Health Care Complaints Commission v Emery [2017] NSWCATOD 11

Health Care Complaints Commission v Emery [2017] NSWCATOD 11

Complaints One and Two were not proven because the serious PCA and morphine allegations depended substantially on Patient A's evidence, which contained unexplained discrepancies across four statements, was given in circumstances where Patient A was half asleep or in and out of sleep while receiving morphine, was not corroborated on critical matters, and did not establish that the respondent opened the PCA device, obtained morphine, replaced fluid, misappropriated morphine or failed to make a required record. Complaint Three was proven because Dr Walker's evidence established a substance use disorder amounting to impairment, the respondent had limited insight and had not undertaken...

Jurisdiction
Australia
Judgment Date
24 January 2017
Procedural Posture
Application for Disciplinary Findings and Orders Concerning a Registered Nurse / Principal Judgment in the Occupational Division of the Civil and Administrative Tribunal of New South Wales
Outcome
Complaint One and Complaint Two dismissed as not proven; Complaint Three proven; conditions imposed on the respondent's registration; parties directed to make submissions on the proposed costs order.
Legal Topics
['unsatisfactory Professional Conduct' 'professional Misconduct' 'impairment' 'substance Use Disorder' 'registered Nurse Conditions' 'patient Controlled Analgesia Device' 'schedule 8 Drugs' 'standard of Proof']
['health Practitioner Regulation' 'administrative Law' 'professional Discipline'] ['unsatisfactory Professional Conduct' 'professional Misconduct' 'impairment' 'substance Use Disorder' 'registered Nurse Conditions' 'patient Controlled Analgesia Device' 'schedule 8 Drugs' 'standard of Proof']

Case Brief

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Procedural Posture

Application for Disciplinary Findings and Orders Concerning a Registered Nurse / Principal Judgment in the Occupational Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ["Whether the respondent attended to Patient A's PCA device when there was no clinical indication to do so." "Whether the respondent obtained the ward key to the PCA device, or by other unauthorised means opened Patient A's PCA device." "Whether the respondent inappropriately obtained or attempted to obtain morphine from Patient A's PCA device and misappropriated it." "Whether the respondent inappropriately replaced or attempted to replace fluid in Patient A's PCA device with clear fluid from a syringe in his pocket." "Whether the respondent failed to make an entry in Patient A's medical record about his attendance, checking or adjustment of the PCA device." 'Whether the alleged conduct constituted unsatisfactory professional conduct or professional misconduct.' 'Whether the respondent had an impairment within the meaning of s 5 of the National Law.']

Ratio Decidendi

Complaints One and Two were not proven because the serious PCA and morphine allegations depended substantially on Patient A's evidence, which contained unexplained discrepancies across four statements, was given in circumstances where Patient A was half asleep or in and out of sleep while receiving morphine, was not corroborated on critical matters, and did not establish that the respondent opened the PCA device, obtained morphine, replaced fluid, misappropriated morphine or failed to make a required record. Complaint Three was proven because Dr Walker's evidence established a substance use disorder amounting to impairment, the respondent had limited insight and had not undertaken...

Court Disposition

Complaint One and Complaint Two dismissed as not proven; Complaint Three proven; conditions imposed on the respondent's registration; parties directed to make submissions on the proposed costs order.

Orders

  • ['Complaint One is not proven and the complaint is dismissed.' 'Complaint Two is not proven and the complaint is dismissed.' 'Complaint Three is proven.' "The conditions set out in Attachment B to these reasons are imposed on the respondent's registration." "The Tribunal directs each party to provide any submissions...