PRN order at 1720 hours, I consulted with Dr Abbas who suggested giving the patient the remaining 25 micrograms Fentanyl from the stat order he had previously written. This dose was given and the time was noted on the medication chart.
The findings of Queensland Health set out in Mr Margetts’ letter of 29 May 2013 were:
I note your advice that Dr Abbas prescribed both the PRN medication and stat order for Fentanyl and ‘suggested giving the patient the remaining 25 micrograms Fentanyl from the stat order.’ I have reviewed the PRN order and stat order and note neither order was prescribed by Dr Abbas. I also sought advice from Dr Abbas who advised:
·he saw the patient on 20 July 2012, but was not the primary doctor for the patient on 13 July 2012, commenting ‘I do not see my signatures anywhere on the chart.’
·in relation to the stat order it ‘was definitely not written by me. This is not my usual practice. I usually write only a single stat order of a once only fixed dose, for example, Fentanyl, 25 micrograms IV stat. I usually do not write variable doses in the stat orders.’
·in relation to the PRN order ‘I usually do not write PRN analgesia Q2 hours. I generally write morphine/Fentanyl Q10 minutes. This is my practice.’
·if someone asked me and told me that the patient was in pain, probability is that I would have changed the PRN order completely to a more frequent dosing regime.
Based on Dr Abbas’ advice that he did not write the medication orders and his normal practice would be to change the PRN order to a more frequent dosing regime, I do not accept your explanation. Based on the evidence available to me, the 25 microgram Fentanyl given to the patient at 1830 was in contravention of the medication order, given that a 25 microgram dose had previously been given at 1920 and the medication order was for 25 micrograms every two hours. I do not consider it was appropriate to go back to the stat order (from four hours earlier) and administer the remaining dose.
Based on the information available to me, I consider the allegations substantiated on the balance of probabilities.
Ms Ord’s further response in June 2013 was:
After reviewing the medication chart, I am certain that Dr Abbas is responsible for writing both the PRN order and the stat order of Fentanyl. I’m very familiar with his handwriting and signature, as well as having a very clear recollection of the event. I would like you to clarify what ‘chart’ Dr Abbas reviewed when I stated ‘I do not see my signature anywhere on the chart.’ If, in fact, it was the patient’s medical chart and he was not the treating doctor as he claims, then his signature would not be required. However, if Dr Abbas was to review the medication chart in question to the allegation, he would agree without any doubt that he had written both the orders and his signature appears on both. Dr Abbas has stated that it is not his ‘usual’ practice. On this occasion he has written a variable dose on the PRN medication sheet and following a conversation with him, regarding the pain experienced by the patient, he’s instructed me to provide to the patient the remaining dose available from the PRN order which he wrote earlier.
Ms Ord’s evidence in her affidavit concerning allegation 22 is somewhat different to that which she had previously stated in her responses. She said at paragraphs 58 and 59 of her affidavit:
58.The prescription of 25 micrograms Fentanyl every two hours was written in the PRN area of the medication chart. There is an order for Fentanyl on the stat area of the medication chart for 25 micrograms to 50 micrograms which appears to have been written by a Dr Shopl. 25 micrograms Fentanyl of this stat order was given to the patient previously, leaving a further 25 micrograms Fentanyl available, if required.
59.Later, the patient continued to complain of pain, after been given 25 micrograms from the PRN order at 1720 hours and needed pain relief before the two hours was up. This often happens and the doctor will write an extra order. However, they didn’t in this situation, as there was already a stat order.
In its submissions the Board relies upon the finding of Queensland Health that it was inappropriate to administer an unused amount of a stat order which was made four hours earlier. That may well be correct. Ms Ord’s explanations for what occurred in this instance have been inconsistent. Notwithstanding that, it is apparent that up to 50 milligrams of Fentanyl had been authorised by the stat order. It is not apparent from the medication chart and the PRN chart at what times the stat and PRN prescriptions were made as opposed to the times at which the drugs were administered. It is apparent that there was a stat order of 25 to 50 micrograms at 1330 orders of which 25 micrograms was administered, with a further stat order of 25 to 50 micrograms one hour later at 1430. This would suggest the PRN prescription was made sometime after 1430 and that prior to this, 25 micrograms had been administered twice within an hour.
Whilst it would appear that the dose administered at 1830 was contrary to the PRN prescription, and that it may have been inappropriate to refer back to the earlier stat order for authority for that dose, there is no evidence that the administration of that dose placed the patient at risk. There is also evidence from Ms Ord that the dose was administered in consultation with the doctor.
In my view, this allegation does not cause me to believe that Ms Ord poses a serious risk to persons. In forming that view I am mindful of the fact that in making its immediate action decision on 21 August 2013, the notification and the immediate action committee of the Board, in deciding to impose conditions targeted at the specific concerns concerning misappropriation of Schedule 8 drugs and the falsification of records, said that Queensland Health had provided no indication that Ms Ord was incompetent at her job as a nurse.
The third matter relied upon by the Board as giving rise to a belief Ms Ord poses a serious risk to persons, is the alleged fraudulent entries in the Controlled Drug Register. As will be recalled, this allegation was, together with an allegation of misappropriation of the drugs, at the centre of the Board’s decision to take immediate action. It relates to allegations 30 and 31. Those allegations were, respectively:
30.On 31 July 2012 at 2400 hours you signed for 100 micrograms of Fentanyl in the Controlled Drug Register. Your entry in the Controlled Drug Register indicated 25 micrograms was to be given to a patient. However:
(a)Fentanyl was not prescribed for the patient; and/or
(b)the patient had already been moved to Ward 2B.
31.On 1 August 2012 at 0045 hours, you signed for 100 micrograms of Fentanyl in the Controlled Drug Register. Your entry in the Controlled Drug Register indicated 25 micrograms was to be given to the patient, however:
(a)Fentanyl was not prescribed for the patient; and/or
(b)the patient had already been moved to Ward 2B.
Ms Ord’s initial response to those allegations was limited. In respect of each she merely stated that had she had been found not guilty of those offences after full investigation by the Queensland Police Service. It is unsurprising that Queensland Health did not consider that a sufficient response to the allegations in the context of proposing disciplinary action against her. Quite reasonably, Queensland Health pointed out in Mr Margetts’ letter of 29 May 2013, that the standard of proof in disciplinary proceedings was the civil rather than criminal standard. The substantive findings of Queensland Health in respect of those allegations were:
The Controlled Drug Register contains a record that:
·100 micrograms Fentanyl was signed for at 2400.
·25 micrograms was drawn up to be given to the patient.
·the remaining 75 micrograms was discarded.
·you checked the above and signed to confirm this in the ‘checked by’ column.
By signing the ‘checked by’ column, you should have been satisfied the six rights of medication had been met, including that there was an order for Fentanyl and the patient required this medication.
However, there is no record in the patient’s chart that the Fentanyl had been prescribed. Therefore, Fentanyl should not have been signed for in the controlled drug book at 2400 on 31 August 2012 or at 0045 on 1 August 2012.
Further, the nursing assessment sheet contains a record written by you that the patient was handed over to Ward 2B at 2340. As the patient was no longer in the emergency department, there would be no justification for you signing an entry in the controlled drug book.
In the absence of any further information from you, I consider allegation 30 and 31 are substantiated on the balance of probabilities.
The Board submits that the determination of Queensland Health, together with other evidence, are sufficient to justify a belief that Ms Ord poses a serious risk to persons. Those further matters to which the Board points are:
(a)There is no record of the Fentanyl having been prescribed to the patient;
(b)The patient was handed over from the emergency department to another ward at 2340 by the applicant;
(c)The handwriting (of the applicant’s signatures) for the entries at 2400 and 0045 is similar to the handwriting at 2300 at 2325 which appear to have been written by the applicant;
(d)The swipe card records indicate the applicant accessed the Controlled Drugs Room at 2345 and at 0005;
(e)The applicant deposed to RN Mel Brown and EEN Amanda being rostered on in the emergency department on the night of 31 July 2012. It is not clear if any other person with access to the Controlled Drugs Room was working. The applicant deposes to RN Brown being given permission to finish her shift and go to sleep because she was unwell. EEN Amanda has provided a persuasive denial of having signed the relevant entries in the Controlled Drugs Register.
Importantly, the determination of Queensland Health was reached in the absence of the further response which Ms Ord provided in June 2013 and to which she has now deposed. That further response is that she did not make the relevant entries in the drug register and that the signatures which appear and which have been attributed to her are not hers. Ms Ord now also provides the further detailed explanation that:
72.During the evening of 31/07 – 01/08, I was allocated to cubicles 14 – 17. RN Mel Brown was allocated ‘observation ward’ with the assistance of EEN Amanda. At approximately 2300 hours I was savagely attacked by a patient from cubicle 17. The patient, XY, (16 year old morbidly obsessed, five foot 10, previous health history) had been admitted following a domestic dispute with her mother earlier that day. She became loud and aggressive after her mother had left the department and refused to return to her cubicle when asked to do so. Two security officers were supervising another patient in the department at the time and were aware of the situation.
73.As her behaviour and aggression escalated, she punched me in the chest causing lacerations to my skin from her fingernails, throwing me backwards into the wall of the nursing station office. It was then that security intervened and forced her to the ground.
74.The patient was escorted back to bed by security and given IM medication. I filled out a Workplace Incident Report provided to me by the nursing team leader and continued my shift in the same area, having care for the patient who had previously assaulted me.
75.I was later informed that the patient had a history of assaulting staff on previous admissions and no security supervision was initiated following my attack.
76.One hour later, RN Mel Brown was given permission by CN Jodie Green to finish her shift and go to sleep in the spare isolation room in the observation area as she was unwell. No replacement was made for RN Mel Brown. As EEN Amanda required to work within her scope of practice, I then had then responsibility (sic) of the patients who occupied the observation department as well as my own patient load which was a total of 10 acutely ill patients.
77.On many occasions during that evening, when Schedule 8 drugs were required from the drug cupboard, EEN Amanda was found to be in possession of the key.
Whilst Ms Ord deposes to the EEN Amanda having been found in possession of the key to the drug cupboard on a number of occasions, she does not suggest that Amanda did not have her own swipe card to access the drug store. Ms Ord had made this observation in respect of other allegations to which I have already referred. The card swipe access records demonstrate that Ms Ord did access the drug store at 23:45.07 on 31 July 2012 and 00:05.57 on 1 August 2012. However, they also demonstrate numerous other accesses from 22:16.43 on 31 July, to 06:00.57 on 1 August which, on the evidence contained in the records for Fentanyl in the Controlled Drug Register could not have been for the purposes of obtaining Fentanyl. I do not have before me the records for other controlled drugs which may have been accessed on those occasions. Nor do I have the records of access of the EEN Amanda, or others, which would demonstrate when she, or they, had access to the drug store.
In the absence of that material and given Ms Ord’s sworn evidence that the relevant entries in the records are not hers, I am unsatisfied, even to the level of satisfaction required in a review of immediate action such as this, that this material supports the belief that Ms Ord poses a serious risk to persons.
In reaching this view, I have also given consideration to the fact that the further action taken by the Board included requiring Ms Ord to undergo medical assessment on the basis that the Board believed she may have an impairment. That impairment was in the context of her having misappropriated Schedule 8 drugs. This is apparent from the report of Dr Nigel Pryor who conducted the assessment. Ms Ord denied to Dr Pryor the misappropriation or abuse of Fentanyl. Both urine and hair testing proved to be clear of any illicit drugs. Dr Pryor concluded:
Ms Ord was referred for a health assessment in light of allegation also that she misappropriated Schedule 8 drugs, specifying Fentanyl. She denies doing so and denies any history of drug abuse. She admits to occasional social use of cannabis in her early 20s. Other than this, she denies any illicit drug abuse, prescription drug abuse, alcohol abuse, nor nicotine abuse. There was no evidence that she suffers from a substance abuse disorder. Although she had some mild reactions of anxiety in response to these allegations, there is no evidence that she has developed an adjustment disorder, nor any other psychiatric disorder. She experienced some depression in her late teenage years, consequent upon the death of her father and the demands of caring for a quadriplegic mother, but did not require treatment other than one session of counselling with a psychiatrist.
I do not consider that Ms Ord shows evidence of a physical or mental impairment, disability, condition or disorder as defined by the Act that detrimentally affects or is likely that detrimentally affect (sic) affect her capacity to practice her profession. I consider that she is fit to practice as a registered nurse. I do not consider that there are any conditions based on health grounds that are required in order to protect public safety. I consider that until these legal matters are resolved through AHPRA and QCAT it would be appropriate to maintain the conditions that have been imposed on 21 August 2013, requiring a supervised position and prohibition for possessing, administering, obtaining, supplying Fentanyl or other S8 drugs. These matters are appropriately dealt with by the legal and disciplinary pathways.
These conclusions were reached prior to the receipt of the hair drug testing which, as I have said, proved negative. Those conclusions suggest that any misappropriation of Fentanyl by Ms Ord was not, or could not have been, for her own personal use. In these proceedings the Board does not advance a case that the drugs may have been misappropriated for the administration to a person, or persons, other than Ms Ord. There had been, at one time, a complaint to that effect, but it is not relied upon by the Board.
Given that I have not formed the belief that Ms Ord poses a serious risk to persons, it is unnecessary to give detailed consideration to the issue of lack of candour raised against Ms Ord by the Board. Suffice to say that I do not consider those issues of dishonesty which related to events some time ago would lead me to view Ms Ord’s sworn evidence any differently, or to have a greater concern that she may have misappropriated drugs or made false entries, considering all the circumstances of this case.
Even if I were of the view, which I am not, that Ms Ord’s record keeping was such as to give rise to a belief that she posed a risk to persons, I would not be of the belief that the conditions imposed were necessary for the protection of public health and safety. The conditions are, as the decision suggests, targeted towards a risk to public safety, posed by a person who has misappropriated Schedule 8 drugs and falsified records in that regard. This is not the risk presented by a person who has made errors in the reporting of the administration of drugs, but where those drugs are otherwise accounted for.
I allow the application for review and set aside the decision of the Board. The conditions on Ms Ord’s registration are removed.
4
3
1