v Fankhauser [2013] QCAT 395 Nursing & Midwifery Board of Australia (Applicant) v Cheryl Ann Fankhauser (Respondent) Occupational regulation matters

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1 CITATION: PARTIES: APPLICATION NUMBER: MATTER TYPE: HEARING DATE: HEARD AT: DECISION OF: Nursing & Midwifery Board of Australia v Fankhauser [2013] QCAT 395 Nursing & Midwifery Board of Australia (Applicant) v Cheryl Ann Fankhauser (Respondent) OCR Occupational regulation matters On the papers Brisbane Judge Alexander Horneman-Wren SC, Deputy President Assisted by Ms Elizabeth Robertson Ms Jocelyn Toohill Ms Alison Christou DELIVERED ON: 16 July 2013 DELIVERED AT: ORDERS MADE: Brisbane IT IS THE DECISION OF THE TRIBUNAL THAT: 1. Leave is granted to amend Attachment C to the Referral. 2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 the publication of any information identifying the patient and her baby is prohibited. THE TRIBUNAL DIRECTS THAT: 1. The matter is listed for a directions hearing at 12:00 pm on 16 August The parties are at liberty to make submissions in writing on sanction. CATCHWORDS: HEALTH PROFESSIONALS NURSE DISCIPLINARY PROCEEDINGS where a notice pursuant to section 398ZA of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) was not given by the Tribunal

2 2 whether the registrant was afforded procedural fairness HEALTH PROFESSIONALS NURSE DISCIPLINARY PROCEEDINGS where the registrant provided care to a patient in labour where the patient s baby died shortly after birth where the Board alleged the registrant provided inadequate care to the patient where the Board alleged the registrant altered the patient s records where the registrant admitted the conduct where the registrant admitted the conduct constituted professional misconduct whether the registrant s conduct constituted professional misconduct HEALTH PROFESSIONALS NURSE DISCIPLINARY PROCEEDINGS where the parties jointly proposed a sanction where the proposed sanction included the cancellation of the registrant s registration where the proposed sanction included conditions precedent to the registrant applying for future registration where the proposed sanction included conditions on any future registration of the registrant whether the proposed sanction is appropriate whether the Tribunal has the power under the Health Practitioner Regulation National Law (Queensland) to impose a condition precedent to any future application for registration whether the Tribunal has the power under the Health Practitioner Regulation National Law (Queensland) to impose a condition on the future registration of a registrant HEALTH PROFESSIONALS NURSE DISCIPLINARY PROCEEDINGS where the patient the subject of the referral did not participate in the proceedings whether a nonpublication order should be made in regards to the patient Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s241(2), s 241(2)(b), s 241(2)(c), s 241(2)(d), s 241(2)(e), s 241(2)(g), s 241(2)(i), s 241(2)(j), s 241(4), s 398ZA Health Practitioner Registration and Other Legislation Amendment Act 2013 (Qld), s 23

3 3 Health Practitioner Regulation National Law (Queensland), s 5, s 196(1), s 196(2), s 196(2)(b), s 196(2)(d), s 196 (e), s 196(3), s 196(4) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627, cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ( QCAT Act ). REASONS FOR DECISION [1] Cheryl Ann Fankhauser is a registered nurse. She was also formerly a registered midwife. On 7 November 2008 she commenced a shift at the John Flynn Hospital on the Gold Coast at 10:00pm. At 10:30pm she took over the care of a patient who was then in second stage labour. [2] Events occurred on that night and in the subsequent days which resulted in the Nursing and Midwifery Board of Australia referring a complaint against her to the Tribunal. The Board alleges that she conducted herself in a manner which constituted professional misconduct as defined by the Health Practitioner Regulation National Law (Queensland) ( National Law ). [3] The alleged misconduct relates to both the nursing care provided to the patient on the night of 7 to 8 November 2008 and to the alteration which Ms Fankhauser made to the medical records of the patient. The alteration of the medical records occurred on 8 November 2008 and on or subsequent to 12 November. A procedural issue [4] It has come to the attention of the Tribunal that the notice required to be given under s 398ZA of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) ( Disciplinary Proceedings Act ) 1 was not given. Section 398ZA(2) requires a hearing notice to be sent to the registrant, the Board and the Health Quality and Complaints Commission. [5] Section 398ZA(3) requires the notice to state the grounds; the facts and circumstances forming the basis for the grounds; the time and place of the hearing; that the registrant must attend the Tribunal in person unless excused by the Tribunal; and that a party may appear in person or may 1 The Act was formerly named the Health Practitioners (Professional Standards) Act 1999 (Qld). Its name was changed on 20 May 2013 by s 23 of the Health Practitioner Registration and Other Legislation Amendment Act 2013 (Qld).

4 4 have a lawyer or another person appear at the hearing on the party s behalf. [6] The only requirement for the timing of the notice is that the time for hearing stated in the notice must be at least 14 days after the registrant receives the notice. 2 [7] It is apparent that the purpose of the notification requirements is to afford the registrant procedural fairness. Although other parties are to receive the notice, it is only the registrant who is to have a period of at least 14 days notice of the hearing. This is to ensure the registrant has adequate time to prepare his or her case. The requirement to include within the notice the grounds and the facts and circumstances forming the basis for them is intended to inform the registrant of the case that he or she will have to meet. [8] In the present case, the failure is purely procedural and without any substantive consequence. The registrant has been legally represented throughout. She has fully participated in the proceedings in full knowledge of the case raised against her by the Board. Had the notice issued, it would have informed her of that which she already knew, namely that the hearing would be conducted on the papers under s 32 of the QCAT Act and that her attendance was excused. [9] Whilst compliance with the procedural steps would have been intended by the legislature, it is not necessarily the case that it was also intended that a failure to comply would render the hearing conducted invalid. The extent and consequences of the departure must be considered. Ms Fankhauser received timely and effective notice and was able to fully advance her case. There has been no denial of natural justice arising from the procedural error. 3 Agreed facts [10] The following facts are agreed between the parties. (i) Patient care [11] After taking over the care of the patient on 7 November 2008, Ms Fankhauser specialled the patient throughout the shift. [12] The respondent monitored foetal heart rate ( FHR ) with a Doppler. The respondent usually used a cardiotocographic machine ( CTG ) to monitor FHR and can not offer any explanation as to why she did not do so on this occasion. The policy of the hospital was for continuous CTG monitoring to be used at least at 5 minute intervals during active pushing. The respondent was aware of this policy. 2 3 Disciplinary Proceedings Act s 398ZA(4). Compare Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at

5 5 [13] At 10:30pm, the respondent measured the patient s FHR at 175bpm. The upper limit of normal FHR is 160bpm. The patient was tachycardic at this time. [14] The respondent recorded FHR on the document entitled Second Stage of Labour which shows readings of 160bpm or above from 10.30pm. [15] The Second Stage of Labour notes do not show any FHR recording from 11.45pm on 7 November 2008 until 1.30am the following day. [16] The patient s child died soon after delivery at 2.01am on 8 November An autopsy report states that: In summary, [the child] was a new born baby girl who died shortly after birth on 8 November Her delivery was difficult and was complicated by a prolonged second stage of labour. When she was born her umbilical cord was noted to be wrapped tightly around her neck and she was covered in a thick meconium. She was very close to death and resuscitation methods followed but she could not be revived. In my opinion the cause of death is birth asphyxia due to the effects of both a prolonged second stage of labour and a tight umbilical cord around the neck. (ii) Competency issues [17] A Coronial Inquest was held at Southport over 6 days. The Coroner was critical of the midwifery care and treatment provided by the respondent. In particular: a) The Coroner found that a CTG should have been applied before 10.30pm (the respondent took over the care of the patient at 10:30pm). b) There was overwhelming evidence that [the on-call paediatrician] should have been called no later than 10.30pm. In fact, the respondent did not call [the paediatrician] until 12.11am the following day. [18] The Coroner s findings relating to the standard of care provided by the respondent was primarily informed by the expert opinion of Dr Glenda McLaren, obstetrician and gynaecologist. The primary criticisms by Dr McLaren of the respondent s care of the patient are: a) A CTG should have been applied at 10.30pm when FHR was measured at 170bpm. The patient had earlier indicated she found the CTG to be uncomfortable. However Dr McLaren considered it was the respondent s responsibility to advise the patient of the necessity for monitoring FHR via CTG. b) The paediatrician should have been contacted at 10.30pm when FHR was 170bpm. Alternatively, the paediatrician should have been called at 11.00pm when FHR was irregular and the patient was only able to push with every second to third contraction. Alternatively, the paediatrician should have been called at midnight when meconium

6 6 was noted, active pushing had been undertaken for 1.5 hours, FHR was still irregular and contractions were becoming less regular. c) Steps should have been undertaken to ensure the paediatrician was present at the delivery at 2.01am on 8 November 2008 when it was highly likely that the baby would require resuscitation. [19] The respondent accepts Dr McLaren s criticisms. (iii) Alteration of medical records [20] During the Inquest it was discovered that alterations had been made to the clinical records of the patient. [21] The Birth Details document has been altered by amending the time of second stage labour from 2230 (8½) to 2330 (7½). A change was also made to the time for the birth from (3½) to (2½). [22] These alterations were made by the respondent on 8 November 2008: a) no earlier than late in the morning of that day; b) when the respondent knew that the patient s baby had died; and c) when the respondent was aware that the death was to be investigated by the Coroner; d) when she knew the alterations were false; and e) were made without reference to any other member of staff; f) were made without noting the alteration was being made retrospectively contrary to the well established practice to do so; g) were made with the intention of misleading the hospital administration as to the performance of her duties as a midwife; and h) are internally inconsistent. [23] The Labour Progress Notes had been amended by, in the Date and Time column: changing 2230 to 2330 ; inserting 2330 under the previous entry of 2230 ; and changing 2300 to [24] These alterations were made by the respondent on or subsequent to 12 November 2008 when she knew they were false and: a) were made without reference to any other member of staff; b) were made without noting the alteration was being made retrospectively contrary to the well established practice to do so; and c) were made with the intention of misleading the hospital administration as to the performance of her duties as a midwife.

7 7 Referral to the Board and the Tribunal [25] The Coroner s findings were delivered on 5 April The Coroner referred his findings to the Board. [26] On 8 April 2011 Ms Fankhauser s surrender of her registration as a midwife was accepted by the Board. She remains registered as a nurse. [27] The Board determined to refer the matter to the Tribunal pursuant to s 193 of the National Law. Sanction [28] The parties have made a joint submission on sanction. In it they seek leave to have attachment C to the referral amended in terms of the amended attachment filed with the submissions. Leave is granted. [29] Ms Fankhauser admits the conduct alleged, both in respect of the care of the patient and the alteration of the medical records. Importantly, in respect of the later, she admits that the alterations which she made to the medical records, first on 8 November 2008 and again on or after 12 November 2008, were to her knowledge false, and made with the intention of misleading hospital administration as to the performance of her duties as a midwife. 4 [30] Ms Fankhauser admits that her conduct amounts to professional misconduct. The parties submit, correctly, that notwithstanding Ms Fankhauser s admission that she is guilty of professional misconduct, the Tribunal must nonetheless satisfy itself of that matter. The Tribunal is so satisfied. [31] Ms Fankhauser s conduct in altering medical records was deliberate and deceitful. It is a fundamental breach of a nurse s professional responsibility and duty to deliberately alter records with a view that the administrators of the hospital in which the care or treatment was provided would be misled as to the performance of the nurse s duties. [32] It is, in my view, unprofessional conduct that is substantially below the standard reasonably expected of a registered nurse of any level of training or experience. 5 Thus it is not necessary to consider the standard which might reasonably be expected of a nurse of Ms Fankhauser s level of training or experience. [33] The parties jointly submit that the inherent nature of Ms Fankhauser s conduct raises legitimate concerns about her character and demands a cancellation of her registration. 6 The parties particularly note the need for general deterrence in a case such as this, having noted that the purposes The Board had originally alleged that the alterations were also made with the intention of misleading the Coroner, however, that allegation has now been withdrawn in the amended attachment C. See definition of professional misconduct in s 5 of the National Law. Joint submissions on sanction filed 15 March 2013 at [18].

8 8 of such proceedings are the protection of the public; the maintenance of professional standards and the protection of the public s confidence in the profession. 7 So much can be accepted readily. [34] In addition to the cancellation of Ms Fankhauser s registration, the parties propose orders which would encumber both Ms Fankhauser s ability to apply for re-registration and such registration itself should it be granted. [35] Proposed order 3.1 would prohibit Ms Fankhauser from applying for registration as a registered nurse or as a midwife for a period of 18 months from the date of the orders. Such an order is permissible under the National Law. Section 196(4) provides that if the Tribunal decides to cancel a person s registration the Tribunal may also decide to disqualify the person from applying for registration as a registered health practitioner for a specified period. [36] However the other conditions proposed, either as conditions precedent or subsequent to future registration of Ms Fankhauser, are not supported by the National Law. [37] Section 196(1) provides that after hearing a matter about a registered health practitioner the Tribunal may decide under s 196(1)(b), amongst other things, that the practitioner has behaved in a way that constitutes unsatisfactory professional performance; unprofessional conduct; or professional misconduct. If the Tribunal decides that the practitioner has engaged in any of those forms of conduct, then s 196(2) provides that the Tribunal may decide to do one or more of the things set out in s 196(2). Those things include suspending the practitioner s registration for a specified period, 8 or cancelling the practitioner s registration. 9 [38] As already noted, s 196(4) permits the Tribunal to disqualify a person whose registration it has cancelled from applying for registration for a specified period. [39] Another thing which the Tribunal may do if it decides that the health practitioner has engaged in unsatisfactory professional performance, unprofessional conduct or professional misconduct is to impose a condition on the practitioner s registration. 10 However, in my opinion, that power to impose conditions applies to a registrant s existing or continuing registration, not some further registration attained in the future. Whilst conditions could be imposed upon a suspended registration because the registration itself continues, once the registration is cancelled, the ability to impose conditions upon that registration is lost. [40] That opinion is supported by s 196(3) which provides that if the Tribunal decides to impose a condition on a practitioner s registration, it must also decide a review period for the condition Ibid at [3]. National Law s 196(2)(d). Ibid s 196(2)(e). Ibid s 196(2)(b).

9 9 [41] Proposed condition 3.2 would require Ms Fankhauser, as a condition precedent to her applying for re-registration, to attend counselling with a clinical psychologist to facilitate her developing insight into why she engaged in the conduct which is the subject of the proceedings. Proposed condition 3.3 would require her, again as a condition precedent to her applying for re-registration, to provide to the Board a report from the psychologist detailing the treatment provided to her and certifying that further counselling was unnecessary. [42] Proposed condition 4 would also require Ms Fankhauser, as a precondition to her applying for re-registration as a midwife, to provide written evidence that satisfies the Board that she has completed courses at a tertiary (or equivalent) level that covers a range of competency issues set out in the ANMC National Competency Standard for the Midwife. [43] Proposed orders 5 and 6 would impose a number of conditions upon any future registration of Ms Fankhauser as, respectively, a registered nurse or a midwife. [44] For reasons set out above, the National Law does not support such conditions being placed upon the ability of a health practitioner to reapply for registration after a period of cancellation. Nor does it support the imposition of conditions upon future registration after a period of cancellation. [45] My view as to the lack of jurisdiction in the Tribunal to impose such conditions is supported by a consideration of the powers which were formerly conferred upon the Tribunal under the Disciplinary Proceedings Act. 11 [46] Section 241(2)(b) of the Disciplinary Proceedings Act, like s 196(2)(b) of the National Law, permitted the Tribunal to impose conditions upon a registrant s registration. Section 241(2)(g), like s 196(2)(d) of the National Law, permitted the Tribunal to suspend a registrant s registration for a stated time. Section 241(2)(i), like s 196(2)(e) of the National Law, permitted the cancellation of the registrant s registration. [47] Section 241(4), like s 196(4) of the National Law, concerned the Tribunal s power to impose a period during which a registrant whose registration had been cancelled could not attain registration. It differed, however, from s 196(4) in two material ways. First, s 196(4) confers a discretion upon the Tribunal when cancelling the registration to impose a period of disqualification. By contrast, s 241(4) of the Disciplinary Proceedings Act mandated that the Tribunal impose such a period. [48] Secondly, s 196(4) of the National Law imposes a disqualification on the person from applying for re-registration, whereas s 241(4) of the Disciplinary Proceedings Act imposed a prohibition not on the registrant 11 That Act continues to apply to matters of professional conduct which a former Board commenced dealing with before 1 July 2010.

10 10 but on the registrant s Board from granting registration during the specified period. [49] Most importantly for present purposes, s 241(2)(j) of the Disciplinary Proceedings Act expressly confers upon the Tribunal power to set conditions under which the registrant may apply for registration; 12 or to set conditions that must be imposed on any future registration of the registrant by the Board. 13 [50] The absence from the National Law of such express powers to impose either form of conditions strongly supports the conclusion that the Tribunal does not have those powers under that Act. [51] It appears quite clear that agreement to the imposition of those conditions is an integral part of the parties agreed submission on sanction. It seems to me that the matter could be resolved by Ms Fankhauser providing an undertaking which addresses those matters which I have found to be beyond the Tribunal s jurisdiction. However, that undertaking would have to be provided by Ms Fankhauser to the Board. Unlike the power conferred under s 241(2)(d) of the Disciplinary Proceedings Act, the National Law does not confer a power on the Tribunal to require the registrant to give an undertaking to the Tribunal itself. Nor does the National Law permit, as did s 241(2)(c) of the Disciplinary Proceedings Act, the Tribunal to approve an undertaking entered into between the registrant and the Board. [52] Notwithstanding the lack of jurisdiction under the National Law to require or approve such an undertaking, the existence and terms of such an undertaking willingly provided by the registrant to the Board, would remain, in my view, a relevant consideration for the Tribunal in exercising its discretion in determining any sanction to be imposed in any disciplinary proceedings. [53] If Ms Fankhauser were to offer the Board undertakings as to those matters contained in the proposed sanction which I have identified as being beyond the Tribunal s jurisdiction and the Board were to accept them as the basis upon which a joint submission on cancellation was made to the Tribunal, then, having noted those undertakings, the Tribunal would make the orders cancelling her registration and disqualifying her from reapplying for registration for a period of 18 months. [54] The Board will allow the parties a period of time in which to consider these reasons and to formulate their response to them. The Tribunal will list the matter for directions on 16 August Should the parties wish to make submissions in writing as to the appropriate orders to be made before that date, they have liberty to do so. Non-publication order Disciplinary Proceedings Act s 241(2)(j)(i). Ibid s 241(2)(j)(ii).

11 11 [55] The Tribunal under s 66 of the QCAT Act may make an order prohibiting the publication of information that may enable a person who is affected by a proceeding to be identified. 14 The Tribunal may make such an order if the Tribunal considers it necessary for some reason in the interests of justice; or to avoid the publication of information whose publication would be contrary to the public interest. 15 The Tribunal may make the order on the application of a party or on its own initiative. 16 [56] The patient has neither participated in these proceedings nor consented to her personal information being publicised. The information provided to the Tribunal in regards to the patient is of a personal and sensitive nature and usually treated in confidence. In these circumstances it is not in the public interest for information about the patient to be published. 17 Further, it is in the interest of justice to prohibit the publication of such information. 18 For these reasons a non-publication order is made in regards to the patient and her baby QCAT Act 2009, s 66. QCAT Act 2009, s 66(2). QCAT Act 2009, s 66(3). MBA v Gallery [2013] QCAT 224 at [3]. Medical Board of Australia v Van Opdenbosch [2012] QCAT 703, [42] [43]; Pharmacy Board of Australia v Chan [2013] QCAT, 5 March 2013, at [31] [32].