Victorian Civil and Administrative Tribunal|2004-08-19

Bahonko v Nurses Board of Victoria [2004] VCAT 1663 (19 August 2004)

Strike out application - Application to Victorian Civil and Administrative Tribunal - jurisdiction - Section 58 Nurses Act 1993.

1 On 25 May 2004 the Respondent Nurses Board resolved:

(a) To conduct a preliminary investigation into the Applicant's professional conduct and her ability to practise as a nurse; and

2 By letter, dated 4 June 2004, the Applicant applied to the Victorian Civil and Administrative Tribunal ("VCAT") for a review of the Respondent's decision to suspend her registration. Earlier, on 25 May 2004, she had written to the Board requesting that the suspension of her registration be lifted immediately. The application for a review directed to VCAT was accompanied by a considerable amount of documentation. In the main, this documentation was directed to answering the allegations which the Applicant believed had been made against her by those who complained to the Nurses Board.

3 On 24 June 2004, the Respondent gave notice of application for an order, pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act"), striking out the application. The grounds of the application followed the wording of Section 75(1) of the VCAT Act, reciting that the application is frivolous, vexatious, misconceived, lacking in substance and an abuse of process.

4 The striking out application came before me for hearing and determination.

5 The Respondent Board is established by the Nurses Act 1993 ("the Act"). In summary, the legislative scheme is as follows. Section 1 sets out the main purposes of the Act and the first is expressed to be the protection of the public by, inter alia, providing for the investigation into the professional conduct and fitness to practise of registered nurses. Division 1 of Part 3 of the Act sets out the framework for preliminary investigations into the professional conduct of nurses, whilst Division 2 of the same Part makes provision for preliminary investigation into the health of registered nurses. The preliminary investigation ordered to be made by Board on 24 May 2004, concerning the Applicant, invoked both Division 1 and Division 2.

6 Section 22 of the Act requires the Board to investigate a complaint concerning the professional conduct of a nurse, unless the Board has determined it to be frivolous or vexatious.

7 Section 22(2) requires the Board to conduct a preliminary investigation into a complaint to determine whether or not it is necessary to conduct a formal or informal hearing.

8 By Section 25 of the Act, the Board, having determined to conduct a preliminary investigation concerning the professional conduct of a registered nurse, may suspend the registration until any hearing into the matter is completed by the Board. The power to do so arises if, in the opinion of the Board, it is necessary to do so because there is a serious risk that the health and safety of the public will be in danger.

9 Section 25(2) requires that if the Board has suspended a registered nurse's registration, it must:

(b) ensure that the matter is investigated as soon as possible after that suspension.

10 Pursuant to the provisions of Division 2, the Board arranged for the Applicant to be medically examined by Dr A L Kaplan, Psychiatrist.

11 In relation to an application brought under Section 75 of the VCAT Act, the court will approach the consideration of such an application cautiously. In general terms, a court will not proceed to strike out an application, unless it is obviously hopeless, obviously unsustainable in fact and law, can, on no view, justify relief, or be bound to fail. The present application relates solely to the jurisdiction of the Tribunal to hear a complaint of the nature brought by the Applicant.

12 The jurisdiction of the Tribunal to review a decision of the Nurses Board is given by Section 58 of the Act. Section 58 is in the following terms:

58. Review by Victorian Civil and Administrative Tribunal

(1) A person whose interests are affected by the relevant decision, finding or determination may apply to the Victorian Civil and Administrative Tribunal for review of--

(a) a decision to refuse a person's application for registration or endorsement of registration or renewal of registration; or

(b) a decision to impose conditions, limitations or restrictions on a person's registration or endorsement of registration; or

(ba) a decision to refuse to note the registration of the nurse under section 8A; or

(c) a decision of the Board to suspend the registration or endorsement of registration of a person, if the Board has not instituted an investigation into the professional conduct or physical or mental health of that person within a reasonable time of having suspended that registration or endorsement of registration; or

(d) a finding or determination made at a formal hearing under Part 3.

(2) The application must be made within 28 days of the date on which the Board gives notice of the decision, finding or determination to the person concerned.

(3) If a finding has been made at a formal hearing under Part 3 but no final determination has been made at that hearing, an application for review under this section can only be made with the leave of the Tribunal.

13 A perusal of the Section, causes me to conclude that the sole applicable provision is that to be found in sub-section (1)(c), namely, where having decided to suspend the registration of a nurse, the Board has not instituted an investigation as required by Divisions 1 or 2 of Part 3 of the Act, within a reasonable time.

14 On the materials before me, it is apparent that, on 19 May 2004, one Patricia Riley, Manager, Moorfields Aged Care Centre, complained to the Respondent Board of conduct concerning the Applicant both on and prior to 6 May 2004. The complaint related both to the Applicant's attitude to her professional responsibilities and to her mental state. On the face of it, the complaint was neither frivolous nor vexatious. Accordingly, the Respondent Board determined to conduct a preliminary investigation into the complaint. Further, on 24 May 2004, the Board advised the Applicant of its decision concerning the complaint by letter in the following terms:

I wish to advise at its meeting on 24 May 2004, that the Nurses Board of Victoria considered a report concerning your registration as a nurse in division 1 of the register. This report raised issues concerning your ability to practise as a registered nurse and your professional conduct.

The Board has received a complaint concerning your conduct as a registered nurse. It is alleged that on or about 6 May 2004, whilst employed at Moorfields (Box Hill), Uniting Church of Australia, you:

* Failed to practise in a safe and competent manner in relation to the administration of medication; and

* Failed to meet directives from senior management.

You may obtain a copy of the documents constituting the complaint under the Freedom of Information Act. An application form is enclosed. Copies of the documents will be forwarded to you upon receipt of the completed form and the application fee of $20.

The Board initiated a preliminary investigation into your professional conduct and determined at its meeting 24 May 2004 that your registration as a nurse in division 1 be suspended effective from 25 May, 2004 at 4pm, until any hearing into the matter is completed.

In the meantime you MUST NOT PRACTISE AS A NURSE. If you practise as a nurse you will commit an offence and be liable for a fine of up to $5,000 for each offence.

You must immediately forward your registration certificate to the Board. Failure to return your certificate is an offence for which the maximum penalty is a fine of $2,000.

It would be appreciated if you would attend this office to discuss this complaint. You may wish to be accompanied by a friend, union representative or a solicitor. Please allow 30-45 minutes for the interview.

In addition the Board believes that your ability to practise nursing may be affected and has appointed Linda Miln, Board officer, to conduct an investigation into this matter. You are requested to advise the Board whether or not you agree to undergo a medical examination within 28 days of receiving this letter.

The medical examination must be undertaken by a psychiatrist who is not your treating psychiatrist and is mutually acceptable to both you and the Board. Enclosed is a list of appropriate psychiatrists to select from or you may submit the name of one or more psychiatrists to the Board for consideration. The Board will meet the cost of this medical examination.

Linda Miln will discuss the medical report with you unless the Board refers it to a medical practitioner nominated by you or appoints a medical practitioner to continue the investigation.

The Board may, after considering the outcome of the preliminary investigation, decide to take further action. Should further action be taken, you will be asked whether you are prepared to agree to certain measures. If you agree, the Board will implement these measures. They may include:

* Requiring you to alter the way in which you practise nursing;

* Having conditions, limitations or restrictions imposed on your registration; or

The Board may refer the matter to a formal hearing if you do not:

* Agree to undergo or abide by an agreement to undergo the medical examination; or

* Reach an agreement with the Board or do not abide by such an agreement reached with the Board.

Please advise me in writing as to whether or not you agree to undergo a medical examination by 22 June 2004. Should you agree to this request, please submit the name of at least one psychiatrist who is acceptable to you.

If you require further information concerning this matter, and to arrange a mutually convenient appointment for an interview please contact Linda Miln, Nurse Adviser Professional Conduct, on 8635 1240.

15 On 17 June 2004, after a Board meeting held that day, the Respondent Board again wrote to the Applicant and I set out the text of that letter:

As advised at its meeting on 24 May 2004, that the Nurses Board of Victoria considered a report concerning your registration as a nurse in division 1 of the register. This report raised issues concerning your ability to practise as a registered nurse and your professional conduct.

At its meeting of 17 June 2004, the Board determined that the investigation into your professional conduct and ability to practise continue, and the suspension on your registration remains.

In the meantime you MUST NOT PRACTISE AS A NURSE. If you practise as a nurse you will commit an offence and be liable for a fine of up to $5,000 for each offence.

As previously advised you must immediately forward your registration certificate to the Board. Failure to return your certificate is an offence for which the maximum penalty is a fine of $2,000.

16 When this matter was continued before me on Friday, 23 July 2004, the Respondent filed and served an Affidavit of Linda Miln, a Nurse Adviser, employed by the Respondent Board. In that she set out the steps which had been undertaken as a result of the delivery of the complaint, to which I have referred, to the Board. As a matter of passing interest, this Affidavit reveals that the Applicant is also pursuing unfair dismissal claims against Moorfields in the Australian Industrial Relations Commission.

17 The Affidavit reveals that there has been reasonable pursuit of the investigation and that attempts have been made to interview the Applicant, but with rather limited success.

18 Ms Miln was required to attend for cross-examination upon her Affidavit. The cross-examination was not useful as it related basically to assertion and counter-assertion, which did not reveal much by way of information. In re-examination, it was revealed that the Respondent, at its Board meeting on 22 July 2004, had decided that the health issue, namely, that issue raised by Division 2 of Part 3, had been closed. I interpose the observation that this is not surprising, as Dr Kaplan, in a very detailed report, found no evidence of any psychiatric or emotional disorder.

19 The Applicant's submissions may be summarised as follows. First, she says the complaint against her is spurious and without foundation. Secondly, she says that the documents she has provided to the Board, which are in the main assertions that she makes concerning her conduct and in answer to complaints made against her, show that the complaint is without foundation, but is a result of a biased and unfair attack upon her. Thirdly, she says any investigation by the Respondent is a sham. It is time-wasting. Ms Miln, who is conducting the investigation, is neither qualified to do so, nor has she conducted a proper investigation. Indeed, the Applicant characterised Ms Miln's conduct as criminal and negligent. Fourthly, the Applicant said the delays in carrying out, to finality, the investigation are unacceptable. Fifthly, she said that the Board itself is substandard.

20 Insofar as the jurisdiction of the Tribunal to hear her application is concerned, she dismissed the striking out application by saying that clearly the Tribunal had jurisdiction, although, she made no effort to identify how it might be said that the jurisdiction was soundly based.

21 The Applicant made the complaint that the investigation had undergone unnecessary delay and, although she did not go on to recite the effect of that assertion, underlying it, of course, is the submission that I should regard the Board's failure to make a decision as a deemed decision.

22 Although it was not directly raised by the Applicant, I felt it required me to give consideration to whether there was not a reviewable decision by reason of the provisions of Section 4 of the VCAT Act; which provide:

(1) For the purposes of this Act or an enabling enactment, a person makes a decision if the person--

(a) makes, suspends, revokes or refuses to make a decision, order, determination or assessment (including a decision not to make a decision, order, determination or assessment);

(b) gives, suspends, revokes or refuses to give a certificate, direction, approval, consent or permission;

(e) amends or varies any of the things referred to in paragraph (a), (b), (c) or (d);

(f) makes a declaration, demand, direction or requirement;

(2) For the purposes of this Act or an enabling enactment--

(a) a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;

(b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision-maker;

(c) a refusal by a decision-maker to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision;

(d) a failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision.

(3) If a person who made a decision by reason of holding or performing the duties of an office or appointment or a position in the public service ceases to hold or perform the duties of that office, appointment or position--

(a) the person for the time being holding or performing the duties of that office, appointment or position is deemed to be the decision-maker in respect of that decision; or

(b) if there is no such person, or if the office or position no longer exists, a person specified by the President is deemed to be the decision-maker in respect of that decision.

23 Having considered that Section, and having considered what the authorities say about its interpretation, I am unable to find that there has been a delay in the investigation, which might be characterised as inordinate or unreasonable. Consequently, I am not satisfied that any of the provisions of Section 4 of the VCAT Act has application to this case. Even if any did, it is by no means certain that the finding that there had been a deemed decision would, of itself, attract the jurisdiction of the Tribunal, having regard to the provisions of Section 58 of the Nurses Act. By saying that, I am not to be taken to accept that further delay in concluding this investigation would be regarded as acceptable. Where a person's career and living are at stake, celerity, combined with thoroughness, must be the hallmarks of any investigation. All I am saying is that I cannot, at this stage, detect any lack of celerity in the conduct of the investigation.

24 The outcome then is that I am satisfied that the Tribunal does not have jurisdiction to entertain the Applicant's complaint and accordingly, pursuant to Section 75 of the VCAT Act, I order that the proceeding be summarily struck out.

25 I shall hear the parties on any further orders, which should be made following this ruling.

Bahonko v Nurses Board of Victoria [2004] VCAT 1663

At a glance

Court

Decision date

Source

Judgment (78 paragraphs)

Bahonko v Nurses Board of Victoria [2004] VCAT 1663 (19 August 2004)

Parties