Nursing and Midwifery Board of Australia v Manton

[2014] QCAT 400

CITATION: Nursing and Midwifery Board of Australia v Manton [2014] QCAT 400

PARTIES:	Nursing and Midwifery Board of Australia (Applicant)
v
Dean Manton (Respondent)

APPLICATION NUMBER: OCR084-14

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.

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 patient’s file not reviewed – where the patient’s condition deteriorated significantly after the registrant’s shift had concluded – where the registrant should have recognised symptoms of respiratory compromise and identified the significant pain of the patient – where the registrant gave an undertaking to the Board – where the parties jointly proposed orders – whether the order is appropriate

Health Practitioner Regulation National Law (Queensland), s 196

Nursing and Midwifery Board of Australia v Gibbons [2014] QCAT 358

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. The incident giving rise to it was the death of a patient in a hospital on 23 April 2005.

2. The respondent’s conduct was brought to the attention of the Board by the Coroner after delivering findings on 28 November 2012.

3. As no ‘notification’ or ‘complaint’ was received by the Board before ‘notification day’ (ie 1 July 2010) under the Health Practitioner Regulation National Law Act 2009 (Qld), neither s 288 or s 289 of the Schedule to that Act apply, and the present matter is an ordinary reference under s 193 of the Schedule to that Act. Accordingly the matter is to be decided by the provisions of that Schedule (‘the adopted National Law’).

4. Under s 138 and s 139 of the adopted National Law, QCAT is deemed to have jurisdiction over former registrants.

5. The basis of the proceedings is the allegation that the respondent behaved in a way that constitutes professional misconduct, which term is defined in s 5 of the adopted National Law.

6. The orders that the Tribunal is authorised to make are those specified in s 196 of the adopted National Law.

Facts

1. 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 Southport on 23 April 2005.

2. The surgery, conducted between 5:00 pm and 6:05 pm on 22 April 2005 was uneventful. The patient was then taken to the Post Anaesthetic Care Unit (PACU).

3. There he suffered significant oxygen desaturation, and his oxygen saturation level dropped to 64 per cent at 6:25 pm. This was a dangerously low level. However, various measures including increase of the level of delivery of oxygen and further opening of his airways resulted in a return to satisfactory levels by 6:55 pm.

4. He was then transferred to the accommodation ward where he came under the care of the respondent at 7:15 pm. The respondent was not advised of the desaturation problem. However observations relating to that event were available on the patient file which should have been reviewed by the respondent but were not. His observations were conducted half hourly between 7:40 pm and 9:40 pm all in which showed levels between 93 per cent and 94 per cent.

5. The respondent accepts that he should have recognised that the patient was showing signs of respiratory compromise in the light of a number of matters including the fact that the patients arterial oxygen saturation levels were only being maintained at or above 93 per cent by increasing oxygen flow to the patient from three litres to five litres per minute, especially when considered in conjunction with the changes in pulse and blood pressure during the shift. Also he should have identified the distress and significant pain of the patient from the fact that between 7:19 pm and 10:00 pm the patient pressed his narcotic infusion 125 times.

6. The respondent handed over the patient to another registered nurse at change of shift at 10:00 pm. Subsequently his condition deteriorated and he was transferred to the Gold Coast Hospital at 2:33 am and was pronounced dead there at 3:51 am. The cause of death was aspiration pneumonia.

7. The opinion of an expert, Dr Greenland, an anaesthetist, includes that:

   a)    The patient was showing signs of respiratory compromise while receiving supplementary oxygen whilst under the respondent’s care.

   b)    The respondent’s management of the low oxygen saturation levels was ‘poor’.

   c)    The high pain scores and frequent morphine demands indicated ‘poor pain management’ by the respondent.

8. The respondent is a married man 48 years old with children aged 7 and 9. He was first registered as nurse in 1995 and practiced until March 2008. He has not practiced as a nurse since then, and his registration lapsed on 30 June 2008.

Discussion

1. The admitted conduct satisfies the definition in subparagraph (a) of the definition of ‘professional misconduct’ in the adopted National Law namely:

   (a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience;

2. In reaching this view I have been aided by the assessors appointed to assist the Tribunal.

3. The powers conferred on the Tribunal under the adopted National Law do not enable the conditions to be imposed concerning a future application for registration by an unregistered practitioner. However an appropriate undertaking may be given to the Board which may be taken into account by the Tribunal.[1]

   [1]Nursing & Midwifery Board of Australia v Fankhauser [2013] QCAT 395, [44].

4. On 30 May 2014 the respondent gave the following undertaking to the Board (annexed to the statement of agreed facts in this matter).

   I DEAN MANTON … undertake to the Nursing and Midwifery Board of Australia (‘the Board’) that I will not apply to the Board for registration as a nurse unless and until:

   1.I have completed a course or courses of education addressing post-operative care (with particular reference to the identification of respiratory compromise) and professional responsibility and accountability, such course or courses to be nominated by me and approved in writing by the Board.

   2.I have undertaken counselling with a clinical psychologist (‘the counsellor’), who is to be nominated by me and approved in writing by the Board, to enable me to develop insight into my behaviour which is the subject of disciplinary proceedings against me in QCAT application OCR084-14. The counselling must occur at a frequency recommended by the counsellor until the counsellor holds the opinion that I have developed full insight into my behaviour or until further counselling is unnecessary.

   3.I have provided to the Board:

   (a)a report from the provider of the course or courses referred to in paragraph 1 confirming completion of the course or courses by me; and

   (b)a report of the counsellor confirming that I have completed counselling in accordance with paragraph 2.

   I HEREBY ACKNOWLEDGE THAT:

   a)I must comply with this Undertaking at my expense including the cost of providing the reports referred to in paragraph 3.

   b)I have given this Undertaking voluntarily after receiving independent legal advice or having been given the opportunity to receive independent legal advice.

   c)I must keep all necessary records and documents to be able to satisfy the Board that I have complied with this Undertaking in all respects.

   SIGNED by DEAN MANTON on 30 May 2014

5. The proposed order includes a reprimand and takes into account the undertaking that has been included in these reasons. The Board does not seek costs and has obviously taken into account a number of mitigating circumstances and antecedents including:

   a)    The stress of and costs of a criminal investigation and inquest.

   b)    He ceased practicing as a nurse in March 2008 due to that stress.

   c)    The conduct was an isolated incident occurring more than nine years ago.

   d)    His cooperation with the Board, such that a joint position was reached very quickly and before a compulsory conference was required.

   e)    The respondent is unemployed and relies on his wife’s income for support included their two children and home loan.

6. It is also to be noted that the respondent’s inadequacy was less significant than the inadequacies of a number of other persons within the hospital whose acts contributed to the dreadful consequences of 23 April 2005. These inadequacies and the combined effect are more fully detailed in paragraphs [26] to [30] of the reasons for judgement in Nursing and Midwifery Board of Australia v Gibbons [2014] QCAT 358 and it is unnecessary for present purposes to restate them here. It is significant however that when the patient was handed over into his care he was not given relevant information of the worrying events in the Post Anaesthetic Care Unit (PACU) which may well have alerted him to the need for more focused attention.

7. In view of the very long delay in bringing these proceedings to a conclusion, and the intervening events including his cessation of practice since 2008, the proposed course seems reasonable and appropriate.

8. In the above circumstances, taking account in particular the breadth of the undertakings which will require necessary competence to be shown on his part before he could again practise as a nurse, the fact that he has given up practice for more than six years, and the mitigating circumstances mentioned in paragraphs [19] and [20] above, the appropriate order under s 196(2) of the adopted National Law will be that the respondent is reprimanded.