NSW Civil & Administrative Tribunal

Introduction:

For nearly two and a half years, a medical practitioner obtained cosmetic medications for the nurse that were restricted substances under the Poisons and Therapeutic Goods Act 1966 (NSW) (the PTGA). The nurse supplied and administered the restricted substances to patients at the medical practitioner’s surgery and at a day spa 30 kilometres away.

In or about August 2009 the nurse entered into an arrangement with a specialist plastic surgeon who has a surgery at Epping [whose name will remain anonymous for the purpose of this article]. The surgeon obtained the cosmetic injectable medications listed in Appendix A [including hyaluronic acid and botulinum toxins] and provided them to the nurse. The nurse reimbursed the surgeon for the cost of the medications with a sizeable share of the fee she received from the patients receiving injections from her.

She worked one day per week as a nurse injector at his clinic in Epping.

The nurse also took the drugs to premises in Collaroy and supplied and administered the medications to clients of this business.

Background

A medical practitioner may supply an S4 drug to a nurse to administer to a patient if the patient is under the direct care of the medical practitioner and a specific patient authorisation to administer the drug has been given to the nurse.

A medical practitioner may not supply an S4 drug to a nurse for administration to a patient who is not under the direct care of that medical practitioner. Further, a nurse may not administer any drug to a patient unless written authorisation has been given by a medical practitioner to administer the substance to that specific patient.

Findings

• The nurse admits unsatisfactory professional conduct as particularised in Complaint One which reflects the definition in section 139B(1)(a) and (l) of the National Law. In light of the nurse’s admissions and the overwhelming evidence before it, the Tribunal is comfortably satisfied on the balance of probabilities that the Complaint of unsatisfactory professional conduct is proven (Rejfek v McElroy (1995) 112 CLR 517).

• The nurse also admits professional misconduct as particularised for Complaint Two, which reflects the definition in section 139E of the National Law.

Again the Tribunal is satisfied that this Complaint is proven.

• The Tribunal finds that the nurse has not met the ANMC Standard of practising in accordance with legislation affecting nursing practice and health care. The PTGA leaves little doubt that S4 medications, including those administered by the nurse, cannot be supplied and administered by a registered nurse. The protocols developed by the ASCM and the Australasian College of Cosmetic Surgery provide further guidance to practitioners who choose to work in this area and clearly set out the roles and responsibilities of medical practitioners and nurses.

• The Tribunal notes that in a document dated 17 December 2013, the plastic surgeon states that in commencing work at his clinic, the nurse adopted the system that had been in place for the previous 18 years and that most of the clients were longstanding and had been treated by the previous nurse injector.

The nurse gave evidence that she presumed, in taking over the practice of the previous nurse injector at the Epping clinic, that the practice was appropriate.

She knew of the surgeon’s reputation as a respected medical practitioner. She said that she recognised that she should have been more assertive so that he saw all the patients and wrote the scripts for the S4 medication.

• The Tribunal has some sympathy for the nurse given the opportunities provided by the surgeon involved. It is highly critical of his acquisition and supply of the S4 medication for the nurse. There is no doubt that he provided the means for her to engage in the conduct found to be unsatisfactory and professional misconduct. However, this does not detract from the nurse’s responsibility to ensure she was complying with the law and with the terms of her registration to practise.

• Further, it finds that the nurse did not understand or practise within the scope of her practice.

The Standard guides registrants to seek clarification if there is uncertainty about what is meant by the scope of practice and to demonstrate an accountability and responsibility for their own actions within nursing practice.

• The nurse gave evidence that as a result of the report she resigned from her employment with Anti Aging Associates. She said prior to commencing with the business she carefully reviewed its protocols to ensure the business met the required Standards. She was disappointed after reading the expert’s report, as she believed she had been practicing appropriately but considered there were clearly grey areas, particularly with the use of Skype for patient consultations.

• The Tribunal does not make any findings in relation to the nurse’s work at Anti Aging Associates, which is not covered by the Complaints.

It finds her evidence that she had reviewed the company’s protocols for S4 injections, prior to starting with the company, to be credible particularly, in light of the complaint already made. It highlights the risks for nurses and medical practitioners involved in the administration of S4 medication for cosmetic procedures.

• At the end of the day, the requirements in the PTGA and the protocols developed to assist practitioners working in cosmetic medicine, leave little ambiguity of the procedures which must be followed by nurses and medical practitioners. It is imperative nurses working in this area access and understand the requirements for the supply and administration of S4 drugs or they practise at their peril. As the subject nurse has found, assuming or hoping that her treatment of patients was within the law because it had the support of a medical practitioner does not protect her from serious consequences.

The orders of the Tribunal are:

(1) The nurse be reprimanded.

The Tribunal opined that the nurse would or should have known that the administration of Schedule 4 drugs by subcutaneous injection, that were not prescribed by a medical practitioner, was putting her, and the patients she treated, at great risk. In addition the use of multi-dose vials was seen as a major concern, by the Tribunal.

The Tribunal also considered that the nurse would or should have known that the administration of Schedule 4 drugs had to be checked by a second nurse authorised to check Schedule 4 drugs and that this was not done.

Further, the Tribunal opined that, even if the nurse honestly believed she was doing the right thing for the patients she was injecting, she should have checked with the Nurses Registration Board or after 1 July 2010, AHPRA, as to whether she needed a script for each patient after the patient was reviewed by a medical practitioner and a second person to check the Schedule 4 drugs.

The Tribunal found the nurse’s conduct to be well below the standard expected of someone with her level of experience and education. Her actions, putting the public at risk, are well below the accepted standard and show a significant departure and she deserves strong criticism.

The Tribunal finds the nurse guilty of unsatisfactory professional conduct and serious misconduct.

(2) The nurse’s registration is suspended for three months from the date of this decision; (3) Conditions to be placed on the nurse’s registration. AMP This case is on the public record.

For full citation visit www.caselaw.nsw.gov.au/decision/ 54a63da83004de94513dbf18