Overview of events
1. At about 3.00 pm on Friday 28 February 2014 a visitor arrived at Bungarribee House asking to see her husband who had been admitted to the Acute Ward of the mental health facility of Western Sydney Local Health District the day before.
2. As RN Sumintra Prasad was returning from the handover she responded to the request, and went to look for the patient, but did not find him in his room or the other places she looked. She asked a colleague to check the bathroom of the patient’s room, and he did so, only to find the patient collapsed on the floor, apparently having taken his own life. The alarm was raised but the patient could not be resuscitated.
3. RN Harivadan Pandya had been assigned to look after the patient during that shift, but he had departed the ward about half an hour beforehand to travel to another facility to commence another shift.
4. Upon RN Pandya’s early departure RN Prasad had picked up the behavioural observation of the patient that was due at 2.40 pm, being just before she went to handover at about 2.45 pm.
5. The manner and cause of the death of the patient was a matter for the coroner. The task of this Professional Standards Committee is to inquire into the conduct of RN Prasad and RN Pandya during their shifts that day and the care exercised by them towards the patient.
6. The care exercised by RN Pandya fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and we have found unsatisfactory professional conduct. We have decided to reprimand RN Pandya, place restrictions on his employment, require supervision and that he undertake some further education.
7. The care exercised by RN Prasad in leaving for handover fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. We have found unsatisfactory professional conduct, and have cautioned RN Prasad. Whilst there were weaknesses in the other aspects of RN Prasad’s conduct we did not find unsatisfactory professional conduct.
The proceedings
8. At the directions hearing the Chair of the Committee had made an order under clause 7(1)(b)(iv) of Schedule 5D of the National Law directing that the name of the patient and any information that would identify the patient not be published. That order was confirmed at the commencement of the hearing and continues. The patient is referred to as Patient A.
9. The proceedings were heard on 6, 7 and 8 December 2016. By s170 of the Health Practitioner Regulation National Law (NSW) (the National Law) we were able to inquire into the complaints concerning RN Prasad and RN Pandya at the same time (the ‘Pandya Complaint’ and the ‘Prasad Complaint’). It was convenient that both matters be heard together. The inquiries concerned the one patient over the course of a shift when both were rostered for duty in the Acute Ward.
10. The Health Care Complaints Commission was the Complainant in each case, and both complaints were dated 10 June 2016.
11. Mr Feneil Shah appeared for the Health Care Complaints Commission. Mr Matthew Byrne of the NSW Nurses and Midwives Association’ represented RN Harivadan Pandya. Ms Patricia Robertson of the NSW Nurses and Midwives’ Association represented RN Sumintra Prasad.
12. At the commencement of our inquiry the Commission handed up amended particulars of the Pandya Complaint deleting some of the particulars and amending others. There was no objection to our inquiry proceeding on the basis of the amendments. The amended Pandya Complaint was added to Tab 1 of the two volumes of documents provided by the Commission in support of both complaints. We received the material without any objection, and the volumes were marked HCCC–1.
13. At the commencement of the hearing the Commission handed up a further statement from Ms Nazma Khan which was added to HCCC-1 as Tab 25A.
14. Also handed up was an email attaching the Level 3 Behavioural Assessment and Observation sheets for the three other patients allocated to the care of RN Pandya on that shift in addition to Patient A. That material was added as Tab 20A to HCCC-1. A direction was made under clause 7(1)(b)(iv) of Schedule 5D of the National Law directing that the name of those patients and any information that would identify the patients not be published.
15. The material produced by the Commission included statements that had been provided to the police for the coronial investigation, transcripts of interviews with the Human Resources Department of Western Sydney Local Health District and also the responses in correspondence to questions asked by the Commission, sometimes answered directly by the individuals and on occasions through a representative.
16. The information was useful and of assistance. However, we do not take much from any variations and gaps in the versions of events given by the individuals. The information was collected in different circumstances and for different purposes, with the questions being asked in different contexts. We do not draw any adverse inferences from those apparent inconsistencies.
17. We received, without objection, a folder of material on behalf of RN Prasad, marked SP 1. Ms Robertson also handed up some material explaining the source of photographs of the Acute Unit and relating to a referee report by Mr Chy Ong a Nurse Unit Manager at Bungarribee House – added to SP-1.
18. Mr Byrne provided a folder of material which we received without objection and marked HP-1. Within the bundle at Tab 10 was an extract from the Public Health System Nurses and Midwives (State) Award 2015. During the course of the hearing Mr Byrne supplemented that item by the 2011 version of the Award from 2011 as was in operation at the time of the events being considered – all accepted, without objection, and marked “HP-2.
19. At the commencement of our inquiry we were advised that a proposed witness, Ms Nazma Khan the Team Leader on the relevant day, had suffered chest pains, collapsed outside the hearing room and had been taken by ambulance to hospital for assessment and observation. Ms Khan was unable to attend the hearing. No application was made by any of the parties for an adjournment of the proceedings. Within the material provided by the Commission were a number of statements of Ms Khan and related correspondence (Tabs 21 to 26, and 25A of HCCC-1). Where information provided by Ms Khan was in conflict with other materials and oral evidence we exercised caution, but only because Ms Khan was unavailable for cross examination to be tested on those points.
20. In addition to the documents received we heard evidence from Mr Arthur Medida, Ms Christine Muller as the Commission’s expert, Ms Sumithira Joseph, Mrs Dhanasagree Naik (by telephone) as a referee for RN Pandya, and Mr Chy Ong (by telephone) as a referee for RN Prasad. RN Pandya and RN Prasad also gave evidence.
21. Ms Joseph referred to a General Information policy document of Western Sydney Local Health District which she said required that staff must obtain permission before proceeding on meal breaks, or completion of duty, or to leave the ward for any reason. The document was later provided to us and was received, without objection, and marked HCCC-2.
22. The parties took no objection to us proceeding on the basis that we consider, at the one time, whether the either complaint amounted to unsatisfactory professional conduct and if so then proceeding to give consideration to the exercise of our powers under s146B of the National Law.
23. At the conclusion of the evidence Mr Shah made oral submissions concerning the complaint against RN Pandya.
24. Mr Shah handed up proposed protective orders with respect to RN Pandya and RN Prasad.
25. Mr Byrne made oral submissions on behalf of RN Pandya, but we did not have sufficient time to receive all the submissions during the hearing.
26. At the conclusion of the hearing day Mr Byrne wished to consider whether he would make further submissions in respect of some aspects of the complaint against RN Pandya and also in respect of the proposed protective orders.
27. The Chair of the Committee made the following directions, with the agreement of the parties:
• The Commission to file and serve written submissions in respect of the Prasad Complaint on Monday, 12 December 2016;
• Mr Byrne to file and serve any written further submissions in respect of the Pandya Complaint and also the proposed protective orders by Tuesday, 13 December 2016;
• Ms Robertson to file and serve written submissions in respect of the Prasad Complaint and also the proposed protective orders by Tuesday, 13 December 2016; and
• the Commission to file and serve any responses to those submissions by Wednesday 14 December 2016.
28. Those submissions were received and have been considered. Commission’s application to recuse
29. Immediately after the lunch adjournment on Tuesday, 6 December Mr Shah made an application that the inquiry could not continue unless two members of the Committee, Babette Smith and Michael Hagarty, recuse themselves. The application was based on apprehension of bias, in circumstances where Ms Smith was a member of a Tribunal in proceedings before the NSW Civil and Administrative Tribunal and in those proceedings Michael Hagarty had been a witness called on behalf of a respondent to a complaint brought by the Commission. Mr Shah had instructed counsel in those proceedings. The Commission’s submissions to the Tribunal had contained particular criticism of the evidence given by Mr Hagarty. Although the hearing had concluded, the Tribunal was yet to publish its decision.
30. Mr Shah acknowledged that at the commencement of the hearing earlier that morning the Chair had drawn to the attention of the parties that Mr Hagarty had been a witness in NCAT proceedings where Ms Smith was a member of the Tribunal. No objection had been raised. Mr Shah said he had since taken further instructions in particular with respect to the written submissions in the proceedings.
31. The factual basis of the application was accepted by the Committee and was not contested by Ms Robertson or Mr Byrne. Their concerns were with the possible disruption or delay to our inquiry. Ms Robertson tendered (marked as SP-2) an email from Mr Shah of the previous week that had dealt, in general terms, with conflict concerns. No issue of recusal had been raised. Mr Shah said that if Mr Hagarty were to recuse himself then the application with respect to Ms Smith would be withdrawn as having no basis. Mr Shah said the application was in respect of an apprehension of bias, not actual bias. He emphasised that the application did not involve any prediction about how either of the Committee members would in fact approach their task. We adjourned to consider the application.
32. Ultimately it was not necessary for us to determine the application. During the adjournment Mr Hagarty vacated his office as a member of the Committee.
33. Section 170E of the Health Practitioner Regulation National (NSW) provides that if one of the members constituting a committee vacates office for any reason before the inquiry is completed then the inquiry may be continued and a determination made by the remaining members of the Committee. On that basis our inquiry was able to continue even though one member had vacated office.
Receiving evidence
34. As set out above, the Committee received written material on behalf of the parties and also heard oral evidence. By clause 2 of 5D of the National Law we were able to receive all that material as evidence, and did so.
35. The relevant legal principles that guide the Committee are well-established and were not contested: applying the civil standard and considering Briginshaw; what is to be reasonably expected of a practitioner; the protective rather than the punitive function of a Professional Standards Committee; the significant trust placed by patients in practitioners; and the importance of protecting the public.
36. Rather than proceed by way of summarising the documents and the oral evidence we find it convenient to consider the evidence with reference to the two complaints and the particulars provided. We commence with the complaint against RN Pandya, as he was the nurse who was specifically allocated to look after Patient A on the day in question.
Complaint against RN Pandya
37. The complaint against RN Pandya concerns his conduct during the shift that he worked at Bungarribee House on 28 February 2014. There are five parts of the complaint of unsatisfactory professional conduct under section 139B(1)(a) of the National Law: not notifying or giving advance notice of early departure; leaving early; no handover; not undertaking observations; and, not keeping proper records.
38. The Commission submitted (and similarly for RN Prasad) that each of the parts on their own could amount to unsatisfactory professional conduct and that the Pandya Complaint could be made out upon one or more of the particulars being found to be unsatisfactory professional conduct. We agree with that approach. The parts of the Pandya Complaint are essentially distinct matters, each standing alone even though the events occur on the same shift and in some respects rely on the same facts. We deal with each in turn.
Part 1 of the Pandya Complaint – failing to give early advice to the team leader of an early departure
39. RN Pandya admitted in his statement and when giving evidence that he had not advised the Team Leader at the start of his shift that he was leaving early. The circumstances of him coming to work that shift require some explanation in order to place his conduct in context. The background is also relevant to other aspects of the Pandya Complaint.
40. RN Pandya was employed within Western Sydney Local Health District and most often worked at Cumberland Hospital. He was due to start his routine shift at Cumberland Hospital campus at 2.30pm on 28 February 2014. He had been requested to first undertake a shift at Bungarribee House at Blacktown Hospital commencing at 7.00am and ordinarily to conclude at 3:30pm, and he was therefore working a double shift. The shift at Bungarribee House was to be counted as an overtime shift.
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