Health Care Complaints Commission v Youssef & Health Care Complaints Commission v McArthur [2021] NSWCATOD 2

[HCCC v Youssef & McArthur [2021] NSWCATOD 2]

Preamble

• The Health Care Complaints Commission prosecuted a complaint against Registered Nurse, Ms Nelley Youssef before the NSW Civil and Administrative Tribunal.

On 9 February 2017 an 80-year-old patient who had a laryngeal stoma was found unresponsive. The Commission alleged that Ms Youssef had inappropriately agreed that a junior colleague apply dressing to the stoma and provided the dressing to the colleague for that purpose. It was also alleged that when the patient was later found unresponsive, she failed to remove the dressing for resuscitation to occur and provided misleading information by stating that when she found the patient unresponsive, the dressing was not covering the stoma.

In its decision on 13 January 2021 the Tribunal found all allegations against Ms Youssef proved and that they amounted to unsatisfactory professional conduct and professional misconduct.

• The Health Care Complaints Commission prosecuted a complaint against Registered Nurse, Mr Seamus McArthur before the NSW Civil and Administrative Tribunal.

On 9 February 2017 Nurse McArthur was caring for an 80 year old patient who had a laryngeal stoma. The Commission alleged that Nurse McArthur inappropriately placed a dressing over the stoma to enable the patient’s stoma to remain dry while having a shower.  The dressing obstructed the patients only airway.  The Commission also alleged that Mr McArthur provided misleading information to the Commission.

The Tribunal found that Mr McArthur’s decision to apply the dressing to the stoma and his lack of knowledge surrounding the stoma amounted to unsatisfactory professional conduct.

Reason for the decision

On 13 March 2020 the Health Care Complaints Commission (the HCCC) applied to the Tribunal under the Health Practitioner Regulation National Law (the National Law) for orders against Registered Nurses Nelley Youssef (proceeding 2020/00081521) and Seamus McArthur (proceeding 2020/00081523).

At a direction hearing on 24 July 2020 an order was made that both proceedings be heard together, with evidence in one to be evidence in the other.

The complaints against each practitioner are brought in relation to their conduct on 9 February 2017, when they were rostered to work on Ward DB4, the respiratory and infectious diseases ward at a large metropolitan hospital in Sydney (the Hospital).

Patient A was an 80-year-old man who had been admitted to Ward DB4 the afternoon before after spending several days in the Intensive Care Unit (ICU) for hypotension with a background of infective exacerbation of chronic obstructive pulmonary disease (COPD). Patient A had an established laryngectomy stoma following surgery for laryngeal cancer in 2002. Patient A had a total laryngectomy, which meant that his larynx had been surgically removed and a permanent neck stoma created. That stoma was his sole airway.

Patient A sought RN McArthur’s assistance in preparing for a shower. RN McArthur at that time, with the consent of Patient A, applied a Mepilex occlusive dressing that covered the whole of Patient A’s stoma. Prior to applying the dressing, RN McArthur checked with RN Youssef to see if the application of the dressing would be appropriate, which course of action RN Youssef agreed to. RN McArthur then left Patient A to shower.

Sometime later RN Youssef entered the bathroom and observed that Patient A was non-responsive. Attempts were made to resuscitate Patient A which were unsuccessful.

NSW Police attended, and an autopsy report was prepared for the Coroner and witness statements were taken from a number of Hospital staff. The autopsy report concluded that the disease or condition directly leading to death was “occlusion of the external airway in the context of a permanent tracheostomy after the treatment of laryngeal carcinoma”. The Tribunal was informed at the hearing that the matter is still being considered by the Coroner. There are no pending criminal proceedings.

The complaints

The complaints against each practitioner were amended by consent at the hearing. Particular 1 of Complaint One against RN Youssef originally was that RN Youssef had “advised a nursing colleague” to apply the dressing and was amended to be that she “responded to a request for advice from a junior colleague by agreeing that it was okay” to apply the dressing. Particular 1 of Complaint Two against RN Youssef and RN McArthur originally was that each had provided false and misleading information “to the Hospital” in their statements of 27 February 2017 and 9 March 2017 respectively; the reference to “the Hospital” was deleted from particular 1 of Complaint Two against each of RN Youssef and RN McArthur.

RN Youssef

There are three complaints against RN Youssef.

Complaint One is that she is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that her conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, in that she:

Inappropriately responded to a request for advice from a junior nursing colleague by agreeing that it was okay to apply a Mepilex occlusive dressing to cover Patient A’s stoma;

Inappropriately provided a Mepilex dressing to her colleague to be used to cover the stoma before Patient A commenced his shower;

Demonstrated a lack of knowledge of the underlying anatomy and clinical history of Patient A;

Demonstrated a lack of knowledge that the laryngectomy stoma was Patient A’s sole airway;

Failed to seek advice from a more senior colleague regarding the appropriate management of Patient A’s laryngectomy with respect to the appropriate dressing to cover his stoma while he showered; and

Failed to remove the dressing from Patient A’s stoma when she found him unresponsive in the shower, thereby failing to ensure he had a clear airway when resuscitation efforts were commenced.

Complaint Two is that she is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice or purported practice of nursing, in providing false and misleading information:

In a statement dated 27 February 2017 when she stated that at the time, she found Patient A unresponsive, “I noticed that the Mepilex Border dressing was no longer in situ. The stoma was not covered, and I did not see the dressing in the surrounding area”, in circumstances where the dressing was in situ at the time; and

In her letter to the HCCC dated 15 June 2017 when she stated that when she found Patient A unresponsive “the Mepilex dressing was no longer in situ, the stoma was not covered”, contrary to s 99 of the Health Care Complaints Act 1993 in circumstances where the dressing was in situ at the time.

Complaint Three is that she is guilty of professional misconduct, relying on the particulars of Complaints One and Two both individually and cumulatively.

RN Youssef admits in response to Complaint One that she agreed a Mepilex dressing would be suitable, and that she provided a Mepilex dressing. She admits that she had a lack of knowledge of the underlying anatomy of Patient A’s altered anatomical state after his laryngectomy in 2002, and denies that she did not have knowledge of Patient A’s clinical history. She admits she had a lack of knowledge that the laryngeal stoma was Patient A’s sole airway, and that she failed to seek advice from a more senior colleague. She denies that she failed to remove the Mepilex dressing when she found Patient A unresponsive in the shower.

In response to Complaint Two RN Youssef denies that she provided false and misleading information. In response to Complaint Three she relies on her responses to Complaints One and Two.

RN McArthur

There are three complaints against RN McArthur.

Complaint One is that he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, in that he:

Inappropriately applied a Mepilex occlusive dressing to cover Patient A’s laryngeal stoma before he commenced his shower;

Demonstrated a lack of knowledge of the underlying anatomy and clinical history of Patient A; and

Demonstrated a lack of knowledge that the laryngectomy stoma was Patient A’s sole airway.

Complaint Two is that he is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of nursing, in providing false and misleading information:

In his statement dated 9 March 2017 when he stated that after covering Patient A’s entire stoma site with a Mepilex occlusive dressing he waited with Patient A for “at least 5 minutes or longer after I had applied the dressing to Patient A’s stoma site”, in circumstances where he did not remain with Patient A for a period of 5 minutes or longer after he applied the dressing;

In a letter sent to the HCCC by his legal representative dated 15 June 2017 in which he stated that when he “applied the dressing prior to entering the bathroom and it was at least 5 minutes or longer after applying the dressing that RN McArthur left Patient A in the bathroom”, in circumstances where he did not remain with Patient A for a period of 5 minutes or longer after he applied the dressing; and

In the letter sent to the HCCC by his legal representative dated 15 June 2017 which stated that “when Patient A was responding to RN McArthur’s questions about the dressing he was speaking without difficulty and in full sentences, and did not show any signs of respiratory distress”, contrary to s 99 of the Health Care Complaints Act 1993, in circumstances where the practitioner did not remain with Patient A to observe him speaking without difficulty nor showing signs of respiratory distress.

Complaint Three is that he is guilty of professional misconduct, relying on the particulars of Complaints One and Two both individually and cumulatively.

RN McArthur admits that he inappropriately applied the Mepilex dressing to cover Patient A’s stoma, and that at the time he had a lack of knowledge of the underlying anatomy and clinical history of Patient A and demonstrated a lack of knowledge that the laryngectomy stoma was Patient A’s sole airway. He denies providing false and misleading information in the statement of 9 March 2017 or the letter dated 15 June 2017. He denies that he is guilty of professional misconduct.

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