Director of Proceedings v Mistry
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
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.
The Health Practitioners Disciplinary Tribunal's decision can be found at https://www.hpdt.org.nz/Charge-Details?file=Nur09/123D
The Human Rights Review Tribunal's Decision can be found at: http://www.nzlii.org/nz/cases/NZHRRT/2010/19.html
Last reviewed February 2019