Level 6, 80 The Terrace, Wellington 6011 PO Box 10509, The Terrace, Wellington 6143, New Zealand Telephone: 64 4 381 6816 Facsimile: 64 4 381 6770 Email: [email protected] Website: www.hpdt.org.nz
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DECISION NO: 679/Nur14/286D
IN THE MATTER of the Health Practitioners Competence Assurance Act 2003
-AND-
IN THE MATTER of a Charge laid by the Director of Proceedings designated under the Health and Disability Commissioner Act 1994 pursuant to Section 91(1)(b) of the Health Practitioners Competence Assurance Act 2003 against Ms Raewyn Anne Ward of Tauranga, enrolled nurse
BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL
TRIBUNAL: Mr D M Carden (Chair)
Assoc Professor J Kilpatrick, Professor A Huntington MNZM, Ms
S Matthews MNZM and Mr H O’Rourke MNZM (Members)
Ms G Fraser (Executive Officer)
Ms H Hoffman (Stenographer)
Hearing held at Tauranga on 17 and 18 November 2014.
APPEARANCES: Ms N Wills, the Director of Proceedings, Health and Disability
Commission with Ms J Herschell
Ms Ward in person 2
INDEX
Summary ...... 3
The Charge ...... 3
Background – Killarney Rest Home ...... 5
The Resident - Admission documentation and maintenance of this ...... 7
The Resident – three falls ...... 9
The Charge - discussion ...... 15
Particular 1 - Failure to ensure that adequate standards of care planning and falls risk assessment were set out and/or maintained ...... 20 Particular 2 - Failure to ensure that a plan was implemented to manage the risk of future falls after the falls of 10 July 2011, 24 July 2011 and 3 August 2011 ...... 24 Particular 3 - Failure to notify, or failure to ensure notification to, the family of the two falls on 24 July 2011 and 3 August 2011 ...... 27 Particular 4 - Failure to seek appropriate clinical assessment on 5, 6, 7, and/or 8 August 2011 ...... 29 Penalty ...... 34
Costs ...... 38
Name suppression ...... 39
Results and orders...... 40
3
Summary 1. Ms Raewyn Anne Ward, an Enrolled Nurse (“EN”) from Tauranga was charged by the Director of Proceedings (“the Director”) designated under the Health and Disability Commissioner Act 1994 (“the HDC Act”) with professional misconduct as malpractice and/or negligence and/or conduct that has brought or was likely to bring discredit to the nursing profession. 2. Four particulars were given concerning failure to maintain adequate standards of care planning and falls risk assessment, failure to ensure a plan for a particular patient after three falls, failure on two occasions to notify the patient’s family members of those falls or to ensure they were notified, and failure to seek appropriate clinical assessment on one or more of four occasions. 3. The Charge was heard before the Tribunal. 4. Questions of the role of the EN compared to a Registered Nurse (“RN”) employed at the Rest Home arose. Questions arose on the EN scope of practice within a management role and the registered nurse scope of practice within Rest Home employment. 5. The Tribunal finds the Charge is made out in certain respects and is sufficient to warrant disciplinary sanction. 6. The Tribunal orders that conditions on resumption of practice by Ms Ward apply: that Ms Ward undergo a competency review; that she practise under supervision for a period of 6 months on conditions that are set out; and that she not practise as a sole practitioner or in a managerial role in the aged care sector for a period of 12 months. 7. Ms Ward is ordered to contribute $24,000.00 towards the costs of the Director and the Tribunal. 8. Orders for permanent suppression of the names of the Rest Home resident and her daughter are made.
The Charge 9. The Charge was amended by the Director from time to time without any opposition from Ms Ward and finally provided that whilst caring for a patient at the Rest Home she, being an Enrolled Nurse, acted in such a way that amounted to professional misconduct. The conduct was alleged to amount to malpractice and/or negligence 4
and/or conduct that brought or was likely to bring discredit to the nursing profession under sections 100(1)(a) or 100(1)(b) of the Health Practitioners Competence Assurance Act 2003 (“the HPCA Act”). 10. The four particulars read: 10.1. You failed to ensure that adequate standards of care planning and falls risk assessment were set out and/or maintained in relation to your patient during her period of residence at Killarney Rest Home. AND/OR 10.2. On each occasion after your patient fell on 10 July 2011, 24 July 2011 and 3 August 2011 you failed to ensure that a plan was implemented to manage the risk of future falls. AND/OR 10.3. On each occasion you failed to notify your patient’s family of the falls on 24 July 2011 and 3 August 2011, or failed to ensure they were notified; AND/OR 10.4. You failed to seek an appropriate clinical assessment of your patient on 5 August and/or 6 August 2011 and/or 7 August 2011 and/or 8 August 2011. 11. The Charge was heard at Tauranga on 17 and 18 November 2014. The Director appeared in support of the Charge with counsel supporting her. Ms Ward attended on her own account for most of the hearing but then chose to leave before the hearing had concluded. The Director called evidence from various witnesses; and Ms Ward herself gave evidence in response to the Charge (at which time she was invited also to give evidence concerning possible penalty because it was anticipated she may not be present when that was considered). Ms Ward left the hearing before it had concluded. Because of how the prosecution and hearing of the Charge developed (the detail of which need not be recorded here), the Tribunal had found it necessary to appoint an amicus curiae at an earlier stage to help Ms Ward. When the case became more straightforward, the need for the amicus came to an end and Ms Ward represented herself from thereon. 5
Background – Killarney Rest Home. 12. Killarney Rest Home is a 22 bed facility with a secure dementia unit included in 11 of those beds. 13. Ms Ward was employed as an Enrolled Nurse commencing 15 September 2009. The Tribunal was provided with a copy of her employment contract. Although not mentioned in the contract, Ms Ward was at all relevant times also the Manager of the Rest Home and the Tribunal was provided with the Job Description for that role. 14. This Job Description included working for the owners, “showing loyalty, honesty, and commitment, having the owner’s best interests in mind at all times”. It was expressed that the Manager’s “prime concern” was “the health and wellbeing of the residents, [endeavouring] to satisfy their needs and requirements to make them feel happy, safe, and well cared for in [the Rest Home]”. It included employment and dismissal of staff; ensuring that all employee performance was maintained to a high standard and other matters relevant to management of the Rest Home. 15. The Rest Home employed a Registered Nurse under contract commencing 3 May 2010. Her name was Ms Kyla Hewett. Her employment contract described her duties to include diligent and faithful service of the Rest Home and promotion and protection of its interests at all times; carrying out and complying with her Manager’s directions; and general responsibilities as a Registered Nurse. 16. The Job Description for the Registered Nurse position held by Ms Hewett described the prime concern for the Registered Nurse as “the health and wellbeing of the residents” and that she should “endeavour to satisfy [the residents’] needs and requirements to make them feel happy, safe, and well cared for in their own home [sic – perhaps should have read the Rest Home or as in their own home]”. Ms Hewett’s job description included that she was to liaise with both the owner and Manager concerning appropriate training for new employees; that she was to ensure that all employee performance is maintained to the Rest Home’s “high standard” and to monitor the competence of all staff to ensure safe practice. 17. Ms Ward said that she always deferred to Ms Hewett’s judgment because she, Ms Ward, was an Enrolled Nurse and did not want to do anything that was contrary to what she was directed. 6
18. The Tribunal was further provided with various documents from the Rest Home, namely a 4 page document headed “Our Philosophy”, containing various information concerning facilities and staff of the Rest Home; a 2 page “Admission Policy” document issued 14 June 2010 and reviewed 14 June 2012; a Documentation – Detail, Frequency and Co-ordination Policy also issued 14 June 2010 and reviewed 14 June 2012 which was issued by Ms Hewett and approved by Ms Ward; and an Accident and Incident Policy issued 13 December 2011 and reviewed 13 December 2013. 19. The Rest Home also had certain forms in respect of individual residents. These included: 19.1. Short Stay Client Medication Record required to be filled in at the time of admission of a resident for a short stay only. 19.2. A Resident Admission form, required to be filled in for longer term admission. 19.3. An Admission Assessment form providing medical information and other information concerning the resident and family members. 19.4. A Water Low Risk Assessment Tool form requiring that there be a scoring per category of various listed issues concerning skin integrity and pressure area risk. 19.5. A Falls Risk Assessment Tool form providing for selection of levels of risk and categories to determine the analysis of a fall risk for a resident. 19.6. A Short Term Assessment/Careplan providing for alternative selection of levels of activity under various headings. 19.7. A Form dealing with such matters as hygiene cares, nutrition, elimination, behavioural problems and the like. 19.8. An Abbey Pain Scale form for completion by observation of a resident as to pain scale which the resident may not be able to articulate. 19.9. A Family/Whanau Communication form, and 19.10. Other forms concerning the individual circumstances and requirements of the resident. 20. It was the evidence of Registered Nurse Ms Alesha Williamson, who started as a new graduate in her first nursing job at the Rest Home on 5 August 2011, that her understanding was that a full assessment was required for both respite and for 7
permanent residents, referring to the Admission Policy form1. That form refers to a Registered Nurse filling out the various forms “on admission”.
The Resident - Admission documentation and maintenance of this 21. The Resident, whose name was permanently suppressed by order of the Tribunal, having been diagnosed with advanced dementia on 3 June 2011, was admitted to the Rest Home on 7 July 2011 for short term respite care in the secure dementia unit. This admission was by Ms Hewett. 22. Although Ms Hewett had commenced employment on 3 May 2010 in the role of Clinical Manager/Registered Nurse, she said that she was the only Registered Nurse for almost the whole time she worked at the Rest Home until her resignation in October 2011. Ms Hewett said that she never had a job description as Clinical Manager and was never treated as such. 23. Ms Hewett said she remembered the Resident coming to the Rest Home. She said she prepared care planning documentation for the Resident including the Resident Admission form, the Daily Care Plan, the Falls Risk assessment form, the Waterlow Assessment form, and a Medication Record. She said in her evidence that the Daily Care Plan, the Falls Risk and the Waterlow Assessment forms were missing from the records she had seen; and it is the case for the Director that, although Ms Hewett was one of the Director’s witnesses, the Director does not accept that the necessary documentation was completed adequately given other evidence and particularly given that there were no such forms on the file. 24. Ms Williamson said that the normal practice was for a Registered Nurse to complete the various forms usually with the family, but that in this case (unusually) this seems not to have been done because there were no such forms completed adequately on the file. 25. Ms Williamson also referred to a Daily Care Plan form which was apparently different from the other forms, which showed the Daily Care Plan and was placed in the Resident’s wardrobe for caregivers to have easy access to this information.
1 ABD 164 8
26. Ms Williamson said that when there was an enquiry into the matter she and Ms Ward gathered the documents requested and discovered that forms were incomplete. She said2 that they both looked through filing cabinets and later, after Ms Hewett had left the Rest Home, Ms Williamson had discovered that many of the residents’ clinical documents were incomplete and she had to go back and complete them where there were gaps. 27. Ms Ward said that when it came to documentation needed, she left this to Ms Hewett as the Registered Nurse. These required clinical judgment for completion particularly around the care plan and the assessment of risk of falls and she said that the Registered Nurse had to ensure there was a proper plan put in place to respond to that. Ms Ward accepted that her job description gave a general obligation to ensure that this documentation was completed; and that she always asked if all documentation was completed as outlined in the policies. 28. Following a fall on 10 July 2011 and consequent admission to the Tauranga Hospital for observation for a few days, the Resident was readmitted to the Rest Home as a permanent resident on 14 July 2011. There was a Permanent Resident Admission form provided to the Tribunal3. It appears that that form was filled out on that second admission because it bears the date “14/7/2011”. Ms Hewett acknowledged that she completed that form. Indeed she acknowledged that it appears it was completed in two different parts because of the different nature of her handwriting. On the second page “Reason for Admission” is shown as “Respite”. 29. Having heard the evidence, it is the assessment of the Tribunal that it was the responsibility of Ms Hewett, as Registered Nurse, to complete the necessary forms at the appropriate times. For a short term admission, such as respite care, the Short Stay Client Medication Record was completed; and the Tribunal finds that this was adequately done on 7 July 20114. As to other forms, however, the Tribunal finds there was inadequate documentation both for short term respite admission and later on long- term admission.
2 Evidence Paragraph 25 3 ABD 25 4 ABD 27 9
30. Although Ms Williamson referred to the forms normally being completed by a Registered Nurse (which would be Ms Hewett), at the same time she did say that at the later investigation many of the files were found to be incomplete and forms needed to be completed to the extent that was then possible. 31. The Tribunal does not accept Ms Hewett’s evidence that the forms were completed in the case of this resident. There was no evidence to suggest that systems in place at the Rest Home were so inadequate that forms were not properly kept on files. Forms which were completed, such as the Resident Admission form, the Short Stay Client Medication Record, page 1 of the Admission Assessment form, the Care Record5, and the Daily Progress Notes apparently all formed part of the file and there is no explanation given as to why other forms and pages of other forms should have been substituted in blank for what Ms Hewett claims were completed forms. 32. Accordingly the Tribunal has made its decisions based on there having been inadequately completed forms at the time of respite and then long-term admission for the Resident.
The Resident – three falls 33. The Resident had three falls while at the Rest Home, on 10 July 2011, on 24 July 2011 and on 3 August 2011. 34. Following her fall on 10 July 2011 the Resident was transferred to Tauranga Hospital for observation and then on 14 July 2011 re-admitted to the Rest Home as a permanent resident. The Hospital had identified her as a high falls risk6. 35. It is the case for the Director that there should have been a falls risk assessment completed or reviewed by Ms Ward after each of these falls. The expert witness for the Director, Registered Nurse Kaye Milligan, a nurse from Christchurch, said7 that the Registered Nurse, Ms Hewett, should have ensured a falls risk assessment was completed and that Ms Ward, as Rest Home Manager, should have followed up on the Accident and Injury Report and ensured that Ms Hewett had completed a falls risk assessment.
5 ABD 64 6 ABD 24 7 Evidence Paragraph 60 10
36. Neither Ms Hewett had carried out the falls risk assessment nor Ms Ward had taken steps to ensure that this was done. 37. Ms Hewett in her evidence referred to the fall, having found the Resident to be “unresponsive”, and to the calling of the ambulance and transfer to hospital; but said that she was not involved in the care of the Resident at the time but “subsequently reviewed the incident report to assess whether any further action was required”. 38. In her evidence on the matter, Ms Ward referred to issues about calling an ambulance in respect of other falls that the Resident had later and the cost of doing this, referring to the fact that she did call at the first fall. Ms Ward said that the Resident “was assessed as not having any significant issue…” which does not accord with the Tauranga Hospital Notification form that referred to “Need level: High”8 and “… high falls risk…” and “NEEDS: Supervision for safety in a secure facility.”9 It also referred to her “Maple score” as “High (4)”. 39. The second fall for the Resident was on 24 July 2011, when she fell out of a chair bruising her arm and head. An entry was made concerning this in the Daily Progress Notes.10 These include the record at 2.20 pm of the fall at about 10.00 am that morning, that the caregiver was keeping an eye on the Resident, and she had had visitors. They further record at 10.10 pm that the Registered Nurse came to see the Resident with: “Mobility OK, responding well food/fluid good. BNO. settled well into bed” signed by the caregiver. Ms Hewett said that she did review the Resident the next day, 25 July 2011, when she noted bruising and swelling of the left hand and outside of her left eye; and that the Resident had a good range of movement in her fingers. 40. Also completed was an Accident & Incident Report11 which was signed by Ms Hewett and this included the entry: “Recommendations: R N suggested for X ray – E N suggested bandaged and observe till tommorow [sic]”. In fact it was the course suggested by the Enrolled Nurse, Ms Ward, that was followed in respect of the Resident, namely that her arm was bandaged and she was left for observation until the
8 ABD 23 9 ABD 24 10 ABD 69 11 ABD 80 - 81 11
following day. The suggestion of Ms Hewett for the X-ray was not followed despite Ms Hewett’s having been the Registered Nurse. 41. This only serves to emphasise the conflict there apparently was at the Rest Home between what the Registered Nurse, Ms Hewett, considered was appropriate and what the Enrolled Nurse, Ms Ward, considered was appropriate in the context of her also being employed as the Manager and responsible for budgetary and financial constraints. 42. No falls risk assessment was recommended or carried out. 43. The Resident fell for the third time on 3 August 2011. Ms Hewett said that at 11.05 pm on 3 August 2011 the Resident was found to be sitting on the floor between her bed and the dresser; and that she was identified as having a sore thigh and was helped back into bed12. The Daily Progress Notes13 for the following morning, 4 August 2011, refer to an entry by Ms Hewett at 9.20 am concerning the fall by the Resident during the night with pain in her left hip area and medication given. An Accident & Incident Report was completed by the caregiver14. Ms Hewett said that she was notified of the fall at 9.20 am on 4 August 2011 and went to assist the Resident, describing the checks that she made and concluding that she “showed no signs of discomfort” at the time. 44. Ms Hewett also said that she saw the Resident at various points during the day making entries at 9.20 am, 10.50 am and 3.30 pm. The Daily Progress Notes record these entries.15 45. Ms Hewett said that following her 3.15 pm visit she made the entry in the Daily Progress Notes at that time reading:
“Please reassess [the Resident] tomorow [sic] for mobility for possible X ray give 20 mls regular paracare.”
46. The next entry for that day, 4 August 2011, in the Daily Progress Notes was made at 10.10 pm. Strangely (and apparently unusually) the information recorded was at the commencement of the next Sheet No 6 and was not a continuation immediately after
12 Refer ABD 84 13 ABD 73 14 ABD 84 15 ABD 73-74 12
the previous entry appearing on the reverse side of Sheet No 5 timed at 3.15 pm that day. No explanation was given for the space having been left as this was not what was normally done. The person who made the entry at 10.10 pm did not give evidence about this. 47. This is significant because the evidence from Ms Ward was that the entry for 3.15 pm on 4 August 2011 was not seen by her at any time over the weekend of 6-7 August 2011. Ms Ward said that the entry she saw was at the end of Sheet No 5 of the Daily Progress Notes, the entry made at 10.50 am. She does not refer to the entry of 2.15 pm that day signed by the caregiver. The implication from an investigation was that Ms Hewett had made the 3.15 pm entry into the Daily Progress Notes some time later and was able to do this because the 10.10 pm entry had been commenced at the beginning of Sheet No 6. Ms Hewett denied this and said that she wrote the 3.15 pm note before going on leave and recalled doing so. 48. Ms Hewett was on leave for the next five days and said that she spoke to Ms Williamson who was coming on duty as the Registered Nurse the next day. She referred to the handover to Ms Williamson and said that she left handover notes for Ms Williamson on a handover sheet; but this was not produced to the Tribunal. Ms Williamson said that it was not long after she started at the Rest Home that there was a written handover form developed where Ms Hewett would write anything significant down; but this was not the case when Ms Williamson started on 5 August 2011 and there was no handover form then. The Tribunal accepts the evidence of Ms Williamson in this matter and finds there was no written handover from Ms Hewett to Ms Williamson at that time. 49. This was the position at the Rest Home, Ms Williamson’s first nursing job as a new graduate. On 1 and 2 August 2011 she had two days of orientation from Ms Hewett and then began her first duty as a Registered Nurse. Ms Williamson said that she believed her orientation was inadequate and that she was not fully prepared to work as a sole Registered Nurse after such a short period. 50. Effectively Friday, 5 August 2011, was the first working day for Ms Williamson as a Registered Nurse. She worked the day shift from 8.00 am to 4.00 pm. She said that she did not recall having any kind of formalised handover from Ms Hewett about the 13
Resident and that Ms Hewett did not tell her about the 3 August 2011 fall or that she wanted Ms Williamson to reassess the Resident on 5 August 2011. 51. Ms Williamson said that during the breakfast medication round on 5 August 2011 she questioned the Resident about pain and was told that she was not in pain. She gave other evidence about her dealing with the matter during that period and said that she looked at the Resident’s Daily Progress Notes and read the assessment by Ms Hewett of 10.50 am on 4 August 2011. She said that she felt reassured by this assessment and she said that she did not see the entries for 2.15 pm or 3.15 pm that day and that she is sure that, if the 3.15 pm note had been there, she would have assessed the Resident and sent her for an X-ray. 52. The assessment of the Tribunal on these matters is that, while it is strange and unexplained that there was a space left on the reverse side of Sheet No 5 after the 3.15 pm entry when the 10.10 pm entry was made, the Tribunal accepts that the entry had been made by Ms Hewett at 3.15 pm. 53. The Tribunal assesses that what Ms Ward saw of the Daily Progress Notes was the front side of Sheet No 5 and she did not look to the reverse of that Sheet to read the continuation of the entry for 10.50 am or the entries for 2.15 or 3.15 pm. It seems likely that that may have been the same for Ms Williamson; but that is perhaps more readily explained because this was Ms Williamson’s first day on duty as a Registered Nurse. 54. Ms Williamson was not rostered to work on 6 or 7 August 2011 but was on call. She was not based at the Rest Home over the weekend (and neither was Ms Hewett). Ms Williamson said she did not receive any calls from the Rest Home during those two days. 55. The Resident’s daughter, Mrs E (whose name is suppressed and is hereafter referred to as Mrs E), said that other family members visited the Resident on Friday, 5 August 2011, and were alarmed at her injuries, describing that she had a swollen leg and facial bruises. Mrs E telephoned Ms Ward to ask that her mother be seen by a doctor and was, she said, assured that her mother was alright on painkillers. 56. Mrs E visited the Resident again on Saturday, 6 August 2011, and found her incoherent with her whole leg down to the ankle very bruised, swollen and cold; and that she could not stand up and was in a wheelchair. Mrs E said she called Ms Ward 14
and spoke to her and Ms Ward said to leave it to her, that she would call and check the Resident out and ring back; but she did not call back. Mrs E said she rang the Rest Home that evening to follow up with Ms Ward but no one answered the phone. 57. Ms Ward said she was called back to the Rest Home on Saturday, 6 August 2011, and referred to the note she made in the Daily Progress Notes16 at 12.35 pm:
“Called to see [the Resident] as family concerned. Please make sure that [the Resident] has 20 mls paracare 4 – 6 hourly for pain over next 48 hours for reassessment on Monday 8/8/11.”
58. Ms Ward said that she did have a specific recollection of speaking to the family. She said that she thought she had rung the family afterwards and reported back to them how the Resident was doing but accepted there was no note of that and the evidence from the family did not say that either. She said that the Resident seemed coherent and not to be in pain; that there was no record in the notes of the Resident’s having been provided with pain relief after the family saw her. 59. Ms Ward said that the way the Resident presented together with Ms Hewett’s note indicating there was no break in the hip meant that she did not see this as a high risk situation. She decided to continue the care that Ms Hewett had set out, namely the giving of pain relief and monitoring of the situation. 60. Ms Ward also said that she found it strange that Ms Hewett had made a note requiring on-going observation of the Resident knowing that she was away over the weekend as was the newly Registered Nurse, Ms Williamson, and Ms Ward herself. She said she did not know who was expected to provide the monitoring when Ms Hewett did not speak to Ms Williamson or her, Ms Ward, about the case. 61. Mrs E said that she and her father called again on Sunday, 7 August 2011 and found the Resident quite heavily medicated although a bit brighter. 62. Ms Williamson said that when she returned to work on 8 August 2011 there was no discussion concerning the Resident or any issues about her care. Ms Williamson said that she did not carry out any formal assessment of the Resident on 5 August 2011; but in hindsight, realised she ought to have undertaken a comprehensive nursing assessment of the Resident when she heard she had had a fall.
16 ABD 75 15
63. When Ms Hewett returned to work on 9 August 2011 she said she was “horrified to find [the Resident] in pain and very distressed.” She arranged for an ambulance to transfer the Resident immediately to Tauranga Hospital and telephoned the Resident’s daughter to tell her what had happened and apologise for what she felt was delay in referring the Resident to hospital. 64. Mrs E said that she went to the hospital on Tuesday, 9 August 2011 and eventually, when her mother arrived at the hospital, an X-ray showed that she had broken her hip. 65. It is in that context that the Charge and its four particulars against Ms Ward are brought and considered by the Tribunal.
The Charge - discussion
66. The onus is on the Director to prove the Charge and the standard is the balance of probabilities with the seriousness of the allegations determining the level of satisfactory proof.17 67. The Charge is laid first under section 100(1)(a) of the HPCA Act which requires the finding of an act or omission that amounts to malpractice or negligence in relation to the scope of practice. 68. “Malpractice” is defined in Collins English Dictionary (2nd ed.) as:
“The immoral, illegal or unethical conduct or neglect of professional duties. Any instance of improper professional conduct.”
69. Although malpractice is often equated with negligence it is perhaps better considered as a broader concept, capable of encompassing neglect, but also of extending to trespassory conduct in the process of caring for patients in relation to consent, breaches of patient confidence and fiduciary obligations, and certain other forms of conduct.18 70. In the context of professional misconduct as provided in section 2 of the Nurses Act 1977 Gendall J19 noted at paragraph 21: “Negligence or malpractice may or may not be sufficient to constitute professional misconduct and the guide must be standards applicable by
17 Z v Dental Complaints Assessment Committee, [2009] 1 NZLR 1 18 Medical Law in New Zealand, 2006 at para 23.65 19 Collie v Nursing Council of New Zealand [2000] NZAR 74 16
competent, ethical and responsible practitioners and there must be behaviour which falls seriously short of that which is to be considered acceptable and not mere inadvertent error, oversight or for that matter carelessness. That sort of test must still apply to the malpractice/negligence definition in s. 2(a) of the Act.”
71. He then said at paragraph 23:
“Clearly it envisages conduct in the performance of the nurse’s usual professional duties if it amounts to “malpractice or negligence”. That requires, in line with authorities and the accepted view, that the negligence or malpractice be of a serious degree and such as to be substantially below the standards expected of a nurse.”
72. The Charge is also laid under section 100(1)(b) of the HPCA Act, namely that the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred, in this case nursing. 73. The term “To bring discredit to the nursing profession” has been described20 in the following way: “[28] To discredit is to bring harm to the repute or reputation of the profession. The standard must be an objective standard with the question to be asked by the Council being whether reasonable members of the public, informed and with knowledge of all the factual circumstances, could reasonably conclude that the reputation and good-standing of the nursing profession was lowered by the behaviour of the nurse concerned.”
74. As the authorities make clear21 in addition to finding the Charge made out in its respective Particulars, the Tribunal is also required to decide whether the matter is sufficiently serious to warrant a disciplinary sanction either for protection of the public, maintaining professional standards or punishing the practitioner. 75. In support of the Charge and its particulars the Director relied on the Age-Related Residential Care Services Agreement under which the Rest Home operated requiring
20 Collie v Nursing Council of New Zealand; above n 18 21 PCC v Nutall: 8Med04/03P: paragraph 71.2 17
it to engage a manager who holds a current qualification or has experience relevant to both management and the health and personal care of older people.22 76. The expert witness for the Director, Ms Milligan, confirmed that Ms Ward’s job description did appear to be consistent with that requirement. Compliance by the Rest Home with its Age-Related Residential Care Services Agreement required compliance by Ms Ward with her employment contract with the Rest Home. The job description for Ms Ward in her employment contract, in its reference to the prime concern being the health and wellbeing of residents and the like, was consistent with the Age-Related Residential Care Services Agreement requirements. It was also consistent, Ms Milligan said, with the Health and Disability Services (Core) Standards23. There was specific reference in the job description which required Ms Ward “Ensure staff fills in record books and resident care plans correctly.” Ms Milligan said that as well as commercial obligations Ms Ward was responsible for ensuring that appropriate training was provided to new employees, that staff orientation was of a high standard, that staff practice was regularly reviewed by performance appraisals, and for arranging and facilitating monthly in-service training. 77. Ms Milligan also gave evidence that, when new Competencies were developed in May 2010 Ms Ward did not transition into the new Competencies but was nevertheless still able to work in a Rest Home and dementia facility such as Killarney Rest Home but was still required to meet certain of the Core Competencies. 78. The Competencies for Enrolled Nurses promulgated by the Nursing Council of New Zealand (“NCNZ”) published May 2012 included: 78.1. Competency 1.4 “Promotes an environment that enables health consumer safety, independence, quality of life, and health.”24 Ms Milligan said25 that the Indicator for this Competency: “Identifies and reports situations that may impact on the safety of health consumers or staff” was important as was the fourth Indicator: “Initiates appropriate interventions in emergency situations.”
22 Clause D17.3. ABD 245-246 23 NZS 8134.1.2:2008 24 ABD 307 25 Transcript Pages 137-138 18
78.2. Competency 2.4: “Contributes to the evaluation of health consumer care” with the Indicators: “Monitors and documents progress towards expected outcomes” and “Contributes to the review of care plans in collaboration with the registered nurse.” 78.3. Competency 4.1: “Collaborates and participates with colleagues and members of the health care team to deliver care” with the Indicators: “Provides other members of the team with accurate and relevant information to assist in decision making and provision of care” and “Contributes to discussion related to nursing practice, systems of care planning and quality improvement.” 79. It was submitted by the Director that exercising clinical judgment was a fundamental part of Ms Ward’s role as Manager including when: 79.1. Reviewing RN performance. 79.2. Reviewing planning documentation to ensure that it met standards and policies. 80. Reference was made to the day-to-day clinical care given by Ms Ward to the Resident such as calling an ambulance after the 10 July 2011 fall; bandaging the Resident’s arm on 24 July 2011 and deciding to defer the X-ray to the following day; receiving a call from the Resident’s daughter on 5 August 2011 and deciding not to call in a Registered Nurse or general practitioner; assessing the Resident on 6 August 2011 and deciding not to call in a Registered Nurse or general practitioner; admitting patients at times; being involved in the handover of patient care; and, after the incidents in question, employing three Registered Nurses and educating them on what needed to be done after falls and development of a handover form.26 81. The Tribunal accepts that the evidence does support that submission. Ms Ward had quite a significant professional role in respect of the residents at the Rest Home quite apart from her responsibilities as Manager. Her employment contract commencing 15 September 2009 was as an Enrolled Nurse27 and the prime concern as Manager was the health and wellbeing of residents which called on her to exercise professional skill and judgment. She did this in fact from time to time as set out.
26 Transcript Pages 67 and 70 27 ABD 135 19
82. These circumstances highlight the dilemma arising when an Enrolled Nurse also has responsibilities for management of a facility such as the Killarney Rest Home but at the same time an employee of the rest home is a Registered Nurse. 83. On the one hand it is the Registered Nurse who has the primary responsibility for the care of the residents or patients as the case may be. In that regard the Enrolled Nurse must take direction from the Registered Nurse on matters where professional decision is required. 84. This is made more so where, as in this case, the Enrolled Nurse has chosen not to extend her Competencies and had a restriction placed on her Annual Practising Certificate. What this means is that the Enrolled Nurse, in exercising her managerial position and responsibilities, must also be very conscious of any risk of conflict between those duties and the duties she has as an Enrolled Nurse directly to the residents or patients and in respect of directions or decisions made by the Registered Nurse. 85. In this case that was aggravated by the fact that the only other Registered Nurse at the facility at the time was a newly qualified nurse on her first days of duty. Both Ms Ward and Ms Hewett should have been very sensitive to the needs that Ms Williamson had in becoming familiar with the residents and their needs, getting to grips with the forms and procedures of the Rest Home, and understanding the relationship between Ms Hewett as the Registered Nurse and Ms Ward as the Enrolled Nurse/Manager and any sensitivities or conflicts that that may have potentially involved. 86. Both Ms Hewett and Ms Ward were more mature and senior practitioners and should have been significantly conscious of these matters for Ms Williamson. To have left Ms Williamson in sole charge of the Rest Home, particularly at a time when she was only on call, with both Ms Hewett and Ms Ward not readily available, imposed huge challenges on Ms Williamson. 87. Any decisions that Ms Ward made as Manager of the Rest Home should have been tempered first by her own professional responsibilities as an Enrolled Nurse to the residents; and secondly by the decisions and directions given to her by the Registered Nurse whose primary responsibility was the care of the residents. 88. If Ms Ward had perceived some conflict, perhaps in the context of directions from, or strictures imposed on her by the owner or owners of the Rest Home, she should have 20
carefully addressed these with the owners so as to ensure that resident care and safety was not compromised. If Ms Hewett, as Registered Nurse, had made a recommendation in respect of a resident, and Ms Ward did not consider that this was necessary or available within any budgetary constraints, she should have carefully discussed this with Ms Hewett and the matter should have been properly dealt with and documented.
Particular 1 - Failure to ensure that adequate standards of care planning and falls risk assessment were set out and/or maintained 89. The Director relied first on the expert evidence of Ms Milligan that the admission assessments for the patient on both 7 July 2011 and 14 July 2011 were inadequate. Ms Milligan gave the Tribunal examples of what she would expect to see in a care plan and said:28
“… the completed individualised care plan would involve the initial assessments and that would be assessments of full body systems, psychosocial needs and any spiritual or cultural assessments that are relevant and then the specific interventions that are required which the caregiving staff would be asked to provide each day or over a week. For example, the Wednesday hair wash.”
90. The Director referred to there being no documentation of a falls risk assessment, there being no evidence that this assessment was done or form completed at any time for the patient, and that there was no record of a care plan being completed for the patient; and she referred to extracts from Ms Milligan’s evidence to support those submissions. 91. Reference was also made to the opinion expressed by Ms Milligan29 that as Rest Home Manager Ms Ward had responsibility for ensuring standards were met and concluded:
“Whilst this is primarily the responsibility of the RN, as the Rest Home Manager Ms Ward had the responsibility to oversee a system to ensure this was completed. In my view, Ms Ward’s failure as the Rest Home Manager to ensure care planning standards were met is a severe departure from expected standards of practice.”
28 Transcript page 130 29 Evidence Paragraph 50 21
92. The submissions for the Director included reference from the evidence to matters which it was submitted indicated that Ms Ward did not have adequate systems in place to ensure that care planning and falls risk assessments were carried out, including reference to the enquiries that Ms Ward made of Ms Hewett concerning completed documentation, and absence of a systematic process for checking that documentation was completed, the ability for Ms Ward to have been able to check files given that the facility only had 22 patients and not a high frequency of admissions, the requirement for Ms Ward to have been involved in following up accident reports, and that there was no system in place to ensure management of falls risks or responsibility for escalating falls risk management. 93. The Director relied on a letter which Ms Ward had written to the Resident and her family dated 9 December 2013. It contained an acknowledgement and acceptance by Ms Ward of a failure to provide appropriate clinical assessment for the patient or to have adequate documentation procedures in place. 94. The Tribunal has some disquiet about the use of this apology letter. Apparently it came about as the result of enquiries by the Health and Disability Commissioner (“HDC”) into the complaint that had initiated this matter and Ms Ward said that she had written the letter as the third letter of apology because the HDC said that her first two letters did not go far enough. In her evidence she said she stood by what she had said previously about care plans and falls risk assessment being the responsibility of Ms Hewett as Registered Nurse. In her evidence30 Ms Ward said that the letter of apology had to be written and that other persons had written letters of apology on direction from the HDC as well. When questioned further about this Ms Ward said31 that she did not read the HDC report as a recommendation but rather as a direction for the letter of apology and she referred to a letter which she had received from the HDC but which was not produced. 95. The disquiet that the Tribunal has about this letter is that a process of conciliation or mediation to achieve finality might include a recommendation for an apology. If that were the process that was followed by the HDC in this matter which resulted in the apology to which reference has been made, then Ms Ward could have thought that
30 Transcript page 197 31 Transcript page 201 22
that was an end of the matter. Instead she is facing the current Charge laid by the Director. 96. It could be said that the use of an apology provided in the earlier context was not the appropriate course for the Director. The Tribunal makes no final ruling on that but takes the context of the apology provided by Ms Ward into account. 97. The Director also relied on another (undated) letter written by Ms Ward to the HDC32 in which Ms Ward accepted full responsibility for the incident. The letter does also include, however, that the reason given was: “as I had mistakenly taken on a R/N who knew what [the Rest Home’s] policy on admission required but who deemed it unnecessary to complete all relevant documentation.” 98. This was indeed the approach taken by Ms Ward in her evidence and case at the Tribunal hearing. She referred to Ms Hewett as the sole Registered Nurse at the Rest Home at the time of admission by the Resident. She referred to the greater clinical experience she considered that Ms Hewett would have and said she would not question her judgment and would follow her direction on matters concerning the patients. She referred to Ms Hewett’s having been given the title of “Clinical Manager” at an earlier time which she said was recognition of the role that the Registered Nurse played in the Rest Home. 99. Ms Ward said that as an Enrolled Nurse she always deferred to Ms Hewett’s judgment as the Registered Nurse. She said that Ms Hewett was responsible for the documentation which required clinical judgment for completion especially around care plan and assessment of falls risk. She said that she always asked if all documentation was completed in the appropriate time frames; and that it was simply not feasible for her to review every admission and ensure the appropriate documentation was done. She said she considered her role was to make sure the documentation was there for Ms Hewett to complete when a patient was admitted. 100. Having weighed up the respective positions of the parties and taken into account the expert evidence provided from Ms Milligan, the Tribunal has formed the view that there were responsibilities on Ms Ward as the Manager in the context of her being an Enrolled Nurse with Competencies that did apply to her at the time. Certainly, on the
32 ABD 359 23
one hand she had to defer to the greater professional experience and qualifications of Ms Hewett; but that did not excuse her from ensuring as Manager of the Rest Home and as an Enrolled Nurse that the documentation in question was properly and adequately completed. 101. The Tribunal accepts that the documents for the Resident as found on the file and as presented to the Tribunal were incomplete. It does not accept any suggestion that there may have been alternative blank pages inserted on the file. It seems common ground that there were these inadequacies and it is primarily a question of responsibility for these. 102. The responsibility for completing the forms adequately and comprehensively lay with the Registered Nurse, Ms Hewett. This Charge does not involve Ms Hewett and there is no finding by the Tribunal concerning Ms Hewett’s responsibilities or any suggestion of deficiency. The Charge concerns the responsibilities of Ms Ward as an Enrolled Nurse and in the context of her being the Manager with the further responsibilities that this entailed. 103. The Tribunal does not accept that it was sufficient for her simply to enquire of Ms Hewett whether forms were completed or even to assume that Ms Hewett would do so in her capacity as Registered Nurse. Forms are essential for the proper discharge of the functions by any rest home facility or nursing professional. Careful assessments need to be made and recorded. It is the responsibility of the manager, particularly because this is required to be at least an Enrolled Nurse, to ensure that that is done properly and comprehensively so that there can be continuity of communication and proper baseline data for on-going care for any resident or patient. 104. The Tribunal finds that there is negligence on the part of Ms Ward in respect of this particular of the Charge in the context of her professional responsibilities as an Enrolled Nurse. It does not find any malpractice on her part nor does it find that her involvement in the matter brought or was likely to bring discredit to the nursing profession. 105. Whether Ms Hewett was involved in this negligent practice in any way is not for this Tribunal to decide on this Charge. 106. The Tribunal is further of the view that, although there has been negligence in the way the term is recognised in the context of health professional responsibilities, that 24
negligence is not sufficient on its own to merit disciplinary sanction for any of the purposes of maintaining standards, protecting the public or punishing the practitioner. The impact of that finding in the context of the totality of the particulars is dealt with later.
Particular 2 - Failure to ensure that a plan was implemented to manage the risk of future falls after the falls of 10 July 2011, 24 July 2011 and 3 August 2011 107. This particular of the Charge also involves the conflicting responsibilities between those of Ms Hewett as the Registered Nurse and Ms Ward as the Enrolled Nurse responsible for management. 108. It is the position of Ms Ward that in respect of the first fall on 10 July 2011 she reviewed the Resident and arranged for ambulance transfer to the hospital. She said that the Resident was assessed as not having any significant issue but kept in hospital for observation. 109. The expert witness, Ms Milligan, expressed the opinion33 that after this fall Ms Hewett, as Registered Nurse, should have ensured a falls risk assessment was completed and, if there had been one, then updated. 110. She further expressed the view that Ms Ward, as the Rest Home Manager, should have followed up on the Accident & Injury Report and ensured that Ms Hewett, as Registered Nurse, completed a falls risk assessment to ensure solutions were found. 111. Ms Milligan referred to the requirement for maintenance of employee performance as part of Ms Ward’s management responsibilities. 112. As to the second fall on 24 July 2011, Ms Ward said that this was initially dealt with by a carer at the Rest Home and the Resident was assessed then by Ms Hewett who did not record any significant concern in the notes. Ms Ward did not recall the incident specifically and said she did not make any note in the Daily Progress Notes for the Resident. The entry on 25 July 2011 at 3.30 pm34 was in fact made by Ms Hewett and refers to Ms Ward’s having applied bandage support.
33 Evidence paragraph 60 34 ABD 69 25
113. It is the Accident & Incident Report35 which has the conflicting recommendation of the suggestion by Ms Hewett for X-ray but the suggestion by Ms Ward for bandaging and observation until the next day. That report is signed by Ms Hewett. 114. It is unsatisfactory that there was conflicting professional response to this fall and the Tribunal is of the view that it is the opinion of Ms Hewett as the Registered Nurse which should have been followed. Ms Hewett should have taken the initiative to ensure that the X-ray that she suggested was in fact undertaken and, if this was refused by Ms Ward for management or cost-constraints reasons (and there is no direct evidence of this), then Ms Hewett should have carefully documented what her recommendation had been and the basis on which it was not followed. 115. Ms Ward responded to this particular of the Charge by referring to the responsibility that Ms Hewett had for clinical management of the Resident and also for completing a falls risk assessment. While Ms Ward accepted that there is reference in her job description to ensuring that care plans are done correctly, she said that this did not extend to determining the risk of future falls and a plan responding to that. 116. The evidence of Ms Milligan on this matter36 covered both and each of the 10 July 2011 and 24 July 2011 falls. 117. Given the evidence from the expert, Ms Milligan, it was the case for the Director that Ms Ward had failed to discharge their responsibilities as Enrolled Nurse/Manager to ensure that a falls risk assessment was carried out following this fall; when such an assessment was not carried out and then not properly implemented. 118. As to the fall on 3 August 2011, the caregiver completed an Accident & Incident Report. Ms Hewett, as Registered Nurse, was not notified overnight. 119. The evidence from Ms Hewett37 was that she learned of the fall at 9.00 am on 4 August 2011. Ms Milligan referred38 to the common practice for a Registered Nurse to complete some neurological assessments and for assessing for hip fracture; and expressed the view that, while Ms Hewett did complete two key assessments, these were at a minimal level. Ms Milligan described39 the assessment by Ms Hewett of the
35 ABD 80 36 Evidence Paragraph 60 37 Evidence Paragraph 21 38 Evidence Paragraph 66 39 Evidence Paragraph 70 26
position at 9.20 am and 10.50 am has “very minimal post – fall assessment”. She further said40 that recommending a review of the Resident the following day “minimally” met professional standards and the Daily Progress Notes were “minimum though adequate” assessments and interventions. Further comment was made about the pain assessment and use of the Abbey Pain Scale but Ms Milligan concluded that Ms Hewett’s assessment of the Resident and her management decisions and plan were the minimum expected to meet standards of practice.41 120. Ms Milligan then referred to communication of information issues concluding that, this having been done by the Daily Progress Notes, was appropriate but expressing the view that verbal hand over to Ms Williamson would have been preferable. 121. As to the involvement of Ms Ward in this whole matter, Ms Milligan said42 that Ms Ward should have been made aware of the fall but that, as her job description included staff management, it was reasonable to expect that Ms Ward ensured appropriate lines of communication were in place. 122. The essence of the evidence from Ms Milligan addresses primarily the role of Ms Hewett in the matter and communication issues at the Rest Home. 123. It is the view of the Tribunal that in respect of each of the three dates in question in this particular of the Charge there is negligence as that term is understood on the part of Ms Ward in failing to ensure that a risk management plan was implemented. Indeed, it seems there was not a risk management plan at all in place and that is another question. Without such a plan, Ms Ward could not ensure implementation. It was her responsibility as the Enrolled Nurse/Manager for the Rest Home to ensure that there was a plan and that this was implemented. 124. The Tribunal does not consider that this is malpractice as that term is defined. Likewise, the Tribunal does not find that this activity and discharge of responsibilities by Ms Ward brought or was likely to bring discredit to the nursing profession. 125. The Tribunal is, however, of the view that the matter on its own is of sufficient severity to warrant disciplinary sanction. While the primary emphasis of Ms Milligan’s evidence in the matter was addressed to the role of Ms Hewett and inadequacy of
40 Evidence Paragraph 70 41 Evidence Paragraph 73 42 Evidence Paragraph 75 27
communication in the Rest Home, there are the aspects of managing communication in the Rest Home and discharge of professional duties as an Enrolled Nurse that implicate Ms Ward such that disciplinary sanction should follow. Standards need to be maintained in these respects in the profession and the public needs protection from mismanagement of this kind and failure to discharge professional obligations in this way.
Particular 3 - Failure to notify, or failure to ensure notification to, the family of the two falls on 24 July 2011 and 3 August 2011 126. It is undisputed that there was notification to the patient’s daughter of the fall on 10 July 2011 and this particular of the Charge refers to the two subsequent dates. 127. The Resident’s daughter, Mrs E, gave evidence that no one rang or told the family about the fall on 24 July 2011 and the family only found out about it on a subsequent visit and enquiry. She also said that the family was not advised of the 3 August 2011 fall and only found out about this two days later when the Resident’s husband visited and found the injuries to the Resident. 128. In her statement Ms Hewett did not refer at all to having made contact with the family when she learned of the 3 August 2011 fall, which was at 9.00 am on 4 August 2011. 129. In her evidence Ms Ward said43 that she was called back to the Rest Home on 6 August 2011, which was three days later. Her entry in the Daily Progress Notes for the day at 12.35 pm included “Called to see [the Resident] as family concerned.” Clearly by then the family were aware of the matter and indeed the Resident’s husband had visited the previous day and found the injuries. 130. Ms Ward said she did specifically recollect speaking to the family and that she thought she had rung them afterwards and reported back to them but accepted there was no note of that. 131. The entry in the Daily Progress Notes for 3 August 2011 at 11.00 pm included: “Visitors this afternoon”, but this was apparently not a family member but rather a friend.
43 Paragraph 186 28
132. The Family/Whanau Communication form that the Rest Home used was not completed at least so far as the Resident was concerned and that is inadequate. There was no Enduring Power of Attorney document on the Resident’s clinical records and no copy of the required medical certification which would activate the Power of Attorney. That was the responsibility of Ms Ward as the Rest Home Manager. 133. The Director referred to the Health and Disability Services (Core) Standards,44 Standard 1.9, Criterion 1.9.1 and Standard 1.10 which require that consumers have full and frank information and open disclosure, and that family members are provided with information they need to make informed choices and give informed consent. Reliance was also placed on Competency 3.1 which requires that the Enrolled Nurse establish, maintain and conclude therapeutic interpersonal relationships with the Indicator being to establish rapport and trust with the health consumer and or family/whanau. 134. Ms Milligan in her evidence45 said that Ms Ward’s failures to ensure that the Resident’s family and the person holding the Enduring Power of Attorney were informed of the falls were “moderate to severe departures” from accepted standards of practice. The relatives should, she said, have been notified at the time of the falls if this was their preference or when they visited. 135. The Tribunal takes that evidence into account; but also in the context that there had been a visit from a friend on 3 August 2011 and the Resident’s husband on 4 August 2011 and the family were, to that extent, aware of the situation. 136. That does not alter the fact that there were the responsibilities to notify the family and specifically in Ms Ward’s case to ensure that there were procedures and forms in place so that as soon as reasonably practicable after the falls had occurred, family or whanau were notified. 137. Accordingly the Tribunal has formed the conclusion that there was negligence on the part of Ms Ward in respect of family notification forms and procedures and management such that she did not adequately ensure that the family were notified of either of these falls as promptly as they should have been.
44 NZS 8134.1.1 45 Paragraph 106 29
138. This is negligence and it has brought discredit to the nursing profession. It is sufficient of itself to justify disciplinary sanction because standards need to be maintained and the public protected to that extent. Questions of penalty are dealt with below.
Particular 4 - Failure to seek appropriate clinical assessment on 5, 6, 7, and/or 8 August 2011 139. It was Ms Hewett who was the first professional aware of the fall that the Resident had had overnight 3/4 August 2011. She was notified of the fall at 9.00 am and assessed the Resident. She said it was difficult to obtain a concise picture of her pain due to her deteriorating dementia. She made the entries in the Daily Progress Notes of 9.20 am and 10.50 am. She then made the further entry at 3.15 pm calling for a reassessment of the Resident the following day for mobility for possible X-ray. 140. Ms Hewett said she spoke with Ms Ward and made it clear that the Resident should be reassessed the next day or if she showed signs of pain or distress46. She further said:47 “I just spoke to her about making sure that [the Resident] was reassessed and if she needed any pain relief and if she showed any deterioration, to have a doctor see her or take to the hospital or whatever needed to be done.”
141. It was on the next day that Ms Williamson had her first working day and was on shift from 8.00 am to 4.00 pm. She said48 that she did not recall having any kind of formal hand over from Ms Hewett about the Resident. Apparently she did not have any information or handover from Ms Ward as to what Ms Hewett had told her. 142. It was submitted by the Director, which the Tribunal accepts, that this was a significant failure because it was Ms Williamson’s first day at the Rest Home; and had the particular concerns been drawn to her attention it is likely that Ms Williamson would have conducted a clinical assessment of the Resident. 143. That same day, 5 August 2011, Mrs E, the Resident’s daughter, having found out about her mother’s condition, telephoned Ms Ward to ask that she be seen by a doctor and was assured that the Resident was alright on painkillers.
46 Evidence paragraph 24 47 Transcript page 98 48 Evidence Paragraph 14 30
144. This response was dismissive of concerns and the Tribunal notes the evidence of Ms Milligan:49 “In this setting, if relatives are telling you that they are concerned, that's usually significant and should be taken very seriously because relatives notice very subtle changes that may not be as obvious to people who don't know the person as well and so, I think that there was some concern raised on Friday and on Saturday is highly significant and in itself should have generated quite a thorough assessment.”
145. The Tribunal accepts the opinion expressed by Ms Milligan50 that appropriate care did not occur as an assessment was not completed on 5 August 2011. Ms Ward had responsibilities that day, particularly in the context that it was Ms Williamson’s first day at work, and given what she had been told about the condition of the Resident, and she failed adequately to follow that up with an assessment. 146. The following day, Saturday, 6 August 2011, when Mrs E visited the Resident, the condition she found her in was such that she asked a carer to call an ambulance or a doctor. Mrs E said she spoke to Ms Ward who said to leave it to her, that she would call and check the Resident out and ring back. Ms Ward said that she met with the Resident who seemed to be coherent and not in pain. She did not adequately read the Daily Progress Notes or take sufficient notice of the 3.15 pm entry on 4 August 2011 by Ms Hewett calling for a reassessment for mobility for possible X-ray. 147. Ms Ward placed reliance on the 10.50 am entry which she thought did not indicate a fracture or high risk and failed to note the further entries mentioned. 148. For Ms Ward to say that it was strange that Ms Hewett should make a note requiring on-going observation knowing she, Ms Williamson and Ms Ward were not to be present that weekend simply indicates to the Tribunal first that there was inadequate management taking place and secondly, inadequate acceptance of her responsibilities as the on-call nurse on duty. Procedures should have been more clearly defined and in place to allow for proper hand-over and proper instruction as to what was required for individual residents, particularly when there were concerns expressed by the Registered Nurse.
49 Transcript page 137 50 Evidence Paragraph 84 31
149. Perhaps Ms Hewett could have done more in her hand-over or communications concerning the Resident, but at least so far as Ms Ward is concerned, both in respect of her management responsibilities and in respect of what had she was told on Saturday, 6 August 2011, Ms Ward has failed to discharge her professional responsibilities adequately. 150. Ms Milligan expressed the view51 that Ms Ward should have assessed the Resident’s general condition, level of functioning mobility and ability to stand, any changes in behaviours, and for signs of fracture. She said that Ms Ward should have reported to the Registered Nurse, which would have been at that stage Ms Williamson. If Ms Ward recognised the situation was outside her level of competence, Ms Milligan said, she should have contacted the Registered Nurse; and the documentation is inadequate and indicates that no assessments were made. By that time two days had passed since the assessment of the Resident by Ms Hewett and the evidence from Mrs E, the Resident’s daughter52 was that the Resident could not stand up and was in a wheelchair. 151. Ms Milligan said53 in the context of what Ms Ward could have done:
“Things that she should have done would be to talk to the caregiving staff about how [the Resident] had been that morning, whether she was her usual self, whether she'd been able to get up, how mobile she was, whether she'd been able to have a shower, so trying to get some information from caregiving staff about what they have noticed.
She should also have looked at the leg because, clearly, the family were very concerned and as lay people they were very concerned about the fact that it was cold, swollen and bruised, so looking at the leg would have been extremely helpful. And the other assessments would be, as I've suggested here, taking vital signs, blood pressure and pulse and, you know, looking for signs of fracture, such as the leg rotating out, shortening of the leg.”
152. The dilemma for the Resident was exacerbated on 7 August 2011, the only entries in the notes being at 1.30 pm and 10.00 pm and referring to an inability to stand. Mrs E said that on that day at about 4.00 pm the Resident seemed quite heavily medicated although a bit brighter. None of Ms Hewett, Ms Ward, or Ms Williamson had any
51 Evidence Paragraph 88 52 Evidence Paragraph 10 53 Transcript page 136 32
connection with the Resident that day. Ms Hewett was on leave and Ms Ward said that she and not Ms Williamson was on call.54 Ms Ward made no inquiry that day about how the Resident was faring, given the concerns that had been expressed on the previous day, Saturday, 6 August 2011. 153. On 8 August 2011 Ms Williamson returned to work but has no recollection of the shift or of any one discussing the Resident with her or raising issues about her care. Ms Williamson said55 she did not recall seeing the entry that Ms Ward had made on 6 August 2011 at 12.35 pm. Neither Ms Hewett nor Ms Ward were in attendance that day either. Again Ms Ward made no enquiry about the Resident or expressed any concerns for her condition. 154. Fortunately, the following day, 9 August 2011, proper attention was received for the Resident and the matter dealt with adequately. That day does not form part of the particulars of this Charge. 155. The Tribunal does not place significant emphasis or weight on the letter of apology for the reasons of the context in which it was written as referred to earlier. That is not to say that the Tribunal does not note that the apology was given or the terms that Ms Ward was prepared to express this in. The Tribunal has been able to assess the matter quite independently of what Ms Ward may have said in the letter of apology written in the circumstances mentioned. 156. Competency 1.3 of the Competencies for Enrolled Nurses (which did apply to Ms Ward) requires that she “[demonstrate] understanding of the Enrolled Nurse scope of practice and the Registered Nurse responsibility and accountability for direction and delegation of nursing care” with an Indicator including that guidance be sought from a Registered Nurse where there are situations encountered which are beyond the knowledge, competence or scope of practice of the Enrolled Nurse. 157. In the context of Competency 1.4 one Indicator is that the Enrolled Nurse will initiate appropriate interventions in emergency situations to “[promote] an environment that enables health consumer safety, independence, quality of life, and health.”
54 Transcript page 199 55 Transcript page 74 33
158. The Tribunal accepts the submission56 from the Director that in both her roles as the Rest Home Manager and as an Enrolled Nurse, Ms Ward was expected to ensure a Registered Nurse or general practitioner completed an assessment of the Resident on 5 and 6 August 2011 and to have followed this up with the inquiry on 7 and 8 August 2011. 159. While the Tribunal recognises that an Enrolled Nurse practises under the direction and delegation of a Registered Nurse as required by the NCNZ, at the same time the Enrolled Nurse, in this case Ms Ward, has her own responsibilities and these are twofold. The first in relation to management responsibilities and the second in relation to her responsibilities as a nursing professional. 160. Ms Ward should have taken more care when the warning signs were given in respect of the Resident on the occasions that are mentioned. She should have realised the shortage of professional and experienced nursing capacity in the Rest Home at the time with Ms Hewett having been on leave and Ms Williamson having only just started in the profession. Apart from the inadequacies of the forms which are referred to earlier and which would have exacerbated the situation, care was needed to ensure that notes that had been taken were carefully read and followed up and, if there were inadequacies in the note taking, questions were raised. 161. The entries that there were made in the Daily Progress Notes combined with the concerns expressed by family members should have alerted Ms Ward to the situation more urgently than it did. Follow up procedures were required in handing over to Ms Williamson and in following up the recommendation that had been made by Ms Hewett in the daily practice notes. 162. Even the very assessments that Ms Ward made of the Resident in the context of her increasing inability should have alerted her more than it did. Her professional competence required that, if she was in any way concerned about her own ability to deal with the matter, she should have consulted with Ms Williamson or a general practitioner, or, if an enquiry from Ms Hewett was called for, then Ms Hewett, to be sure that standards were not compromised and the public, namely the Resident, placed at risk.
56 Paragraph 64, closing submissions 34
163. The Tribunal accepts that the Charge in respect of this particular 4 is made out as both negligence and malpractice on the part of Ms Ward; and as bringing discredit to the nursing profession. It is of sufficient severity to warrant disciplinary sanction for maintaining standards, protecting the public and punishment for the practitioner. 164. Finally, in respect of all particulars, although some individually have been found not to be of sufficient severity to warrant disciplinary sanction, when taken together they do.
Penalty 165. Having announced this decision to the hearing, the Tribunal considered then the question of penalty. It was the submission of the Director that there should be conditions placed on Ms Ward’s practice should she seek to return to nursing practice; that she should be censured and fined; and that she should be ordered to pay a contribution of 50% to costs (with a summary of the decision appropriately published). Name suppression is dealt with below. 166. The Director referred to sentencing principles from the cases and various comparable cases all of which the Tribunal has taken into account. Aggravating factors mentioned were the repeated falls before any plan was implemented, the failure to adequately assess the Resident after the third fall or refer for appropriate assessment and the failure to acknowledge Ms Ward’s need to improve areas of her own practice. 167. Ms Ward said57 that she was no longer practising as an Enrolled Nurse and had surrendered her Practising Certificate. She said she was on a minimum wage and now has no savings as she has used these for caring for her mother. She does not own her own home but rents a house. She has her own car but no other assets. She has an independent daughter living with her who has her own child. 168. As to penalty the available penalties for the Tribunal are:58
168.1. That registration be cancelled. 168.2. That registration be suspended for a period not exceeding 3 years.
57 Transcript pages 204 – 205 58 Section 101 of the HPCA Act 35
168.3. That the health practitioner be required, after commencing practice following the date of the order, for a period not exceeding 3 years, to practise his or her profession only in accordance with any conditions as to employment, supervision, or otherwise specified. 168.4. Censure. 168.5. A fine of up to $30,000.00 (but not if he or she has been convicted of a relevant offence or damages have been awarded against the practitioner (which does not apply here)). 168.6. Costs. 169. The eight factors normally taken into account on the basis of authorities59 are: 169.1. That penalty most appropriately protects the public. 169.2. The important role of setting professional standards. 169.3. A punitive function. 169.4. Rehabilitation of the health professional. 169.5. That any penalty imposed is comparable to other penalties imposed upon health professionals in similar circumstances. 169.6. Assessing the health practitioner’s behaviour against the spectrum of sentencing options that are available and trying to ensure that the maximum penalties are reserved for the worst offenders. 169.7. An endeavour to impose a penalty that is the least restrictive that can reasonably be imposed in the circumstances. 169.8. Whether the penalty proposed is fair, reasonable and proportionate in the circumstances presented. 170. In A v Professional Conduct Committee60 the High Court said that four points could be expressly and a fifth impliedly derived from the authorities namely:
“First, the primary purpose of cancelling or suspending registration is to protect the public, but that ‘inevitably imports some punitive element.’ Secondly, to cancel is more punitive than to suspend and the choice between the two turns on what is proportionate. Thirdly, to suspend implies the conclusion that cancellation would have been disproportionate. Fourthly,
59 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354; Katamat v PCC [2012] NZHC 1633 at [49] and Joseph v PCC [2013] NZHC 1131 at [65] – [66] 60 [2008] NZHC 1387 at [81] at [81] 36
suspension is most apt where there is ‘some condition affecting the practitioner’s fitness to practise which may or may not be amenable to cure.’ Fifthly, and perhaps only implicitly, suspension ought not to be imposed simply to punish.”
171. The Court went on:61
“Finally, the Tribunal cannot ignore the rehabilitation of the practitioner: B v B (HC Auckland, HC 4/92, 6 April 1993) Blanchard J. Moreover, as was said in Giele v The General Medical Council [2005] EWHC 2143, though ‘ … the maintenance of public confidence … must outweigh the interest of the individual doctor,’ that is not absolute – ‘the existence of the public interest in not ending the career of a competent doctor will play a part.”
172. In Savita Mistry62 the Tribunal imposed conditions on the practice of a nurse, recommended that a competence review by conducted, censured the practitioner and fined her $7,500.00 in respect of charges concerning a rest home of which she was the nurse manager and/or Registered Nurse/owner in general terms and specifically concerning one of the residents (and a further particular concerning rewriting of an incident form). Ms Mistry was a Registered Nurse in that case. 173. In Geoffrey Henry63 a condition was placed on the practice of Mr Henry should he return to practice as a nurse that he not do so as sole practitioner in the aged care sector and that he undergo a competency assessment by the NCNZ. No fine was ordered nor were any other penalties. Mr Henry had practised as a Registered Nurse and obstetric nurse and as director and manager of a nursing and home care agency. The particulars of the Charge concerned a period of some 15 months with failures to maintain an adequate nursing care plan, to ensure adequate measures were taken, to ensure adequate steps to treat and manage certain conditions, and to ensure adequate staffing levels. 174. Each case must be considered on its own but some guidance can be taken from other cases decided by the Tribunal. 175. The aggravating features in this case are:
61 At [82] 62 269/Nur09/123D 63 22/Nur05/07D 37
175.1. The significant inadequacies in the forms and documentation for residents at the Killarney Rest Home, the responsibility for completion of which lay with a registered nurse but ultimately were the responsibility of Ms Ward. 175.2. The failure of Ms Ward to ensure that the forms for the Resident in this case were comprehensively completed by Ms Hewett as the Registered Nurse available to do so. 175.3. The Resident having fallen on the first occasion necessitating admission to hospital, care should have been taken to ensure that a proper falls risk assessment was undertaken and documented. 175.4. That adequate information about contact details for family or whanau should have been collated and available. 175.5. That proper care should have been taken given the inexperience of Ms Williamson in the nursing profession and her first days at work. 175.6. That inadequate attention was paid to the Daily Progress Notes to ensure comprehensive care for the Resident. 175.7. That, there having been the first and subsequent falls, no steps were taken by Ms Ward to ensure that the proper documentation for the Resident was completed on the file. 175.8. That inadequate response to the concerns expressed by family members was shown. 176. The mitigating factors include: 176.1. As a significant matter, that the primary responsibility for completion of the forms and for the care of the Resident at times she was on duty at least, lay with Ms Hewett. 176.2. That Ms Hewett, as the Registered Nurse, could be said not to have adequately handed over the care of the Resident or made sufficient notation, having regard to the inexperience of Ms Williamson as the only Registered Nurse who would be on hand, and having regard to the increasing seriousness of the situation for the Resident. 176.3. That Ms Ward was entitled, and indeed obliged, to defer to the clinical judgment and direction of Ms Hewett as Registered Nurse and, to an extent 38
at least, structured her responses based on the information and documentation (or lack of it) by Ms Hewett. 177. The Tribunal does not consider that it need impose any penalty of removal from the register or suspension. The aspects of the events and the Particulars of the Charge to the extent these are found out affecting Ms Ward do not justify any such penalty. 178. As to a fine, although the matters are serious, the Tribunal has taken into account the financial circumstances of Ms Ward and the costs that are ordered against her below and is of the view that there need be no fine. 179. The Tribunal considers that an order for censure is not required in this case, not because the matter is not serious, but rather because the decision concerning conditions on practice to be mentioned are sufficient to indicate to Ms Ward and to the public the seriousness with which the Tribunal considers the matter. 180. Having weighed all matters together the Tribunal has formed the view that the appropriate penalty is to impose conditions on any practice by Ms Ward in the future as an Enrolled Nurse, along the lines suggested by the Director but limiting the period of supervision to a period of 6 months.
Costs 181. The Director sought a 50% contribution to the estimated costs for the bringing of the Charge by her. Detail was supplied in a written breakdown and this was helpful. This sum totalled $41,391.08. This included disbursements but excluded GST. 182. In addition the Tribunal is required to consider its own costs in relation to the hearing and these were estimated at $32,090.10. Again detail was given. That estimate does not include costs spent by the Tribunal on the amicus curiae appointed to assist at the stage he did. Those costs therefore total the sum of approximately $73,390.00. They do not include any costs in relation to a related matter which did not continue. 183. The principles applicable to costs are these. The normal approach for the Tribunal based on the authorities64 is to start with a 50% contribution. That, however, is a starting point and other factors may be taken into account to reduce or mitigate that proportion. The balance of costs of the prosecution after the orders for costs must be
64 Including Cooray v Preliminary Proceedings Committee; AP23/94 14 September 1995 per Doogue J 39
met by the profession itself. As was said in O’Connor v Preliminary Proceedings Committee65 “It is a notorious fact that prosecutions in the hands of professional bodies, usually pursuant to statutory powers, are very costly and time consuming to those bodies and such knowledge is widespread within the professions so controlled. So as to alleviate the burden of the costs on the professional members as a whole the legislature had empowered the different bodies to impose orders for costs.”
184. In Vatsyayann v PCC66 the Court said:67
“[34] So far as the costs orders were concerned, the Tribunal correctly addressed a number of authorities and principles. These included that professional groups should not be expected to bear all the costs of a disciplinary regime and that members of the profession who appeared on disciplinary charges should make a proper contribution towards the costs of the inquiry and a hearing; that costs are not punitive; that the practitioner’s means, if known, are to be considered; that a practitioner has a right to defend himself and should not be deterred by the risk of a costs order; and that in a general way 50% of reasonable costs is a guide to an appropriate costs order subject to a discretion to adjust upwards or downwards.”
185. In Winefield68 the Tribunal held that costs of some 30% of actual costs were appropriate having regard to: 185.1. The hearing being able to proceed on an agreed statement of facts. 185.2. Co-operation of Mr Winefield. 185.3. The attendance of Mr Winefield at the hearing. 185.4. Consistency with the level of costs in previous decisions. 185.5. Costs not paid by Mr Winefield would fall on the profession as a whole. 186. It is the decision of the Tribunal that Ms Ward should be ordered to make a contribution towards those costs of the sums of $14,000.00 to the Director and of $10,000.00 to the Tribunal.
Name suppression
65 O’Connor v Preliminary Proceedings Committee AP280/89 23 August 1990 66 Vatsyayann v Professional Conduct Committee [2012] NZHC 1138 67 at [34] 68 Phar06/30P 40
187. An order had already been made for permanent suppression of the name of the Resident of the Rest Home. Because this might tend to identify her but also because of reasons advanced independently, the Tribunal is also of the view that there should be an order for permanent suppression of the name of the Resident’s daughter, Mrs E. 188. Although an interim order for the suppression of the name of Ms Hewett had been made, she did not seek to have that continued and there is therefore no order for suppression of Ms Hewett’s name. Likewise, there was no application in respect of other witnesses or the Rest Home. Ms Ward did not apply for suppression of her name.
Results and orders 189. Pursuant to section 101(1)(c) of the HPCA Act the Tribunal orders that Ms Ward may, after commencing practice following the date of this order, for a period of 12 months, practise her profession as an Enrolled Nurse only in accordance with the following conditions: 189.1. That she satisfy the NCNZ existing requirements that she undergo a competency review before the reissue of any Annual Practising Certificate. 189.2. That she practise at her own cost under the supervision of a Registered Nurse approved by the NCNZ so that she receives supervision and guidance from an appropriately qualified Registered Nurse who shall supervise the manner in which she discharges her professional responsibilities and who will report accordingly to the NCNZ at such periods as it may direct. This condition to continue for a period of 6 months after resumption of practice. 189.3. That she not practise as a sole practitioner or in a managerial role in the aged care sector for a period of 12 months from resumption of practise.
41
190. Pursuant to section 101(1)(f) of the HPCA Act the Tribunal orders that Ms Ward pay towards the costs and expenses of: 190.1. The investigation made by the Health and Disability Commissioner and the prosecution of the Charge by the Director of proceedings the sum of $14,000.00 190.2. The hearing by the Tribunal the sum of $10,000.00. 191. Pursuant to section 95(2) of the HPCA Act an order prohibiting the publication of the name or particulars of the affairs of Mrs E is made. 192. The Tribunal directs that the Executive Officer publish a copy of this decision and a summary on the Tribunal’s website. The Tribunal further directs the Executive Officer to publish a notice stating the effect of the Tribunal’s decision in Kai Tiaki: Nursing New Zealand, and the Nursing Council’s newsletter, News Update.
DATED at Auckland this 28th day of January 2015
...... David M Carden Chairperson Health Practitioners Disciplinary Tribunal