Health Care Complaints Commission v Rawcliffe & Nurses & Midwives Tribunal

Briginshaw v Briginshaw (1938) 60 CLR 336 Craig v South Australia (1994 - 1995) 184 CLR 163 CASES CITED : Health Care Complaints Commission v Beck [1999] NSWCA 236. Lindsay v Health Care Complaints Commission & Anor [2004] NSWCA 22 Saville v Health Care Complaints Commission & Anor [2006] NSWCA 98 Yelds v Nurses Tribunal (2000) 49 NSWLR 491

Health Care Complaints Commission PARTIES : Clifford John Rawcliffe Nurses and Midwives Tribunal

COUNSEL : HCCC - Mr P Griffin Clifford John Rawcliffe - in person unrepresented

LOWER COURT JUDICIAL OFFICER : Nurses and Midwives Tribunal

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13722/06 Health Care Complaints Commission v Clifford John Rawcliffe & Nurses and Midwives Tribunal

JUDGMENT 1 HIS HONOUR: On 18 August 2004, the Acting Commissioner, Health Care Complaints Commission (the HCCC) made a complaint to the Professional Standards Committee (the Standards Committee) of the New South Wales Nurses and Midwives Board that Clifford John Rawcliffe (the Nurse) a registered nurse suffers from an impairment within the meaning of s 4A of the Nurses and Midwives Act 1991. 2 The complaint was amended during the hearing before the Standards Committee to read as follows: 1. The nurse suffers from a physical and mental impairment, namely epilepsy, complicated by substance abuse, which detrimentally affects, or is likely to detrimentally affect, his capacity to practise nursing. 3 Particulars of the complaint were: a. The Nurse suffers from physical and mental impairment, namely epilepsy, complicated by substance abuse, which detrimentally affects, or is likely to detrimentally affect, his capacity to practice nursing. b. In September 2002 the Nurse was admitted to the Royal North Shore Hospital Psychiatric Unit with suicidal thoughts and a history of recent drug related problems. c. The Nurse has a history of long-term use of alcohol and other drugs including benzodiazepines, ecstasy, marihuana and amphetamines. 4 The Standards Committee on 25 July 2005 found the complaint established and imposed nine conditions on Mr Rawcliffe's registration as a nurse, namely: "1. Is to continue to maintain a therapeutic relationship with a psychiatrist of his choice and/or an appropriate drug and alcohol physician and that he accept treatment advice as given. The Nurse is to consult this practitioner at intervals recommended by the practitioner and at least on an annual basis if the Nurse is working as a registered nurse. 2. Is to continue to be treated by a neurologist for management of his epilepsy and that he accept treatment advice as given whilst the Nurse is working as a registered nurse. 3. Is to come under the care of a general practitioner once he commences practice as a nurse. The treating general practitioner shall not be Dr Jennifer Hunter. 4. Is to authorise and direct all of his treating medical practitioners, in writing, to provide a report to the Board should there be any deterioration in the Nurse's condition, any non-compliance with recommended treatment and in response to any request of the Board. 5. Is to forward the name and address of all of his current treating medical practitioner (sic) to the Board within 7 days, and is to forward these details for any new medical practitioners within 7 days of consulting that practitioner. It is noted that the current treating medical practitioner in accordance with Order 1 herein is Dr Stephen Jurd, Treating Psychiatrist, Northern Sydney Area Health, in accordance with Order 2 is Dr Robert Johnston, Neurologist, St Leonards and that the Committee is not aware of the identity of his general practitioner. 6. Is to only work under the supervision of a registered nurse for a period of six months of his re-employment as a nurse, in the sense that he is not the 'in charge nurse' on any shift. This condition may be lifted by the Board on the written application of the Nurse to the Board with written confirmation that the Nurse has worked the equivalent of 6 months full time as a registered nurse under the supervision of a registered nurse. 7. Is to advise his future employer(s) of these conditions by providing a copy this Reasons for Decision document. The Nurse is to provide written confirmation from a suitable nursing member of staff from his current employer and at the request of the Board. 8. Is to attend for random urinalysis for drug screening as per the Board's protocol for a minimum period of three months. The urinalysis is to commence no later than the first day on which the Nurse returns to work as a registered nurse. The Nurse is to authorise and direct the pathologist to forward copies of these results to the Board. After three months of clear urinalysis the Board, on the written application of the Nurse may remove this order. If there is a positive urinalysis for a drug which is not prescribed by his treating practitioners the Nurses (sic) would be in breach of these orders and the matter would be referred to the HCCC. 9. Is to limit is alcohol consumption to an amount recommended by his treating practitioners." 5 Mr Rawcliffe appealed against the decision of the Standards Committee to the Nurses and Midwives Tribunal (the Tribunal). The appeal was heard by the Tribunal on 8,9 and 10 May 2006 and in written reasons delivered on 5 June 2006 the Tribunal did not find the subject matter of the complaint was established.

The claim for relief 6 The HCCC by way of summons filed in this Court on 31 July 2006 seeks an order in the nature of prerogative relief under s 69 of the Supreme Court Act 1970 (NSW), namely that the decision of the Tribunal upholding the First Opponent's appeal be set aside and the matter be remitted back to the Tribunal to be determined in accordance with the law. 7 The summons identifies the following grounds for relief: 1. The Second Opponent (the Tribunal) erred in law in finding that the First Opponent (the Nurse) was not impaired within the meaning of s 4A of the Nurses and Midwives Act 1991. 2. The Second Opponent (the Tribunal) erred in law in failing to give notice to the parties that it was considering rejecting admissions made by the First Opponent (the Nurse) for the purpose of the appeal, thereby denying the Claimant the opportunity to adduce further evidence and/or make further submissions in relation to those issues in the appeal. 3. Grounds 1 and 2 above are asserted to be errors on the face of the record and Ground 2 a denial of procedural fairness." 8 I am informed that the Tribunal submits to the orders of the Court. 9 Mr Rawcliffe, who was self represented, contends the HCCC had 28 days in which to appeal the decision of the Tribunal and as the summons was filed out of time the appeal should be dismissed. 10 Section 67 of the Nurses and Midwives Act 1991 (the NMA) makes provision for appeals to the Supreme Court against decisions of the Tribunal. Section 67, so far as is relevant, is as follows:

"67 Appeals against decisions of the Tribunal (1) A person about whom a complaint is referred to the Tribunal under section 45, 46 or 54, or the complainant, may appeal to the Supreme Court against:

(a) a decision of the Tribunal with respect to a point of law, or (b) the exercise of any power unde s 64 by the Tribunal, within the prescribed time. (2) The Supreme Court may stay any order made by the Tribunal, on such terms as the Court sees fit, until such time as the Court determines an appeal under this section. (3) In determining an appeal under this Section, the Supreme Court may: (a) dismiss the appeal, or (b) make such order as it thinks proper having regard to the merits of the case and the public welfare and, in doing so, may exercise any one or more or the powers of the Tribunal under section 64. ……………."

11 The time prescribed is 21 days or on such later date as the Supreme Court may allow in a particular case: reg 44 Nurses and Midwives Regulation 2003. 12 The Nurse appealed to the Tribunal against a finding of the Standards Committee pursuant to s 57 of the NMA. Section 57(1) of the NMA provides:

" 57 Appeals against decisions of a Committee etc (1) A nurse or midwife about whom a complaint is referred to a Committee, or the complainant, may appeal to the Tribunal against: (a) a finding of the Committee, or (b) the exercise by the Committee of any power under section 55, within the prescribed time." 13 Mr Rawcliffe was not a person "about whom a complaint" was referred to the Tribunal under sections 45, 46 or 54 of NMA. Neither the HCCC nor Mr Rawcliffe as parties to an appeal under s 57 of NMA fall within the terms of s 67 of the NMA. It follows there is no statutory right of appeal to the Supreme Court in the present case and the prescribed time does not apply. The reasons for decision of the Tribunal were delivered on 5 June 2006 and the summons was filed in this Court on 31 July 2006. The filing of the summons was not unduly delayed and the present proceedings are not out of time. 14 The HCCC seeks an order in the nature of certiorari setting aside the decision of the Tribunal which may be made on the basis of jurisdictional error, or on the basis of error of law on the face of the record: see for example Saville v Health Care Complaints Commission & Anor [2006] NSWCA 98. The record includes "the reasons expressed by the ……tribunal for its ultimate determination": s 69(4) of the Supreme Court Act 1970. 15 The first prayer for relief is that the Tribunal erred in law in finding that the Nurse was not impaired within the meaning of s 4A of the NMA. The HCCC contends that the Tribunal either incorrectly applied the statutory definition of impairment when determining the appeal or alternatively, applied the definition correctly but wrongly concluded there was insufficient evidence to establish impairment. 16 The principal contentions of the HCCC are: (i) There was ample evidence before the Tribunal that the nurse suffered from epilepsy; (ii) It was the HCCC's case that the epilepsy was complicated by his history of drug and alcohol abuse. (iii) The Tribunal's acknowledgement that there was a possibility [RFD at para 58] that Mr Rawcliffe could have epileptic episodes at work but did not suffer from an impairment is inconsistent with a correct application of the statutory definition of impairment within s 4A of the NMA. (iv) The Tribunal's finding that Mr Rawcliffe's drug and alcohol history and continuing drug use was not of sufficient concern to warrant ongoing monitoring by the Nurses and Midwives Registration Board was erroneous, having regard to the protective nature of the jurisdiction. The possibility that the Nurse may relapse into substance abuse should have formed part of the Tribunal's decision-making process when determining the appeal. 17 Mr Rawcliffe contends on the other hand that the findings of the Tribunal were correct and no error of law was made. 18 In Craig v South Australia 1994 - 1995 184 CLR 163, the High Court when considering the distinction between administrative tribunals and courts of law observed [at p179]: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 19 The meaning of "suffer from an impairment" is defined in s 4A of the NMA. "4A Meaning of "suffer from an impairment" For the purposes of this Act, a person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise nursing or midwifery. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder." 20 The appeal to the Tribunal was by way of a new hearing. New evidence may be given in addition to or in substitution for any evidence reviewed at the inquiry: s 57(3) of the NMA. It was incumbent on the HCCC to satisfy the Tribunal that Mr Rawcliffe suffered from a physical impairment that "is likely to detrimentally affect" his physical or mental capacity to practise nursing. It was not the HCCC's case before the Tribunal that Mr Rawcliffe's impairment did in fact affect his ability to practise as a nurse.

21 Witnesses called by Mr Rawcliffe to give evidence before the Tribunal included Dr Stephen Jurd. The nurse had been consulting Dr Jurd, the Medical Director, Area Drug and Alcohol Services, North Sydney Health at approximately monthly intervals since November 2002. 22 The Tribunal in its Reasons for Decision (RFD) after assiduously considering the evidence placed before it and the submissions made by counsel for the HCCC found "that Mr Rawcliffe suffers from a physical impairment, namely epilepsy." However, the Tribunal found it "could not be comfortably satisfied on the balance of probabilities by the evidence that, at present, as different from at earlier times, Mr Rawcliffe's impairment is likely to detrimentally affect his physical or mental capacity to practise nursing" (RFD at para 57). 23 The Tribunal said [RFD at para 58]: "58. The evidence shows that, as a result of the efforts of Drs Johnston and Jurd and Mr Rawcliffe himself, Mr Rawcliffe's epilepsy is essentially under control. Furthermore if he were to have an epileptic episode at work, this would be most likely to be manifested in an "absence" or the impression or dreaminess. It is unlikely that Mr Rawcliffe would initiate complex action while in such a state." 24 It was open to the Tribunal to make such a finding. Dr Jurd had been asked in cross examination by counsel for the HCCC (transcript 08/05/06 at p 21 L 52 to end, p 22 L 1 -10) "Q. If Mr Rawcliffe was to return to nursing, given the experience in last 12 months what effect, if any, would these minor episodes have in the nursing workplace if they occurred there? A. Well I guess the - he might be thought by staff or patients to be a little bit dreamy. That's the most - from time to time that's probably what is likely to happen. So, if he has one of these episodes he'd be unlikely to initiate complex action like filling out case notes or something. He'd stop and stare into space and then, after a little while, would take time to get it together after that. So commonly this type of thing is misdiagnosed as day dreaming or just having too active a fantasy life. So that's the most likely consequence were his seizures to continue at their current rate of, say, once every month or two." 25 Although Dr Jurd was not a neurologist, the Tribunal was entitled to give his evidence significant weight. 26 In its careful analysis, the Tribunal made reference [RFD at para 40] to the report dated 21 September 2005 of Dr R.W Johnston, a specialist neurologist and noted that Dr Johnston had not been called to give oral evidence. I will refer when dealing with the second ground of appeal to the reason Dr Johnson was not called by the HCCC. 27 Counsel for the HCCC in submissions before this Court made the concession that there was no contemporaneous evidence before the Tribunal of the potential impact of the nurse's epilepsy (other than the evidence given by Dr Jurd) (transcript 05/02/07 at (p 12-13). 28 The Tribunal correctly referred to the standard of proof being upon the HCCC to be "comfortably satisfied on the balance of probabilities" and cited a number of authorities including Briginshaw v Briginshaw (1938) 60 CLR 336 and Yelds v Nurses Tribunal (2000) 49 NSWLR 491 [RFD at 56]. The Tribunal sedulously noted the statutory definition of impairment. 29 It was incumbent upon the HCCC to satisfy the Tribunal that Mr Rawcliffe's epilepsy was not only likely to affect his capacity to practise as a nurse but was likely to "detrimentally" (my emphasis) affect that capacity. The findings of the Tribunal [RFD at para 58] upon the evidence before it were not inconsistent as the HCCC contends with the correct application of the statutory definition of impairment within s 4A of the NMA. 30 The Tribunal did not ignore the possibility that Mr Rawcliffe may relapse into substance abuse when determining the appeal. The evidence of Mr Rawcliffe's past "raised concerns for the Tribunal………" which was weighed against a number of identified "countervailing factors". [RFD at para 53]. Specific reference was made to Dr Jurd's opinion that he did not think "there is a strong indication for ongoing monitoring". [RFD at para 61] 31 It was open to the Tribunal to conclude upon the evidence before it (my emphasis) that Mr Rawcliffe was not impaired within the meaning of s 4A of the NMA. To this extent no error of law has been demonstrated. 32 The HCCC contends by the second prayer for relief that it was denied procedural fairness. The claimant argues the Tribunal should have given notice that it was considering rejecting admissions made by Mr Rawcliffe for the purpose of the appeal. Mr Rawcliffe in opposition to the claimant's contention submits there was no procedural unfairness as counsel for the HCCC "virtually" told the Tribunal it had the right to make any decision it might want. The Tribunal correctly found, the nurse contends, that he was not bound by his admissions.

33 At the commencement of the hearing, the following exchange took place (transcript 08/05/06 at pp 8 & 9):

"CHAIRPERSON: It would seem to me, subject to any legal cases you want to point me to Mr Griffin that Mr Rawcliffe is able to say that he no longer makes any admissions. You accept that is so? GRIFFIN (Counsel for the HCCC): I do accept that yes. Appellant: I just didn't hear that little bit?

CHAIRPERSON: At the hearing, at the initial hearing before the committee? APPELLANT: Yes?

CHAIRPERSON: You said you accepted, I think, quite a few of the particulars.

CHAIRPERSON: You are not obliged to stick by that but if you intend to do it that is fine and it would be an appropriate way to go. If however you didn't stick by them then the case would then have to be laid out fully and thoroughly over the time that it takes to do that. (emphasis added) APPELLANT: Yes

CHAIRPERSON: So perhaps you and Mr Griffin and Ms Dogget can talk about that?" 34 An adjournment was granted to enable discussions to take place following which counsel for the HCCC informed the Tribunal that the concessions made by Mr Rawcliffe were: (a) Particular 1 of the complaint was conceded down to the word "epilepsy". The Tribunal was advised Mr Rawcliffe would give evidence that epilepsy had not in the past affected his capacity to nurse. (b) Particular 2 was conceded down to "suicidal thoughts". (c) Particular 3 was conceded. 35 Mr Griffin further informed the Tribunal that Mr Rawcliffe did not object to conditions 1 to 6 of the conditions imposed by the Standards Committee (supra) except that in relation to condition 3 he objected to Dr Hunter being disqualified from the role of treating general practitioner. Mr Rawcliffe had no objection to the Reasons for Decision being made available as required by condition 7 to future employers if those Reasons were those of the Tribunal and not of the Standards Committee. He opposed the continuation of conditions 8 and 9. 36 The following exchange then occurred:

"CHAIRPERSON: Thanks Mr Griffin. Obviously you are happy with that outline Mr Rawcliffe, you are comfortable with what has just been said about what you have agreed.

APPELLANT: I am comfortable. The only thing with the last condition is it is already covered in the first condition.

CHAIRPERSON: Sure, yes okay. So Mr Griffin, in the light of this you will proceed to lay out the case. Is that how you see things going?" (transcript 08/05/06 at p 11 L 27 - 37). 37 The Chairperson's question to Mr Griffin in the passage quoted above "So Mr Griffin, in the light of this you will proceed to lay out the case?" (emphasis added) could only be reasonably understood to mean that it was open to counsel to conduct the HCCC's case upon the basis of the admissions and concessions made by Mr Rawcliffe, that it was not necessary to strictly prove every aspect of its case. It is evident that it was upon this understanding that the HCCC conducted its case during the hearing, a consequence of which was neither the Neurologist, Dr Johnston, was called nor was other expert evidence on the issue of epilepsy being an impairment. 38 During closing submissions, the Chairperson raised with Mr Griffin whether the Tribunal was bound by an admission made by Mr Rawcliffe: "GRIFFIN: At this stage I'm going to leave it, because what I want to zero in on is to what extent the particulars are an issue. CHAIRPERSON: Yes. GRIFFIN: And then move from there if we can. CHAIRPERSON: I'm sorry, I guess I want to clarify two issues. These are the sorts of things that the Tribunal needs to put its mind to, and therefore there are two issues, one specific to particular 3. The fact - would you - what is your submission to us on the fact that Mr Rawcliffe has admitted particular 3. Do you say to us that's the end of the matter, or do we still have to be satisfied ourselves on the evidence that particular 3 has been made out? GRIFFIN: We would say that technically that's the end of the matter, but I do appreciate that Mr Rawcliffe is unrepresented. CHAIRPERSON: Exactly, precisely for that reason, and I need to say that." (transcript 10/05/06 at p 7 L 41 - 57, at p 8 L 1 - 6). 39 By this exchange the chairperson conveyed to counsel for the claimant that consideration was being given as to whether Mr Rawcliffe should be bound by the admission made to particular 3. It might have been of assistance to the Tribunal for counsel to have then informed the Chairperson of the unfairness that might be considered to arise should such a decision be made. 40 The Chairperson subsequently raised with Mr Rawcliffe the concessions he had made (transcript 10/05/06 at p 31 L 32 to end, P 32 L 1 - 18): "APPELLANT: The conditions what Phillipa Hook and myself had agreed on and Dr Jurd there agrees that it is the satisfactory thing and it doesn't involve urine testing. At that point he didn't think I needed urine testing and he is a drug and alcohol expert. CHAIRPERSON: Yes okay, so do you say to us now that those - taking out the one about Dr Hunter - that those are the ones that should be made again? Appellant: Just to take the Dr Hunter out and 1 to 7. CHAIRPERSON: Yes, 1 to 7, okay. So you are saying that we can make a finding of impairment ? APPELLANT: I am impaired. I can't drive a car, I usually go around with a silver bangle around my wrist, I mean you know epilepsy - some people pick me up off the floor. CHAIRPERSON: Yes sure. APPELLANT: I know I'm impaired. This should have gone to impairment because someone should have realised it was epilepsy from the time that I walked into that psych ward with an anti convulsant level of 120. CHAIRPERSON: The finding of impairment, there is another level to it, the finding that we have been invited to make by Mr Griffin is that you have an impairment that is likely to detrimentally affect your physical or mental capacity to practice nursing. APPELLANT: Well it possibly could, let's be honest, it possibly could. But possibly I could walk across that street and fall over and die and that's why it's always a possibility for anything to happen. I try to do as Dr Jurd said, "All you can do is stop your drinking and all we can do is adjust your medications." I've stuck to that for four years and that's as safe as I can be. I never know what's going to happen. It's not possible, it's not liable or anything, I can't say it's not possible. CHAIRPERSON: We think that we have heard what we need to hear." 41 Shortly after this exchange the Tribunal reserved its decision and adjourned. The Tribunal did not advise the parties before adjourning that Mr Rawcliffe was not bound by the admissions and concessions he had made. 42 In the Reasons For Decision [at para 68-72] the Tribunal considered the admissions made by Mr Rawcliffe and concluded [at paras 71 - 72]: "71. Here, however, in an impairment case, the question arises as to whether a nurse or midwife, the subject of a complaint, can admit to an opinion that the Tribunal must form as different from the fact which it must find to be proved. The opinion that the Tribunal must form in this case is that the nurse or midwife's impairment is likely to detrimentally affect their capacity to practice nursing or midwifery. 72. Because of these considerations, the Tribunal is of the opinion that Mr Rawcliffe should not be bound by any admissions he may be seen to have made in this case. The Tribunal considers that it would be a miscarriage of justice if Mr Rawcliffe was held to admissions which the Tribunal, after anxious and thorough consideration of the evidence, was unable to be satisfied to the requisite standard by the evidence on the issue of present likelihood of Mr Rawcliffe's capacity to practice nursing being detrimentally affected." 43 Whilst the desire to avoid a miscarriage of justice was laudable, the Tribunal was obliged to accord procedural fairness to both parties: see for example Lindsay v Health Care Complaints Commission & Anor [2004] NSWCA 22 and Health Care Complaints Commission v Beck [1999] NSWCA 236. The parties had been invited at the commencement of the appeal to define the issues in dispute which they did. The HCCC had reasonably conducted its case on the basis of the admissions and concessions made by Mr Rawcliffe. 44 Procedural fairness required the Tribunal to firstly inform the parties that Mr Rawcliffe was not to be bound by the admissions made and then to provide them with an adequate opportunity to present further evidence. Given the opportunity it is apparent that the HCCC would have called expert oral evidence on the fundamental issue of Mr Rawcliffe's epilepsy and its consequences. With respect to the Tribunal, the inadvertent failure to provide such an opportunity denied procedural fairness to the HCCC. In the circumstances, the lack of procedural fairness amounts to an error of law and vitiates the Tribunal's decision. 45 In Mr Rawcliffe's written submissions, the following passage appears: "3. The First Respondent alleges denial of procedural fairness by the fact that the Plaintiff is using the File No 013722/06 unmodified notes as evidence (as they did in the Nurses and Midwives Board Tribunal) after it was conceded the Doctor making the initial complaint to the Nurses & Midwives Board misrepresented the First Respondent's drug use in clinical files and had agreed to change this misrepresentation, which stated the First Respondent used in excess of $350,000 of cocaine per annum." 46 It suffices to state that 'unmodified notes' did not form part of the material considered by this Court which determined the claim for relief on the face of the record. 47 The HCCC does not seek an order for costs. Orders 48 I make the following orders:

1. The decision of the Nurses and Midwives Tribunal dated 5 June 2006 is quashed.

2. The matter is referred back to the Nurses and Midwives Tribunal to be determined according to law.
3. No order as to costs. **********

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