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[2009] QCA 280
Court of Appeal (Qld)
2009-09-18
Chief Justice, McMurdo P and Fryberg J, Separate, reasons for judgment of each member of the Court, Chief Justice and Fryberg J
Original judgment source is linked above.
Appeal and new trial - Appeal - General principles - Right of appeal - Nature of right - Appeals by way of rehearing - When rehearing does not involve hearing de novo - Appeal to District Court of Queensland from Nursing Tribunal
Appeal and new trial - Appeal - Practice and procedure - Queensland - When appeal lies - By leave of court - Generally - Relevant considerations
Profession and trades - Health care professionals - Nurses - Disciplinary proceedings - Appeals - Nature of appeal to District Court of Queensland
Profession and trades - Health care professionals - Nurses - Disciplinary proceedings - Conduct discreditable - Meaning
Statutes - Acts of parliament - Interpretation - Particular words and phrases - Specific interpretations - Interpretation Nursing Act 1976 (Qld) s 31(1)(e) - Meaning of "conduct discreditable to a registered nurse" - Excludes gross negligence
Acts Interpretation Act 1954 (Qld), s 20A
Justices Act 1886 (Qld), s 222, s 223
Nursing Act 1992 (Qld), s 4, s 84, s 85(1), s 87, s 88, s 96, s 104(1), s 104A, s 137, s 138(3)(c), s 158(3), s 159
Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, considered
Amos v Monsour Pty Ltd [2009] QCA 65, cited
Andrews v Director of Public Prosecutions [1937] UKHL 1; [1937] AC 576, cited
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, considered
Campbell v Dental Board of Victoria [1999] VSC 113, cited
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited
De Pardo v Legal Practitioners Complaints Committee [2003] WASCA 274, cited
Epstein v Medical Board of Victoria [1945] VicLawRp 54; [1945] VLR 309, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Graham v Queensland Nursing Council [2009] QDC 121, related
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Legal Services Commissioner v Bradshaw [2009] QCA 126, cited
Loewy v Pharmacy Board of Victoria, unreported, No 11301/1991, Hedigan J, 7 December 1992, cited
Marshall v Director-General Department of Transport (2001) 205 CLR 603; [2001] HCA 37, considered
McCandless v General Medical Council [1996] 1 WLR 167, cited
Medical Board of Queensland v Thurling [2003] QCA 518, cited
Mercer v Pharmacy Board of Victoria [1968] VicRp 9; [1968] VR 72, considered
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, cited
Papps v Medical Board of South Australia (2006) 245 LSJS 185; [2006] SASC 234, cited
Parsons v Raby [2007] QCA 98, cited
Pickering v McArthur [2005] QCA 294, cited
Polglaze v Veterinary Practitioners Board of NSW and Anor [2009] NSWSC 347, cited
Qidwai v Brown [1984] 1 NSWLR 100, considered
Quigley v Legal Practitioners Complaints Committee [2003] WASCA 228, cited
Re Geraghty [1983] 1 Qd R 28, distinguished
Roberman v Medical Board of Western Australia [2005] WASC 45, cited
Rowe v Kemper (2008) 185 A Crim R 526; [2008] QCA 175, cited
Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, cited
T v Medical Board of South Australia (1992) 58 SASR 382, cited
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5, cited
Walters v Nursing Board of Tasmania [2003] TASSC 122, cited
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited
Wilson v Brett [1843] EngR 275; (1843) 11 M & W 113; 152 ER 737, considered
Wong v Commonwealth (2009) 83 ALJR 271; [2009] HCA 3, considered
P Davis SC with S Gallagher for the appellant/applicant
[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Fryberg J. I agree with the orders proposed by his Honour, and with his reasons.
[2] McMURDO P: This application for leave to appeal should be granted. Unlike my colleagues, I would allow the appeal. These are my reasons.
[3] The respondent, Juanita Gloria Graham, a registered nurse, was working at the Arthur Gorrie Correctional Centre in December 2001 and January 2002. On 28 December 2001, 29 year old Mark Anthony Waldon arrived at the correctional centre. He was suffering from opiate withdrawal. That day Ms Graham carried out a nursing assessment of him and placed him on the standard drug withdrawal program. On 2 January 2002, Mr Waldon's cellmate made several calls for medical assistance on Mr Waldon's behalf. At about 5.10 am on 3 January 2002, Ms Graham attended at Mr Waldon's cell to conduct another nursing assessment of him. The correctional manager and two prison officers accompanied her. The correctional manager told her that a request for assistance was made on behalf of Mr Waldon on more than one occasion that morning. She declined the correctional manager's offer to open Mr Waldon's cell door and instead conducted her nursing assessment from outside the cell. Mr Waldon died later that morning. It is not suggested that any act or omission of Ms Graham caused his death.
[4] This episode led to Ms Graham being charged in 2006 with unsatisfactory professional conduct contrary to s 104A(1) Nursing Act 1992 on the grounds that she had been guilty of conduct discreditable to a registered nurse within the meaning of s 31(1)(e) Nursing Act 1976.
[5] The particulars of the charge were as follows:
"On 3 January 2002 at or about 5:10am, whilst on duty as a registered nurse at the Arthur Gorrie Correctional Centre at 3068 Ipswich Road, Wacol in the State of Queensland, you failed to conduct any clinical nursing assessment, or any proper clinical nursing assessment, of inmate Mark Anthony Herricane (aka Mark Anthony Waldon) ('the inmate') in circumstances where:
[6] On 24 June 2008, the Nursing Tribunal found the charge proved. It ordered that Ms Graham's registration be cancelled forthwith and that she be prohibited from re-applying for registration or enrolment as a nurse for two years. The Tribunal required the following things be done prior to her re-applying for registration or enrolment. She must complete, at her expense, university level courses to be nominated and approved in writing by the Queensland Nursing Council in the areas of professional responsibility and accountability; nursing ethics; and nursing assessments of patients. She must provide the Council with reports from the course convenors satisfying the Council that she had successfully completed those courses. She must sit or re-sit, if necessary, an oral examination at a time to be nominated by the Council before two senior nurses to be chosen by the Council in order to demonstrate a sufficient level of knowledge of those practice areas. She must provide the Council with a written report from the two senior nurses following the oral examination certifying that she had a sufficient level of knowledge of those practice areas. She was also ordered to pay all costs and expenses in relation to her re-application for registration or enrolment, and to pay within two years the Council's costs of the Tribunal hearing, fixed in the sum of $10,000.
[7] Ms Graham appealed to the District Court against the Tribunal's finding of guilt and the sanctions imposed. The judge allowed the appeal, set aside the orders of the Tribunal and instead ordered that the charge of discreditable conduct against Ms Graham had not been made out. He ordered that the Tribunal pay Ms Graham's costs of the appeal and before the Tribunal.
[8] The present applicant, the Council, seeks leave to appeal from that decision, contending that the appeal should be allowed, the District Court judge's orders set aside, and the orders of the Tribunal re-instated. Ms Graham contends that the judge was right to set aside the finding of guilt, and that the application to this Court should be dismissed. Alternatively, she contends that the sanctions were excessive. Neither party contended, either before the Tribunal, the District Court or this Court, that the costs orders should not be in favour of the successful party.
[9] As both parties to this application accept that the charge against Ms Graham was correctly brought under s 31 Nursing Act 1976, and that concession appears soundly made, this application should be determined on that basis.
[10] If given leave to appeal, one of the Council's proposed grounds of appeal is that the judge:
"Found that the Tribunal erred in law by failing to take into account a relevant consideration namely [Ms Graham's] 'prior knowledge of and participation in [Mr Waldon's] medical history and treatment ...' when in fact the Tribunal did take those matters into account."
[11] Ms Graham's counsel in this application conceded that this ground of appeal was made out. That concession was rightly made. The judge's error is manifest from the Tribunal's reasons.[1] The District Court judge plainly erred in finding[2] that the Tribunal did not refer to her prior knowledge of and participation in Mr Waldon's medical history and treatment. This proposed ground of appeal is made out.
[12] Another proposed ground of appeal is that the judge:
"Erred in finding that the Tribunal had, on the question of whether the charge had been made out, misdirected itself by taking into account the 'respondents [sic] statements based on hindsight' when:
(i) the Tribunal did not take those statements into account when assessing whether the charge had been made out; and
(ii) the Tribunal only took those statements into account in assessing sanction; and
(iii) the Tribunal was entitled to, and obliged to, take those statements into account for that purpose."
[13] This ground of appeal is also made out. The District Court judge found that the Tribunal misdirected itself by taking into account Ms Graham's statements, made with hindsight, that her evidence showed "a total lack of insight as to the inadequacy and inappropriateness of the assessment undertaken by her that evening".[3] It is clear from a reading of the Tribunal's reasons that it relied on Ms Graham's statements made with hindsight only as demonstrating a lack of insight into her conduct the subject of the charge. The Tribunal considered it relevant only in determining the sanction to impose and not as to whether the charge against her was made out. The Tribunal was entitled to rely in this way on Ms Graham's statements made with hindsight. This proposed ground of appeal is made out.
[14] Leave to appeal should be granted for two reasons. First, the Council has demonstrated two significant errors in the District Court judge's reasons for allowing the appeal. Second, the case is of community significance. It concerns the protection of the public through ensuring safe and competent nursing practice.[4] One of the yardsticks of a civilised society is the way in which it treats its most vulnerable members, including those it imprisons. This case directly raises the interest of the community in ensuring that nurses caring for sick prison inmates do not conduct themselves in a professionally discreditable way. For these reasons, I would grant leave to appeal and allow the appeal.
[15] It is necessary for this Court to now determine the appeal before the District Court judge. In doing so, this Court must consider whether the judge should have allowed the appeal from the Tribunal's decision on the basis that the Tribunal erred in finding Ms Graham's conduct was discreditable conduct as a nurse.
[16] The term "conduct discreditable to a registered nurse" is not defined in either the Nursing Act 1992 or the Nursing Act 1976. The relevant meaning of "discredit" in the Macquarie Dictionary is:
"discredit verb (t) 1. to injure the credit or reputation of. 2. to show to be undeserving of credit or belief; destroy confidence in ... - noun 3. loss or lack of belief, of confidence; ... 4. loss or lack of repute or esteem; disrepute. 5. something that damages a good reputation.
discreditable adj such as to bring discredit; disgraceful."
[17] Counsel did not refer this Court to any cases where the concept of "conduct discreditable to a registered nurse" has been considered. Some assistance in comprehending the meaning of those words is gained from Pape J's discussion in Mercer v Pharmacy Board of Victoria[5] of "conduct discreditable to a pharmaceutical chemist". Pape J considered this term:
"includes any conduct in relation to the carrying on of the business of a chemist which would be reasonably regarded by other chemists of good professional competence as calculated to destroy or lower public confidence in that chemist, or as injuring the credit or standing of the chemist in his professional capacity. I do not think it necessary that his conduct should be dishonest or fraudulent, or that it should involve any moral turpitude. It is enough if it bring discredit on him as a pharmaceutical chemist or on the profession as a whole. Nor do I think it necessarily follows that conduct which is due solely to negligence or inadvertence cannot be said to be discreditable conduct, because the chemist is in a position where his duties are to a large extent laid down by regulation or by the Act and where great care is required in the carrying out of those duties and because failure to exercise that degree of care expected of him must necessarily lower public confidence in him and discredit him in the eyes of his professional brethren."
[18] Pape J's approach to the meaning of the words "conduct discreditable", although in the context of a chemist rather than a registered nurse, is in my view applicable to the words "conduct discreditable to a registered nurse" within the meaning of
s 31(1)(e) Nursing Act 1976. It is also consistent with the ordinary meaning of the words "conduct discreditable to a registered nurse". The question for the Tribunal was whether, in the circumstances particularised, Ms Graham's conduct as a nurse would be reasonably regarded by other nurses of good professional competence as calculated to destroy or lower public confidence in Ms Graham; or as bringing discredit on Ms Graham in her professional capacity as a nurse, or on the nursing profession as a whole. The Tribunal's approach was slightly different. It considered "whether the practitioner was in such breach of the written and unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence"[6] based on the test used in Qidwai v Brown[7] and Adamson v Queensland Law Society Incorporated.[8]
[19] It is true that the Tribunal had no evidence before it as to the effect Ms Graham's conduct might have had on public confidence either in a nurse guilty of such conduct or in the nursing profession. But this was not necessary. There was no requirement for a professional disciplinary tribunal to receive direct evidence of what the public expects of the credit, standing or competence of a professional in order for the Tribunal to find the charge before it proven: cf Legal Services Commissioner v Bradshaw.[9] Such a matter, where it is established, is usually inferred from the evidence.
[20] Ms Graham gave evidence of her conduct on the morning of 3 January 2002 and of her previous contact with Mr Waldon.[10]
[21] The Council called evidence before the Tribunal from Nurse Joanna Bruce, who had significant nursing experience within the correctional system. She gave the following evidence. Ms Graham's conduct fell well below the Council's acceptable standards of nursing conduct and national competence standards for a registered nurse. A registered nurse on duty within a correctional centre, whilst functioning within a secure environment, is expected to ensure that the level of nursing care provided is comparable to that of community standards. She added:
"On the information provided within the brief, Ms Juanita Graham was provided the opportunity to access the cell accommodation and assess the clinical situation of [Mr Waldon]. [The Correctional Manager] ... after being advised that a request for medical assistance had been received by [a] Custodial Correctional Services Officer ... contacted medical and master control to request a nurse to attend the area. ... It is important to note that no emergency was declared during these conversations.
•Failed to ensure the health and wellbeing of the population was maintained whilst under her care.
•Failed to communicate appropriately with peers and did not ensure appropriate communication of the preceding shifts events so as to ensure the appropriate care provision of a patient, significantly affecting the response of peers and following outcome.
[22] Counsel for Ms Graham's cross-examination of Nurse Bruce included:
"[Ms Graham's counsel]: In relation to the second last dot point, you failed -
She acted significantly below what would be an accepted standard for a registered nurse by her peers.
Can you explain what you meant by that?---What I mean by that, is that when you're looking at the profession of nursing, and thinking about what would be an acceptable level of care provision, given the circumstances, given the environment, that she was nursing in at that time, given the resources that she had with her at that time, what would be an acceptable standard - what would be considered by other registered nurses, including myself, to be an acceptable standard of care provided to a patient that had been requested either by himself or by another person for assessment, and to make a judgment on what required follow up care. So my overall - that overall statement is that I do not believe that a majority of registered nurses would have acted the same as Ms Graham, given the same circumstances, environment, resources.
Okay. Can I put it to you that many registered nurses carry out visual observations of their clients and patients, is that correct?---Yes.
Yes. And many registered nurses have a conversation with patients and clients to get information they need to assess them. Is that correct?---Yes.
And many registered nurses take into account what they know to be the previous history of the patient or client in making an assessment of that patient. Is that correct?---Yes.
CHAIRPERSON: And what do you say to the proposition that many registered nurses do it from another room, that is, not within the same room as the patient?---That's what I have a great problem with. And I suppose within my experience with corrective services is that the fact that you sometimes have to go to a greater level and a greater extent, given the restrictiveness between being able to see people face to face, to actually have a good visual inspection of somebody, to ensure that what they're telling you, given that there is often a lot of people around, security officers, other prisoners, etcetera, might be within earshot. So you have to take all of those things into consideration when you are actually saying that someone is telling you something. That's why I disagree that the standard visual inspection or conversation with someone in that environment would be satisfactory.
In your experience, where would such an assessment normally take place? Would it take place in the cells?---It can, yes. Given you would take into consideration, obviously, the time, the resources of security staff available, depending on what you required. In my experience, the correctional staff would act in whatever way that you required. So if you said, 'I need to remove this prisoner from this cell, and I need to take them to the health centre for an appropriate assessment,' then that would happen.
And so it is possible to have made that assessment through the glass window?---No, because you're only using one aspect of an assessment, and that would be a visual inspection and possibly a few words if they were speaking to you."
[23] The five-member Tribunal in this case included three registered nurses, a senior barrister and a lay member.[11] The Tribunal relevantly found the following:
23. The Tribunal is satisfied that, at the time the respondent attended the deceased's cell, she was aware the deceased had collapsed on the afternoon of 1 January 2002, had been held overnight in the medical centre for observation, and had been assessed by a doctor at about 3pm on the afternoon of 2 January 2002 as being able to return to his unit. The respondent was also aware, having been advised by the correctional officers whilst she was in transit to the cell, that numerous calls had been made throughout the night by the deceased's cellmate seeking assistance for the deceased.
24. The Tribunal is also satisfied that the respondent attended the deceased's cell in the company of the officers and looked through that cell door at the deceased; the respondent did not ever enter the cell and declined an offer from the correctional officer to be given access to the cell. The Tribunal is also satisfied that any assessment undertaken by the respondent as to the deceased's condition was based solely on a visual observation through the window of the cell door and limited questioning by the respondent of the deceased against the background of what prior contact the respondent had had with the deceased. The evidence establishes that the questioning of the respondent through the cell door, which resulted in only nods from the deceased, not any verbal communication, was limited to questions as to ongoing cramping and whether the deceased could wait until the morning. The respondent accepted in evidence that she did not ask any questions of the deceased directed towards ascertaining whether he had been vomiting, why he was sweating, and whether he had had difficulty with his breathing.
25. The Tribunal does not accept the respondent's evidence that she was able to form an adequate assessment of the deceased's condition on the basis of this visual observation and limited questioning of the deceased. The Tribunal prefers and accepts the evidence of Ms Bruce to the effect that such an assessment is inadequate to allow a proper determination of the clinical condition of the deceased. The Tribunal also accepts and prefers the evidence of Ms Bruce in relation to the professional responsibilities of the respondent in the circumstances to enter the cell of the deceased to conduct a proper clinical assessment. The Tribunal is satisfied that what the respondent did on the morning of 3 January 2002, did not constitute any adequate clinical assessment of the deceased in the circumstances.
26. ... The respondent was a trained professional employed at the centre to provide nursing care and assistance to the deceased throughout the nightshift. Notwithstanding a specific request that she attend to conduct a clinical assessment of the deceased, she failed to conduct a proper clinical assessment.
27. The respondent's obligation as a nurse was clear and simple. This obligation required her to conduct a thorough clinical assessment of the deceased, such an assessment could not properly or adequately be done through a cell door; it required the respondent to physically attend upon the deceased to make a proper examination of his condition. Contrary to that obligation, the respondent conducted what could only be described as a cursory and grossly inadequate examination of the deceased. Such conduct is conduct discreditable to a registered nurse within the meaning of the 1976 Act."
[24] This Court should give very considerable weight to the conclusions reached by the specialist five member Tribunal which included three registered nurses. This Court should only differ from the Tribunal's opinion and findings in relation to the conduct of Ms Graham and the standards expected of nurses generally if there are persuasive reasons for so doing: cf De Pardo v Legal Practitioners Complaints Committee;[12] Epstein v Medical Board of Victoria;[13] Campbell v Dental Board of Victoria;[14] Polglaze v Veterinary Practitioners Board of New South Wales & Anor.[15]
[25] The members of the Tribunal saw Nurse Bruce and Ms Graham give evidence. The Tribunal's findings of fact[16] were well open on the evidence of Nurse Bruce, an experienced nurse within correctional centres. No other evidence required the Tribunal to reject Nurse Bruce's evidence. The Tribunal's conclusion as to guilt was not framed in terms of the meaning of "conduct discreditable to a registered nurse" as discussed in Mercer. It is, however, manifest from the Tribunal's fact finding and reasons that it considered Ms Graham's conduct would be reasonably regarded by other nurses of good professional competence as calculated to destroy or lower public confidence in Ms Graham, or as bringing discredit on Ms Graham in her professional capacity as a nurse, or on the nursing profession as a whole.
[26] In any case, I agree with the Tribunal's findings of fact set out in [23] of these reasons. I infer from those facts that Ms Graham's cursory assessment of the sick Mr Waldon from the cell door was callous, uncaring and inadequate, and the complete antithesis of what the public would expect from a professional nurse. That conclusion is consistent with Nurse Bruce's evidence. It follows that in my view Ms Graham's clinical assessment of Mr Waldon, based solely on a visual observation through the window of his cell door was, in all the circumstances, conduct which brought discredit upon her as a registered nurse and upon the nursing profession as a whole. The Tribunal rightly concluded that Ms Graham was guilty of conduct discreditable to a registered nurse within the meaning of s 31(1)(e) Nursing Act 1976. It follows that the appeal to the District Court against the Tribunal's finding of Ms Graham's guilt should have been dismissed.
[27] I turn now to the appeal to the District Court against the sanctions imposed on Ms Graham which she contends were manifestly excessive.
[28] The following matters favour Ms Graham's contention. The sanctions as a whole were onerous. Ms Graham has had no previous or subsequent disciplinary breaches. There has been great delay in bringing and finalising this charge, not apparently through any fault of Ms Graham. This delay must have been burdensome and stressful for her.
[29] On the other hand, an appellate tribunal should give very considerable weight to the views of specialist tribunals like the Queensland Nursing Tribunal as to questions of sanction.[17] The role of the Tribunal in sanctioning Ms Graham is primarily to protect the public through ensuring safe and competent nursing practice.[18] The Tribunal found that Ms Graham had conducted herself in a way discreditable to a registered nurse; that the breach was serious; and that Ms Graham had afterwards shown very limited insight into her unprofessional behaviour. Mr Waldon, incarcerated and sick from opiate withdrawal, was vulnerable. At the time of Ms Graham's assessment of Mr Waldon on the morning of 3 January 2002, she was the only health professional available to meet his medical needs. She conducted a cursory and completely unsatisfactory clinical assessment of Mr Waldon from the outside of his cell. Her subsequent lack of insight into the seriousness of her lapse in professional behaviour was disturbing. The Tribunal was understandably concerned to impose orders so that, if and when Ms Graham returns to the nursing profession, the public is protected and safe and competent nursing practice is ensured. The Tribunal was entitled to consider that a heavy deterrent penalty had to be imposed on Ms Graham and that before she returns to practise as a nurse she must demonstrate that she has acquired the requisite competence the public expects of a registered nurse. The sanctions were onerous but I am not persuaded that they were outside the appropriate range or that the Tribunal erred in determining them.
[30] It follows that in my view the District Court judge should have refused the appeal against the sanctions imposed by the Tribunal.
[31] I would grant the application for leave to appeal and allow the appeal to this Court with costs to be assessed. I would set aside the orders made by the District Court judge and instead order that the appeal to the District Court be refused with costs to be assessed.
[32] FRYBERG J: On 24 June 2008 the Nursing Tribunal found a charge proved against the present respondent, Ms Graham, of conduct discreditable to a registered nurse, and ordered that her registration be cancelled. She successfully appealed to the District Court which, on 1 May 2009, set aside the order of the Tribunal and ordered the present applicant (the Queensland Nursing Council) to pay Ms Graham's costs. The Council now seeks leave to appeal against the order of the District Court.
[33] On 15 December 2006 the Council notified Ms Graham that it had preferred a charge against her "pursuant to section 104(1) of the Nursing Act 1992 on the ground that you have been guilty of conduct discreditable to a registered nurse within the meaning of section 31(1)(e) of the Nursing Act 1976". The following particulars were supplied:
On 3 January 2002 at or about 5:10am, whilst on duty as a registered nurse at the Arthur Gorrie Correctional Centre at 3068 Ipswich Road, Wacol in the State of Queensland, you failed to conduct any clinical nursing assessment, or any proper clinical nursing assessment, of inmate Mark Anthony Herricane (aka Mark Anthony Waldon) ('the inmate') in circumstances where:
[34] The charge was brought nearly five years after the conduct which was its subject. The only explanation for the delay was that there had been no complaint to the Council until early 2006.
The justiciability of the charge and the jurisdiction of the Tribunal
[35] The parties agreed that the charge was properly brought against Ms Graham before the Tribunal. I should explain the basis of that agreement lest others be puzzled at how a charge was upheld under a section repealed at the time of the offending conduct before a Tribunal which at that time did not exist.
[36] Section 31 of the Nursing Act 1976 ("the 1976 Act") provided:
(1) Where the Board considers it has reasonable grounds to suspect that a registered nurse -
(a) has been convicted in Queensland of an indictable offence or has been convicted elsewhere than in Queensland in respect of an act or omission which if done or made by her in Queensland would have constituted an indictable offence;
(b) has been convicted of an offence against this Act or the repealed Act;
(c) has failed to carry out a lawful demand of the Board made pursuant to this Act;
(d) is addicted to any deleterious drugs to a degree that could render her unfit to practise nursing;
(e) has been guilty of gross negligence, malpractice or conduct discreditable to a registered nurse,
it may hold a full and proper inquiry into the matter in question and for that purpose shall notify the nurse of the matter suspected against her and of the time and place when and where the inquiry will be held.
(6) If upon its inquiry the Board is satisfied of the truth of the matter referred to in subsection (1) and alleged against the registered nurse in question it may, as it considers just in the circumstances, do any one or more of the following things:-
(a) cancel her registration and order the removal of her name from the register;
(b) order that her registration be suspended for such period as it thinks fit;
(c) order that she pay to the Board by way of penalty a sum fixed by the Board but not exceeding $1,000;
(e) adjourn the matter of dealing with her under this subsection for such period not exceeding 12 months as the Board thinks fit."
[37] That section was repealed by s 162 of the Nursing Act 1992 ("the 1992 Act"). However ss 158 and 159 of that Act provided:
(a) a matter arises under this Act before a code of conduct is in force; and
(b) the matter is a matter in relation to which (if it had arisen under the Nursing Act 1976) a Board inquiry could have been started;
159(1) A matter mentioned in section 158 may be dealt with by the Committee as if the matter had been referred to it by the Council for hearing and determination following the preferring of a charge against a person alleging a contravention of a code of conduct.
(2) If, on the hearing of a matter, the Committee is satisfied that the matter is one in which action could have been taken under section 31(6) of the Nursing Act 1976 if the matter had been determined by a Board inquiry, the Committee may take the same action in the matter as if a contravention of a code of conduct has been proved."
The code of conduct envisaged by s 158(3)(a) never came into force. The 1992 Act established a committee called the Professional Conduct Committee to hear charges referred to it under the Act.[19] The Act made provision for the Council to prefer charges alleging contraventions of the code of conduct and refer them to the Committee.[20]
[38] Sections 158 and 159 were repealed by the Statute Law Revision Act 1995.[21] However s 5(3) of that Act provided that those sections were "laws to which the Acts Interpretation Act 1954, section 20A applies". The parties have assumed s 5(3) remains in force.
[39] Section 20A(2) of the Acts Interpretation Act 1954 provided (and still provides[22]):
"(2) If an Act or a provision of an Act (the 'savings law') declares an Act or a provision of an Act (the 'declared law') to be a law to which this section applies -
(a) the effect of the declared law does not end merely because of its repeal or expiry; and
(b) the effect of the savings law does not end merely because of its repeal or expiry."
The parties proceeded on the basis that this Kafkaesque provision was adequate to maintain ss 158(3) and 159 in operation until the present time, at least in respect of conduct which occurred before 22 October 2003. That was the date when the Health Legislation Amendment Act 2003 came into force. That Act made major amendments to the disciplinary provisions in the 1992 Act. As amended the latter finally abandoned the chimera of a code and set out the grounds on which a practitioner might be charged.[23] It also provided for the continuation of the Professional Conduct Committee under the name Nursing Tribunal.[24]
[40] The notion that the effect of a repealed act does not end "merely" because of its repeal is challenging. One is inclined to ask what else there is which might bring it to an end. Perhaps one answer in the present case might be, the removal from the 1992 Act of all references to a code and their replacement by a provision which details the grounds for disciplinary action, thus rendering the words "before a code of conduct is in force" in s 158(3)(a) otiose. Perhaps another answer might be the enactment of new ss 158 and 159 in 2006.[25] The parties were not concerned to address this question, despite the fact that their attention was drawn to the enactment of new ss 158 and 159. We should likewise permit the present application to proceed sub silentio as to those matters.
[41] Most of the facts giving rise to the charge were contained in a statement of agreed facts which became an exhibit in the Tribunal:
"1. The respondent was first registered as a nurse in Queensland under the provisions of the Nursing Act 1992 on 16 December 1994 and has maintained continuous registration to date.
[42] Affidavit and oral evidence established the following additional facts:
(a) The nursing assessment which Ms Graham carried out on
28 December 2001 involved a brief physical and mental health examination, taking blood for pathology, checking Hepatitis B vaccinations and checking blood pressure and pulse rate;
(b) Following the assessment Ms Graham placed Mr Herricane on a standard drug withdrawal program and 15 minute observations;
(c) Before he was taken into the medical centre on 1 January 2002 Mr Herricane had complained of vomiting/dry retching and being unable to keep fluids down. Ms Graham cared for him in the medical centre that evening. During the night he complained of leg cramps but otherwise had a restful night;
(d) Ms Graham knew that Mr Herricane was assessed by Dr Todd on 2 January 2002 as being well enough to return to the prison unit;
(e) After Ms Graham went to the door of Mr Herricane's cell on
3 January 2002 she assessed him through the cell door window and:
(f) Ms Graham accepted that her assessment was based entirely on her previous knowledge, her visual observations from outside the cell and her discussions through the cell door;
(g) The cause of Mr Herricane's death was aspiration of vomit due to acute gastric dilation. The dilation was thought to be the result of the administration of a drug, Clonidine, used to treat persons undergoing opiate withdrawal (a very rare side effect). Dehydration or biochemical disturbance due to the acute vomiting accumulation of secretions in the stomach may have been just as important as the aspiration of vomit.
[43] There was no evidence that Ms Graham could have done anything to save Mr Herricane's life.
[44] Ms Joanna Bruce, a nurse with significant experience in the correctional system, gave evidence about the role of a nurse in that system. I shall refer to her evidence in more detail later in these reasons.[26]
[45] The findings of the five-member Tribunal (which included three registered nurses) were delivered by Mr Boddice SC, the chairman. After recording the charge, the Tribunal stated:
"It is for the Council to prove on the balance of probabilities a contravention of the Act. In determining whether the Council has satisfied this onus, regard must be had to the principles in Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336 at 361."
However the Tribunal went on to note that as a consequence of the primary facts being agreed, the central issue in dispute was whether Ms Graham's conduct "at 5.10 am on the morning of 3 January 2002 constituted unsatisfactory professional conduct within the meaning of section 104A of the 1992 Act, in that it constituted conduct discreditable of a nurse within the meaning of s 31(1)(e) of the 1976 Act".
[46] The Tribunal stated how it assessed what constituted discreditable conduct:
"22. Whether the conduct constitutes conduct discreditable to a registered nurse should be determined by the following test: whether the practitioner was in such breach of the written and unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence: Qidwai v. Brown, (1984) 1 NSWLR 100 at 105. See also Adamson v Queensland Law Society Incorporated (1990) 1 QR 498 at 507."
[47] Relying on the evidence of Ms Bruce, the Tribunal found that Ms Graham's conduct "fell well below the Queensland Nursing Council, Australian Nursing Midwifery Council acceptable standards of nursing conduct and national competence standards for a registered nurse" [sic]. It held:
"27. The respondent's obligation as a nurse was clear and simple. This obligation required her to conduct a thorough clinical assessment of the deceased, such an assessment could not properly or adequately be done through a cell door; it required the respondent to physically attend upon the deceased to make a proper examination of his condition. Contrary to that obligation, the respondent conducted what could only be described as a cursory and grossly inadequate examination of the deceased. Such conduct is conduct discreditable to a registered nurse within the meaning of the 1976 Act."
It ordered that Ms Graham's registration be forthwith cancelled.
[48] Ms Graham appealed to a judge of the District Court against that order pursuant to s 137 of the 1992 Act. That section recognises that such an appeal may involve a question of special knowledge and skill:
"137(5) If the judge hearing the appeal is of the opinion that the appeal involves a question of special knowledge and skill, the judge may appoint 1 or more assessors who in the judge's opinion possess the special qualifications necessary for the particular case to assist the judge in the determination."
Neither side sought the appointment of such an assessor, and the appeal was determined by way of rehearing on the material before the Tribunal.[27]
[49] All grounds of appeal but the first related to penalty. The first ground was, "The Tribunal erred by finding that the Appellant's conduct amounted to discreditable conduct." Ms Graham submitted[28] that such a finding was not open on the facts of the case. She submitted that the decision not to enter the cell was spontaneous and involved no element of premeditation; and that it was a decision made in the context of other information known to her such as:
"• her previous knowledge of Mr Herricane's condition;
• the lack of any written protocols or guidelines within the Correctional Centre requiring close physical examination;
• the fact that Mr Herricane responded to Ms Graham's question albeit, non-verbally;
• the knowledge that Ms Graham had as to the medication that Mr Herricane was at the time receiving."
She submitted that at worst her conduct amounted to a spontaneous clinical error of judgment made after working an all night shift.
[50] The Council submitted that the conduct of a nurse in performing the most cursory of examinations of a patient who she knew was withdrawing from drug addiction, who could not seek treatment himself because of his incarceration, in circumstances where his cellmate had been seeking medical attention for him for some hours, fell short of, to a substantial degree, the appropriate conduct of a nurse. Its submissions focused on Ms Graham's conduct, which was dissected at length. The clear thrust of the submissions was to convince the judge that the conduct constituted discreditable conduct. The Council relied on the evidence of Ms Bruce that Ms Graham "acted significantly below what would be an acceptable standard for a registered nurse by peers". It was observed that the Tribunal included three nurses, but no issue was identified as being a matter about which the Tribunal would have been better placed to decide than was the judge.
[51] Judge Tutt's reasons for allowing the appeal occupied 24 pages of doublespaced typescript.[29] The first six pages comprised an introduction, the particulars of charge, the background facts, the order of the Tribunal and the grounds of appeal. His Honour then dealt with the law. He wrote (omitting citations):
"[11] It is common ground in this appeal that whether the appellant's conduct constitutes 'discreditable conduct' of a registered nurse is to be determined within the meaning of s 31(1)(e) of the Nursing Act 1976 and that the appropriate test to be satisfied is that stated in Adamson v Queensland Law Society Incorporated having regard to the principles enunciated in Briginshaw v Briginshaw ('Briginshaw'). See also Qidwai v Brown where Priestly JA stated that an allegation of 'infamous conduct in a professional respect' is to be determined based on:
'...whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence.'
It is trite to say that in a matter such as this the words of Dixon J (as he then was) in Briginshaw of 'the seriousness of the allegation made ... or the gravity of the consequences flowing from a particular finding' demand that the Tribunal be satisfied to a high standard that the charge has been proved."
[52] Under the heading "General Principles" his Honour then described the approach which should be taken by an appellate court in appeals by way of rehearing on the record. He wrote (citations omitted):
"[13] In appeals of this nature the general principles upon which an appellate court must operate are well established. In the ordinary case of an appeal by way of rehearing it is necessary for the appellant to show that the decision appealed against was wrong and the Appeal Court although ultimately making up its own mind on the matter, has due regard to such advantages that the court or tribunal at first instance had because of the opportunity to see and hear witnesses and to have the full consideration of all of the relevant evidence that was presented by the original hearing. As was stated when considering an appeal under s 222 of the Justices' Act 1886 (and the nature of this appeal is in similar terms) this court must give due deference and attach a good deal of weight to the magistrate's view."
[53] The judge referred to the evidence and the Tribunal's findings in some detail. As to the latter he recorded that "the Tribunal correctly identified the onus of proof which the respondent to this appeal is required to satisfy".[30] His Honour stated his findings (citations omitted):
"[35] On a review of all the evidence, and submissions made I find that the Tribunal has erred in law in finding the appellant guilty of 'discreditable conduct' by failing to consider appellant's conduct in the context of the appellant's prior knowledge of and participation in Herricane's medical history and treatment respectively.
[36] My reasons for this finding are that the Tribunal failed to give due or adequate weight to the evidence that:
(a) the appellant had assessed Herricane upon his arrival at the Correctional Centre on 28 December 2001;
(b) the appellant had then commenced Herricane on a 'drug withdrawal program ... and on 15 minute visual observations';
(c) '...in the days prior to 3 January ... prisoner Herricane seemed to be in relatively good health and spirits and he managed to communicate well with everybody';
(d) Herricane had been assessed by a Dr Todd on 2 January 2002 after Herricane had collapsed on 1 January 2002 and after assessment by Dr Todd was returned to his unit.
(e) further erred in placing too much weight on the evidence that the appellant observed Herricane only through the cell door at or about 5.10 am on 3 January 2002 rather than entering the cell and physically examining him at closer quarters, when the appellant was aware of Herricane's medical history and treatment in the preceding six days he had been in the Correctional Centre and where he appeared to be no more 'in a distressed state' than others who were undergoing drug withdrawal programs; and
(f) misdirected itself by relying on hindsight in its finding that the appellant's evidence 'exhibits a total lack of insight as to the inadequacy and inappropriateness of the assessment undertaken by her that evening' and her perceived exhibiting of 'a total disregard for her professional responsibility towards the health and safety of the deceased.' These findings can only be based upon the appellant's answers to provocative (and probably unfair) questions put to her in cross examination, when she was understandably defending her actions that morning in the face of a serious charge of professional misconduct the onus of proof of which rested with the respondent to this appeal. The questions were asked of her with the benefit of hindsight that the prisoner Herricane had died later that morning, and they invited comment from the person charged on the very point the respondent to this appeal had the onus of proving; and
(g) failed to take into account that, although the evidence of the witness Joanna Bruce (upon whose evidence the Tribunal also relied in making its findings) exhibited a number of documents in the 'Appendix' to her affidavit, none of those documents contained any guidelines, procedures or protocols which were specifically relevant (as distinct from being of general application) to the appellant's obligations in carrying out her duties as a registered nurse in a Queensland Correctional Centre.
[37] I find further that the Tribunal misdirected itself generally in finding the charge proved to the standard required, by its failure to take into account all of the surrounding circumstances relevant to the appellant's assessment of Herricane that morning for the reasons set out above and that as a result, its findings are not sustainable in law."
[54] The application for leave to appeal cites the following reasons to justify the granting of leave to appeal:[31]
(b) The case concerns disciplinary proceedings brought against a nurse under the provisions of the Nursing Act 1992 and such proceedings are brought and determined by reference to the protection of the public.
(c) The decision under appeal is from the District Court hearing an appeal from the Nursing Tribunal which is a specialist tribunal in the sense that it is constituted in part by persons who have specialist knowledge of the subject matter of the proceedings. The Tribunal found that the respondent to the present application conducted a 'grossly inadequate examination of [the patient who later died in custody]'.
(d) The Tribunal viewed the respondent's conduct seriously, observing that the deceased, being in custody 'was in a very vulnerable condition' and that 'the respondent totally failed to discharge her professional responsibilities to the deceased'.
(e) The Tribunal cancelled the nurse registration of the respondent and disqualified her from applying for registration for 2 years. The Tribunal also imposed other conditions which the respondent had to meet before regaining her registration.
(f) The effect of the District Court judgment was to reinstate the respondent's registration where a specialist tribunal had judged:
(i) that the respondent had not fulfilled her obligations; to
thereby defeating the protective objects of the Nursing Act 1992.
(g) The District Court judgment contains both errors of law and fact.
(i) The approach of the District Court to an appeal from a specialist tribunal, namely the Nursing Tribunal;
(ii) The protective objects of the Nursing Act 1992;
(iii) Nursing standards, especially those owed to persons in custody."
The Council relied on all of these reasons in oral submissions.
[55] Ms Graham submitted that the relevant test when considering the issue of leave was whether there had been a substantial miscarriage of justice. I reject that submission. This Court has always been careful not to circumscribe the grounds upon which leave will be granted. Miscarriage of justice is usually a necessary but may not be a sufficient condition for a grant. A reasonable argument that there is an error to be corrected is another necessary condition.[32] And as the Council's argument tacitly recognised, even taken together these two conditions may not be sufficient to justify a grant of leave.[33] Something more will often be required.
[56] Ms Graham made no submissions about the reasons justifying leave advanced on behalf of the Council, save to the extent that they involved the merits of the proposed appeal. It is therefore convenient to defer further examination of the conditions for the grant of leave until those merits are considered.
The grounds of the proposed appeal: Grounds 1 and 2
[57] The first two grounds can conveniently be considered together. They are:
[58] Submissions on behalf of the Council fastened upon the concluding sentence of para [11][34] of Tutt DCJ's reasons to found a submission that the judge misunderstood the effect of Briginshaw.[35] It was submitted that Briginshaw did not decide that the standard of proof rose depending upon the seriousness of the allegations made or the gravity of the consequences flowing from a particular finding. Counsel for Ms Graham submitted that the sentence in question constituted no more than a piece of unfortunate paraphrasing. It did not disclose any misunderstanding of the relevant principle. He pointed out that the Council did not and could not point to any part of the judgment where the allegedly misunderstood principle had been applied.
[59] The principle which the judge was evidently intending to paraphrase was expressed in Briginshaw by Dixon J in these terms:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency."[36]
His Honour was not there trying to establish a new standard of proof for cases involving moral delinquency; nor did any of the other judgments in Briginshaw do that. To that extent the submission for the Council is sound.
[60] I am, however, unpersuaded that Tutt DCJ misunderstood the relevant principle. Briginshaw was referred to in the reasons for judgment of the Tribunal and it was common ground that the principle in it was material in the assessment of the evidence. There is no indication in the reasons for judgment that his Honour misapplied the principle. His reference to the satisfaction of the Tribunal "to a high standard that the charge has been proved" is no looser than the reference to "the shifting standard of Briginshaw v Briginshaw" by Thomas J in Adamson v Queensland Law Society Incorporated.[37] This ground would not succeed.
The grounds of the proposed appeal: Grounds 3 and 6
(a) recognised that the Nursing Tribunal was a specialist tribunal;
(b) directed himself that he would not intervene to substitute his own view unless a clear error in the Tribunal's decision was demonstrated;
(a) the Tribunal heard the witnesses give evidence;
(c) the Tribunal was in a superior position to His Honour to assess the witnesses and make findings of fact and draw conclusions; and
[62] The submission on behalf of the Council is founded primarily upon the omission from the reasons for judgment of any reference to a recognition of the special advantages enjoyed by a specialist tribunal. For example:
"THE CHIEF JUSTICE: The other view is if the Judge did not mistake the standard of proof, it could be said to be a fact case.
MR DAVIS: Except that his Honour did not refer to the principles that are applicable when an appeal Court is reviewing a decision of a specialist tribunal. We submit that that's an error of law. And we submit that that's a very serious error of law, especially in this particular case, because when all the evidence boiled down there was really only one question for the Tribunal. And that was whether or not the particular conduct, which didn't seem to be largely in dispute, offended nursing standards. I'll put that neutrally. Now, we submit that that's a classic consideration for a specialist tribunal and when one looks at the judgment of his Honour there just doesn't seem to be any valid reason for departing from it on that judgment."
[63] With the utmost respect, there is no law which requires an appeal court reviewing a decision of a specialist tribunal to refer in its reasons for judgment to the principles applicable in such a review. What the law requires is that an appeal court apply the appropriate principles in reaching its decision. In the present case, the omission from the judge's reasons of any reference to the special advantages enjoyed by a specialist tribunal is hardly surprising. No reference to those advantages was made in the Council's submissions to the judge and no issue was identified to him upon which those advantages would operate. The thrust of the Council's submissions was to invite the judge to form his own view of the facts. There was no more than a glancing reference to the fact that the Tribunal included three professional nurses.
[64] At all levels of the justice system the reasons for a decision given by a court are vitally affected by the submissions of the parties to that court. The parties formulate the issues and control how they are identified to the court and the weight to be attributed to the various aspects of them. Reasons for judgment are not abstract essays on a particular topic. In large measure they are responses to the submissions of the parties. Often their form can be fully understood only in light of those submissions. In my judgment, the reasons of the judge below cannot be criticised for not referring to the special advantages enjoyed by a specialist tribunal.
[65] The Council also used the omission of any such reference to suggest that the judge did not in fact accord any particular weight to the Tribunal's decision. I do not accept that the omission justifies that inference. Is there another basis for it?
[66] That question necessarily involves a consideration of the nature of an appeal to the District Court under s 137 of the 1992 Act. The judge did refer to authorities on that question. In particular, he wrote,
"As was stated when considering an appeal under s 222 of the Justices' Act 1886 (and the nature of this appeal is in similar terms) this court must give due deference and attach a good deal of weight to the magistrate's view: Stevenson v Yasso [2006] 2 Qd R 150 at para [36] per McMurdo P."[38]
[67] In referring parenthetically to the nature of the appeal, his Honour was evidently observing the similarity between s 223 of the Justices Act 1886 and s 137 of the 1992 Act. Both provide (in effect) that unless the judge orders otherwise, the appeal to the District Court is by way of rehearing on the evidence given at first instance. His Honour's quotation from Yasso[39] can only mean that his approach to the task before him was to "give due deference and attach a good deal of weight" to the Tribunal's view. And it is evident that his Honour applied that approach. On all factual issues which he considered, his Honour's analysis focused on the correctness or otherwise of the Tribunal's findings. The thrust of his reasoning was that the Tribunal's judgment must stand unless error could be found in it. Had his approach been to make his own findings, without regard to those made by the Tribunal, the focus would have been otherwise. It is true that each time he criticised the Tribunal's fact finding, he did not repeat the necessity for giving weight to the Tribunal's view. He did not need to do so. Reasons for judgment are not enhanced by the repetition of mantras.
[68] It follows that in my judgment, if leave to appeal were granted, ground 3 would fail.
[69] If his Honour's approach is to be criticised, it may be on the ground that he gave undue emphasis to the views of the Tribunal. The central task of an appellate court in an appeal by way of rehearing is not to analyse the correctness or otherwise of the decision below, although such an analysis may sometimes be helpful. It is to decide the case for itself. Often it will do so by considering only the evidence admitted at first instance. That is usually the position in appeals under s 222 of the Justices Act 1886 and it was the position in the present case. The correct approach has been described by the High Court in a line of cases commencing with Warren v Coombes.[40] That requires an appellate court to draw its own inferences from the facts established by the evidence while respecting the advantage of the court or tribunal at first instance in seeing and evaluating the witnesses. That is particularly relevant when issues of credibility arise.
[70] It is in this sense that the President's dictum from Stevenson v Yasso must be understood. This Court so held in Parsons v Raby.[41] The same conclusion follows when one analyses the authorities cited by the President in the light of decisions such as Fox v Percy.[42] Unfortunately, the judge seems to have understood the dictum in a wider sense; otherwise, why was it cited? No question of credibility or assessment of witnesses arose in the present case. The facts were largely agreed. But this error, if it be an error, did not disadvantage the Council. It was supporting the Tribunal's decision.
[71] The fact that an appeal is from a tribunal composed at least in part of members of the profession in whose regulation the tribunal was involved does not make the authority of Warren v Coombes irrelevant. A number of cases were cited on behalf of the Council in support of the proposition that an appellate court should take into account (and defer to) the views of a specialist tribunal. In the New South Wales and Victorian cases cited, that proposition has been adopted at first instance, but without any consideration of Warren v Coombes and in reliance on earlier binding authority which predated or did not consider that decision.[43] They are therefore not persuasive. Others of the cases cited are to be distinguished as being examples of cases where credibility was in issue[44] or were appeals against the exercise of a discretion.[45] Like a Tasmanian single judge decision on penalty,[46] they do not demonstrate the existence of a wider principle of deference. Others, from Western Australia, manifest an attempt to reconcile the idea that particular respect should be paid to decisions of specialist tribunals on matters within their expertise with the High Court authorities.[47] No case involving such an attempt in this Court or in the High Court was cited. The Western Australian authorities are persuasive, but it is unnecessary in the present case to decide whether they should be applied in this state.
[72] There is another reason for restraint in the present case. In relation to the 1992 Act the question is complicated by the presence of s 137(5).[48] It is at least arguable that the Parliament made specific provision for what should happen in appeals calling for the application of professional expertise, and that when the parties choose not to invoke that provision the ordinary approach to an appeal by way of rehearing should be adopted. Again it is unnecessary to decide the point.
[73] The proposed ground 6 is unsustainable in light of the High Court decisions. It was the duty of the judge to make his own assessment of the facts bearing in mind the matters discussed above. Save for the fact that three of the Tribunal members were nurses, the Tribunal was not in a superior position to assess the witnesses or make findings of fact or draw conclusions. The primary facts were agreed. No credibility assessments were required. Hearing the witnesses conferred no advantage. This proposed ground has no substance.
"This ground of appeal is conceded. The Tribunal did refer to the respondent's prior knowledge of and participation in Mr Herricane's medical history and treatment. It is submitted however, that this Court would not overturn his Honour's decision as a result of this error. Evidence clearly exists which supports the ultimate findings of his Honour that the applicant had not proved to the requisite standard that the respondent's conduct amounted to unsatisfactory professional conduct in that it was conduct discreditable to a registered nurse."
[76] It is unnecessary to debate whether the Court's error was one of fact or of law.
[77] It follows that the Council would on this ground succeed in demonstrating error on the part of the judge if leave to appeal were given.
(i) the Tribunal did not take those statements into account when assessing whether the charge had been made out; and
(ii) the Tribunal only took those statements into account in assessing sanction; and
(iii) the Tribunal was entitled to, and obliged to, take those statements into account for that purpose."
This ground relates to the judge's findings set out in para [36] (f) of his reasons.[49]
[79] If it were correct that the Tribunal took the relevant part of Ms Graham's evidence into account in assessing whether the charge had been made out, it would have committed a serious error. The case before the Tribunal was not conducted on the basis that Ms Graham was guilty of "a total disregard for her professional responsibility" to Mr Herricane. In this Court, the Council did not submit that any such finding as to her state of mind on 3 January 2002 could be sustained. Rather, it submitted that the judge misread the Tribunal's reasons for judgment; and that the findings in question, based as they were on Ms Graham's insight at the time of the hearing, related to what sanction should be imposed. Ms Graham contested that submission.
[80] In my judgment the submission on behalf of the Council is correct. The Tribunal's reasons were given in the form typically used by courts. The paragraphs were numbered, but no subheadings were used. The reasons began by recording the history of the charge, identifying the onus of proof and recording the evidence. That occupied the first 20 paragraphs. The Tribunal then continued:
"21. Having considered all of the evidence, the Tribunal is satisfied the respondent's conduct constituted unsatisfactory professional conduct contrary to section 104(1) of the 1992 Act in that it was conduct discreditable to a registered nurse within the meaning of section 31(1)(e) of the 1976 Act."
The Tribunal stated what it regarded as the test for discreditable conduct[50] and then recorded its findings.
[81] The contest revolved around the next two paragraphs:
"26. In the Tribunal's view, the respondent in evidence exhibited a total disregard for her professional responsibility towards the health and safety of the deceased. The respondent was a trained professional employed at the centre to provide nursing care and assistance to the deceased throughout the nightshift. Notwithstanding a specific request that she attend to conduct a clinical assessment of the deceased, she failed to conduct a proper clinical assessment.
[82] From para 28 onwards, it is plain that the Tribunal was dealing with the question of sanction. It did not clearly segregate that topic with a heading, but I do not think it should be criticised for that. At the conclusion of the evidence the chairman had asked counsel to cover all possible contingencies in their submissions due to the difficulty of reconvening the Tribunal to receive further submissions, and both counsel addressed on the question of sanction as well as the question of breach. The Tribunal followed the same approach in its reasons.
[83] Appellate courts should not be too demanding in determining what is required in the expression of reasons by tribunals; quasi-judicial tribunals bear some resemblance to administrative bodies in this respect.[51] That is true even where, as here, one member of the Tribunal is a senior barrister. The Tribunal's reasons must be read fairly.[52] The difficulty created by para 27 is in my judgment one of expression only. That paragraph deals with matters concerned with what might loosely be called liability. Had it preceded para 26 no difficulty would have arisen. As I understand the reasons the Tribunal commenced to deal with the question of sanction in para 26, inserted an afterthought about liability in para 27 and continued to deal with the question of sanction from para 28.
[84] It follows that in my judgment, the Council will succeed on this ground in demonstrating error on the part of the judge if leave to appeal is given.
[85] If leave to appeal is given, the errors in the reasoning will require that this Court consider for itself what order the judge should have made on the rehearing before him. A question which necessarily will then arise is, what did the Council have to prove in order to satisfy the terms of the provision under which Ms Graham was charged.
[86] Section 158(3)(b) required the identification of a matter in relation to which if it had arisen under the 1976 Act a Board inquiry could have been started. Such a matter was one where the Board considered it had reasonable grounds to suspect that a registered nurse had been guilty of "gross negligence, malpractice or conduct discreditable to a registered nurse". In other words it was incumbent on the Council to demonstrate that had the matter arisen under the 1976 Act, the then Board would have so considered. That issue does not seem to have been directly addressed before the Tribunal, but perhaps it was thought too obvious to warrant consideration. Ms Graham did not rely on the absence of any such consideration in argument before us.
[87] The question which did arise in the course of argument was, what did the Council have to prove to demonstrate reasonable grounds for suspicion of discreditable conduct. That was a question which had concerned Tutt DCJ at the outset of the appeal to the District Court. Before counsel began their submissions his Honour said:
"I am very interested in this discreditable conduct interpretation because really that is the key to it all, isn't it; really as to whether her omissions, as it were, on that morning amounted to discreditable conduct because the authorities would seem to point to other actions as being discreditable, as opposed to -- one might say not carrying out what some people might think should have been her obligations as a registered nurse. So that's something I'd like to obviously hear both counsel, particularly what you have to say about that."
In this Court a similar interest was expressed by the bench.
[88] Both in the District Court and the Tribunal the case proceeded on the assumption that the test for determining whether Ms Graham's conduct amounted to "conduct discreditable to a registered nurse" within the meaning of s 31(1)(e) of the 1976 Act was that stated in Adamson v Queensland Law Society Incorporated[53] and Qidwai v Brown[54] (on the dubious basis that the tests in those cases were practically identical). That assumption was called into question in this court.
[89] In Adamson, the question before the court was whether it was open to the Statutory Committee of the Law Society to hold that certain conduct amounted to professional misconduct. Thomas J (with whom Connolly and Ambrose JJ agreed) held, "The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency."[55] That test was applied in a context where the Statutory Committee was empowered to consider charges of professional misconduct, unprofessional conduct or malpractice. In the present case the 1976 Act required reasonable grounds to suspect "gross negligence, malpractice or conduct discreditable to a registered nurse". The question which arises is, what is the appropriate test to identify "conduct discreditable to a registered nurse".
[90] I return to the question whether leave to appeal should be granted. In favour of the application are the following:
I reject the submission that leave should be granted because the case involved a death in custody. There was a death; but it was no part of the charge against Ms Graham that her conduct caused it and the fact that Mr Herricane subsequently died was irrelevant to the charge. None of the other matters cited by the Council as reasons for the granting of leave[56] warrants such a grant.
[91] Factors weighing against the granting of leave are:
[92] In my judgment the balance favours granting leave to appeal in this case.
[93] Ms Graham submitted that even if some of the judge's reasoning was in error (as I have held it was), the result which he reached was correct. That submission requires us to consider the merits of the appeal to the District Court. It will be remembered that the sole ground of that appeal (apart from the question of sanction) was that the Tribunal erred by finding that Ms Graham's conduct amounted to discreditable conduct.
[94] One matter may be put to rest at once. As noted above,[57] the Tribunal described the central issue in the case as being whether Ms Graham's conduct "constituted unsatisfactory professional conduct within the meaning of s 104A of the 1992 Act, in that it constituted conduct discreditable of a nurse within the meaning of section 31(1)(e) of the 1976 Act". That was wrong. No question arose as to whether Ms Graham's conduct constituted unsatisfactory professional conduct within the meaning of s 104A of the 1992 Act. The true question was whether the case had been brought within s 159. Nothing depends on that error. It did not affect the Tribunal's reasoning in relation to s 31 of the 1976 Act. It may be disregarded.
Conduct discreditable to a registered nurse: the test
[95] I begin with a general observation. For at least a century courts in Australia (and a number of other common law jurisdictions for that matter) were bedevilled with the task of interpreting terms such as "infamous conduct", "unprofessional conduct", "professional misconduct", "malpractice", "disgraceful conduct" and "conduct discreditable" in legislation concerning self-governing professions.[58] These terms appeared in a variety of statutory contexts and consequently they received a variety of interpretations. Subtle distinctions and judicial glosses made the task of interpretation complex and confusing. Differing views were expressed on issues such as whether a particular term required proof of obliquity and how the various expressions were to be ranked in terms of seriousness. One legislative response to this situation was to avoid the use of any term descriptive of unsatisfactory conduct completely.[59] Another has been to define all unsatisfactory conduct under one rubric, leaving issues of morality and seriousness to be dealt with as matters of judgment relating to the imposition of sanctions. In the case of nurses, the latter response was adopted in the Health Legislation Amendment Act 2003.[60] Unfortunately, in this appeal we must construe an act drafted in the earlier style.
[96] There is no reported case on the construction of s 31 of the 1976 Act. That gives rise to a considerable temptation to try to pick up a meaning from one of the cases decided on other words in other acts in this or another jurisdiction. That is a temptation to which the parties seem to have succumbed in the proceedings below. It is a temptation which must be resisted. Our duty was described by McHugh J in a not dissimilar context in these terms:
"62. I do not think that there are any grounds upon which the principles laid down in the English cases and frequently followed in this country can be persuasively distinguished because of differences in the texts of [the legislation]. But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation."[61]
"37. It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations. And because it serves that purpose, good reason must be shown before it will be concluded that the legislature did not intend the consequences that would flow if the provision in question were given its natural and ordinary meaning.
[97] What, then, is the test for identifying "conduct discreditable to a registered nurse" within the meaning of s 31(1)(e)? No case was cited to us in which the phrase "gross negligence, malpractice or conduct discreditable ..." or any part of it has been considered and I have found none. The Council submitted that the correct test was that enunciated by Priestley JA in Qidwai v Brown in relation to the expression "misconduct in a professional respect":[63]
"whether the practitioner was in such a breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence." [64]
That dictum of Priestley JA was not the only one put forward in that case. Hutley JA suggested:
"whether there have been departures from accepted procedures and whether these departures have become the subject of professional reprobation."[65]
[98] None of the three terms contained in para (e) is a term of precise denotation, in law or in ordinary usage. In ordinary parlance they have different connotations. The same is true in law. Despite Rolfe B's famous dictum that gross negligence was simply negligence with a vituperative epithet,[66] the term is commonly used to describe the high degree of negligence required to support a criminal conviction.[67] Malpractice, according to the Oxford English Dictionary, has two meanings in law:
"a. Treatment given by a member of the medical profession that departs from a generally accepted standard of practice and results in injury to the patient, through negligence, ignorance, lack of skill, or malicious intent;
b. More generally: incompetence, negligence, or unethical conduct on the part of any professional person (esp a lawyer), official, etc".[68]
The dictionary gives no legal meaning for "discreditable", but defines the word as "the reverse of CREDITABLE; such as to bring discredit; injurious to reputation; disreputable, disgraceful".
[99] It is clear that the three terms do not describe mutually exclusive categories. Neither are they different species of the same genus. Malpractice focuses upon the quality of the offending conduct. Discreditable imputes to the conduct a type of impact created in the minds of others. An act of gross negligence may often be discreditable; but whether it is so in a particular case must depend on the nature of the act and the circumstances of the case.
[100] Priestley JA's dictum in Qidwai contains two elements which are not necessarily implicit in the word "discreditable" as considered so far. First, there is the requirement for a breach of the written or unwritten rules of the profession. Second there is the requirement for the conduct to incur the reprobation of members of the profession. The latter requirement is part of what was described in Wong v Commonwealth[69] as "a common thread [which] can be identified running through most statutes" regulating professional conduct:
"The standard of conduct expected of practitioners ... is often identified, at least in part, by reference to the opinion of members of the profession, or members of the profession 'of good repute and competency'."[70]
That suggests the possibility that the putative "others" upon whose minds allegedly discreditable conduct is to operate may be not reasonable lay persons, but reputable and competent members of the profession.
[101] In support of the Council's submission, Mr Davis SC cited the decision of Pape J in Mercer v Pharmacy Board of Victoria.[71] In that case the relevant legislation empowered the Board to inflict a penalty if on an enquiry a pharmacist was found:
"(a) to have been convicted of a felony or misdemeanour or to have been convicted in any of Her Majesty's Dominions or elsewhere of an offence which if it had been committed in Victoria would have been a felony or misdemeanour;
(b) to be physically or mentally unfit to carry on the practice of a pharmaceutical chemist;
(c) to be addicted to drugs or habitually intoxicated;
(d) to have been convicted by a court of any offence against this Act or against the Poisons Act 1958; or
(e) to have been guilty of any other conduct discreditable to a pharmaceutical chemist or which renders him unfit to be registered as a pharmaceutical chemist ...".
It will be noted that para (e) differed from the provision currently under consideration in that it included only one term of inculpation.
[102] For the chemist it was submitted that "conduct discreditable" was a phrase which must be construed as embracing the type of conduct which in earlier cases had been held to constitute infamous conduct in a professional respect. Pape J rejected that argument on the ground that the same act elsewhere used the expression "infamous conduct in a professional respect"; and would have used those words in para (e) if that had been the intended meaning. He went on to express his view of the meaning:
"... 'conduct discreditable to a pharmaceutical chemist' includes any conduct in relation to the carrying on of the business of a chemist which would be reasonably regarded by other chemists of good professional competence as calculated to destroy or lower public confidence in that chemist, or as injuring the credit or standing of the chemist in his professional capacity. I do not think it necessary that his conduct should be dishonest or fraudulent, or that it should involve any moral turpitude. It is enough if it brings discredit on him as a pharmaceutical chemist or on the profession as a whole. Nor do I think it necessarily follows that conduct which is due solely to negligence or inadvertence cannot be said to be discreditable conduct, because the chemist is in a position where his duties are to a large extent laid down by regulation or by the Act, and where great care is required in the carrying out of those duties and because failure to exercise that degree of care expected of him must necessarily lower public confidence in him and discredit him in the eyes of his professional brethren."[72]
[103] That formulation differs from that of Priestley JA in two respects. First, it makes no reference to the breach of any written or unwritten rules of the profession. Second, while it postulates the judgment of other members of the profession, the test requires an assessment based on the impact of the offending conduct in the minds of the public. That is apparent from the reference to destroying or lowering public confidence in the chemist or injuring his credit or standing as a chemist.
[104] Those differences are not surprising. Priestley JA was interpreting the expression "misconduct in a professional respect". It would be surprising if by pure chance he reached a construction which accorded with the meaning of "conduct discreditable ...". All that shows is the need to focus on the statutory words, not on cases which have interpreted them in different contexts.
[105] Moreover it is not possible simply to apply Pape J's formulation to the term "conduct discreditable ..." in the 1976 Act. In the Victorian act the term stood alone. It does not do so in the Queensland act. The express inclusion of gross negligence in s 31(1)(e) implies an exclusion of ordinary negligence. "Malpractice" and "discreditable conduct" must be read down to exclude such negligence. It follows that the term "gross negligence" does not widen the ambit of conduct covered by the paragraph; it narrows it. It also follows that the last sentence of what was said by Pape J cannot be applied in relation to the 1976 Act.[73]
[106] There is another difficulty with Pape J's test. His Honour wrote, "It is enough if it brings discredit on him as a pharmaceutical chemist or on the profession as a whole". That does not conform with the terms of the section. It required the discreditable conduct to be measured by reference to "a pharmaceutical chemist". Similarly, 31(1)(e) refers to "a registered nurse". It would not be correct to measure the conduct by its effect on the profession as a whole. (It is true that in the 2003 amendment to the 1992 Act, "unsatisfactory professional conduct" was defined to include "conduct discreditable to the nursing profession"; but that is irrelevant.) Like the Victorian act, the 1976 Act did not look to the impact on the profession. The hypothetical discredit related to a hypothetical nurse, not the profession as a whole.
[107] It may also have been incorrect to express the test in terms of the effect on the particular chemist. It is unnecessary to resolve that point.
[108] With those limitations, what was said by Pape J provides assistance in interpreting the 1976 Act. Conduct which would reasonably be regarded (at least by other nurses of good professional competence) as calculated to destroy or lower public confidence in a nurse or which injures the credit or standing of a nurse in his or her professional capacity can in my judgment be said to be conduct discreditable to a registered nurse. I would reserve the question whether the words in parenthesis are superfluous. I do not think they matter in the present case.
Conduct discreditable to a registered nurse: the facts
[109] The essence of the Tribunal's finding was contained in para 27 of its reasons.[74] Contrary to her duty Ms Graham conducted a cursory and grossly inadequate examination of Mr Herricane. It was that conduct which the Tribunal held amounted to conduct discreditable to a registered nurse.
[110] No witness gave evidence about the impact which conduct like that of Ms Graham might have on public confidence in a nurse guilty of such conduct. The members of the Tribunal do not appear to have given any consideration to that question. (Had they contemplated acting on their own knowledge and experience, the rules of natural justice would have required them to inform counsel for the parties of that possibility and to explain the conclusion under contemplation and the basis for it.) It does not seem to me that one could on the available evidence find that public confidence in such a nurse would be affected. A more difficult question is, would such conduct injure the nurse's standing as a nurse. In addressing that question I shall assume without deciding that it is the nurse's standing in the eyes of other nurses which must be considered.
[111] The main evidence relevant to this question was that given by Ms Bruce. She prepared a report less than a month before the Tribunal hearing, and that report was exhibited to an affidavit read during the proceedings. She had been given a brief by the solicitors for the Council, but there was no direct evidence of what it contained or did not contain. She had been provided with the Notice of Charge and the affidavits of Mr Kambouris and Mr Lackey. She was also given an affidavit by Mr Beaumont, Mr Herricane's cellmate, which was not read into evidence. She gave no other evidence in chief. She did not have access to the clinical notes or to Ms Graham's version of events in preparing the report. There is no evidence that she was ever shown the statement of agreed facts or Ms Fraser's affidavit, but it seems that she had read Ms Graham's affidavit by the time she was cross-examined.
[112] The report was two and a half pages long. It seems that when she wrote it, Ms Bruce was unaware that Ms Graham had examined Mr Herricane on his arrival at the prison on 28 December 2001 and conducted a medical in confidence assessment; and had again had him in her care on the night of 1 - 2 January in the medical centre, when he had a restful night. The report suggests that Ms Bruce was also unaware that during the day on 2 January Dr Todd had assessed Mr Herricane as well enough to return to the cell unit, and that Ms Graham knew this. Ms Bruce briefly referred to the events early on 3 January when Ms Graham went to Mr Herricane's cell. She opined that the acceptable practice would have been for Ms Graham to have "enquired as to any known concerns expressed with regard to symptoms" and to have obtained and perused the medical file. She should then have ensured that any necessary equipment was collected for an assessment at the cell and for a possible removal to the health centre. (Matters not the subject of the charge).
[113] On that basis she expressed the opinion that Ms Graham "fell well below the Queensland Nursing Council, Australian Nursing and Midwifery Council (ANMC) Acceptable Standards of Nursing Conduct and National Competency Standards for the Registered Nurse". She was apparently referring to three documents listed in the appendix to the report: the Queensland Nursing Council Scope of Practice and Framework for Nurses and Midwives; the ANMC Code of Professional Conduct for Nurses in Australia; and the ANMC National Competency Standards for the Registered Nurse. She set out a series of dot point reasons for that opinion: Ms Graham
"• Failed to adequately respond to a request for clinical assistance.
The two ANMC documents to which she had referred were exhibited to her affidavit but the Queensland Nursing Council document was not. Unfortunately, the version of the ANMC Code of Professional Conduct exhibited was the version revised in 2003 and there was no evidence of its relationship to the 1990 version operative at the relevant time; and the National Competency Standards did not come into existence until December 2005.
[114] The manner in which Ms Bruce's evidence-in-chief was adduced can only be described as shoddy. She was put forward as an expert witness to give an opinion about Ms Graham's conduct. Although the Tribunal was not bound by the rules of evidence,[75] Ms Bruce's opinion was irrelevant unless it was based on facts which were proved in evidence. It was so based only in part (the affidavits of Mr Kambouris and Mr Lackey). It was also based on other facts not in evidence (those in Mr Beaumont's affidavit) and seems likely to have been based on yet other assumed facts, as there was no evidence to support the second, third, fourth, fifth, sixth and last dot points. It left out of account the evidence of Ms Fraser and Ms Graham and, except insofar as its contents were included in the affidavits of Mr Kambouris and Mr Lackey, the statement of agreed facts. Ms Bruce conceded in cross-examination that when she prepared the report she had not been aware of what the issues would be. The content of the brief sent to her was not disclosed and two documents which she used in preparing the report, the Queensland Nursing Council Scope of Practice and Framework for Nurses and Midwives, and the ANMC Code of Ethics for Nurses in Australia were not produced.[76]
The ANMC Code of Professional Conduct and the ANMC National Competency Standards
[115] Ms Bruce was cross-examined about the ANMC Code of Professional Conduct, and she identified items 1, 2, 3 and 5 of the Code as particularly relevant and numbers 7 and 9 as less relevant. Those items were:
[116] Each of those items was followed by an Explanatory Statement. The Statement following item 1 made it clear that item 1 was concerned with ongoing professional education, identification of scope of practice, delegation of duties and personal health limitations. None of the matters in the Explanatory Statement had any relevance in the present case. Significantly, Ms Bruce did not report that on the basis of the evidence before her, Ms Graham failed to practise in a safe and competent manner, nor did she testify to that effect.
[117] The Explanatory Statement relating to item 3 of the code referred to the actions of nurses in their personal lives and made the point that the conduct of a nurse must at all times maintain and build public trust and confidence in the profession. This case was not concerned with Ms Graham's personal life and apart from the assertion in the last dot point of Ms Bruce's report, there was nothing in the evidence to suggest that she had failed to maintain public trust and confidence in the profession. There was no evidence to support that assertion.
[118] It is unnecessary to record in detail the content of the explanatory statements for items 5, 7 and 9 of the code. As one might expect from the terms of the code items, they were completely irrelevant to Ms Graham's conduct. Their inclusion detracted from the weight which might otherwise have been given to Ms Bruce's evidence.
[119] Ms Bruce did give evidence (in cross-examination) supporting a conclusion that by failing to enter Mr Herricane's cell to examine him, Ms Graham did not act in accordance with the standards of the nursing profession (item 2 of the code). I shall discuss that evidence below in relation to the penultimate dot point in the report. On the assumption that item 2 of the version of the code produced by Ms Bruce was included in the 1990 version, I am satisfied that Ms Graham's conduct fell below the standard described therein.
[120] Ms Bruce did not identify any provision in the ANMC National Competency Standards not satisfied by Ms Graham at the time of the relevant conduct. No finding of incompetence was made by the Tribunal. It is difficult to see how a breach of the competency standards could be relevant to the question of whether Ms Graham's conduct was discreditable to a registered nurse. Ms Graham's competence in 2002 was simply not in issue. In any event, the competency standards did not come into existence until four years later. To her discredit, Ms Bruce did not draw attention to that fact and it seems to have escaped counsel for Ms Graham.
The Queensland Nursing Council Scope of Practice and Framework for Nurses and Midwives
[121] This publication was not put into evidence and no oral evidence was given of its content. Ms Bruce gave no evidence relating Ms Graham's conduct to the publication.
[122] I am not satisfied that Ms Graham's conduct conflicted with the publication.
The first dot point and the penultimate dot point in Ms Bruce's report
[123] The first dot point was written before Ms Bruce became aware that Ms Graham was summoned to Mr Herricane's cell not to render clinical assistance but to conduct a nursing assessment of him. The cross-examiner succeeded in eliciting for the first time some evidence that Ms Graham's conduct was inadequate for the purpose of conducting an assessment:
"Is there a difference, however, between someone asking for an assessment of an inmate and someone asking for medical assistance?---Yes. There is a difference.
There was evidence - there has been evidence before the tribunal that registered nurse Graham was called for the purposes of assessing Mr Herricane?---Yes.
And are you familiar with the stages of clinical assessment?---Yes.
Okay. And what would they be? Of - of an assessment of a patient?
Yes? - Well, head to toe physical, psychological, emotional. Basically you would be - initially in those environments you would be taking vital signs, noting the physical appearance, noting what verbally someone would say to you, what their complaints are. You would be comparing that to their clinical history, their notes, if you have it with you at that time, and you certainly be documenting all of what you found.
Would there be stages? Would your opinion be there are stages of assessing a patient or client?--- Yes.
Okay. And would you agree that the first stage would be to observe - visually observe the patient or client?---Yes.
And based on doing a physical, or an observation of someone, you may then speak to them to get information. Would that be correct?---Yes.
Okay. And would you then make an assessment from that as to whether you needed to move on to the next stage?---I wouldn't no. I would go on to the next stage.
Okay. So is it your evidence that you would, on every occasion after you have looked at a patient, then go on and do a physical assessment?---If I was called to see someone who was claiming to be unwell, yes.
Would you agree that at the time, and not with hindsight, it was within clinical range that she could have observed him through the window, and formed the view he looked no different from how he had done the day before, and that on that basis, that could form an assessment?---No."
[124] In relation to the penultimate dot point Ms Bruce testified:
"Can you explain what you meant by that?---What I mean by that , is that when you're looking at the profession of nursing, and thinking about what would be an acceptable level of care provision, given the circumstances, given the environment, that she was nursing in at that time, given the resources that she had with her at that time, what would be an acceptable standard - what would be considered by other registered nurses, including myself, to be an acceptable standard of care provided to a patient that had been requested either by himself or by another person for assessment, and to make a judgment on what required follow up care. So my overall - that overall statement is that I do not believe that a majority of registered nurses would have acted the same as Ms Graham, given the same circumstances, environment and resources.
Okay. Can I put it to you that many registered nurses carry out visual observations of their clients and patients, is that correct?---Yes.
Yes. And many registered nurses have a conversation with patients and clients to get information they need to assess them. Is that correct?---Yes.
And many registered nurses take into account what they know to be the previous history of the patient or client in making an assessment of that patient. Is that correct?---Yes.
CHAIRPERSON: And what do you say to the proposition that many registered nurses do it from another room, that is, not within the same room as the patient?---That's what I have a great problem with. And I suppose within my experience with corrective services is that the fact that you sometimes have to go to a greater level and a greater extent, given the restrictiveness between being able to see people face to face, to actually have a good visual inspection of somebody, to ensure that what they're telling you, given that there is often a lot of people around, security officers, other prisoners, etcetera, might be within earshot. So you have to take all of those things into consideration when you are actually saying that someone is telling you something. That's why I disagree that the standard visual inspection or conversation with someone in that environment would be satisfactory."
[125] In re-examination Ms Bruce said that in making an assessment temperature, pulse, respiration and blood pressure were steps which a nurse should take which could not be taken from outside the cell.
[126] I am satisfied on this evidence that Ms Bruce's conclusion that Ms Graham "acted significantly below what would be an acceptable standard for a registered nurse" was correct. The examination which she conducted was inadequate.
[127] None of the other dot points was supported by evidence, which no doubt explains why the Tribunal made no findings in relation to them.
[128] Ms Graham's conduct was not premeditated, but occurred on the spur of the moment. It was not accompanied by any moral impropriety. It was not reckless or done in blatant disregard of an obvious risk or of an instruction. There was no reason why Ms Graham should have suspected Mr Herricane's true condition which was very rare. Her conduct was described by Ms Bruce as "significantly" substandard, but it was put no more strongly than that.
[129] In these circumstances I do not think that Ms Graham's conduct can be described as gross negligence. The question may be tested by asking, suppose it could be proved that Mr Herricane died as a result of her conduct; could she be convicted of manslaughter? To my mind the answer must be, no.
[130] That being so, and in the absence of any element of moral or other such impropriety, I do not think it can be said that the conduct would injure the credit or standing of a nurse in his or her professional capacity. At least it would not do so to any greater extent than any ordinary act of negligence would do; and for reasons already explained, mere negligence without more cannot support the charge.
[131] It is important in this context to observe that the Tribunal's finding in para 26 of its reasons cannot be used to support an inference of gross negligence in 2002. That finding did not relate to Ms Graham's conduct but to her attitude while giving evidence before the Tribunal. It was never the Council's case before the Tribunal that her conduct on 3 January 2002 manifested a total disregard for her professional responsibility.[77] In this court Mr Davis for the Council affirmed that this was relevant only to penalty.
[132] It follows that Ms Graham was not guilty of conduct discreditable to a registered nurse. The order of the District Court was correct.
3. Order that the applicant pay the respondent's costs of the application and the appeal to be assessed.
[1] Reasons of the Nursing Tribunal In the Matter of Juanita Graham and the Queensland Nursing Council, 24 June 2008 at [19], [23].
[2] See Graham v Queensland Nursing Council [2009] QDC 121 at [35].
[3] Reasons of the Nursing Tribunal In the Matter of Juanita Graham and the Queensland Nursing Council, 24 June 2008 at [29].
[5] [1968] VicRp 9; [1968] VR 72 at 85.
[6] Reasons of the Nursing Tribunal In the Matter of Juanita Graham and the Queensland Nursing Council, 24 June 2008 at [22].
[7] [1984] 1 NSWLR 100 at 105.
[8] [1990] 1 Qd R 498 at 507.
[9] [2009] QCA 126 at [48], [53], [54]; [2008] LPT 9 at [37].
[10] See the reasons of the Nursing Tribunal In the Matter of Juanita Graham and the Queensland Nursing Council, 24 June 2008 at [12]-[18].
[11] See Nursing Act 1992, s 87, s 88 and s 96.
[12] [2003] WASCA 274 at [17].
[13] [1945] VicLawRp 54; [1945] VLR 309, Lowe J at 310.
[14] [1999] VSC 113 at [18].
[15] [2009] NSWSC 347 at [59].
[25] Health Quality and Complaints Commission Act 2006, s 241(1) and sch 3.
[28] The submissions in the District Court were not included in the record. I have read the written submissions on the court file and the transcript of oral submissions recorded by the State Reporting Bureau.
[29] Graham v Queensland Nursing Council [2009] QDC 121.
[31] Practice Direction No 1 of 2005, para 28(a)(i).
[32] Pickering v McArthur [2005] QCA 294 at para [3].
[33] They were described in Amos v Monsour Pty Ltd as "limiting principles": see [2009] QCA 65; [2009] 2 Qd R 303 at 306.
[37] [1990] 1 Qd R 498 at 504.
[41] [2007] QCA 98; see also Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247.
[43] Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347; Campbell v Dental Board of Victoria [1999] VSC 113.
[44] T v Medical Board of South Australia (1992) 58 SASR 382.
[45] Medical Board of Queensland v Thurling [2003] QCA 518; Papps v Medical Board of South Australia (2006) 245 LSJS 185.
[46] Walters v Nursing Board of Tasmania [2003] TASSC 122.
[47] Quigley v Legal Practitioners Complaints Committee [2003] WASCA 228; De Pardo v Legal Practitioners Complaints Committee [2003] WASCA 274; followed in Roberman v Medical Board of Western Australia [2005] WASC 45.
[51] Compare Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.
[52] Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [55].
[55] [1990] 1 Qd R at 507 (citation omitted).
[58] As Lord Hoffmann called them in McCandless v General Medical Council [1996] 1 WLR 167 at 169.
[59] For example the Legal Practitioners Ordinance 1972 (ACT), s 41.
[60] Section 90, inserting s 104A into the Nursing Act 1992. See also Health Practitioners (Professional Standards) Act 1999, s 124 and schedule.
[61] Marshall v Director-General Department of Transport [2001] HCA 37; (2001) 205 CLR 603 at 632-633 (referring to the Acquisition of Land Act 1967); cited with apparent approval in the unanimous judgment in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 at 270.
[62] [2001] HCA 37; (2001) 205 CLR 603 at 623 (citations omitted).
[63] Medical Practitioners Act 1938 (NSW), s 27(1)(c).
[64] [1984] 1 NSWLR 100 at 105.
[66] Wilson v Brett [1843] EngR 275; (1843) 11 M & W 113; 152 ER 737.
[67] Andrews v Director of Public Prosecutions [1937] UKHL 1; [1937] AC 576 at 582-583 per Lord Atkin.
[68] Compare Fishman v Waters (1983) 4 DLR (4th) 760 at 762 per Hall JA.
[70] Ibid, at 638 per Hayne, Crennan and Kiefel JJ, Kirby J agreeing at 620 (citations omitted).
[71] [1968] VicRp 9; [1968] VR 72; applied Loewy v Pharmacy Board of Victoria, unreported, No 11301/1991, Hedigan J, 7 December 1992, BC 9200581.
[72] [1968] VicRp 9; [1968] VR 72 at 85.
[73] For the same reason Re Geraghty [1983] 1 Qd R 28, esp at 36-37, is to be distinguished.
Graham
Queensland Nursing Council
(1938) 60 CLR 336
(2000) 203 CLR 194
(2003) 214 CLR 118
(1936) 55 CLR 499
(2001) 205 CLR 603
(1996) 185 CLR 259
(1992) 58 SASR 382
(2008) 233 CLR 259
(1979) 142 CLR 531
(2009) 83 ALJR 271
(1984) 1 NSWLR 100
(2009) 236 CLR 573