Domburg v Nurses Board of Victoria [2000] VSC 369

Supreme Court of Victoria|2000-09-07|Before: ASHLEY J

Melissa Domburg appeals by leave from an order of the Victorian Civil & Administrative Tribunal (VCAT) made on 7 December 1999: see s.148 of the Victorian Civil & Administrative Tribunal Act 1998 (the VCAT Act).

In the proceeding before the Tribunal the present Appellant was applicant and the Nurses Board of Victoria, a body established under s.65 of the Nurses Act 1993 (the Act) was Respondent. No issue was raised that the Board was not a proper party: see Parr v. Nurses Board of Victoria Kellam J, President, decision of VCAT 2 December 1998, unreported) at paragraph 7.

"2. In substitution for the decision referred to in paragraph 1 the following decision is made - (a) Under section 48(2)(g) of the Nurses Act 1993 the Applicant's registration as a registered nurse is suspended for a period of 3 months commencing on 10 December 1999 and concluding on 9 March 2000 both dates inclusive. (b) Under section 48(2)(e) of the Nurses Act 1993 the following conditions, limitations or restrictions are imposed on the registration of the Applicant, namely - During the period of suspensions specified in Decision 2(a) above the Applicant must not work in any capacity for a 'registered funded agency' or a 'health service establishment' or as or for a 'nurse's agent' as those terms are defined in section 3 of the Nurses Act 1993. (c) Under section 48(2)(a) of the Nurses Act 1993 the Applicant is required to - (i) undergo counselling in the form of financial counselling with Portland Community Corrections (Vic) Limited on a periodic basis for a period of 3 months from the date of these reasons; and (ii) undergo one counselling session and assessment by a psychiatrist or psychologist agreed to by the Applicant and the Board. Such assessment to occur on a date between 4 months and 5 months from the date of these reasons. The Applicant is required to ensure that a written report of the assessment is provided to the Nurses Board of Victoria no later than 6 months from the date of these reasons."

On 18 February 2000 the Appellant was granted leave by a Master to file and serve a notice of appeal in a form which he initialled. That notice of appeal stated the questions of law raised by the appeal. The document had been exhibited to an affidavit in purported compliance with Rule 4.07(2)(b) and (3)(c) of Chapter 2 of the Rules.

The Master was authorised by Rule 4.8 to grant leave to appeal. Implicitly, that was the import of the order in this case.

A question arises whether it is for a Master to grant leave to appeal in a form which specifies the pertinent questions of law; or whether it is for an Appellant, leave to appeal having been granted, to prepare a notice of appeal which complies with Rule 4.11(1), the court then having power to amend the grounds or to make other appropriate order in reliance upon Rule 4.11(3).

It is understandable that a Master would wish to make it clear, by reference to the grounds of appeal proposed by a draft notice of appeal, the reasons for which leave to appeal had been granted. I doubt, however, whether a Master should specify the questions of law in respect of which leave is granted - at least as part of his or her substantive order. For that might well create some inhibition upon the effective operation of Rule 4.11(3).

Whatever be the propriety of the Master's order, the questions were substantially unsatisfactory. They did not sufficiently confine the issues of law in respect of which the Tribunal was alleged to have fallen into error. In one instance a question was framed which postulated a misdirection by the Tribunal in circumstances where, before the Tribunal, the Respondent had proposed, by reference to authority, that a particular meaning be given to a phrase in the pertinent legislation, and counsel for the Appellant had not challenged the correctness of the meaning.

Much, then, was unsatisfactory about the grant of leave. It seems pretty clear that insufficient regard was paid to the guidance given by the Court of Appeal in Department of Premier & Cabinet v. Robert Hulls MP (1999) VSCA 117 at paras 8-16 per J.D. Phillips, JA.

The parties, most particularly the Appellant, cannot escape criticism. It was, after all, the Appellant's side which proposed (and apparently pressed for) the questions in the form that the Master approved them. It is certain that the parties had greater familiarity with the mass of material, including the Tribunal's lengthy reasons and the pertinent legislation, than did the Master.

Against the background that I have described, it became possible to identify in the course of submissions made for the Appellant before me the threads of questions of law which did arise in the proceeding below, which were comprehended by the notice of appeal, and which were apt to justify grant of leave to appeal. At the conclusion of the submissions of counsel for the Appellant I sought to focus the matter by seeking the response of the Respondent's side to the questions as they had in substance been confined by the way in which the submissions had developed. I did not make any order in reliance on Rule 4.11(3). Counsel for the Respondent assisted me by addressing the matters thus identified.

The questions in what I have called their confined form were these:

"(1) On an assumption that the Tribunal found that the unprofessional conduct of the Appellant was constituted by a finding of guilt of an offence where it was not in the public interest to allow the Appellant to continue to practise because of the finding of guilt - (a) did the Tribunal misdirect itself as to the meaning of the term 'the public interest'; (b) was it open to the Tribunal to conclude that it was not in the public interest to allow the nurse to continue to practise? (2) Did the Tribunal misdirect itself as to the meaning of the phrase 'unprofessional conduct of a serious nature'? (3) Was the Tribunal empowered by s.48(2)(a) of the Nurses Act 1993 to require the Appellant to undergo one counselling session and assessment by a psychologist or psychiatrist, and to require the Appellant to ensure that a written report of the assessment was provided to the Nurses Board. (4) Was the Tribunal empowered by s.48(2)(e) to impose the conditions, limitations or restrictions so-called set out in paragraph 2(b) of the Tribunal decision?"

Those questions did not separately address the question framed by paragraph 4.5 of the notice of appeal, a question that should never have been permitted. In argument, however, counsel for the Appellant addressed the supposed subject matter of that question in dealing with the first, third and fourth questions as I confined them.

To understand this appeal it is necessary to understand that

+ In 1990 the Appellant became registered as a State Enrolled Nurse under the provisions of the Nurses Act 1958. Since the commencement of the Act she has been registered as a division 2 nurse.

+ Between July 1994 and April 1997 the Appellant committed offences against the Social Security Act 1991 (Clth). In August 1998 she was convicted at the Magistrates' Court at Portland of 31 offences relating to the receipt of Social Security benefits to which she was not entitled. The amount of benefits received totalled a little over $20,000. The sentencing court was informed that the Appellant had undertaken to repay the amount improperly claimed and received. It may reasonably be supposed that this led to amelioration of the penalties imposed. In the event, a sentence of imprisonment, wholly suspended, was imposed.

+ In April 1999 the Board gave notice of a formal hearing under s.44 of the Act. The allegations raised against the Appellant were these:

"1 At Portland Magistrates' Court on 4 August 1998, she was found guilty of offences under s.1350 Social Security Act 1991 of the Commonwealth:- (a) where her ability to continue to practise as a registered nurse is likely to be affected because of the finding of guilt; and/or (b) where it is not in the public interest to allow her to continue to practise because of the finding of guilt. 2 At Portland in and between July 1994 and April 1997, she dishonestly claimed and obtained Social Security benefits totalling $20,266.11 from the Commonwealth of Australia, to which she was not entitled".

+ After a hearing on 3 May 1999 a Panel appointed by the Board determined, by the decision dated 27 May 1999, that the Appellant had engaged in unprofessional conduct of a serious nature. The Panel apparently considered that the substance of the matters raised by paragraph 1(b) and 2 of the allegations was made out, and supported that conclusion. The Panel imposed a period of suspension of registration, and also certain conditions. It is not necessary to rehearse the detail of the determinations made.

+ The Appellant applied to VCAT for review of the Panel's decision: see s.58 of the Act. The review, which took the form of a rehearing de novo, was conducted on 30 September and 1 October 1999. The Tribunal's decision was, as I have earlier noted, delivered on 7 December 1999.

+ The Tribunal determined that the Appellant had "engaged in unprofessional conduct of a serious nature": see s.48(1)(a) of the Act. It did so by finding that the Appellant had been guilty of an offence (in fact, multiple offences) where it was "not in the public interest to allow the nurse to continue to practise because of the finding of guilt": see the second limb of paragraph (c)(ii) of the definition of "unprofessional conduct" in s.3(1) of the Act.

+ The Tribunal imposed requirements upon the Appellant in reliance upon s.48(2)(a); and what it described as "conditions, limitations or restrictions" on the registration of the Appellant in reliance upon s.48(2)(e). It did so in addition to imposing a period of three months' suspension of registration.

According to the substance of the Appellant's case the Tribunal misdirected itself as to the meaning of the term "public interest" where it appears in paragraph (c)(ii) of the definition of "unprofessional conduct". Further, according to the Appellant's case, giving the term its proper application it was not open to the Tribunal to conclude that it was not in the public interest to allow the Appellant to continue to practise because of the finding of guilt.

In order to deal with those submissions it is necessary to understand the way in which the Tribunal approached the particular matter. It is not an altogether easy task, because the Tribunal gave its reasons in the context of what were described as "issues in dispute"; and because its reasons did not pigeonhole the matter now under discussion.

That said, the Tribunal evidently (and correctly) accepted a submission made for the Appellant that an offence referred to in paragraph (c)(ii) of the definition could include "an offence unrelated to nursing practice": see paragraphs 32 and 35 of its reasons.

The Tribunal noted submissions made for the Appellant that the test whether an offence was of the type described in either limb of paragraph (c)(ii) of the definition "can only derive from the definition itself and the purposes of the Act as set out in s.1"; that one of the main purposes of the Act was to protect the public; and that there was no evidence that the public required protection because of the Appellant's conduct: see paragraphs 32, 33 and 35 of its reasons.

Next the Tribunal appears to have directed itself that protection of the public was in fact pertinent to the question whether in the particular case offences had been committed which constituted unprofessional conduct under paragraph (c)(ii) of the definition. Further, it decided that there was a relationship between protection of the public and maintenance of standards.

The next step was the Tribunal's conclusion - expressed in connection with the concept of protection of the public - that

"the nursing profession has a high reputation for ethics and honesty".

There was evidentiary support for that conclusion. A Director of Nursing at a major Melbourne hospital had given evidence, in substance, that

"a nurse's dishonesty eroded the public trust in the profession as a whole...":

Further, a Professor of Nursing had given evidence, in substance, that

"it was a generally accepted view in nursing that trust and trustworthiness was absolutely fundamental to the professional practice of nursing in terms not just of its good reputation but the ability of nurses to deliver therapeutically effective care":

Each of the two witnesses to whom I have just referred was permitted to express an opinion that the Appellant had engaged in unprofessional conduct. A witness called for the Appellant, the State Secretary of the Australian Nursing Federation, expressed contrary opinion. After this conflicting evidence had been adduced counsel for the Appellant submitted that the opinion evidence (of the witnesses called for the Board) was irrelevant. The Tribunal simply "noted" the evidence in its conclusions. It does not appear that it relied on the evidence in reaching its ultimate conclusion.

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 which would tend to reinforce within the nursing profession generally the need for maintenance of high standards of ethics, honesty and trustworthiness.

I should now go back to the Appellant's submissions. The argument went this way:

+ The use of the adjective "professional" in paragraphs (a) and (b) of the definition of "unprofessional conduct" indicated that the conduct must occur in the course of or be directly related to the practice of the nurse. The meaning of "professional misconduct" is to be gleaned from Mullany v. Psychologists Registration Board (Gillard, J. judgment 22 December 1997, unreported). Ziems v. The Prothonotary of Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, particularly per Fullagar, J. at 290 shows that a distinction should be drawn between personal and professional misconduct. The specific inclusion of paragraph (c) expresses the limits on conduct not occurring in the course of or directly related to practice which could be the basis for disciplinary action. Taking colour, however, from paragraphs (a) and (b) of the definition, paragraph (c) should be taken to comprehend only findings of guilt arising from conduct occurring in the course of or directly related to the practice of a nurse (except, it was perhaps conceded, in the case of indictable offences referred to in sub-paragraph (c)(i)).

+ The 'public interest' "must be referable to considerations referable to the subject matter, scope and purpose of the Nurses Act". That interest was disclosed particularly by s.1 of the Act, but also by the definition of "unprofessional conduct" considered overall.

+ The Tribunal, apparently, treated what it described as the Appellant's "serious criminal activity" as "the basis for its identification of the relevant public interest". That was not a matter which had connection with the subject matter, scope and purpose of the Act.

The key aspect of the first step in the Appellant's argument was the proposition that, in the case of paragraph (c)(ii) offences, the conduct (? constituting the offences) must occur in the course of or be directly related to the practice of a nurse. There are several objections to that proposition. First, it is not what the statute says. Second, I do not consider that such a construction emerges from ascertaining what paragraphs (a) and (b) of the definition mean when they respectively refer to "professional conduct" and "professional misconduct". The circumstances that may constitute unprofessional conduct are disjunctively expressed by the definition. I do not consider that the answer to the meaning of paragraph (c)(ii) is to be found in either Mullany or Ziems.

I go to the second contention advanced for the Appellant - that is, as to the correct approach for determining the public interest in a particular legislative setting. About this matter there is no doubt. The pertinent rule of construction is described in O'Sullivan v. Farrer and Another [1989] HCA 61; (1989) 168 CLR 210. There, a liquor licensee applied to transfer the licence which he held from one premises to another. The relevant legislation conferred a general discretion to grant or refuse such an application on public interest grounds. A question arose whether a particular consideration could justify the refusal of an application on such grounds. In the course of resolving that question Mason, CJ. and Brennan, Dawson and Gaudron, JJ, said this, at p.216:

"The public interest considerations which may ground an objection under s.45(1)(c) are, in terms, confined to considerations 'other than the grounds specified in paragraphs (a) and (b) and subsections (2) and (3)'. But, these limits aside, the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable...given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (N.S.W.) v. Browning (13), per Dixon J."

Counsel for the Respondent referred me to Australian Securities Commission v. Deloittes Touche Tomhatsu (1996) 138 ALR 655. There, the Full Court of the Federal Court, rightly recognising that O'Sullivan is the leading authority in the area, additionally drew attention, by reference to various dicta, to the width of the concept, and to the need in particular cases to balance interests, including public interests, the exercise being very much a question of fact and degree.

It is one thing to identify the correct approach. Can it be said that the Tribunal in terms declined to follow it? Clearly, the answer to that question is "No".

That takes me to the third limb of the Appellant's submission. Counsel contended that the Tribunal had in fact taken an irrelevant consideration into account - what it described as the Appellant's "serious criminal activity".

That submission, which draws upon what the Tribunal said at paragraph 53 of its reasons, in my opinion misunderstands the true import of what the Tribunal said. 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. It did not necessarily depend upon the Appellant, personally, being held to be such a threat to the public that in the interests of the public, and for its protection, she should not be allowed to practise as a nurse.

It follows from what I have said that the Appellant's challenge to the finding that she engaged in unprofessional conduct fails. But I think it desirable to add to what I have said in three respects.

First, counsel for the Respondent submitted that, had the Appellant been charged under Victorian law, and not under a Commonwealth statute, the offences would have fallen under paragraph (c)(i) of the definition (he was referring to the type of conduct which constituted the offences). That was said to be an alternative basis for supporting the Tribunal's decision.

In my opinion that submission did not have merit. The Appellant was found guilty of offences which did not fall within paragraph (c)(i). Paragraph (c)(ii), if any, applied in her case. It would be wrong to manipulate the phrase qualifying either limb of that paragraph so as to achieve a finding of unprofessional conduct just because charges might have been laid in respect of the particular or similar conduct which would have fitted within paragraph (c)(i), and because the nurse might have been found guilty of those charges.

Second, paragraph (c)(ii) of the definition makes it quite clear that a finding of guilt of a summary offence will not always constitute unprofessional conduct. It would be very wrong for a Panel or the Tribunal to fail to give substantive operation to the phrases which respectively qualify the offences to which the two limbs of the paragraph refer. It is not difficult to think of summary offences in respect of which a conclusion that it was not in the public interest that the offender be allowed to continue to practise as a nurse would stretch the public interest beyond breaking-point.

Third, whilst in the present case it was enough to consider the public interest in terms of protection of the public (and that in a fairly limited way), I do not consider that the subject matter, scope and purpose of the Act limit the public interest to that matter. The Act refers both to protection of the public and the public interest. They should not be treated as simply interchangeable terms. The latter appears capable of extending beyond matters comprehended by the former. Note that section 1 of the Act only purports to set out "the main purposes" of the Act.

Be that as may, on any view the public interest embraces protection of the public. According to s.1 such protection is to be achieved "by providing for the registration of nurses and the investigation into the professional conduct and fitness to practise of registered nurses".

The Act sets up an elaborate structure pertaining to registration and investigation. I should mention two provisions which seem to me to bear upon the potential breadth of the public interest. I well recognise that there are other provisions which underline the importance of a person's qualification to practise, and of a registered nurse's ability to perform his or her work properly. But the two provisions to which I wish to draw attention indicate, it seems to me, a broader public interest concern.

First, section 7 deals with registration. It is noteworthy that the Nurses Board may refuse to grant registration in the following circumstances:-

(2)(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 nurse; ... (c) that the applicant has been found guilty of - (i) an indictable offence in Victoria an equivalent offence in another jurisdiction; or (ii) an offence where the ability of the applicant to practise 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;"

Sub-section (2)(a), by contemplating that a person's character may be a basis for refusal of registration (and that before the Applicant has embarked upon a career as a nurse), suggests to me that protection of the public, and thus the public interest, extends to ensuring both the reality and the perception that the nursing profession is comprised of persons who are honest and trustworthy, and in whom the public - in which term I include the doctors, physiotherapists, pharmacists and so on who are likely to have frequent contact with nurses - may therefore have confidence.

Sub-section (2)(c) paraphrases paragraph (c) of the definition of "unprofessional conduct". It is, I think, significant that a person's convictions can be relevant to the question whether registration should be granted.

The import of that sub-section, as with sub-section 2(a), is that the registration process permits the filtering out of applicants whose past character suggests that they may not be honest and trustworthy, and who in consequence may be neither personally suitable for registration, nor persons whose registration would engender confidence in the profession generally - that is, by the public at large and by the doctors and other professional people who are a subset of the public.

It is, one might think, anomalous that the Board is permitted but not obliged not to register a person if that person has been found guilty of an offence whereby it is not in the public interest that the person be allowed to practise. The same may be said of the unprofessional conduct constituted by a breach of the second limb of paragraph (c)(ii) of the definition of that term. There, it is not mandatory that the nurse's registration be cancelled or suspended. But, regardless of those anomalies, the import of the definition and of s.7(2)(c) is clear enough.

Second, I should refer to s.14 of the Act. Section 12 provides for the period of registration or renewal of registration. Section 13 provides for the making of an application for renewal. Section 14 provides that the Board may refuse to renew registration. It may do so, by sub-section (b), "on any other ground on which the Board might refuse to grant registration". That brings in the matters mentioned by s.7(2). It emphasises the relevance of issues of character and conviction to the suitability of a nurse not only to commence but also to continue in practice.

The Tribunal found, by reference to the meaning given to the phrase "of a serious nature" by Kellam, J. (as President of VCAT) in Parr v. The Nurses Board, supra, that the unprofessional conduct of the Appellant was of such a nature.

According to the Tribunal's reasons "The applicant did not seek to challenge (that) meaning". Before me, counsel for the Appellant did not dispute the accuracy of that statement. For that reason alone, it was at least inappropriate to grant the Appellant leave to appeal in terms that permitted her to raise a supposed misdirection by the Tribunal concerning the meaning which was to be ascribed to the pertinent phrase.

However, leave to appeal was granted and a notice of appeal was filed, one ground of which encompassed the issue. Further, the ground was argued for the Appellant without objection; and counsel for the Respondent addressed the substance of the matter. None of this was satisfactory. It was left to me to enquire into what had transpired at the Tribunal, and to consider the implications of the course then adopted.

In all the circumstances, unsatisfactory though the situation is, I have decided to deal with the second question - that is, as I refined it after argument.

Dealing with the issue of construction, part of what Kellam, J. said in Parr was this:

"In my view the question of whether or not a nurse has engaged in unprofessional conduct of a serious nature must depend on the facts of each case. Clearly such conduct would not be serious if it was trivial, or of momentary effect only at the time of the commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standards which might be reasonably expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure".

I say "part" because although the Tribunal cited those observations, they formed but part of a more extensive analysis.

As I understand it, the Appellant's criticism of the part of his Honour's formulation which the Tribunal cited was as follows:

+ For unprofessional conduct to be of a serious nature, the finding of guilt had to relate to an offence which involved the protection of the public in relation to nursing and nursing practice, or the nursing practice of the Appellant.

+ It was difficult to see how any unprofessional conduct would be trivial. The reference to "trivial" was a distraction.

+ His Honour's characterisation of relevant conduct as "a departure, in a substantial manner, from the standards which might reasonably be demanded of a registered nurse" was little more than a recitation of paragraph (a) of the definition of "unprofessional conduct".

+ The reference by his Honour to the departure being necessarily "blameworthy" drew in an irrelevant consideration.

+ His Honour's citation of Johnson v. Marshall was inapt. That was an employment case; and it did not support the conclusion which his Honour reached.

I do not accept the first of the propositions just stated. It really harks back to the limited delineation of "the public interest" which counsel for the Appellant propounded in connection with paragraph (c)(ii) of the definition. It should no more be accepted in the present context than in that context.

There is nothing to the second point of criticism. All his Honour was doing was giving an example of what would not be unprofessional conduct of a serious nature.

The third point of criticism does not assist the Appellant. The particular part of his Honour's formulation to which counsel drew attention was considerably more than a re-wording of paragraph (a) of the definition. It must be understood in the particular circumstances which arose in Parr. There the applicant conceded (see paragraph 15 of his Honour's reasons) that his conduct amounted to unprofessional conduct in that it was of a lesser standard than that which the public might reasonably expect of a registered nurse. If there was any room for criticism of what was said by Kellam, J, it might be that his Honour's formulation did not capture the matters addressed by paragraph (c) of the definition. If that was so it would hamper, not aid, the present Appellant's case.

The fourth point of criticism depends upon what meaning should be attached to the adverb "blameworthy" in the particular context. It seems to me that his Honour was not addressing a concept of criminal guilt, but was rather identifying a departure from standards which was professionally blameworthy - referring, perhaps, to conduct which was advertent rather than adventitious. In reaching that conclusion, the balance of what his Honour said at paragraph 17 of his reasons is pertinent. Thus understood, no error is disclosed by use of the word "blameworthy".

The fifth point of criticism is devoid of merit. Consideration of his Honour's reasons shows merely that, in a passage not cited by the Tribunal, his Honour referred to Johnson - not to assign a definite meaning to the phrase "serious misconduct" but rather to show that the meaning of the phrase will depend upon the facts of individual cases (and, inferentially, the legislation in which the phrase is used).

There is always a question whether it is best to let the language of legislation - particularly where the language involves words in everyday usage - speak for itself; or rather seek to clothe it with meaning by recourse to other language. Bearing in mind that the particular language needs to be applied, if not often then at least not infrequently, by bodies consisting either wholly or in the main of non-lawyers, his Honour's analysis should be seen - bearing in mind always that it was tailored to the circumstances of the case before him - as an accurate and useful guide to the application of that legislation.

According to the Appellant's case it was not open to the Tribunal to conclude that, assuming her conduct could constitute unprofessional conduct, it was "of a serious nature". That submission depended, essentially, on acceptance of the Appellant's contention as to what was encompassed by the phrase "of a serious nature". I have rejected that construction. The subsidiary argument fails. I should only add that, the Tribunal having correctly directed itself upon the matter, its findings supported the conclusion which it reached.

The word "counselling" is not defined in the Act. It appears twice in sequences of possible determinations which may be made when a finding of unprofessional conduct has been made: see s.41(2)(a) and s.48(2)(a).

In each sequence there is a very evident gradation of the severity of the determinations which may be made by a panel. In each instance "counselling" is the least severe - or most benign - determination which is available. Thus, "counselling" involves something less than a caution or reprimand, still less the type of impact flowing from imposition of a fine, or suspension or cancellation of registration.

Seen in association with "caution" and "reprimand", the word "counselling" has an industrial relations flavour - although, in context, and by contrast with the requirement to undergo counselling, caution or reprimand would be imposed by the panel's determination.

In an industrial relations context, counselling is often provided by an employer, or through a professional association. Dictionary definitions cast a wider net. Thus, the Shorter Oxford English Dictionary provides a specific meaning as follows:-

"a therapeutic procedure in which a usually trained person adopts a supportive, non-judgmental role in enabling a client to deal more effectively with psychological or emotional problems or gives advice on practical problems".

I should mention also the definition of "counselling" in the Australian Pocket Oxford Dictionary, 5th Ed, to which counsel for the Respondent referred me. Thus:

"giving advice on personal, social, psychological etc problems".

Counsel for the Respondent submitted that there was evidence, called by the Appellant, which justified a conclusion by the Panel that the Appellant required "psychiatric or psychological counselling". The effect of that particular evidence was disputed; but let the Respondent's submission be accepted for purposes of argument.

In such circumstances, counsel for the Respondent submitted, there was good reason for the Panel to determine that the plaintiff should receive "psychiatric or psychological counselling". Bearing in mind s.48(5), he contended that it must be open to a panel to require assessment "to test the effectiveness of the counselling", and to require reporting. Counsel referred me to cases where the Medical Practitioners Board had, in the context of similar legislation, made similar determinations.

It would be unwise to attempt to define the limits of "counselling" for all cases that might arise under the Act. What does seem clear to me, however, is that to require the Appellant to attend a psychiatrist or psychologist for, in part "assessment", and further to require the Appellant to ensure that a written report of the assessment be provided to the Nurses Board (a fortiori at a time which might be beyond the end of the period of suspension) was neither in terms nor in substance a requirement that the Appellant undergo counselling under s.48(2)(a).

The determination imposed a requirement which went beyond counselling, as reference to the Shorter Oxford English Dictionary definition makes clear. It required, inter alia, the Appellant to waive the doctor/patient privilege against disclosure of medical matters. It matters not that, as the Tribunal noted in its reasons, a psychologist called for the Appellant before it agreed that it was not inappropriate that the particular regime be implemented. That says nothing about the existence of a power to implement such a regime. Moreover, as counsel for the Appellant pointed out, the Act specifically authorises the Board to seek medical examination of a nurse in particular circumstances: see ss.26 to 31 of the Act. There is much to commend the view that this should be regarded as the avenue by which the Board may seek examination of a nurse. I do not consider that it can be said that the course would not be open simply because conduct giving rise to suspicion of want of physical or mental health was itself the subject of an allegation of unprofessional conduct.

Even if, as counsel for the Respondent submitted, there was good reason to consider that the Appellant required psychiatric or psychological counselling, counselling and assessment are not identical. Moreover, the power to require counselling says nothing to suggest the existence of a power to require assessment and reporting "to test the effectiveness of the counselling".

Again, s.48(5) does not assist the Respondent. Whilst a Panel (or the Board) would be entitled to ascertain whether a nurse had complied with a requirement that he or she undergo counselling, and might require a report to satisfy itself of compliance with that requirement, it is quite another thing to require a written report of a psychiatric assessment. A report of the latter kind must necessarily address matters going well beyond the confirmation of compliance with a requirement which would be at the heart of a report of the first kind.

In the Medical Board cases to which the Respondent's counsel referred me the condition that the practitioner undergo psychiatric assessment and/or continue psychiatric treatment, with provision of reports, was imposed under the equivalent of s.48(2)(e) of the Act: see s.50(2)(e) of the Medical Practice Act 1994.

Counsel for the Respondent submitted that the Panel could have imposed the requirement now under discussion in reliance on s.48(2)(e). Even if that was so, it was not what the Panel did. Implicitly, I think, counsel was inviting me, if his s.48(2)(a) argument did not succeed, to impose a condition in reliance on s.48(2)(e) by my own order: see s.148(7)(b) of the VCAT Act.

I doubt, for reasons explained in connection with question 4, that it would be open to impose under s.48(2)(e) a condition in the form of the s.48(2)(a) requirement. My doubt is sufficient to lead me to conclude that I should not make an order in reliance on s.148(7)(b) of the VCAT Act.

Concerning the doubt to which I have just referred I should add this: in the Medical Board cases to which I was referred practitioners were suspended and yet a condition that the practitioners commence or continue psychiatric or psychological treatment was imposed. It may be that some argument of which I was not apprised was available to support the imposition of a condition which operated during a period of deemed non-registration (there being in the Medical Practice Act an equivalent of s.15 of the Act). For that reason, what I say about the ability of a panel under the Act to both suspend registration and impose a condition operative during the period of suspension should not be understood to impeach the correctness of the determinations made in those cases.

In my opinion an inhibition upon a nurse working in some other capacity in the health care system could not be regarded as the imposition of a condition, et cetera, "on the registration of a nurse". Registration is concerned with the person's registration as a nurse; none other. It appears to me that to be within the purview of s.48(2)(e) a condition would need to attach to the rights, benefits and obligations conferred by the fact of registration. Many sections of the Act suggest the correctness of that conclusion. See, for example, ss.9(1) (2), 17(3), 18(2)(a), 30, 32, 49 and 53.

I turn to another matter. Section 48(2) provides that a panel "may make one or more of" the series of determinations that then follow. That does not mean that it is necessarily possible to make two particular determinations in the sequence.

The Tribunal's order suspended the Appellant's registration for a specified period - that is, three months. The effect of suspension is that for the purposes of the Act a nurse is "deemed not to be registered for the period of the suspension": see s.15.

Section 48(2)(e) permits the imposition of "conditions, limitations and restrictions on the registration of a nurse". That appears to assume continuing existence of "the registration" during the period of operation of any condition that is imposed. On the face of the legislation it is difficult to see how a condition could be effectively imposed in respect of a period during which registration was suspended. Here, the period of operation of the condition was specified to be "during the period of suspension" that the Tribunal's order specified.

Counsel for the Respondent submitted, however, that the Tribunal's order imposing the particular condition was made when the Appellant remained registered. He argued that the effect of the condition was to impose a precondition on the removal of suspension. If the Appellant did not comply with the condition, and later sought re-registration, her non-compliance would be relevant to whether registration was granted.

Those submissions do not persuade me that s.48(2)(e) authorised imposition of a condition such as was here imposed. Even though it was pronounced when the Appellant was registered, its operation was confined to a period when she was deemed not to be registered. It could not be thought, further, that non-compliance with a condition which was not validly imposed could stand as a barrier to re-registration.

After I had reserved my decision the Respondent's side advanced a further argument in writing. It depended mainly upon s.17(3) of the Act. Section 17(1) requires the Nurses Board to keep a register of all nurses to whom the Board has granted registration under Part 2 of the Act. According to sub-section (3), so far as it is relevant:

"(3) The following particulars must be included on the register against the name of the registered nurse to whom they apply - (a) any current suspension of the registration of the nurse; (b) any current condition, limitation or restriction imposed on the registration of the nurse;"

According to the Respondent's submissions, sub-section (3) indicates that -

". despite s.15, registration remains to some extent on foot during suspension; and . nothing in the Act prevents a suspension and conditions etc. being recorded concurrently against a registration."

Further according to the Respondent's submission, the argument is strengthened because, prior to amendment in 1994, sub-section (3)(a) referred to "any current suspension or cancellation".

I do not agree that the effect of sub-section (3) is that, despite s.15, "registration remains to some extent on foot during suspension". Section 15 is unambiguous. It is understandable that s.17(3) would require particulars of any current suspension of the registration of a nurse to be entered on the register. Section 48(2)(g) requires a panel to specify the period of suspension. Section 15 deems the nurse not to be registered for that period. Notation of the period in accordance with s.17(3) records in a simple and accessible way - see s.17(5) - the period in which there is deemed non-registration. Section 18(3) does not, I add, support the Respondent's contention now under discussion.

I agree with the Respondent's submission that nothing in s.17(3) would prevent a suspension and conditions being recorded concurrently. But that does not assist the Respondent. The contrary conclusion flows from s.15.

I do not consider that the 1994 amendment aids the Respondent's argument. Cancellation of registration stands apart from other adverse determinations. In particular, by contrast with suspension, there is no period set; nor is revival of registration contemplated by the legislation. I should have thought that there could be no point in noting cancellation of registration, assuming in any event that the name of a person whose registration is cancelled should remain on the register.

The conclusions which I have just set out provide a second reason why, I consider, the condition purportedly imposed in reliance on s.48(2)(e) involved reviewable error. But, strictly, those conclusions were unnecessary to determine question 4 favourably to the Appellant. That is why, in connection with question 3, I said simply that there was "doubt" whether determinations suspending registration and imposing conditions could have concurrent operation.

It follows from what I have said that the appeal should be allowed and the orders of the Tribunal made on 7 December 1999 be set aside.

Subject to anything that counsel may wish to submit, in substitution for those orders I should order that under s.48(2)(g) of the Nurses Act 1993 the Applicant's registration as a registered nurse is suspended for a period of 3 months commencing on 12 September 2000 and concluding on 11 December 2000, both dates inclusive. There was really no argument concerning the subject matter of paragraph 2(c)(i) of the Tribunal's order. Presumably the Appellant is desirous of having such counselling, and will have it in fact - that is, regardless whether or not an order is made.

HIS HONOUR: Neither side has had what might be called unqualified success in this case. I do not consider it appropriate to make an order for costs in the Appellant's favour because, in one respect, and indeed a significant respect, she has failed. On the other hand, the Respondent has not had anything like complete success, and it would not be usual to make a costs order in favour of a Respondent in circumstances where an appeal was allowed, the appellant having had a real measure of success.

I consider that the proper course is that each party should bear its own costs.

HIS HONOUR: Dealing with the Appeal Costs Act 1998, it seems to me that the effect of s.4(1)(a) of the Act is that the Respondent to a successful appeal may apply to the court for an indemnity certificate, and, if the Respondent obtains such a certificate, then the Respondent is entitled to be paid an amount equal to any order made in favour of the Appellant in respect of costs, and an amount equal to the Respondent's own costs.

(2) Set aside orders of the Victorian Civil and Administrative Tribunal made 7 December 1999.

(3) In substitution for the orders of the Victorian Civil and Administrative Tribunal made 7 December 1999, order under s.42(2)(g) of the Nurses Act 1993 that the Applicant's registration as a registered nurse be suspended for a period of 3 months commencing on 12 September 2000 and concluding on 11 December 2000, both dates inclusive.

(4) Save and except where orders for costs have hitherto been made in connection with this appeal, each party pay its own costs.

(5) The Prothonotary disburse to the solicitors for the Appellant, out of the sum of $8,000 paid into court in compliance with the order of Master Wheeler made 18 February 2000, the sum of $5,500, the sum of $2,500 to remain in court pending further order.

Civil and Administrative Tribunal Act 1998

Administrative Tribunal Act 1998

At a glance

Court

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Source

Judgment (126 paragraphs)

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Legislation Cited (5)

Cases Cited (3)