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Director of Proceedings v Mistry - Registered Nurse
Health Practitioners
Disciplinary Tribunal Decision No. 269/Nur09/123D and Human Rights
Review Tribunal, Ref.No: HRRT12/10
Proceeding before the Health Practitioners Disciplinary
Tribunal
In a decision dated 10 December 2009 the Health Practitioners
Disciplinary Tribunal found Registered Nurse Savita Mistry guilty
of professional misconduct. This case concerned the care Ms
Mistry provided to three separate patients under her care.
At the relevant time Ms Mistry was nurse/manager and
registered nurse/owner of Birkenhead Lodge Rest Home.
Ms Mistry's responsibilities included:
- Directing caregivers in the day to day care of clients;
- Responding to caregivers and family concerns regarding clients
and seeking medical intervention if required;
- Ensuring completion of all nursing documentation, general
records and daily administration duties;
- Ensuring the safe delivery of professional nursing care.
The allegations in the charge against Ms Mistry consisted of 28
particulars across the three consumers. The first 26 allegations
concerned clinical care including failures to undertake adequate
assessment, documentation, care planning, treatment planning, wound
assessment, wound care, skin assessment, supervision of care, and
timely referral to other providers in regard to wound care.
All of those particulars were accepted by Ms Mistry as amounting to
professional misconduct. However, two remaining particulars
were disputed. Those allegations were that Ms Mistry had:
- asked staff to alter and/or create documentation in order to
mislead the Health and Disability Commissioner; and
- re-written an incident form herself in order to mislead the
Commissioner.
The first of the disputed particulars had also been the subject
of a disciplinary proceeding taken against another registered nurse
working at the rest home at the time, Ms Sandra Clark[1].
The Tribunal was not however, satisfied to the relevant level of
persuasion that the particular alleging that Ms Mistry had
instructed staff to alter documents was made out. The
allegation that Ms Mistry altered documents herself was
established.
Having regard to the diverse nature of the issues raised in the
undisputed allegations, the Tribunal was satisfied that the
established conduct amounted to negligence, misconduct, and the
bringing of the profession into disrepute and that disciplinary
sanction was required. In reaching that view the Tribunal
noted that the following factors were relevant:
- The period of time over which the conduct occurred (18 May 2006
to 9 June 2008);
- The fact that three (not one) residents were involved;
- The fact that residents were elderly and vulnerable;
- That in two instances wounds were not treated appropriately by
Ms Mistry herself;
- The fact that Ms Mistry was in a significant position of
responsibility.
In regard to Ms Mistry altering a document, the Tribunal noted
that it was concerned that there was an attempt to mislead the
Commissioner and that on its own that particular amounted to
professional misconduct.
Accordingly the Tribunal was of the view that when viewed
cumulatively Ms Mistry's actions amounted to professional
misconduct.
The Tribunal imposed the following penalty:
- Conditions on practice including supervision by a supervisor
approved by the Nursing Council (at Ms Mistry's cost) for a period
of 12 months;
- Prohibition on Ms Mistry practicing as a sole practitioner or
in a supervisory role for a period of three years;
- That a competence review be conducted before any annual
practising certificate re-issues;
- A fine of $7,500.00;
- Costs to the Tribunal of $6,500.00 and to the Director of
$12,000.00
Separate proceeding before the Human Rights Review
Tribunal
The Director subsequently issued a proceeding before the Human
Rights Review Tribunal against Ms Mistry in respect of the same
three consumers alleging a breach of Right 2 of the Code of Health
and Disability Services Consumers' Rights. The issue was
over-charging each consumer in a manner that amounted to financial
exploitation. While the consumers had been refunded for the
overcharging, the Director sought an award of damages against Ms
Mistry alleging financial exploitation on the following
grounds:
(i)
Between 1 January 2007 and 30 April 2008 "A" was charged $232.00 in
respect of medicines purchased from a pharmacy for $98.80, without
"A" having agreed to pay more than the cost of the medicines;
and
(ii)
"A" was charged $50.00 for an attendance by a podiatrist for which
the attending podiatrist would have charged a maximum of $40.00 and
for which in any event there was no clinical record of an actual
attendance; and
(iii)
Between 1 January 2007 and 30 June 2008 "B" was charged $970.00 in
respect of medicines purchased from a pharmacy for $131.40, without
"B" having agreed to pay more than the cost of the medicines;
and
(iv)
Between 30 August 2006 and 9 June 2008 "B" was charged $510.00 for
attendances by podiatrists when there are records of only four
attendances with an actual cost of no more than $160 (that is a
maximum of $40.00 each); and
(v)
Between December 2007 and 29 April 2008 "C" was charged $75.00 a
week for the benefit of residing in a larger room when she no
longer occupied that room from December 2007; and
(vi)
Between 13 June 2006 and 19 March 2008 "C" was charged $600.00 for
attendances by a podiatrist when there are records for only three
attendances with an actual cost of no more than $120 (that is a
maximum of $40.00 each); and
(vii)
"C" was charged $60.00 for a consultation with a doctor on 4 March
2008, for which Birkenhead Lodge was not charged.
By agreement of the parties, the Tribunal made a declaration
that Ms Mistry had breached Right 2 of the Code. All other
aspects of the relief claimed by the Director have also been
resolved by agreement between the parties.
A copy of the Health Practitioners Disciplinary Tribunal's
decision can be found at http://www.hpdt.org.nz/Default.aspx?tabid=239
and a copy of the Human Rights Review Tribunal's Decision can be
found at: http://www.nzlii.org/nz/cases/NZHRRT/2010/19.html
[1] Health Practitioners Disciplinary
Tribunal decision Nur09/122D:
http://www.hpdt.org.nz/Default.aspx?tabid=235