Appellant v Respondent

Appellant v Respondent - [2009] VSCA 109 - VSCA 2009 case summary — Zoe

[15]

(1) A responsible board must grant general registration as a health practitioner to an applicant if -

(a) the applicant -

(i) is qualified for registration under section 5; or

(ii) had general registration under this Act or a corresponding previous enactment as a health practitioner of that kind not more than 2 years before the application was made; or

(iii) has registration as a non-practising health practitioner of that kind and was, under section 170, deemed to have general registration as that kind of health practitioner under this section; and

(b) there are no grounds under subsection (2) under which the responsible board may refuse to grant registration to the applicant;

...

(2) The responsible board may refuse to grant general registration to an applicant on any one or more of the following grounds -

(a) that the character of the applicant is such that it would not be in the public interest to allow the applicant to practise as a registered health practitioner;

(ab) if the applicant is applying for registration based on previous registration mentioned in subsection (1)(a)(ii) or (iii), that the applicant -

(i) is not, in the board's opinion, competent to practise as that kind of health practitioner; or

(ii) has not, in the board's opinion, had sufficient recent practise as that kind of health practitioner;

(b) that, in the opinion of the responsible board, the applicant is unfit to practise as a health practitioner because he or she is an alcoholic or drug-dependent person which impairs his or her ability to practise as a registered health practitioner;

(c) that, in the opinion of the responsible board, the applicant is unfit to be registered because he or she has a physical or mental impairment which impairs his or her ability to practise as a health practitioner;

(d) that the applicant has been found guilty of an offence where the suitability of the applicant to practise as a health practitioner is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the applicant to practise because of the finding of guilt;

...

(f) that the applicant's competency in speaking or communicating in English is not sufficient for that person to practise as a health practitioner;

...

(h) that, in the opinion of the responsible board, the health practitioner does not have adequate arrangements for professional indemnity insurance that meet the minimum terms and conditions set out in the guidelines of the responsible board;

(i) that the applicant is disqualified from applying for registration under this Act.

(3) A grant of registration under this section is subject to any condition that the responsible board thinks fit including conditions as to professional indemnity insurance.

(4) The responsible board may, upon application by the registered health practitioner or with the agreement of the registered health practitioner, amend, vary or revoke any condition imposed on the registration under this Part.

[57]

In considering whether the 'offence ground' is made out it is relevant to consider the nature of the offending behaviour; the applicant's moral culpability for the offending; and the applicant's rehabilitation and remorse for the offending behaviour.

The offences committed by Mr Lal are manifestly very serious. The complainant in respect of the first three offences was a patient of Mr Lal's. Members of the public have a right to expect that the trust they repose in medical practitioners is not breached in such an egregious way.

The two assaults did not involve patients, but did occur in the course of Mr Lal's professional duties.

It is also relevant to note that Mr Lal's offending conduct occurred in two discrete periods. The repetition of what may euphemistically be called 'boundary issues' with women is particularly serious.

Mr Lal's moral culpability for the offences to which he pleaded guilty is a relevant consideration.

Impaired mental functioning may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility.

...

Mr Lal suffered from a mental illness (OCD) at the time he committed these offences and the weight of expert opinion supports a finding that his offending was largely the product of his illness. As a consequence Mr Lal's moral culpability for the offending conduct is substantially reduced.

Mr Lal's rehabilitation in respect of the offences is less than complete. This is manifested by a deficit in empathy with respect to the victims of his offending and in a lack of insight into his wrongdoing. We have already made mention of these matters in the context of the character ground.

The serious nature of the offences and the limited extent of Mr Lal's rehabilitation would ordinarily warrant findings that:

• the offences are likely to affect the applicant's suitability to practise; or

• it is not in the public interest to allow the applicant to practise.

Absent our conclusion in relation to Mr Lal's moral culpability we would have made such findings in this case.

But these offences were largely the product of the mental illness from which Mr Lal suffered at the relevant time and accordingly Mr Lal's moral culpability for the offending conduct is substantially reduced.

Having regard to all the circumstances we are not persuaded that Mr Lal's suitability to practise is likely to be affected because of the offences of which he has been found guilty. Nor are we persuaded that it is not in the public interest to allow Mr Lal to practise because of these findings of guilt. Accordingly, we are not satisfied that the offence ground is made out.[22]

[81]

The Tribunal, against the background of evidence, submissions and conclusions to which I have referred, concluded that the Appellant had been found guilty of offences "whereby it is not in the public interest to allow the Appellant to continue to practise because of the finding of guilt".

It prefaced that conclusion by referring to "the nature and circumstances of the offences committed by the Applicant" which "involved a course of dishonesty perpetrated over about two and a half years and repeated at regular intervals".

It appears to me that the Tribunal reached its conclusion by asking itself whether, in the circumstances of the particular convictions, there was a risk that public confidence in the nursing profession could be damaged, this potentially impacting upon the ability of nurses to deliver effective care. On the evidence, an available answer to that question was "yes". That made relevant the maintenance (or restoration) of trust in the nursing profession. From there it was but a short step to conclude that it was not in the public interest to allow the Appellant to continue to practise because of the finding of guilt. Once such a finding was made, it may be added, steps could be taken, by way of appropriate determinations, to maintain (or restore) public confidence in the profession.

Taking the route described, the Tribunal's ultimate conclusion did not depend upon it finding that the particular nurse was, by reference to the conduct reflected in the finding of guilt, a threat to the public requiring its protection from her. I consider that the making of a finding under the second limb of paragraph (c)(ii) and then the imposition of an appropriate determination in respect of the particular nurse was apt to protect the public - being action that would tend to reinforce within the nursing profession generally the need for maintenance of high standards of ethics, honesty and trustworthiness.

...

... The essential point which the Tribunal made was that the nature and circumstances of the offences, involving a prolonged and repeated course of dishonesty, were pertinent to the public interest. How that could be so is a matter which I have already explained. ...[37]

At a glance

Court

Decision date

Before

Source

Judgment (155 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (13)