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I was contacted last week by a former colleague, close to midnight. Juan* had a disciplinary meeting in the morning, and didn’t know what his rights were – could he take someone with him? Could he lose his job? Would this affect his future employment?

Juan wasn’t a member of the union, which put me in a difficult position; I like him, I feel some obligation to him, but the rules are very clear – as a union delegate I can only advise and represent members. Once upon a time nurses and midwives could join up after an incident and, provided they paid a year’s worth of membership fees, they could be represented. But that wasn’t fair to those members who supported the union – if people only joined when they needed our services, we’d have a fraction of the resources and representative power we need. And so, many years ago, the decision was made – with very, very rare exceptions (which have to be approved by Branch Council), nurses and midwives of the Victorian branch of the Australian Nursing and Midwifery Federation can only be represented if they were members at the time of an incident.

But I felt sorry for Juan – a strong clinician who hadn’t slept in several days, whose relationship with his manager and his employer was affected, and who was asking for information that’s readily available to all employees, if they know where to find it. So I told him that yes, he was able to take a support person with him – a friend, relative or colleague, whose job wasn’t to advocate for him but to pay attention to information that he, being distressed, might miss.

And I asked him what had happened.

A patient had accused my former colleague of sexually inappropriate behaviour, a devastating charge for someone who has no sexual intent, who prides themselves on their professionalism, and who didn’t see a problem coming until he was told by the nurse in charge of the shift that the patient had made this accusation.

Juan was distressed on many fronts – by this attack on his professionalism; by his manager reporting it to her manager, who reported it to the Director of Nursing; by the involvement of Victoria police; by his fear of consequences to his employment and his registration; and by what he perceived as the irrational accusation of a patient he had gone out of his way to help, by getting sandwiches after hours (to reduce the likelihood of nausea from a non-steroidal analgesic), and sitting with the patient, comforting them as they cried, even though he was very busy.

I explained to Juan that, though it felt as though his management weren’t supporting him, they have a legal obligation to escalate this kind of accusation – it’s not the kind of thing that his manager can handle on her own. I explained that they have an obligation to protect the patient, to the public, and to the profession from inappropriate behaviour – though he may have been wholly innocent and well-intentioned, there are predators out there. And I explained that the union is the same – they represent members, but when someone’s done something wrong, the union’s aim is fairness, not to get an unsafe nurse or midwife off.

I also explained about the disciplinary process – the escalation of warnings that, except for wholly egregious behaviour, preceded termination of employment or reporting to the Board (examples of those exceptions are primarily criminal activities like assault or theft), and I explained that the hospital needs to reassure the patient that their complaint was taken seriously, and that there are consequences to prevent this happening again.

None of which, I finished, meant that management necessarily believed Juan had done anything inappropriate – he would need to wait until his morning meeting for that – but clearly the patient perceived inappropriate behaviour, and that’s not what we want.

Juan had, in fact, handled this patient less well than he could have. When the patient arrived on the ward, he greeted them with something he thought was cheery and light, but which had the potential to be misinterpreted, particularly (as in this case) by someone who was being admitted with something significant.

The patient reported nausea and pain – Juan palpated the patient’s upper abdomen, but didn’t explain why, or ask for permission. That arms across the shoulder and back rubbing that Juan meant to be comforting was interpreted as sexual, and because Juan wasn’t thinking about the patient’s discomfort, he didn’t pay attention to any signs the patient may have given.

Finally, Juan added to his notes after being informed of the patient’s report – his addition was defensive, referenced and denied the complaint, and recommended the patient be seen by psychiatry, a referral that was appropriate for this patient for other reasons, but which read as though it was related to a false accusation. His note should have been patient-centred, documenting the pain and distress the patient had, the measures he took to resolve them, and not have included Juan’s own concerns.

Juan told me he felt much more comfortable after our discussion, and was able to sleep for a couple of hours before his meeting.

He was fortunate that his manager, and her manager, saw this as a cultural and communication issue, heightened by the additional layer of difficulty many men in nursing have when acting in a care-delivery role – a topic I’d like to address at another time, because it’s important.

Juan was issued a verbal caution, which will go in his file for a year, then vanish if there are no further issues. He was already scheduled for a fortnight’s leave, and has been encouraged to do something he enjoys, that’s unrelated to work. When he returns he’ll be booked into a communications workshop his hospital runs, that includes role play and these kinds of scenarios, and he was reassured that his management team see him as an asset.

Juan was fortunate to have a supportive, understanding and experienced management team who value his work, and who saw the situation from a number of perspectives, not just the patient’s, and not just from a PR perspective.

But he had several days where he was far more distressed than he needed to be. Had he been a member, he could have rung the union the morning he was told of the accusation, and been given all the information I gave him. He would have had someone go with him to the preliminary meeting the next day, either a job rep like me, or an organiser from the union, who would have explained the process to him, and been able to reassure him that his managers were being fair and even-handed.

Juan joined the union between our conversation and his meeting. When we spoke about it afterwards he said that the nurses’ union where he did his undergraduate training, overseas, didn’t do very much, so joining seemed like a waste of money, especially as he was a good nurse, a strong clinician.

He said that this experience made it clear to him that anyone can need representation – that false accusations or misunderstandings are less common when you’re a good person and a good nurse, but that alone is not protection.

This is something I hear more often than I’d like.

Last year a colleague contacted me about an accusation from a nurse on another ward that she’d accessed a patient’s notes. Like Juan, Wai-Li* was hurt and outraged that her management team didn’t know that she wouldn’t do something like that. Like Juan, she called me the night before a disciplinary hearing; unlike Juan, she was a member of the union, and I was able to advise her.
Wai-Li had been asked by a friend to find out what was happening with her friend’s father, a patient on a ward she had previously worked on. The family spoke English as second and third languages, and they were concerned that they may have missed valuable information.
Rather than suggesting the family ask for a family meeting, or speaking to the Nurse Unit Manager, Wai-Li approached the nurse caring for the patient, and asked about her. The nurse, appropriately, said she couldn’t disclose information about the patient to a third-party, and left the nurses’ station.
When she saw my colleague still there on her return, several minutes later, on the staff side of the desk (where the patient histories were), she believed Wai-Li had accessed the notes, and reported this to her manager.
Patient confidentiality is taken very seriously – nurses and midwives have been fired, and sanctioned by state boards, here and overseas, for inappropriately accessing information of patients whose care they’re not involved in. Wai-Li was told she could be reported to the regulating authority if this accusation was found to be true.
I asked Wai-Li what she’d said to the family, and she replied that she’d said the nurse wasn’t prepared to disclose any information, so they should probably ask to speak to the treating doctors, perhaps with an interpreter.

I explained to Wai-Li, as I did to Juan, that there’s a process managers have to follow – it’s not personal, it’s professional, and feeling hurt and defensive gets in the way of hearing what the problem is. In this case, Wai-Li did act inappropriately, in that she shouldn’t have approached the nurse; the other nurse, a graduate, is to be commended for maintaining her patient’s confidentiality, and for reporting what she thought was a breach.

I was unable to attend the meeting with Wai-Li the next day, and it was too late in the evening to contact ANMF. I recommended Wai-Li write a statutory declaration, which has the same weight and consequences as testimony, explaining what had happened, including the reason why she was behind the nurses’ station (she called down to her ward to let them know she was going to be late back from her break, as she visited her friend’s mother while she was up there). I also recommended she contact her friend and ask him if he’d write a stat dec too – in his native language, if his English wasn’t sufficiently fluent. If he agreed, she could tell her managers at the meeting, and if the investigation went to the next step, that could be professionally interpreted, as supporting evidence that she hadn’t accessed information.

Fortunately Wai-Li’s own statement, and the willingness of her friend to provide supporting information, was sufficient for her managers, and the matter rested there.

In both these cases well-intentioned nurses were accused of significant charges that could have effected their employment and their registration. Both Wai-Li and Juan left seeking help until the last minute, instead of at the time they became aware of the process starting, causing unnecessary angst and distress. And in both cases they had management teams who were fair, impartial and reasonable.

I am well aware that there are other outcomes – nurses as innocent of actual wrong-doing as Juan and Wai-Li who have been accused of contributing to a patient’s death by giving extra narcotics; of stealing drugs for their own use; and of giving medications without an order. Last week, prompted by Juan’s case, I asked on social media for examples – these are just three, and one of them is only a fortnight old.

Nurses and midwives are very concerned about the legal ramifications of errors, particularly of Coroner’s cases. But a survey of Victorian branch members, looking at what topics and areas members would like more information about as part of ANMF Victoria’s e-learning portal, didn’t contain a single request about disciplinary proceedings, even though they are not only vastly more common, but also more likely to result in career consequences.

There are bad nurses and midwives out there – people who assault patients, who are drug-dependent, who are driven by motives other than altruism and professionalism. The public and the professions have to be protected from them, which is why we have laws, regulating agencies, policies, reporting processes, and alert, responsive managements.

There are also poor managers, unpopular but skilled nurses, malicious patients, and false accusations.

Anyone can make a mistake – I know that I still feel nauseated when I think of the handful of potentially life-threatening drug errors I’ve made. Anyone can be involved in a communication conflict – we know that from the rest of our lives, our relationships, and certainly from social media. Anyone can be thoughtless, let their attention drift at a pivotal moment, regardless of how responsible and essential their role is. Anyone can be the victim of a false accusation, whether genuine misunderstanding or motivated by malevolent intent.

Anyone can need representation. Even good nurses and midwives.

*identifying information, including names and specific details, has been changed

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