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[2015] WASCA 60
General information, not legal advice.
Court of Appeal (WA)
2015-03-23
Newnes JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : H -v- NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2015] WASCA 60
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : H -v- NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2014] WASC 325
Practice and procedure - Application for subpoenas to produce to be issued by Court of Appeal - Documents concerned not before primary judge - No evidence documents relevant to appeal - Application dismissed
H v Nursing and Midwifery Board of Australia [2014] WASC 325
1 JUDGMENT OF THE COURT: This is an interim application by the appellant for subpoenas to be issued for the production of a number of categories of documents which the appellant says are necessary for the preparation of the appellant's case.
2 Before turning to the substance of the application, it is necessary to say something about the background to the appeal.
3 The appellant commenced employment at Royal Perth Hospital (RPH) as a registered nurse in early 2007. After some time, concerns arose as to her mental health. Over the course of 2010 the appellant underwent psychiatric examinations by three different psychiatrists, Dr Loke, Dr Atartis and Dr Spear. Dr Loke concluded that the appellant had a delusional disorder, persecutory type, and lacked insight into her symptoms; Dr Atartis reached the same conclusion and considered that the appellant had secondary depressive symptoms; and Dr Spear diagnosed the appellant as suffering from a delusional disorder and a major depressive disorder, with some paranoid personality traits. All considered that without effective treatment the appellant was unfit for work as a nurse.
4 The appellant was placed off-duty by RPH until the psychiatric assessment was completed and she was deemed fit to resume her normal duties. The impairment review committee of the respondent made an appointment for a further psychiatric assessment in January 2011, but the appellant did not consent to the examination and did not attend the appointment.
5 On 8 February 2011, the respondent, pursuant to s 71(1)(c) of the Nurses and Midwives Act 2006 (WA), commenced proceedings in the State Administrative Tribunal seeking, under s 82 of that Act:
(a) an interim injunction restraining the appellant from working as a nurse until the respondent's application was determined; and
(i) the appellant comply with such conditions as the Tribunal may impose on her registration;
(ii) the appellant seek and undergo medical treatment or counselling as specified by the Tribunal;
(iii) the appellant's registration be suspended either generally or in relation to any specific circumstances or service, for a period of time not exceeding two years, as specified by the Tribunal.
6 The ground of the application was that the appellant suffered from an impairment, namely a delusional disorder and a major depressive disorder, to such an extent that her ability to practise as a nurse was or was likely to be affected: s 50(b) of the Nurses and Midwives Act.
7 At the hearing, which proceeded in several stages, evidence was given by, among others, two of the psychiatrists who had conducted the earlier assessments, Dr Spear and Dr Atartis; another psychiatrist, Dr Manners, who had assessed the appellant; and the appellant's general practitioner. The Tribunal also agreed to a request by the appellant that she be assessed by another psychiatrist for the purposes of the hearing. The appellant was assessed by Dr Edward-Smith and Dr Edward-Smith's report was provided to the Tribunal before the completion of the hearing.
8 The evidence of Dr Spear and Dr Atartis was to the same effect as the views they had expressed previously. Dr Manners considered the appellant was likely to be suffering from a delusional disorder, with a possibility of paranoid personality disorder. The assessment of Dr Edward-Smith was that the appellant suffered from a chronic paranoid delusional disorder, of some 10 to 20 years standing, which rendered the appellant unfit at the time of the assessment for work as a nurse.
9 We should also mention that, between 17 September 2011 and 19 October 2011, the appellant was detained in Graylands Hospital as an involuntary patient pursuant to pt 3 of the Mental Health Act 1996 (WA).
10 The Tribunal delivered its decision on 26 October 2011. It concluded that:
Based on the evidence of the various psychiatrists, and in particular Dr Spear, Dr Atartis and Dr Edward-Smith, not to mention the fact that [the appellant] has unfortunately become an involuntary patient at Graylands Hospital, the Tribunal is satisfied that [the appellant] does suffer from an impairment which is or is likely to affect her ability to practise as a nurse pursuant to s 50 of the Nurses and Midwives Act 2006 (ts 7).
11 The Tribunal accepted the opinion of Dr Edward-Smith that it was difficult to state when the appellant would be able to return to work and concluded that it was necessary to suspend the appellant's registration for a period to allow her to be treated.
12 It ordered, pursuant to s 82(1) of the Nurses and Midwives Act, that the appellant's registration be suspended for a period of six months and that at the completion of the period of suspension, a number of conditions be imposed on the appellant's registration. Those conditions included requirements that before she commenced work in any capacity requiring registration under the Nurses and Midwives Act, the appellant must:
(1) undergo a psychiatric evaluation by a psychiatrist appointed by the respondent for the purpose of a report regarding her fitness to work as a nurse;
(2) obtain the approval of the respondent to undertake such work; and
(3) consult with her treating psychiatrist at least once every three months, and more frequently if recommended by the psychiatrist, and provide the respondent once every three months with a report written by the treating psychiatrist.
13 The appellant appealed, out of time, to a single judge of the Supreme Court.
14 The appellant's appeal notice proposed the following grounds of appeal:
(1) I am not a mentally sick person according to the international standards.
(2) Unlike criminal evidence, the mental illness does not present/go away because my medical evidence is illegally recorded.
(3) There are 5% of the delusional disorder patients telling the true stories. If I can prove the close monitoring is true, I am not
(4) a psychiatric person.
15 The appellant subsequently filed another document containing additional proposed grounds of appeal, alleging that the Tribunal had erred in that it:
(a) refused to issue summonses for the documents and witnesses that the appellant had requested to prove that she had been 'distantly close monitored in detail 24/7 hours';
(b) ignored the 'science of psychiatry' and relied on 'forged medical reports';
(c) determined the presence of psychosis on 'illegal' evidence provided by psychiatrists rather than according to 'international psychiatric diagnostic standards'; and
(d) considered an irrelevant matter - that the appellant had been admitted to Graylands Hospital.
16 The primary judge refused leave to appeal and dismissed the appeal: H v Nursing and Midwifery Board of Australia [2014] WASC 325. His Honour considered that the medical evidence presented to the Tribunal was consistently to the effect that the appellant was suffering from a delusional disorder. His Honour noted that Dr Atartis, Dr Spear and Dr Edward-Smith agreed that the appellant was unfit to work as a registered nurse at the time that they conducted their assessments due to the nature of the appellant's medical condition and her failure to seek treatment [60]. He pointed out that the examining psychiatrists had not based their diagnoses solely on the complaints and allegations that the appellant had made about her treatment at RPH and it followed that she could not necessarily establish that she did not suffer from a delusional disorder merely by demonstrating that, as she alleged, she had been bullied while working at the hospital [62].
17 The primary judge said it was apparent that the appellant's allegations that the doctors called by the respondent had 'forged' medical reports and provided 'illegal' evidence substantially rested on a combination of the matters that were put by the appellant during the hearing in the Tribunal and her view that she did not suffer from any disorder. There was no evidence to support the appellant's allegation that the psychiatrists who assessed her had failed to do so according to the appropriate medical standards [64].
18 His Honour found that the Tribunal had not erred in having regard to the fact that the appellant had been an involuntary inpatient at Graylands Hospital, that being a matter that was plainly relevant to the appellant's capacity to work as a registered nurse [80].
19 In his reasons, the primary judge referred to the appellant's complaint that the Tribunal had erred in refusing to issue summonses for the documents and witnesses the appellant had requested. His Honour observed that the appellant had not identified the documents and witnesses concerned but said that it appeared from the Tribunal file that the appellant was referring to applications she had made for a number of summonses to be issued for witnesses to attend and give evidence, some of whom included witnesses who had given evidence at the Tribunal [88]. It is implicit in his reasons that the primary judge considered that none of the additional witnesses could have given evidence which would have affected the result [95].
20 His Honour found that the appellant had failed to demonstrate any error by the Tribunal.
21 The appellant has appealed from the decision of the primary judge. The appeal notice was filed on 17 November 2014. The appellant has not yet filed an appellant's case, contending that she requires the documents described in the interim application in order to do so. There are therefore as yet no grounds of appeal.
22 The documents sought by the appellant are as follows:
23 Two affidavits have been filed by the appellant in support of the application. In an affidavit of 24 November 2014, the appellant says, among other things:
24 The appellant goes on to make a number of complaints about senior staff at RPH and the various psychiatrists who have assessed her. The latter complaints include allegations that Dr Spear and Dr Edward-Smith 'falsified' their reports and that Dr Spear, Dr Atartis, Dr Manners and Dr Edward-Smith gave false statements to the Tribunal. The appellant also alleges that she has been 'brutally tortured' and that she saw Dr Edward-Smith after 'prolonged man-made sleep deprivation'. It is further alleged that members of the Tribunal 'liaised with the gang-stalkers'. The appellant then says:
25 In an affidavit of 29 December 2014, the appellant sets out the reasons she seeks each of the documents. In substance, they are as follows:
(a) the appellant says her employment file held by RPH from 2007 to 2010 and her appraisals in 2008 and 2009 held by RPH (documents 1 and 2) would show that the Director of Nursing at RPH lied in her statements to the Tribunal;
(b) the appellant says the report of a Mr Burgess on her bullying allegations (document 3) should be, but was not, in her personal file at RPH. The appellant says she wonders how Mr Burgess concluded that there was no bullying. She goes on to make a number of allegations of incidents of bullying;
(c) it is difficult to understand the reason the appellant seeks the outcome of her substandard performance management in 2009, and the employment files of the appellant's immediate supervisor at RPH, N, and the Director of Neuro and Cancer Sciences, K, (documents 4, 5 and 6). As we understand it, however, the appellant alleges that while she was under performance management a critical patient was placed in her care. That, the appellant says, 'equals to killing the patient'. The appellant says that N was responsible for placing the patient in her care; that this was incompetent behaviour; and that she wishes to know what disciplinary action was taken against N. The appellant further alleges that she had a meeting with K which showed that certain nurses were incompetent, but K did not take action against the nurses. The appellant says that this 'was evidence of bullying' and she wishes to examine K's personal records to see whether RPH took action against K. If not, the appellant says, RPH was bullying the appellant and encouraging bullying behaviour;
(d) the appellant says the medical records (document 7) will show that a psychologist wrongly informed the respondent of the appellant's mental status and gave false evidence to the Tribunal, and that they will also show that her GP's statement to the Tribunal was contrary to what he wrote on her medical records;
(e) as to the documents held by the respondent (documents 8 and 9), the appellant says she wants to know why the respondent did not view the medical records held by her GP prior to commencing proceedings in the Tribunal, and she alleges that a solicitor acting for the respondent fabricated psychiatric symptoms in a report to the respondent during the proceedings before the Tribunal;
(f) there appear to be two reasons the appellant seeks access to her medical records at Graylands Hospital (document 10). First, she believes those records would show that staff at the hospital, including psychiatrists, knew, by reason of her manifest ability and the records of her GP - which the appellant says they must have obtained - that other psychiatrists were fabricating psychiatric symptoms and medical records; and secondly, she believes the records would show that at all times she was 'under close surveillance 24/7', that being evident from information about her that, she says, the hospital could not have obtained in any other way;
(g) in addition, it seems that the respondent's file 00187851 (document 9) and the appellant's medical records at the Osborne Park Community Hospital (document 11) are sought by the appellant to obtain medical reports regarding her that have been sought or provided in compliance with the Tribunal's orders;
(h) as to the Tribunal file and the file in the general division of this court (documents 12 and 13), the appellant says that she inspected the Tribunal file on a couple of occasions at the Supreme Court but 'more than half of the documents' were missing. The appellant says she subsequently inspected the Tribunal file at its premises and 'some of the documents' were missing. The appellant asserts that the documents she has managed to inspect disclose errors in the findings of the primary judge, which alleged errors the appellant then sets out. It is unnecessary to canvass those alleged errors. We should say, however, the appellant's contentions are argumentative and on their face do not disclose any appellable error. We should also note that the appellant does not identify the nature or content of the alleged missing documents or their relevance to the appeal.
26 The application was opposed by the respondent on the ground that the documents sought were irrelevant to the appeal.
27 On the hearing of the application, we were told by counsel for the respondent from the bar table that the only documents held by the respondent are those falling within categories 8 and 9. The others are held by third parties. That was not disputed by the appellant and is readily explicable from the nature of the documents sought. As we understand the position, by the interim application the appellant seeks to have a subpoena to produce issued to the person or entity having possession or control of each category of documents.
28 The application must be dismissed. It is unnecessary to consider the powers of this court to issue a subpoena to produce or the circumstances in which such a power might be exercised. It is sufficient for present purposes to say that the appellant has failed to establish that any of the documents she seeks are reasonably necessary to enable her to prepare the appellant's case. Indeed, it is very difficult to see how any of them could possibly have been relevant to the matter before the Tribunal.
29 The issue before the Tribunal was whether the appellant suffered a 'mental impairment' within the meaning of s 50(b) of the Nurses and Midwives Act and, if so, what orders were appropriate under s 82(1) of that Act. The Tribunal determined the matter on the basis of the psychiatric evidence and, in particular, on the evidence of Dr Spear, Dr Atartis and Dr Edward-Smith. The primary judge concluded that the appellant had failed to demonstrate that the Tribunal erred in coming to the decision that it did.
30 The appeal from the decision of the primary judge to this court is by way of a rehearing on the evidence that was before his Honour. Apart possibly from the appellant's medical records (category 7) and some of the material contained in the Tribunal or Supreme Court files (categories 11 and 12), it appears that none of the documents now sought by the appellant were in evidence before the Tribunal or before the primary judge. Nor is it suggested that the appellant sought unsuccessfully to tender any of them.
31 It is evident that the appellant is under the misapprehension that the appeal is by way of a hearing de novo of the respondent's application before the Tribunal, rather than a rehearing on the evidence below. It is clear that, at least in large part, the appellant seeks the documents set out in the interim application in the hope or expectation that they will contain information which will assist her in refuting the evidence adduced by the respondent before the Tribunal as to her mental state. In particular, it would appear that many of the documents are sought in order to establish as a fact, contrary to the Tribunal's finding, that she does not suffer from any mental impairment or, at least, any mental impairment which would justify the orders made by the Tribunal. Moreover, it appears that in some instances the appellant simply wishes to trawl through the documents to see whether they bear out her suspicions as to their contents, while in others the appellant is simply speculating that the documents will bear out her suspicions or assumptions.
32 In addition, some of the documents sought are, on any view, plainly irrelevant to any issue in the proceedings. The obvious examples are documents 4 to 6. In addition, the documents in category 11 are apparently related, not to the findings or orders of the Tribunal, but to compliance with the Tribunal's orders, and are therefore entirely irrelevant to the issues on the appeal.
33 The documents the appellant alleges were missing from the Tribunal file, and the file in the general division of this court, were not identified and their relevance (if any) to the preparation of the appellant's case, and to the appeal, is not apparent.
34 There is no basis in the material before us for the contention that production of the documents sought is necessary to enable the appellant to prepare the appellant's case. There has been no application to adduce additional evidence on the appeal and the material that is relevant on the appeal is therefore the material that was before the Tribunal and any additional evidence that might have been adduced before the primary judge. The appellant's case can, and should, be prepared on the basis of that material. The documents the appellant seeks by this application are unnecessary for that purpose.
35 The interim application is, with respect, misconceived and should be dismissed.
H
Nursing and Midwifery Board of Australia