Nursing and Midwifery Board of Australia v Gibbons

[2014] QCAT 412

CITATION: Nursing and Midwifery Board of Australia v Gibbons [2014] QCAT 412

PARTIES:	Nursing and Midwifery Board of Australia (Applicant)
v
Michael George Gibbons (Respondent)

APPLICATION NUMBER: OCR159-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Hon J B Thomas, Judicial Member

Assisted by
Dr Alan Gordon Barnard
Ms Mary Barnett
Mr Graeme Lawrence

DELIVERED ON: 14 August 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The respondent is reprimanded.

2.    The respondent is not entitled to apply for registration under the provisions of the Health Practitioner Regulation National Law Act 2009 until:

a.    the respondent has completed a course or courses of education addressing patient care and professional responsibility and accountability, such course or courses to be nominated by the respondent and approved in writing by the applicant;

b.    the respondent has provided a report from the provider of the course or courses at paragraph 2(a) confirming successful completion by the respondent;

c.    the respondent has undertaken counselling with a clinical psychologist (‘the counsellor’), to be nominated by the respondent and approved in writing by the applicant, to enable the respondent to develop insight into why he engaged in the behaviour which is the subject of these proceedings. The counselling is to take place at a frequency determined by the counsellor until the counsellor holds the opinion that the respondent has developed full insight into the behaviour or until further counselling is unnecessary;

d.    the respondent has provided to the applicant a report of the counsellor that the respondent has developed full insight into his offending behaviour or that further counselling is unnecessary;

e.    the respondent has successfully undertaken an oral examination before two senior nurses, at a time to be nominated by the applicant but after receipt of the report referred to in paragraph 2(b), in order to demonstrate a sufficient level of understanding of patient care and professional responsibility and accountability.

3.    The following conditions must be imposed upon any future registration of the respondent (in addition to any conditions the applicant may impose in the exercise of its own independent discretion):

a.    the respondent is prohibited from undertaking employment through a nursing agency;

b.    the respondent can only provide nursing care under the indirect supervision of a registered nurse, such nurse to be senior to the respondent in terms of years of experience or position (‘the supervisor’);

c.    the supervisor must be approved by the respondent’s employer;

d.    the respondent must cause a written logbook to be kept (and provided to the applicant upon request) recording each shift worked and the name of the supervisor for each shift with each entry to be signed off by the supervisor;

e.    the respondent must, within two business days of gaining employment as a nurse, notify the applicant in writing of:

i.     the name and address of the employer;

ii.    the address of his place of employment as a nurse;

iii.   the position description at the place of employment;

iv.  the name and contact telephone numbers of his supervisors at the place of employment;

f.     the respondent must notify the applicant within two business days of a change in any of the details required in paragraph 3(e) of these orders;

g.    the respondent must provide a copy of these orders and the Tribunal’s reasons to his employer, within seven days of commencing employment, as well as a written authority to the employer to provide a written report to the applicant about the respondent’s ability to practice competently and safely on the following occasions:

i.     at intervals of three months from the commencement of his employment;

ii.    if the employer holds a concern about the respondent’s ability to practice competently and safely; and

iii.   if requested by the applicant.

4. The conditions referred to in paragraph 3 must be reviewed by the Tribunal after two years of their imposition in accordance with s 116(2) of the Nursing Act 1992.

5.    Subject to paragraph 4, the conditions referred to in paragraph 3 shall remain in place until the respondent satisfies the applicant that he has practiced as a nurse for a period of not less than 12 months in accordance with those conditions.

6.    All costs and expenses in relation to the matters set out in paragraphs 2 and 3 are to be borne by the respondent.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSE – DISCIPLINARY PROCEEDINGS – where the registrant assumed the care of a patient upon commencing his shift – where the patient had recently suffered a significant oxygen desaturation – where the patient’s condition was not brought to the registrant’s attention – where the patient’s condition deteriorated significantly – where the registrant did not regularly check the patients in the ward – where the patient died from aspiration pneumonia – where there were a series of errors which lead to the death, only one error being the registrant’s – where the parties jointly proposed orders – whether the proposed orders are appropriate and within the Tribunal’s powers

Nursing Act 1992 (Qld), s 104, s 116

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Jurisdiction

1. This is a disciplinary proceeding against a formerly registered nurse.

2. The relevant facts concern his treatment of a patient who died in a hospital in 2005.

3. The ‘participation day’ for jurisdictions under the Health Practitioner Regulation National Law Act 2009 (Qld) (‘National Law’) was 1 July 2010.

4. By that date the Queensland Nursing Council had started but not completed dealing with a notification concerning the respondent's conduct in 2005. Under s 289(1) of the National Law (Schedule) the notification is to be dealt with under the relevant Queensland Act in force before that date, namely the Nursing Act 1992 (Qld) (‘Nursing Act’), and the proceedings are able to be maintained by the National Board that took over the duties of the former Council.

5. Jurisdiction to deal with the present referral is conferred upon QCAT by s 104 of the Nursing Act.

6. The grounds upon which disciplinary action may be taken are prescribed by s 104A of that Act.

7. The powers of the Tribunal to make orders are those stated in s 116 of that Act.

Facts

1. The parties have presented an agreed statement of facts, and evidence upon which the following summary is based.

2. The relevant events occurred on 22 – 23 April 2005. At that time the respondent was employed as a casual registered nurse at the Pacific Private Hospital, Southport. He had been employed as a registered nurse since 1991, and at the relevant time was 47 years old.

3. He ceased practice as a nurse immediately after the relevant events. His registration lapsed on 30 June 2005, and he has not sought its renewal or ever again been employed as a nurse.

4. The respondent was initially charged with manslaughter and, following a lengthy committal proceeding was committed for trial. Eventually a nolle prosequi was entered in the Supreme Court in 2006.

5. The present proceedings were commenced in QCAT by the Queensland Nursing Council on 29 June 2010. Following early directions in QCAT, the parties sought the deferral of the proceedings pending investigations by the Coroner.  A stay was granted in September 2011 by consent.

6. The matter then appears to have gone to sleep.  The Coroner delivered findings on 28 November 2012. Finally on 31 January 2014 the parties agreed to the lifting of the stay in QCAT. Directions were then given leading to the present proceeding.

7. The event giving rise to these proceedings was the death of a 41 year old school teacher following elective orthopaedic surgery at the Pacific Private Hospital on 22 April 2005.

8. The surgery was performed under general anaesthetic. There were no intra-operative complications, and oxygen saturations did not drop below 99 per cent.

9. Following the surgery he was taken to the Post Anaesthetic Care Unit (PACU).

10. In the PACU he suffered a significant oxygen desaturation during which his oxygen saturation level dropped to 64 per cent at 6:25 pm. The anaesthetist was advised. He attended PACU and did not physically examine the patient but had guedels inserted, and advised jaw support. The oxygen saturations then rose to 87 per cent over a 10 minute period, which the anaesthetist regarded as less than ideal, but not unusual. Seemingly, and the coroner so inferred, the anaesthetist assumed the problem to be an airway obstruction rather than aspiration pneumonia, which was the real problem.

11. The patient was transferred to the accommodation ward between 7:15 pm and 7:40 pm where he came under the care of a registered nurse, Mr Manton, who is also the subject of disciplinary proceedings arising out of these events.

12. A few hours later, at 10:00 pm, the respondent commenced his shift and assumed the care of the patient. He was assisted by an enrolled nurse, Ms V.

13. The preceding events in the PACU (including the significant oxygen desaturation) were not brought to the respondent’s attention.

14. The patient's condition then deteriorated significantly, registering 89 per cent at 10:00 pm, 85 per cent at around midnight, 60 per cent at around 1:00 am and 53 per cent at 2:00 am.

15. The respondent did not regularly check patients in the ward, relying on the enrolled nurse to check them while he remained at his station. He first visited this patient at 11:30 pm when he administered an intravenous dose of Keflin. He later attended the patient with Nurse V and noticed the patient's colour (circulation observation) to be ‘0 (dusky)’.  It had previously been noted as ‘2 (normal)’ he attached a non-rebreather mask to the patient but did not recognise the need for medical intervention. He accepts that his treatment was not appropriate or adequate in the circumstances.

16. He then took a 45 minute break, arranging for Nurse V to keep an eye on the patient and notify him of any problems.

17. There is a conflict of evidence between the respondent and Mr Manton as to what information was mentioned about the patients condition at the time of handover to the respondent, but it is not necessary to determine that issue in the light of the expert opinion.

18. Expert opinion (from Dr Greenland) is to the effect that oxygen saturation of 85 per cent (as it was around midnight) should have engendered a level of concern amongst nursing staff. Most nursing texts advocate advising a higher authority if saturation levels drop below 90 per cent. The condition of the patient at 1:00 am should have been treated as a medical emergency. Life support procedures should have been commenced immediately. By 2:00 am the patient was unconscious and his oxygen saturation reading was inconsistent with survival. The patient was subsequently transferred to the Gold Coast Hospital where he was pronounced dead at 3:51 am. The cause of death was aspiration pneumonia.

Discussion

1. In this case there was a series of errors and inadequacies, each of which, in isolation, was unlikely to have led to major harm to the patient. However, collectively they led to the patient's death.

2. The combination of ‘gaps’ through human errors in this case was likened before the coroner to the curiously named ‘Swiss cheese model’ identified by Professor John Reason. This was adopted as an apt description of the cause of death by Dr Greenland and was also by the Coroner in his report. One of these errors or ‘gaps’ was that of the respondent.

3. Briefly stated, the series of errors could be regarded as including the failure of the anaesthetist who wrongly assumed airway obstruction to be the cause of the decline in oxygen saturation in PACU and who did not cater for the possibility of aspiration pneumonia. Another was that the patient should have been kept longer and investigated more thoroughly in PACU. Another was that when the patient was delivered from PACU to the accommodation ward, Mr Manton was not adequately advised by the handover nurse. He was not told of the concerning de-saturation event, or that oxygen levels had only been maintained by increasing the flow of oxygen or that the patient had made frequent requests (per button) for narcotic infusions, suggesting a high level of distress.

4. In turn, when the patient was handed over by Mr Manton into the care of the respondent, the respondent was not told of these or other concerning events during Mr Manton's shift.

5. Finally there was the respondent's own failure to recognise the urgent need for medical intervention.

6. The respondent's care was inadequate and it displayed a seriously unacceptable level of incompetence and lack of patient care.

7. That conduct clearly constituted unsatisfactory professional conduct as defined in s 104A(3) of the Nursing Act. In my view, aided by the assessors, it satisfies each of the inclusive definitions in subparagraphs (a), (b), (d) and (e) of the definition, namely:

   (a)professional conduct that is of a lesser standard than that which might reasonably be expected of the relevant person by the public or the relevant person’s professional peers;

   (b)professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in nursing practice;

   …

   (d)misconduct in a professional respect;

   (e)conduct discreditable to the nursing profession

8. The parties have jointly proposed the orders that the Tribunal should make. Notwithstanding this agreement, the Tribunal must be satisfied that the orders are appropriate.

9. The proposed order includes a reprimand, and the imposition of conditions that disentitle the respondent from applying for registration until he has completed specified courses of education, undertaken specified counselling and oral examination, and the provision of various reports that indicate appropriate insight and competence. It also imposes conditions that would prohibit employment through a nursing agency and requiring specified supervision and the keeping of a logbook, and notifications to the Board that would allow surveillance of his conduct. Those conditions would be satisfied, if at all, at the expense of the respondent.

10. Very little information was provided to the Tribunal about the circumstances of the respondent, and it is not known whether he has any desire or intention of ever returning to the nursing profession.  Certainly his self-imposed deregistration and absence of practice for a period in excess of nine years might suggest this to be unlikely. But it seems appropriate that conditions of this kind should be insisted upon in the event that he desires to resume practice as a nurse.

11. One of the proposed orders is as follows:

    But for the lapsing of the respondent’s registration, the Tribunal would have cancelled the respondent’s registration.

12. That is a hypothetical statement which has no place in an order unless specifically authorised by the legislation. No such order is authorised by s 116 of the Nursing Act, and in the absence of statutory authorisation it is not appropriate to include it in the order.

13. The place for such a statement is in these reasons, and I am prepared to say that but for voluntary cessation of practice by the respondent and the lapsing of his registration, it may reasonably be presumed that the Tribunal would have cancelled the registration under s 116(1)(f) of the Nursing Act.

14. I have concluded that the proposed order is reasonable in the circumstances. These include the fact that the respondent was only one of many cogs in a machine that failed, the fact that he has effectively lost his professional practice for nine years and possibly permanently, the fact that he has undergone separate criminal proceedings, and the fact that the suggested conditions are appropriate for the future protection of the public. These all combine to make the order a reasonable one.

15. Accordingly, the order will be in substance that which was proposed by the parties, with the deletion of the hypothetical declaration mentioned above.