Health Care Complaints Commission v Ingram [2014] NSWCATOD 6

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ingram [2014] NSWCATOD 6 Hearing dates: 9 December 2013 Decision date: 24 February 2014 Jurisdiction: Occupational Division Before: Hon G Mullane (Principal Member) Ms Catherine Sharp (Nurse Member) Mr Scott Hillsley (Nurse Member) Mr Phillip French (Lay Member) Decision: 1. The registration of Deborah Ingram as a Nurse - General on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency("the Register") is cancelled under s149C(1)(a) and (b) of the Health Practitioner Regulation National law (NSW) No 86a ("the National Law"). 2. An application under Division 8 of Part 8 of the National law for review of the cancellation may not be made until after the expiry of 12 months and subject to any order under para 163(1)(b) of the National Law the Tribunal is the appropriate review body. 3. Deborah Ingram must pay the legal costs of the Health Care Complaints Commission of and incidental to these proceedings, such costs to be as agreed or as assessed. 4. Under Clause 7 of Schedule 5D of the National Law publication of the name, address or any other material identifying any patient to which any facts of the matter relate is prohibited. Legislation Cited: Health Practitioner Regulation National law (NSW) No 86a Nurses and Midwives Act, 1991 Cases Cited: Briginshaw v Briginshaw (1938) 60CLR 336 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Deborah Ingram (Respondent) Representation: Samantha King (Applicant) No appearance (Respondent) File Number(s): 1420004 Publication restriction: Clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) No 86a applies

reasons for decision

INTRODUCTION 1From 19 November 2008 the Respondent was a registered Nurse employed by Blue Mountains Hospital at its Springwood Hospital at Springwood. 2Commencing in December 2008 there was a series of complaints by nursing staff and other staff in relation to the Respondent's performance of nursing duties. There were interviews with her by the Acting Director of Nursing on 5 February 2009, 18 February 2009 and 19 February 2009. Those meetings were concerning her inadequate performance as a Nurse. 3A Performance Improvement Plan was commenced in February 2009 and ended in May 2009 when there was a further meeting by the Respondent with the Acting Deputy Director of Nursing. There had already been attempts to overcome the problems by mentoring the Respondent. 4There continued to be problems regarding the Respondent's performance throughout May and into June. But, in June 2009 she suffered a back injury at work and was then off work until March 2010. During that period she underwent surgery. 5When the Respondent returned to work in March 2010, she was restricted to light duties. Her return to work plan provided that the Respondent was to have no contact with patients and was not to administer medications. 6There were further problems with her performance, which lead to the matter being raised with the Nursing and Midwifery Council of NSW. The Competence and Practice Committee of that Council considered the matter at its meeting on 2 June 2010 and decided that the Respondent be required to complete a performance assessment pursuant to Section 42 of the Nurses and Midwives Act, 1991. 7Since her return to work in March 2010, the Respondent had close over-sight and support from the Nurse Educator, but her performance of the duties she did perform on light duties gave rise to further concerns by management at the hospital as to her competence. 8On 30 March 2010 the Respondent advised the Nurse Educator that she was unable to remain at work because she was on Valium and unable to administer medications. 9The Nursing and Midwifery Council wrote to the Respondent on 21 September 2010, advising her of the decision to require her to complete a performance assessment. The letter also advised her that the assessor would be Ms Pamela White and that, because the Council understood that she was currently unable to undertake nursing work because she was on Workers' Compensation, the letter asked her to contact the Council when she was able to return to nursing duties so the performance assessment could be arranged. 10The performance assessment was eventually carried out by Pamela White in April 2011after the Respondent returned to work. On 10 May 2011, Ms White sent her report to the Council. She found that the Respondent had not achieved a competency level in 9 of the 10 areas covered by the performance assessment. She made the following general comments at the end of her assessment: "GENERAL COMMENTS. Ms Ingram's [sic] was unable to demonstrate to the Assessor that she could safely and independently administer medications. The fact that she seems unwilling to research actions of medications is also an issue. Although she was able to tell what 5 Rights were, they were not demonstrated. Ms Ingram's [sic] has not demonstrated that she has safe knowledge of patients [sic] diagnosis expected of a Registered nurse of 20 years experience, and was not able to relate diagnosis to patient care. Again there seem [sic] an unwillingness to research diagnosis. Lack of patient care while being assessed is a definite concern for patients [sic] welfare when Ms Ingram works independently. Even when cued the care wasn't attended. Absence of Problem solving and Critical thinking skills. Does not appear to absorb what she looks up in patients [sic] notes I MIMS I Medical dictionary when used. In conclusion the Assessor believes there is a danger if Ms Ingram is working independently as a Nurse due to lack of insight into her abilities. The Assessor believes further education or even a Refresher course, would not be sufficient to bring Ms Ingram's standards up to beginners level of a Registered nurse or Enrolled nurse. Ms Ingrams [sic] appears to find it difficult to retain knowledge or information." 11As a result of the performance assessment, the Council on 7 July 2011 imposed conditions on the Respondent's registration as a Nurse as follows: "(i) The registrant may only practise as a registered nurse under the indirect or direct supervision of another registered nurse who does not have conditions on practice. The supervisor must be on site and working in close proximity within a ward or unit with the registrant and is able to oversee the care provided by the registrant. (ii) The registrant may only administer medications under the direct supervision of a registered nurse who does not have conditions on practice. The supervisor must be present to directly observe, work with, guide and direct the registrant. (iii) The registrant must not work as a sole registered nurse on any shift, ward, or unit I act as charge nurse or team Ieader / hold supervisory responsibilities or work in any circumstances where there is not a senior nurse in a supervisory capacity within the work place. (iv) The registrant must provide the name and contact details of ail nursing employers and agencies to the Nursing and Midwifery Council of NSW within one (1) week of receipt of the notice of these conditions and/or prior to commencing any new employment as a registered nurse. (v) The registrant must advise all current nursing employers, including nursing agencies and future employers of the conditions of registration and, within one (1) week, provide the Nursing and Midwifery Council of NSW with a copy of the conditions signed by the employer or agency as acknowledgment of this notification. (vi) The registrant must authorise all nursing employers and agencies to notify the Nursing and Midwifery Council of NSW of any breach of these conditions. To provide written authorisation signed by the registrant and the employer Director of Nursing or equivalent within one (1) week of receipt of the notice of these conditionsand/or prior to commencing any new employment as a registered nurse. 12The Council subsequently decided there should be an investigation as to whether further proceedings should be taken in respect of the Respondent's registration. It referred the matter to the Health Care Complaints Commission and the matter was then referred to the Director of Proceedings to decide whether a complaint should be prosecuted before the Disciplinary Tribunal. 13These proceedings were commenced by a Complaint of 27 May 2013 by the Commission.

THE COMPLAINTS 14There are 3 Complaints in the document and they are as follows: "Ms Deborah Ingram ('the practitioner') of ..... being a registered nurse under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. PARTICULARS OF COMPLAINT ONE At all relevant times the nurse was employed as a Registered Nurse at Springwood Hospital by Sydney West Area Health Service (as it was then known). 1. During the period of her employment at Springwood hospital, staff supervising the nurse developed concerns about the nurse's ability to perform her duties including: (i) Her ability to perform a coordinators role; (ii) Her knowledge and ability to administer medications or injections safely; (iii) Possible breaches of patient confidentiality; (iv) On or about 7 January 2009 the nurse administered Oxynorm 5mg instead of Oxycontin 5mg to Patient A contrary to the order made by the prescribing medical practitioner, and (v) On or about 18 February 2009 the practitioner failed to provide assistance to an elderly gentleman who suffered a fall, following which he was bleeding from a head wound and unresponsive. 2. On 2 March 2009 a Performance Improvement Plan was commenced and was reviewed on several occasions up to 16 March 2010. 3. In May 2009, Ms Barbra Monley, Nurse Educator, was asked by senior staff to work alongside the nurse. Ms Monley worked with the nurse on 22 May 2009, 16 June 2009, 18 March 2010, 26 and 28 July, 4 and 9 August 20104, 8, 13 and 18 April 2011. 4. Ms Monley assessed the nurse's clinical nursing skills and professional interactions with staff and patients during these shifts and noted the nurse demonstrated limited knowledge of and required prompting on: (i) Administration, uses and actions of medications; (ii) observations; and (iii) dressings. 5. In April 2011 Ms Justyne Anderson, Nurse Educator, was asked by senior staff to work alongside the nurse. Ms Anderson worked with the nurse on four shifts on 15 and 20 April 2011 and 9, 10 and 11 May 2011. 6. Ms Anderson assessed the nurse's clinical nursing skills and professional interactions with staff and patients during these shifts and noted the nurse demonstrated limited knowledge of and required prompting on: (i) the normal ranges for Diabetes Blood Sugar Levels; (ii) chronic obstructive pulmonary disease (COPD); (iii) 02 management; (iv) doctor communication regarding patients; (v) monitoring / following up patients; and (vi) documenting of vital signs. 7. On 11 May 2010 and 17 June 2010 the Acting Director of Nursing & Midwifery at Springwood Hospital wrote to the New South Wales Nurses & Midwives Board ("the Board") and requested the Board conduct a performance assessment of the nurse. 8. On 27 April 2011 a nursing assessor appointed by the Board conducted a performance assessment of the nurse. 9. The nursing assessor, found the nurse to not be competent In 9 out of the 10 Australian Nursing and Midwifery Council (ANMC) National Competency Standards for the Registered Nurse (December 2005). 10. The assessor concluded that 'further education or even a refresher course would not be sufficient to bring Ms Ingram's standards up to a beginner's level of a Registered Nurse or Enrolled Nurse. Ms Ingram appears to find it difficult to retain knowledge or information'. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that when the instances are considered together amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT TWO At all relevant times the nurse was employed as a Registered Nurse at Springwood Hospital by Sydney West Area Health Service (as it was then known). 1. Particulars 1 to 10 above are repeated. COMPLAINT THREE is not competent to practise nursing in that she does not have the sufficient (mental capacity), knowledge and/or skill to practise nursing within the meaning section139(a) of the National Law. PARTICULARS OF COMPLAINT THREE At all relevant times the nurse was employed as a Registered Nurse at Springwood Hospital by Sydney West Area Health Service (as it was then known). 1. Particulars 1 to 10 above are repeated."

THE EVIDENCE 15The evidence comprised: 1 a) Complaint b) Certificate of registration (to be provided at hearing) Initiating Documents 2 Letter of complaint from Nursing and Midwifery Council of NSW ('NMC') dated 13 July 2011 Respondent 3 Letter from the Commission to RN Ingram dated 22 July 2011 4 Letter from the Commission to RN Ingram dated 2 August 2011 5 Letter from NSW Nurses' Association to the Commission dated 19 August2011 6 Section 40 letter from the Commission to NSW Nurses' Association dated 16 December 201 1 7 Letter from NSW Nurses' Association to the Commission dated 11 January 2012 8 Letter from the Commission to NSW Nurses' Association dated 7 January 2013 9 Letter from NSW Nurses' Association to the Commission of 24 January 2013 Witnesses Statements 10 Statement of RN Pamela White dated 22 August 2011 with the following annexures: a) Certificate of Authority as a Performance Assessor dated 5 August 2010 b) Performance Assessment Permission to Enter form dated 14 April 2011 c) National Competency Standards for the Registered Nurse d) Two page spreadsheet e) Twelve typed pages dated from 4 to 20 April 2011 f) Performance Assessment Report g) Recommendation Report 11 Statement of RN Pamela White dated 25 May 2012 with the following annexures: a) Supplementary Performance Assessment Report b) Performance Assessment Report c) Handwritten notes made by RN White on 27 April 2011 d) National Competency Standards for the Registered Nurse. 12 Statement of RN Alexis Viles dated 19 January 2012 with the following annexures: a) Document titled "Meeting at Springwood hospital held in A/g DDON office 1445 hours 20 May 2009" b) Brief written by RN Viles dated 4 June 2009 c) Copy of letter from RN Viles to the Registrar of the Nursing and Midwives Registration Board dated 11 May 2010 d) Copy of letter from RN Viles to the Registrar of the Nursing and Midwives Registration Board dated 17 June 2010 13 Statement of EEN Linda Wilson dated 1 March 2012 with the following annexures: a) Extract from Ward register of Drugs of Addiction 14 Statement of RN Andrea Williams dated 4 January 2012 15 Statement of RN Helen Marshall dated 26 September 2012 with the following annexures: a) One page report of assessment dated 15 March 2010 16 Statement of RN Lorraine Brandt dated 30 September 2012 17 Statement of RN Diane Moran dated 30 September 2012 with the following annexures: a) Document titled 'Information Regarding the Employment Health Assessment Questionnaire & Evidence of Protection Against Specified Infectious Disease b) Letter from Mr Ali Pataky (Operations Manager (Recruitment) Health Support Services) to RN Ingram of 18 November 2008 c) Document titled 'Meeting with RN Deborah Ingram about her role as coordinator discharge Planner at Springwood Hospital' of 17 February 2009 d) Report prepared by RN Moran e) RN Ingram's Performance Improvement Plan (commenced on 2 March 2009 and subsequently reviewed on several occasions up to 16 March 2010) f) Report prepared by RN Moran 18 Statement of RN Justyne Anderson dated 3 October 2012 with the following annexures: a) Report prepared by RN Anderson regarding her assessment of RN Ingram at Springwood Hospital on 15 April 2011 b) Report prepared by RN Anderson regarding her assessment of RN Ingram at Springwood Hospital on 20 April 2011 c) Report prepared by RN Anderson regarding her assessment of RN Ingram at Springwood Hospital on 9, 10 and 11 May 2011 19 Statement of RN Martin Zolfei dated 3 October 2012 ~h the following annexures: a) Report prepared by RN Lorraine Brandt b) Report prepared by RN Brandt c) Report prepared by EEN Stephanie Kennedy d) Report which RN Melanie Stufkens gave RN Zolfel on 4 June 2009 e) Email sent by RN Zolfel to RN Mary Brown at 1502 hrs on 3 June 2009 f) Email sent by RN Zolfel to Ms Kathryn Walker (Human Resources Section) at 1006 hrs on 4 June 2009 20 Statement of Kim O'Grady dated 12 October 2012 21 Statement of RN Barbra Monley dated 1 November 2012 with the following annexures: a) Report prepared by RN Monley on 22 May 2009 b) Report prepared by RN Monley on 28 May 2009 c) Report prepared by RN Monley on 16 June 2009 d) Report prepared by RN Monley on 17 June 2009 e) Report prepared by RN Monley on 16 March 2010 f) Report prepared by RN Monley on 30 March 2010 g) Report prepared by RN Monley on 26 and 28 July, 4 and 9 August 2010 h) Report titled 'Performance improvement map: Deborah Ingram RN' undated i) Report prepared by RN Monley on 4 April 2011 j) Report prepared by RN Monley on 8 April 2011 k) Report prepared by RN Monley on 13 April 2011 I) Report prepared by RN Monley on 18 April 2011 Clinical records 22 Extract of clinical records for Patient A Expert 23 Commission letter to Bernard McNair dated 19 September 2011 24 Expert report from Bernard McNair to the Commission dated 25 October 2011 25 Letter from the Commission to Bernard McNair dated 6 November 2012 26 Expert report from Bernard McNair to the Commission dated 2 December 2012 with the following annexures: a) Resume of Mr Bernard McNair of 5 December 2012 b) NSW Health Department Code of Conduct - NSW Health PD2005_626 published on 20 October 2005 c) Australian Nursing and Midwifery Council Code of Ethics for Nurses in Australia Revised in 2002, Reprinted in February 2005 d) Australian Nursing and Midwifery Council Code of Professional Conduct for Nurses in Australia Published in July 1990, Revised in 2003 and 2006 Further correspondence 27 Letter from Springwood I Blue Mountains Hospital to Nurses & Midwives Registration Board dated 11 May 2010 28 Extract, Nurses and Midwives Board Competence to Practise Committee dated 2 June 2010 29 Extract, Nurses and Midwives Board Competence to Practise Committee dated 14 July 2010 30 Letter from Springwood I Blue Mountains Hospital to Nurses & Midwives Registration Board dated 17 June 2010 31 Letter from Nursing and Midwifery Council of New South Wales to RN Ingram dated 21 September 2010 32 Letter from Springwood I Blue Mountains Hospital to Nurses & Midwives Registration Board dated 14 March 2011 33 Letter from Nursing and Midwifery Council of New South Wales to RN Ingram dated 7 June 2011 34 Letter from NSW Nurses' Association to NMC dated 24 June 2011 35 Nursing and Midwifery Council of New South Wales extract dated 7 July 2011 36 Letter from Nursing and Midwifery Council of New South Wales to RN Ingram dated 11 July 2011 37 Nursing and Midwifery Council of New South Wales extract dated 30 December 2011 Guidelines I Policies 38 Australian Nursing and Midwifery Council National Competency Standards for the Registered Nurse

STANDARD OF PROOF 16The standard of proof applicable to these proceedings is the civil onus of proof on the balance of probabilities. In relation to serious allegations made the seriousness of the allegation, ts inherent unlikelihood and the gravity of the consequences may be relevant to whether the issue has been proved (Briginshaw v Briginshaw (1938) 60CLR 336 at 362 per Dixon J). 17The evidence relied upon by the Commission is voluminous. It has been served on the Respondent and she has filed no Response to the Complaint and no evidence.

COMPLAINT 1: CONDUCT THAT DEMONSTRATES THE KNOWLEDGE, SKILL OR JUDGMENT POSSESSED, OR CARE EXERCISED, BY THE PRACTITIONER IN THE PRACTICE OF NURSING IS SIGNIFICANTLY BELOW THE STANDARD REASONABLY EXPECTED OF A PRACTITIONER OF AN EQUIVALENT LEVEL OF TRAINING OR EXPERIENCE 18The Findings of the Tribunal in relation to this Complaint are: The evidence does establish that the Respondent took confidential patient record home with her but does not not establish that the Respondent breached patient confidentiality. With the exception of that matter the Tribunal finds that the particulars of complaint 1 have been established by the evidence. 19Those matters establish numerous incidents of unsatisfactory professional conduct demonstrating knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing that is significantly below the standard reasonably expected of a registered nurse of a level of training or experience equivalent to that of the Respondent.

COMPLAINT 2: THE RESPONDENT IS GUILTY OF PROFESSIONAL MISCONDUCT IN THAT SHE HAS:

(1) ENGAGED IN CONDUCT THAT DEMONSTRATES THE KNOWLEDGE, SKILL OR JUDGMENT POSSESSED, OR CARE EXERCISED, BY THE PRACTITIONER IN THE PRACTICE OF NURSING IS SIGNIFICANTLY BELOW THE STANDARD REASONABLY EXPECTED OF A PRACTITIONER OF AN EQUIVALENT LEVEL OF TRAINING OR EXPERIENCE; AND:

(2) IS GUILTY OF PROFESSIONAL MISCONDUCT UNDER SECTION 139E OF THE NATIONAL LAW IN THAT THE PRACTITIONER HAS:

I. ENGAGED IN UNSATISFACTORY PROFESSIONAL CONDUCT OF A SUFFICIENTLY SERIOUS NATURE TO JUSTIFY THE SUSPENSION OR CANCELLATION OF THE PRACTITIONER'S REGISTRATION, OR

II. ENGAGED IN MORE THAN ONE INSTANCE OF UNSATISFACTORY PROFESSIONAL CONDUCT THAT WHEN THE INSTANCES ARE CONSIDERED TOGETHER AMOUNT TO CONDUCT OF A SUFFICIENTLY SERIOUS NATURE TO JUSTIFY THE SUSPENSION OR CANCELLATION OF THE PRACTITIONER'S REGISTRATION. 20The Tribunal finds in respect of this Complaint that the Respondent is guilty of professional misconduct in that the numerous incidences of unsatisfactory professional conduct considered together amount to conduct of a sufficiently serious nature to justify cancellation of the Respondent's registration.

COMPLAINT 3: THE COMPLAINANT IS NOT COMPETENT TO PRACTICE NURSING IN THAT SHE DOES NOT HAVE SUFFICIENT KNOWLEDGE, AND/OR SKILL TO PRACTICE NURSING WITHIN THE MEANING OF SEC.139(a) OF THE NATIONAL LAW 21Section 139 (a) of the National Law provides: A person is competent to practise a health profession only if the person ---- (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 22The Tribunal is comfortably satisfied by the evidence that the Respondent does not have sufficient knowledge and does not have sufficient skill to practice the profession of nursing. 23Although it was alleged in the Complaint that the Respondent had not demonstrated sufficient mental capacity to practice nursing, that allegation was not proved.

CONCLUSIONS 24Given the findings on the 3 complaints the protection of the public requires that the Respondent's registration be cancelled and she should be prohibited from applying for registration for 12 months. 25The Commission sought an order for the Respondent to pay its costs of these proceedings. The Tribunal has power under clause 13 of Schedule 5D to the National Law to order the practitioner to pay the Complainant's costs. In this case there should be such an order because the Respondent did not admit any of the allegations and put the complainant to proof, the Respondent did not appear at the hearing, the complainant has been successful and the Respondent has been unsuccessful.

ORDERS 26Accordingly, the Orders that the Tribunal made are: 1. The registration of Deborah Ingram as a Nurse - General on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency("the Register") is cancelled under s149C(1)(a) and (b) of the Health Practitioner Regulation National law (NSW) No 86a ("the National Law"). 2. An application under Division 8 of Part 8 of the National Law for review of the cancellation may not be made until after the expiry of 12 months and subject to any order under para 163(1)(b) of the National Law the Tribunal is the appropriate review body. 3. Deborah Ingram must pay the legal costs of the Health Care Complaints Commission of and incidental to these proceedings, such costs to be as agreed or as assessed. 4. Under Clause 7 of Schedule SD of the National Law publication of the name, address or any other material identifying any patient to which any facts of the matter relate is prohibited.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2014