ROPCIUC and NURSING AND MIDWIFERY BOARD OF AUSTRALIA
[2015] WASAT 77
•7 JULY 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: ROPCIUC and NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2015] WASAT 77
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MS L EDDY (MEMBER)
MS H LESLIE (MEMBER)
HEARD: 8 JUNE 2015
DELIVERED : 7 JULY 2015
FILE NO/S: VR 99 of 2014
BETWEEN: DANIEL ROPCIUC
Applicant
AND
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Respondent
Catchwords:
Vocational regulation - Unsatisfactory professional performance - Application for removal of conditions on nursing registration - Defect in Board's allegations - Defect in evidence of Board
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 178, s 179
Poisons Regulations 1965 (WA), reg 44
Result:
Application allowed
Decision of respondent set aside
Summary of Tribunal's decision:
A nurse practitioner sought a review of a disciplinary decision made by the Nursing and Midwifery Board of Australia by which the practitioner was found guilty of 'unsatisfactory professional performance' and ordered that the practitioner be cautioned and conditions be placed on his registration.
The Board contended that there was sufficient evidence to support its allegations that the practitioner had breached the Code of Professional Conduct for Nurses when:
a)he administered another patient's medication to a patient in a care facility despite having received direct instructions not to do so; and
b)upon realising he had made a medication counting error in respect of two different drugs kept in the drug cupboard, the practitioner made alterations to the Schedule 8 Drug Register, without the knowledge or cosignature of his colleague on duty.
The Board therefore determined that the practitioner's professional conduct and performance fell below the standard reasonably expected of a health practitioner of an equivalent level of training and experience.
The Tribunal found there was a defect in the Board's allegations and in the Board's evidence.
The Tribunal concluded that procedural fairness requires that the fundamental aspects of the alleged conduct be clearly identified and that the practitioner be given an opportunity to respond to those. In addition, if an allegation of unsatisfactory professional performance is to be made out, then the allegation needs to be identified with more precision than a general allegation of a breach of the Code. The Tribunal also determined that it was unfair of the Board to raise for the first time in its closing submissions, a breach of a specific regulation and a breach of another section of the Code.
In regards to the evidence, the Tribunal noted that there was no expert evidence as to the standard reasonably expected of a health practitioner of an equivalent level of training or experience in relation to the particular allegations against the practitioner.
Therefore the Tribunal was not satisfied that the practitioner's conduct amounted to unsatisfactory professional performance and, as such, there was no basis on which any penalty should be imposed on the practitioner.
The application for review was allowed.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Ms G McGrath
Solicitors:
Applicant: N/A
Respondent: Panetta McGrath Lawyers
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The practitioner, Mr Daniel Ropciuc, seeks a review of a disciplinary decision made by the Nursing and Midwifery Board of Australia (the Board) on 11 April 2014, pursuant to s 178 and s 179 of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law).
The disciplinary proceedings arose as the result of the practitioner:
a)administering Keppra to a patient; and
b)making an incorrect entry in the Schedule 8 Drug Register (Drug Register).
A young patient did not bring a prescribed antiseizure drug, Keppra, to the Lady Lawley Cottage when she was admitted for an overnight stay. The patient was due to be administered a dose of Keppra. The practitioner administered another patient's Keppra to the patient.
The particular circumstances in which the patient was without her own Keppra requires some explanation. The patient had been dropped off the previous evening from a school bus. Normally, she would have brought the Keppra with her from school. However, for reasons which were not explained, she did not bring the Keppra with her. By the time it was realised that she did not have the Keppra with her, the school bus had long departed. The patient spends the week at the Lady Lawley Cottage and returns home on the weekends. It was necessary to obtain a prescription for the Keppra. By the time a locum general practitioner had attended at Lady Lawley and prescribed the Keppra there were no pharmacies open that were able to fill the script for Keppra.
Orders made
The orders made by the Board were to:
1)caution the practitioner; and
2)impose the following conditions on the practitioner's registration:
a)The practitioner must provide the Board with 14 days' notice of his intention to return to practise in Australia as a registered nurse;
b)The practitioner must provide the Board with the names and contact details of all his employers and places of practice and any changes to such on an ongoing basis;
c)No less than 14 days prior to the commencement of employment as a registered nurse the following conditions take effect:
i)The practitioner is required to undergo, within 6 months of the imposition of the conditions, further education or training in the area of medication administration, including his responsibilities under the legislative requirements, to be approved by the Chair of the Board; and
ii)The practitioner is required to provide the Board with a performance appraisal by his employer(s) that includes, but is not limited to, assessment of competency with regard to medication administration and documentation, at 6 and 12 months from the date of being advised of the imposition of these conditions.
3)Review the conditions 10 months from the date of imposition.
(Exhibit 3, pages 1 2).
The Board's Reasons for Decision
The Board's Reasons for Decision were:
1)There was sufficient evidence to support the allegation that the practitioner administered another patient's Keppra medication to the patient despite receiving direct instructions from the Notifier and Duty RN Holtham not to do so.
2)Further, the available evidence indicates that upon realising that he had made a medication counting error in respect of Ritalin and Dexamphetamine medications in stock, the practitioner made alterations to the respective registers without the knowledge or cosignature of his colleague on duty, Ms Julie Harilal.
3)Conduct Statement 1 of the Code of Professional Conduct for Nurses in Australia (the Code) states:
Nurses practise in a safe and competent manner.
Nurses are personally accountable for the provision of safe and competent nursing care. It is the responsibility of each nurse to maintain competence necessary for current practice ...
4)Conduct Statement 2 of the Code states:
Nurses practise in accordance with the standards of the profession and broader health system.
Nurses are responsible for ensuring the standard of their practice conforms to professional standards developed and agreed by the profession, with the object of enhancing the safety of people in their care.
Nurses practise in accordance with the wider standards relating to safety and quality in health care and accountability for safe health system, such as those relating to documentation and information management, incident reporting, participation in adverse event analysis and formal open disclosure procedures.
5)The Board considered that the practitioner's professional conduct and performance fell below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
6)The practitioner has been terminated from his position at Lady Lawley Cottage and it appears necessary for the practioner to undergo further education or training and provide a performance appraisal from his current employers to ensure that the practitioner's professional conduct and performance is to the standard reasonably expected.
7)Based on the available evidence, the practitioner's professional conduct and performance is below the standard reasonably expected and, as such, a caution is warranted to deter the practitioner from engaging in similar behaviour in the future.
(Exhibit 3, pages 2 3)
The practitioner's application
On 29 May 2014, the practitioner filed an application with the Tribunal, in effect, seeking to remove the conditions on his nursing registration. He sought removal of the conditions on the following grounds:
I believe that the order [removing the conditions] should be made on the following grounds:
1. AHPRA has failed to take [into] consideration the fact that my disputed nursing action was made to safeguard the health and safety of an admitted disabled child.
2.AHPRA has made a harsh decision when considering as inappropriate my decision to make corrections to [a] previous controlled drug counting error on the Drug Register. …
(Exhibit 3, page 8)
The Board's statement of issues, facts and contentions
On 27 February 2015, the Board filed its statement of issues, facts and contentions. The Board's statement of issues was:
Issue 1
1.Does the Applicant's conduct of administering the medication 'Keppra' to the Patient, in circumstances where:
1.1the Keppra belonged to and had been dispensed for use by another patient of the Hospital; and
1.2the Applicant had been directed to not give Keppra to the Patient;
amount to unsatisfactory professional performance as defined in Section 5 of the National Law?
2.If the Applicant's conduct is found to be unsatisfactory professional performance what sanction should be imposed on the Applicant?
Issue 2
3.Does the Applicant's conduct of:
3.1failing to identify that Ritalin had been incorrectly entered into the Schedule 8 Drug Register as dexamphetamine at the time of performing the Schedule 8 drug counts on 13 April 2013 and 14 April 2013; and/or
3.2altering the Schedule 8 Drug Register without obtaining a cosignature;
amount to unsatisfactory professional performance as defined in Section 5 of the National Law?
4.If the Applicant's conduct is found to be unsatisfactory professional performance, what sanction should be imposed on the Applicant?
Issue 3
5.Did the Applicant act contrary to the Code of Professional Conduct for Nurses by:
5.1administering Keppra belonging to another patient to the Patient, in circumstances where he had been directed not to do so; and/or
5.2failing to identify that Ritalin had been incorrectly entered into the Schedule 8 Drug Register as dexamphetamine at the time of performing the Schedule 8 drug counts on 13 April 2013 and 14 April 2013; and/or
5.3altering the Schedule 8 Drug Register without obtaining a co-signature.
6. If the Applicant did act contrary to the Code of Professional Conduct for Nurses, does this amount to unsatisfactory professional performance as defined in Section 5 of the National Law[?]
7.If so, what sanction should be imposed?
Although three issues were identified, Issue 3 is essentially a restatement of the matters arising in Issue 1 and Issue 2 (see the Board's statement of contentions below).
The Board's statement of facts was:
1.On 11 April 2013, the Patient arrived at Lady Lawley Cottage without her usual medications of Keppra, Epilim and Clonazepam.
2.Lady Lawley Cottage was not able to source Keppra from any of the surrounding pharmacies but was able to obtain Epilim and Clonazepam for the Patient's use.
3.Lady Lawley Cottage had Keppra in stock. However it belonged to and had been dispensed for use by another patient.
4.Following discussion between the Nurse Manager, the Senior Manager, Pharmacist and Duty RN Holtham on 11 April 2013, it was decided that it was appropriate for the Patient to not receive her night time dose of Keppra and that she be administered with her morning dose of Keppra by the School Nurse upon her arrival at school (the agreed plan).
5.During the evening handover on 11 April 2013 the Applicant was instructed by Duty RN Holtham not to administer Keppra to the Patient and the Applicant was informed of the agreed plan.
6.On the morning of 12 April 2013, the Applicant administered Keppra, which belonged to and had been dispensed for another patient of the Hospital, to the Patient.
7.At handover on the morning of 12 April 2013, the Applicant informed RN Holtham that he had administered Keppra to the Patient, contrary to the agreed plan.
8.An incident form was completed in respect of the incident.
9.On 13 April 2013 at 03:30 hours, the Applicant and an enrolled nurse performed a count of the Schedule 8 drugs and signed the Drug Register for dexamphetamine as 'checked and correct'.
10. At or about 0800 hours on 13 April 2013 RN Holtham noticed that the Schedule 8 drug Ritalin had been incorrectly entered into the Drug Register as Dexamphetamine.
11.RN Holtham then entered the correct amount of Ritalin tablets onto a new page in the Drug Register.
12.On 14 April 2013 at 01.30 hours, the Applicant and an enrolled nurse performed a count of the Schedule 8 drugs and signed the Drug Register for both dexamphetamine and Ritalin as 'checked and correct' with a balance of 2 blisters respectively.
13.This was incorrect and in fact there was no dexamphetamine present and the balance should have been zero (0).
14.On 14 April 2013, upon being alerted to his error, the Practitioner changed his entry of 'checked and correct' to 'checked and incorrect' and changed the recorded balance of 5 blisters and 2 blisters to '0' in the Dexamphetamine register.
15.The Applicant initialled the changes but did not have anyone cosign the alterations.
16.An incident form was subsequently completed in respect of the incident.
The only facts that were contentious were:
a)whether there was a discussion, instruction and statement as identified in paragraphs 4, 5 and 7;
b)whether the practitioner noticed the error or whether it was identified by another nurse; and
c)the cosigning of the alterations to the Drug Register.
The Board's statement of contentions was:
1.It is contended that the Applicant's conduct in administering Keppra belonging to another patient to the Patient, in circumstances where he had been directed not to do so, is:
(a)in breach of the Code of Professional Conduct for Nurses;
(b)conduct which is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience;
and should be found to be unsatisfactory professional performance as defined in Section 5 of the National Law.
2.It is contended that the Applicant's conduct in:
2.1failing to identify that Ritalin had been incorrectly entered into the Schedule 8 Drug Register as dexamphetamine at the time of performing the Schedule 8 drug counts on 13 April 2013 and 14 April 2013; and
2.2altering the Schedule 8 Drug Register without obtaining a co-signature; is:
(a)in breach of the Code of Professional Conduct for Nurses;
(b)conduct which is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience;
and should be found to be unsatisfactory professional performance as defined in Section 5 of the National Law.
'Unsatisfactory professional performance'
Unsatisfactory professional performance is defined in s 5 of the Schedule to the National Law as:
… 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;
A defect in the allegations
The Code is in very general terms and in most cases it will be necessary to identify something beyond a general allegation of a breach of the Code if an allegation of unsatisfactory professional performance is to be made out.
Although general questions were asked in crossexamination of the practitioner as to whether his conduct was in breach of the law, such general questions are entirely unsatisfactory. The specific allegations should be identified and an opportunity given to the practitioner to respond. Procedural fairness demands no less. The Tribunal is not a court, still less a court of pleadings, but that does not mean that fundamental aspects of the alleged conduct should not be clearly identified.
Procedural fairness requires that the allegation be identified with more precision than a general allegation of a breach of the Code. The Reasons for Decision of the Board identify a breach of Conduct Statement 1 of the Code and Conduct Statement 2 of the Code in the most general terms. Similarly, the statement of issues, facts and contentions identifies a breach of the Code only in the most general terms.
The specific items of the Code that were relied upon in the closing were: Conduct Statement 1, Conduct Statement 2.1, Conduct Statement 2.2 and Conduct Statement 3.1.
Conduct Statement 3.1 states:
Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.
In the closing submissions of the Board, it was submitted that there was a breach of reg 44 of the Poisons Regulations1965 (WA) (Poisons Regulations). The breach of reg 44 should have been identified in the statement of issues, facts and contentions, if not in the Reasons for Decision of the Board.
Regulation 44 of the Poisons Regulations states:
Register of drugs of addiction to be kept by sellers
(1)In this regulation -
authorised person means a person authorised to manufacture, distribute, sell or possess any drug of addiction, other than a person having possession of a drug of addiction by the authority of a prescription issued by a medical practitioner, nurse practitioner, endorsed podiatrist, dentist or veterinary surgeon to the extent shown in the prescription.
(2)An authorised person must maintain a register of the drugs of addiction manufactured, procured, used, supplied or kept by, or on behalf of, the person.
(3)An authorised person is to record, or cause to be recorded, in the register, in relation to each transaction involving a drug of addiction -
(a)the name, quantity and form of the drug; and
(b)the date of the transaction; and
(c)the name and address of each other person or firm nvolved in the transaction; and
(d)the name of the person who issued the prescription or order; and
(e)the amount of the drug remaining on hand after the transaction; and
(f)if the authorised person is a pharmacist, the identifying number of the prescription; and
(g)if the authorised person is a manufacturer or distributor, an identifying number of the order or other authority on which the drug is supplied,
and, if the register is maintained on paper, is to sign that entry in the register.
(3a)An authorised person is to record, or cause to be recorded, in the Register the result of each inventory made by the authorised person under regulation 45 on the day on which the inventory is made.
(4)The register must be maintained in such a way that at any time the amount of each drug of addiction manufactured, procured, used, supplied or kept by the authorised person is clearly apparent.
(5)An authorised person must -
(a)maintain a separate register for each location at which the person manufactures, procures, uses, supplies or keeps drugs of addiction; and
(b)keep the register at that location.
Any specific allegation of conduct contrary to reg 44 of the Poisons Regulations was not identified in the Reasons for Decision or the Board's statement of issues, facts and contentions.
It is unfair to raise a breach of a specific regulation and a breach of Conduct Statement 3.1 for the first time in a closing address.
The evidence
Witness statements were provided by the Board from Ms Regan Holtham, Ms Julie Harilal, Ms Selina Atwell (Exhibit 1), Ms Cheryl Holland (Exhibit 2) and Ms Rosemary Johnson (Hill) (Exhibit 4). Oral evidence was heard from each of those witnesses apart from Ms Atwell. The practitioner gave oral evidence by telephone.
The Board's book of documents was admitted as Exhibit 3. The Code (Exhibit 5) and the statement of the practitioner dated 20 March 2015 (Exhibit 6) were also admitted into evidence.
A defect in the evidence
The Tribunal notes that there was no expert evidence as to the standard reasonably expected of a health practitioner of an equivalent level of training or experience in relation to the particular allegations against the practitioner.
Issue 1: The use of another patient's Keppra
In determining issue 1, it is important to bear in mind that what the jurisdiction of this Tribunal extends to, is the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
In general terms, it is not the role of this Tribunal to investigate what are essentially employer/employee matters.
The decision to administer Keppra
When it became apparent that the patient did not have her Keppra with her, contact was made with the pharmacist at Princess Margaret Hospital and also the pharmacist at a local pharmacy to the effect that, since the patient's other medications were available, there would be no harm to the patient if she missed one dose of Keppra.
Ms Holland discussed the issue with Ms Johnson (Hill), the nurse manager, and Ms Holtham, the duty registered nurse. It was agreed between Ms Holland, Ms Johnson (Hill) and Ms Holtham, that the patient could miss her dose of Keppra. This agreement was not documented in the patient's notes.
It is curious that the decision not to administer the dose of Keppra was not made after consulting a doctor, certainly the locum general practitioner who had prescribed the Keppra.
The practitioner and three other staff members, including Ms Atwell, arrived for night duty at 09:30. Ms Holtham gave evidence that, at the handover to the night duty, she informed the practitioner and the other night duty staff that Lady Lawley Cottage had been unable to fill the script for Keppra. She said that she told them that the pharmacist had advised that it was acceptable for the evening dose to be missed and that she would arrange for the morning dose to be given by the school nurse when the patient arrived back at school the following day. She also says that she informed the practitioner that, under no circumstances was the patient to be given someone else's medication.
The statement of Ms Atwell confirms that Ms Holtham informed the practitioner that the dosage of Keppra for the patient would not be administered that evening. It also states that she is unable to recall whether or not at that time Ms Holtham advised the practitioner that another client's Keppra medication was not to be used for the patient. However, Ms Atwell did not attend to give evidence during the hearing and was not available for crossexamination. The Tribunal determined that no weight could be given to her statement in those circumstances.
What instructions were given to the practitioner when he came on duty?
The practitioner does not dispute that he administered the Keppra to the patient. He does, however, dispute the allegation by the Board that he had been directed to not give Keppra to the patient.
Ms Holland was not present when the handover was made to the practitioner when he came on duty. She is unable to give evidence as to what was said at that time. Ms Johnson (Hill) was not present at the handover. The respondent was not able to produce any documentation that existed at the time of the handover that conveyed the instructions in relation to what was to be done in the circumstances of the patient's missing Keppra. It is, to say the least, odd that such an important decision that involved staff not delivering two doses of an important prescribed medication to a patient was not clearly documented in the patient's notes.
The practitioner denies that he was informed not to use the other client's Keppra. He said that he was not aware until the following morning, that there was any other source of Keppra available on the ward. The fact that he administered the Keppra that morning, and not the evening before (despite the fact that the patient was due doses of Keppra in the evening and in the morning), is inconsistent with the practitioner's explanation of events. The practitioner's version of events was not shaken on crossexamination. The Tribunal found that the practitioner was a credible witness. There was nothing inherently incredible about his version of events and, on the evidence before the Tribunal, he has been consistent in relation to those events since the allegation was first put to him.
We are not persuaded on the balance of probabilities that that information was conveyed to the practitioner by Ms Holtham. Therefore, the issue of a breach of instructions does not arise for consideration.
We accept the practitioner's evidence that he was aware of the patient's history with Keppra and her history with seizures. He had serious concerns about the patient missing a dose of Keppra. It was his considered judgment as a registered nurse that she should not miss a dose if there was an available source of the drug. Accordingly, once he realised there was a source of Keppra on the ward, he administered it to the patient.
No independent expert evidence was put before the Tribunal to establish that administering a dose of a drug such as Keppra taken from a bottle of that drug belonging to another patient was, of itself, inconsistent with, or below expected professional standards. In answer to a question asked by a member of the Tribunal, Ms Johnson (Hill) stated that:
Of itself giving Keppra belonging to another patient did not constitute a breach of nursing practice.
There is therefore no basis on which the Tribunal could find that to use another patient's Keppra to give the patient her prescribed dose of the drug constitutes a breach of nursing conduct. Given this, and that we are not persuaded to the necessary standard that the alleged instructions were given by Ms Holtham to the practitioner, we are not persuaded that issue 1 has been established to the requisite standard.
Issue 3
Issue 3, 5.1 of the Board's statement of issues, facts and contentions, alleges an act contrary to the Code in the administration of Keppra belonging to another patient in circumstances where he was directed not to. For the reasons which we have stated above, we find that this aspect of issue 3 is not made out.
Issue 2
Issue 2 relates to a failure to identify that Ritalin had been incorrectly entered into the Drug Register as Dexamphetamine at the time of performing the Schedule 8 drug counts on 13 April 2013 and 14 April 2013, and/or altering the Drug Register without obtaining a cosignature.
The practitioner accepts that, on 13 April 2013, both he and Ms Harilal incorrectly identified the blister packs of tablets (blisters) of Ritalin as blisters of Dexamphetamine and their entry in the Drug Register that night reflected that error. There is no basis for any finding that it was done deliberately, or in any way intended to mislead anyone. There is no suggestion that there were any missing drugs at any point in time.
The history of the incorrect entries
The entries in the Drug Register relate to a patient, SR, at pages 71 and 76 of the Drug Register (Exhibit 3, pages 22 23).
Those entries record six blisters of 5 milligrams of Dexamphetamine were received from a 'DCP carer' on 12 April 2013 at 18:30. On 12 April 2013, at 18:50, one blister was administered, leaving a balance of five (Exhibit 3, Page 71 of the Drug Register). On 13 April 2013, at 03:30 the practitioner at the hospital cosigned an entry confirming in the Drug Register that there were five blisters of Dexamphetamine 5 milligrams in the Drug Register. That was an error because there were in fact no Dexamphetamine tablets in the drug cupboard. The five blisters were a different drug and of a different dosage.
Shortly after Ms Hotltham came on duty for the day shift on 13 April 2013, she became aware that five blisters of Ritalin had been found in the drugs cupboard and that they had been incorrectly entered in the Drug Register as five blisters of Dexamphetamine. She therefore commenced a new page 76 in the Drug Register for the drug Ritalin (Exhibit 3, page 76 of the Drug Register). This entry showed that, at 08.00 on 13 April 2013, there were five blisters of Ritalin. It notes that they were found at 08.00 in the drugs cupboard. Although Ms Holtham commenced a new page in the Drug Register for Ritalin 10 milligrams, she did not take any steps to correct the error at page 71 of the Drug Register. No satisfactory explanation was offered as to why, at that time, no note was made amending the entries for Dexamphetamine at page 71 of the Drug Register and altering page 71 to show that there was nil. Had these steps been taken, it is unlikely that there would have been an error in the entries on page 71 of the Drug Register on 14 April 2013.
Over the course of 13 April 2013, three blisters of Ritalin 10 milligrams were administered to patient SR so that on 14 April 2013 at 01:30, there were two blisters left (Exhibit 3, page 76 of the Drug Register).
On 14 April 2013 at 01:30, the practitioner and Ms Harilal again cosigned an entry in the Drug Register in relation to Dexamphetamine, to the effect that there were two blisters left. This was correct in relation to the number of blisters that were then in the drug cupboard, as three blisters (albeit Ritalin 10 milligrams) had been administered to SR.
The practitioner said that on 14 April 2013, at about 7:00 am, it became apparent to him that there was an error in the Drug Register and that there were in fact not two blisters of Dexamphetamine 5 milligrams, but two blisters of Ritalin 10 milligrams. The practitioner said he then took steps to amend the Drug Register by crossing out the figure 5 on page 71 of the Drug Register, and the figure 2 on page 71 of the Drug Register (Exhibit 3). He initialled those changes. He also altered the words 'checked and correct' to 'incorrect' for the '13/4/13' entry at 03:30 and for the '14/4/13' entry at 01:30. The practitioner's explanation as to why the entry was not cosigned is that Ms Harilal had left for the day.
The practitioner has never sought to deny that he made the changes to the relevant parts of the Drug Register or sought in any way to cover up those changes. He has maintained that he simply attempted to ensure that the Drug Register was correct. Ms Harilal explained in evidence that the correct procedure for correcting an error found in the Drug Register was different to the way in which the practitioner had sought to do it. The practitioner offered no explanation as to why he attempted to correct the Drug Register in the way that he did or whether he understood this to be the correct means of doing so. There was no independent expert evidence put before the Tribunal as to what is in fact the appropriate way to correct an error in a Drug Register or to the effect that a practitioner of this practitioner's level of skill and experience ought to have known that procedure.
An issue was raised as to whether or not the practitioner had noticed the error or whether Ms Johnson (Hill) noticed the error. It is the Tribunal's view that nothing turns on this fact.
Clearly, the practitioner and Ms Harilal made an incorrect entry at page 71 of the Drug Register on 13 April at 03:30.
Ms Holtham made an error in failing to correct the entry when she identified that the blisters of Ritalin had been incorrectly recorded in the Drug Register as Dexamphetamine and commenced a new page 76 on 13 April 2013 at 08:00.
The practitioner and Ms Harilal made another incorrect entry on 14 April 2013 at 01:30.
As we noted, had Ms Holtham made the correction at page 76 of the Drug Register, it is unlikely that the practitioner and Ms Harilal would have made the error on 14 April 2013 at 01:30.
On the practitioner's evidence, before the practitioner could have the entries cosigned, Ms Holtham had reported the errors and he had been stood down from work.
We find that the practitioner made incorrect entries in the Drug Register as alleged. In the circumstances, the facts alleged at issue 2, 3.1 and 3.2 and issue 3, 5.2 and 5.3 are made out.
Does the practitioner's conduct amount to unsatisfactory professional performance?
It is apparent from the Drug Register that the blisters of Ritalin were entered into the Drug Register on the page of the Drug Register labelled as recording the presence of Dexamphetamine 5 milligrams in the drug cupboard on the evening of 12 April 2013 by two people with different signatures to the practitioner. The only reasonable inference is that two nurses on the evening shift prior to the night shift during which the practitioner and Ms Harilal first checked the drug cupboard, made the same error of misdescription of the drug type and dosage as the practitioner did. It also appears that one of those nurses, plus a third nurse (as there is a third different signature) again incorrectly recorded the blisters as Dexamphetamine 5 milligrams in the Drug Register, some 20 minutes later.
The nature of a Drug Register, and its obvious purpose as ascertained by the relevant legislation, are such that the Tribunal can accept, without any expert evidence, that the integrity of a Drug Register is very important. As a matter of common sense, it seems that the errors made by the practitioner and Ms Harilal in the Drug Register should not have occurred.
However, on the facts before the Tribunal in this case, there were a total of five nurses (including the practitioner) who apparently made the same error in relation to identifying the correct drug and dosage of the blisters in the drug cupboard and in recording those errors in the Drug Register. There may be some difference in degree of error between the three nurses who made entries in the course of receiving and administering the blisters during the evening shift of 12 April 2013 and the practitioner who was carrying out a check of all the drugs in the drug cupboard during the night shifts on 13 April 2013 and 14 April 2013. But that is a matter of pure speculation, as no evidence was put before the Tribunal to that effect. In the absence of any independent expert evidence as to how the practitioner's failure to identify the Ritalin correctly on two occasions compares to the standard reasonably expected of a practitioner of an equivalent level of training or experience, and where the evidence establishes that four other nurses (of unknown level of training or experience other than Ms Harilal) made the same error, it is not possible to determine that the practitioner's conduct comes within the meaning of 'unsatisfactory professional performance' as defined by the National Law. It may be the case, that the conduct of all the nurses who made erroneous entries in the Drug Register, constituted unsatisfactory performance, but in the absence of any evidence to that effect, particularly given the number of nurses involved, there is no basis on which the Tribunal could come to such a conclusion.
In relation to the alleged alteration of the Drug Register without a cosignature, although the Tribunal is satisfied that the practitioner did so alter the Drug Register, as stated above, the Tribunal was not given any evidence on which it would be possible to find that such an alteration amounts to unsatisfactory professional conduct within the meaning of the National Law.
Conclusion
Ultimately, the Tribunal is not satisfied that the practitioner's conduct in relation to the entries in the Drug Register amounts to unsatisfactory professional performance. As such, there is no basis on which any penalty should be imposed on the practitioner.
Orders
The Tribunal orders that:
1.The application is allowed.
2.The decision of the respondent made on 11 April 2014, pursuant to s 178 and s 179 of the Health Practitioner Regulation National Law (WA) Act 2010 to caution the practitioner and to impose conditions on his registration is set aside.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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