Nusrat Deano v Health Care Complaints Commission

Framework of the National Law 26The Health Practitioner Regulation (Adoption of National Law) Act 2009 commenced operation on 1 July 2010 (s 2(1)). From that date, the different regulatory and disciplinary regimes for different health professionals set out in a number of separate statutes, were consolidated into the National Law, as it applies in NSW. The National Law, so far as nurses are concerned, replaced the Nurses and Midwives Act ("Nurses Act"), which was repealed on 1 July 2010 by the Health Practitioner Regulation Amendment Act 2010. 27I shall briefly set out the framework of the National Law. Section 3 sets out the "objectives and guiding principles": "3Objectives and guiding principles (1)The object of this Law is to establish a national registration and accreditation scheme for- (a)the regulation of health practitioners; and (b)the registration of students undertaking- (i)programs of study that provide a qualification for registration in a health profession; or (ii)clinical training in a health profession. (2)The objectives of the national registration and accreditation scheme are- (a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b)to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c)to facilitate the provision of high quality education and training of health practitioners; and (d)to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e)to facilitate access to services provided by health practitioners in accordance with the public interest; and (f)to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3)The guiding principles of the national registration and accreditation scheme are as follows- (a)the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b)fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality." 28Section 4 provides that an entity that has functions under the National Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme (as set out in s 3). 29Section 2A(1)(a) of the Nurses Act provided that one of the objects of the Act was "to protect the health and safety of the public by providing mechanisms to ensure that nurses and midwives are fit to practise". The object of s 2A(1) is similar to the guiding principle contained in s 3(c) of the National Law. Section 2A(2) of the Nurses Act required the Nurses and Midwives Board (now the Nursing and Midwifery Council) to "exercise its functions under [the] Act in a manner that is consistent with these objects". 30Part 8 of the National Law deals with "Health, Performance and Conduct". Section 139B(1) relevantly defines "unsatisfactory professional conduct" of registered health practitioners as follows: "(1)Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a)Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ... (l)Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." 31"Professional misconduct" is defined in s 139E, as follows: "For the purposes of this Law, professional misconduct of a registered health practitioner means - (a)unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b)more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration." 32Division 3 of Part 8 deals with complaints. A complaint may be made about a registered health practitioner if it is alleged that he or she has been guilty of unsatisfactory professional conduct or professional misconduct (s 144(b)). If a Tribunal (in this case, the Nurses and Midwives Tribunal), finds the subject matter of a complaint to have been proven, the Tribunal may exercise a range of disciplinary powers. These include the power to caution, reprimand, or impose conditions on the registration of the practitioner; order the practitioner to undergo treatment or education; order the practitioner to report on his or her practice or to seek and take advice on practice management (s 149A) and the power to fine the practitioner (s 149B). 33In certain circumstances the Tribunal may suspend the practitioner's registration for a specified period or cancel the practitioner's registration: see s 149C(1). Where such an order is made, the order may "provide that an application for review of the order ... may not be made until after a specified time": s 149C(7).

Ground 1(a) - Whether the tribunal applied the wrong law 34The plaintiff says that the Tribunal exceeded its power because it heard the complaints under the National Law rather than the Nurses Act. This gave the National Law and the test for misconduct a retrospective application when the Tribunal did not have the power to do so. This contravened s 289 of the National Law and led the Tribunal to apply the incorrect test for professional misconduct. So far as the plaintiff is concerned, the correct law is the Nurses Act and the appropriate test is set out in s 4 of the Nurses Act. 35Section 289 of the National Law relevantly reads: "289Complaints and notifications being dealt with on participation day (1)This section applies if, immediately before the participation day for a participating jurisdiction, a local registration authority for the jurisdiction had started but not completed dealing with a complaint or notification about a person registered in a health profession by the authority. (2)From the participation day - (a)the complaint or notification is taken to be a notification made under this Law and is to be dealt with by the National Board for the health profession; and (b)the notification is to continue to be dealt with under the Act of the participating jurisdiction under which it was made, and any proceedings or appeal relating to the notification may be dealt with, as if that Act had not been repealed." 36The participation day is defined in s 250 and is 1 July 2010 for New South Wales (see also s 5 for definition of participating jurisdiction). According to the plaintiff, their construction of s 289 as prohibiting retrospective application of the National Law is supported by Schedule 5A, s 4 of the National Law which expressly provides that matters being dealt with before the participation day are required to be dealt with under the applicable repealed Act (in this case, the Nurses Act). That section relevantly reads: "4Relevant matters still being dealt with on participation day [NSW] (1)This clause applies if, immediately before the commencement, any of the following referrals, actions, applications or appeals ("relevant matters") had been started but not completed under a repealed Act - ... (c) the referral of a complaint to a Committee; ... (g)the referral of a complaint or another matter to a Tribunal; (2)From the commencement, the relevant matter is to continue to be dealt with under the repealed Act under which it was made..." 37The complaint was referred to the Tribunal by the HCCC on 29 September 2010 (see AB 697), which is after the participation day of 1 July 2010. The plaintiff however asserted that the definition of "complaint" is a fluid one and does not necessarily refer to the "complaint" filed in the Tribunal. The plaintiff referred to King v HCCC [2011] NSWCA 353 at [5] (per McColl JA) and [169] (per Handley AJA) where the Court stated: "[5]...the complaint referred to in the Medical Practitioners Act and the Health Care Complaints Act 1993 are the original complaints which initiates the chain of inquiry which may bring matters before the Tribunal. ... [169]Complaints are "referred" to the Tribunal ... not commenced in it. Although "any person" can make a complaint under the Act ... they are made to the Commission. Its statutory functions and those of the Director do not include making complaints." 38The plaintiff submitted that letters from 2009 show that the complaint was referred to the Nurses and Midwives Board on 19 May 2009 and to the HCCC on 23 June 2009, hence there was a complaint prior to the commencement of the National Law. The defendants submitted that none of the "referrals, actions, applications or appeals" referred to in Schedule 5A, s 4 apply to this case. 39The passages relied upon from King v HCCC were delivered in relation to an argument as to the sufficiency of the notice of complaint referred to the Tribunal. The defendants relied upon Lee v HCCC [2012] NSWCA 80, in which Barrett JA stated, at [4], that the date of the "notice of complaint" was the relevant date in determining the applicable legislation. 40The relevant date for determining the applicable legislation in this case, as it was in King v HCCC and Lee v HCCC, was when the complaint was referred by the HCCC to the Tribunal. In these proceedings that occurred on 29 September 2010, meaning that the matter fell to be determined under the National Law which commenced on 1 July 2010. Hence this ground of appeal fails.

Ground 1 (b) - Application of the Briginshaw standard 41The plaintiff submitted that it is established and has been affirmed in a long line of cases that the applicable standard of proof in administrative Tribunal matters is, because of the seriousness of the allegations and the gravity of their consequences, the Briginshaw standard of comfortable satisfaction on the balance of probabilities: see Briginshaw v Briginshaw (1938) 60 CLR 336; Yelds v Nurses Tribunal [2000] NSWSC 755. The Briginshaw standard requires that the trier of fact be "comfortably satisfied" that the factual particulars alleged have been proven on the balance of probabilities. The plaintiff further submitted that "comfortable satisfaction" should not be produced by "inexact proofs, indefinite testimony, or indirect inferences": see Briginshaw v Briginshaw per Dixon J at 362. 42The defendant submitted that the inference to be drawn from the plaintiff's ground of appeal was that the decision in Briginshaw v Briginshaw established a third standard of proof. However, the existence of some "third" standard of proof has been rejected by a number of appellate courts in recent times: see for example the comments of the Full Court of the Federal Court in Qantas Airways Limited v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [110] (per French and Jacobson JJ) and [126] (per Branson J): "[110]The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made... [126]...the common law has not developed a third standard of persuasion; it acknowledges only the two standards - the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction". 43The plaintiff submitted in response that the Briginshaw standard of comfortable satisfaction on the balance of probabilities is not a third standard or proof. Rather it is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard: see Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [30] - [31]: 44The Tribunal was not bound by the rules of evidence but could inform itself of any matter that it saw fit (Schedule 5D of the National Law). However, as Fullerton J said in Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705 at [18]: "[31]...because of the seriousness of the allegations and their consequences [the Tribunal] had to be reasonably satisfied that the particulars of the complaints had been established by evidence of sufficient quality and weight before considering whether those particulars constituted unsatisfactory professional conduct or professional misconduct or both." 45In Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; (2008) 73 NSWLR 366, Mason P (with whom Bell and McColl JJA agreed) said at [31]: "The reasons of an administrative decision-maker (especially one who is not a judge) are not to be "construed minutely and finely with an eye keenly attuned to the perception of error" (see Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272, approving Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). A court should exercise restraint lest it mistakes looseness in language for errors of substance." 46In my view the Tribunal's failure to use a particular word in a formulaic manner, ie that it was "comfortably" satisfied, cannot be determinative of substantive error. There was substantial evidence against the plaintiff. A number of the factual matters in relation to which the Tribunal was required to make findings were not disputed by the plaintiff, see for example particulars 1, 2, 3 and 4. The Tribunal gave reasons for preferring the evidence of other witnesses to that of Ms Deano. The Tribunal made expressly negative findings about the plaintiff's credibility (and that of her former husband). Hence this ground of appeal fails.

Ground 2 - The test of professional misconduct 47The plaintiff submitted that in failing to apply the Nurses Act and the test for professional misconduct contained in that Act (s 4(1)), the Tribunal fell into jurisdictional error, made an error of law and erred on the face of the record when it found misconduct of a sufficiently serious nature to justify cancelling Ms Deano's registration. By giving the National Law a retrospective operation the Tribunal committed jurisdictional error and was led into further error by applying the wrong test in s 139(b) of the National Law and by considering the particulars alleged together to find professional misconduct, as that was not open to it under the test in the Nurses Act. The plaintiff alleged that under the Nurses Act s 4(1) it would have been necessary to consider whether a single instance of misconduct was of a sufficiently serious nature to constitute professional misconduct, rather than considering the multiple acts. This is because the Nurses Act did not explicitly provide that a number of instances of unsatisfactory professional conduct could amount to professional misconduct (whereas s 139E(b) of the National Law does). 48Section 4 of the Nurses Act provided: "Meaning of 'professional misconduct' and 'unsatisfactory professional conduct' (1)For the purposes of this Act, professional misconduct, in relation to a nurse or midwife, means unsatisfactory professional conduct of a sufficiently serious nature to justify the removal of the nurse's or midwife's name from a Register or the Roll. (2)For the purposes of this Act, unsatisfactory professional conduct, in relation to a nurse or midwife, includes any of the following: (a)any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the nurse or midwife in the practice of nursing or midwifery is significantly below the standard reasonably expected of a nurse or midwife of an equivalent level of training or experience, (b)the nurse's or midwife's contravening (whether by act or omission) a provision of this Act or the regulations, (c)the nurse's or midwife's failure to comply with an order or determination made or a direction given under section 48, 55 or 64 or with a condition of registration or enrolment, (d)the nurse's or midwife's failure without reasonable excuse to comply with a direction by the Board to provide information with respect to a complaint under this Act against the nurse or midwife, (d1)a contravention by the nurse or midwife of section 34A (4) (Power of Commission to obtain information, records and evidence) of the Health Care Complaints Act 1993, (e)any other improper or unethical conduct relating to the practice of nursing or midwifery. ..." 49It is my view, as discussed above, that the Tribunal correctly applied the National Law and therefore correctly applied the test at s 139E(b). Furthermore I refer to the case of Lindsay v HCCC [2010] NSWCA 194, where a similar ground of appeal was dismissed. In that case the relevant legislation was the Medical Practice Act 1992. The definition of professional misconduct in that Act, at the time of the incidents, was similar to the definition contained in s 4 of the Nurses Act. By the time the relevant Tribunal's handed down its decision, the definition of professional misconduct had been amended in a manner similar to the definition in 50s 139E(b), in that it provided that a number of instances of unsatisfactory professional conduct could amount to professional misconduct, whereas the earlier definition had not so expressly provided (see Lindsay v HCCC at [61] - [62]). Sackville JA (with whom Giles and Young JJA agreed) held that: "[159]While the language of the unamended s 37 [containing the definition of misconduct] is not unambiguous, it is in my view wide enough to allow the Tribunal to consider instances of unsatisfactory conduct cumulatively or collectively, for the purpose of determining whether the medical practitioner has engaged in professional misconduct. The unamended s 37 refers to "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension ... or ... removal". This language is quite capable of being read as encompassing any or all unsatisfactory professional conduct found to have been committed by the medical practitioner. ... [161When ss 36 [containing the definition of unsatisfactory professional conduct] and 37 of the Act are read together, the more natural meaning of s 37 is that it is intended to refer to all instances of unsatisfactory professional misconduct, at least of a particular category, whether assessed individually or collectively. This construction is supported by the objective of the statutory scheme, which is to protect the health and safety of the public by providing mechanisms designed to ensure that medical practitioners are fit to practise: s 2A; see also Prakash v HCCC, at [91], per Basten JA. Repeated and deliberate instances of unsatisfactory professional conduct by a medical practitioner might well demonstrate that the practitioner constitutes a serious threat to the health and safety of his or her patients, even though each individual instance, considered in isolation, might not pose such a threat." 51It is my view that the Tribunal correctly considered the number of instances of unsatisfactory professional conduct as amounting to professional misconduct. Hence this ground of appeal fails.

Ground 3 - Object, purpose and guiding principles of the National Law and the Nurses Act 52The plaintiff submitted that the purposes and guiding principles object were not sufficiently taken into account in that the Tribunal failed to consider whether Ms Deano was "a threat to the safety of the public". According to the plaintiff, the Tribunal's orders did not give effect to the object and principles contained in ss 3 and 4 of the National Law and the Tribunal failed to consider Ms Deano's extensive and rare skills, training and experience as an acute care nurse and the values of those skills to the community. In failing to consider ss 3 and 4 of the National Law and the relevant facts of Ms Deano's experience and skills, the plaintiff says that the Tribunal committed an error of law and breached ss 3 and 4. 53The plaintiff submitted that counsel for the HCCC stated that Ms Deano had shown "an attitude ... that simply shows a disregard for [her] role as the supervising registered nurse on night duty" (AB 1067). The plaintiff argued that it was never submitted by the HCCC that Ms Deano was unfit to practice nursing, only that she was unfit to supervise and work on night shift. The Tribunal was therefore required to ask itself whether the danger she allegedly represented to the safe provision of health services could be ameliorated by her not working night shift or by her not undertaking supervisory duties. 54The plaintiff submitted that it is critical that the Tribunal's jurisdiction is protective, not punitive, and that jurisdiction must be exercised bearing in mind the need to protect the public and to maintain high standards in the profession: see HCCC v Litchfield (1997) 41 NSWLR 630 at 637 (per Gleeson CJ, Meagher and Handley JJA). 55In NSW Bar Association v Meakes [2006] NSWCA 340, a case involving a complaint against a barrister, Basten JA elaborated upon the direct and indirect aspects of protective orders as follows: "114...[T]he protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession..." 56It is my view that protection was a key consideration in the Tribunal's decision. The protective nature of the jurisdiction was referred to extensively by the Tribunal in its discussion of the appropriate protective orders (see [103] - [110]). The Tribunal indicated that it accepted the evidence of the peer reviewer "with regard to sleeping when there was only one other enrolled nurse on the ward". That evidence is elaborated upon at [41] where the Tribunal drew attention to the peer reviewer's evidence in relation to the safe staffing of the ward. The Tribunal considered whether there was an alternative to the cancellation of Ms Deano's registration but determined that there was not, noting that Ms Deano insisted that she had done nothing wrong and refused to undertake day shifts under supervision (see [106] - [107]). The Tribunal's orders were protective, not punitive. Hence this ground of appeal fails.

Ground 4 - The application of the test for professional misconduct and cancellation of Ms Deano's registration 57The plaintiff submitted that notwithstanding whether the Court considers that the Tribunal applied the correct or wrong test or law, the Tribunal erred in applying those tests in that it failed to apply the complete test or failed to consider whether the misconduct complained of could be reasonably regarded as disgraceful or dishonourable by the peers of the practitioner or whether the misconduct alleged was of a sort that could justify cancellation before exercising the discretionary power to cancel Ms Deano's registration. 58The plaintiff submitted that the Tribunal erred by misconstruing the second alternative test in s 139E(b) of the National Law as it presumed that numerous instances of misconduct amounted to professional misconduct. The plaintiff submitted that the test required the Tribunal to ask itself whether the misconduct was of a sufficiently serious nature such that it amounted to professional misconduct justifying cancellation of registration, and that this required the Tribunal to consider whether the misconduct could "be reasonably regarded as disgraceful or dishonourable by [Ms Deano's] professional brethren of good repute and competency": Allinson v General Council Of Medical Education And Registration [1894] 1 QB 750 at 761. According to the plaintiff, the Tribunal did not do this. Alternatively if the Court did not consider that Allinson applied, it was at least required to ask the critical question of whether the plaintiff was permanently unfit to practice. 59The plaintiff further submitted that the opinions and statements of Ms Shaw in her report are irrelevant to the critical issues. The plaintiff submitted that Ms Shaw's assessment of the misconduct was alleged against standards which had no specific application to the practice of nursing, such as obligations to an employer under an industrial award or common law contract of employment. These are legal opinions which Ms Shaw was not qualified to comment upon. 60The test in Allinson relied upon by the plaintiff, which refers to "infamous conduct in a professional respect", has been adapted into the statutory test in s 139E which was the test that the Tribunal had to apply. The test requires an evaluative judgment. (See NSW Bar Association v Cummins (2001) 52 NSWLR 279 at [51] and Lucire v HCCC [2011] NSWCA 99 at [84].) 61To support the argument that the Tribunal had to ask itself whether the plaintiff was permanently unfit to practice before cancelling her registration, the plaintiff relied on HCCC v Meyer [2008] NSWNMT 22 and HCCC v Schmich [2009] NSWNMT 19 (see page 23 of the plaintiff's written submissions and T12 10/5/2012). These cases do not support the plaintiff's contention. In Meyer the tribunal did not discuss a requirement of permanent unfitness. Rather, the Tribunal stated at [92], that whilst it was "not obliged to remove a nurse's name from [the] roll if it makes a finding of professional misconduct", because of its findings it "saw no reason not to order such removal. No order with less drastic consequences for [the nurse] would adequately protect the health and safety of the public". In Schmich the Tribunal said that the consideration of permanent unfitness, developed in cases relating to legal practitioners, was "useful", but noted that the concept of a fit and proper person to practice law was not the same as the concept of a nurse or midwife being fit in the public interest to practice (at [37]). 62In Stanoevski v the Council of the Law Society of New South Wales [2008] NSWCA 93, Campbell JA (with whom Hodgson JA and Handley AJA agreed) discussed the alleged requirement that a tribunal must be satisfied that a practitioner is permanently unfit to practice before removing them from the relevant register (in that case in relation to a legal practitioner), as follows: "[53][Counsel] initially submitted that removal from the roll requires the Law Society to establish that the solicitor is "permanently unfit to practice". Various cases concerning removal of a legal practitioner from the roll make mention of "permanent unfitness", sometimes in the context of a presumption that arises from the making of an order for removal from the roll ... sometimes in the context of what must be established before an order for removal can be made ... In the course of argument [counsel] accepted that a requirement to establish "permanent unfitness to practise" did not mean that it was necessary ... to prove that in no circumstances whatever would the solicitor be fit to practise. She accepted that the existence of the jurisdiction to readmit a person whose name has been removed from the roll shows that "permanent" could not have that shade of meaning. [54]Rather, in my view, it has the shade of meaning of being likely to be unfit to practice for the indefinite future ..." 63As stated above, it is my view that a finding of professional misconduct can follow from a number of separate findings of unsatisfactory professional conduct: see Lindsay v HCCC. In relation to Ms Shaw's report, in order to demonstrate error on a point of law, the plaintiff had to show that the Tribunal in effect decided that there was evidence capable of supporting their finding, when in fact there was not: see Lucire v HCCC at [86]. Ms Shaw's report provided the Tribunal with evidence, amongst other evidence, on which to base its finding of misconduct against Ms Deano. For the "no evidence" ground to succeed, there must be no evidence at all, rather than insufficient evidence: see Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. 64It is my view that there was evidence capable of supporting the Tribunal's finding that Ms Deano's instances of unsatisfactory professional conduct amounted to professional misconduct of a sufficiently serious nature to require cancellation of her registration. The statutory test in s139E(b) of the National Law was correctly applied by the Tribunal and hence this ground of appeal fails.

Ground 5 - Procedural fairness 65The plaintiff submitted, in reliance on Donnelly v HCCC at [163] - [167], that the Tribunal was required to permit Ms Deano to make submissions upon the appropriate penalty at a separate hearing. After the Tribunal hearing, on 4 April 2011, Ms Deano was invited by the Tribunal to make submissions (email letter of David McMahon). The plaintiff submitted that the email from Mr McMahon "created uncertainty" for Ms Deano as to what the Tribunal had found against her and that she was not formally notified that professional misconduct was found. The plaintiff relied on the proposition by Hutley JA in Hall v NSW Trotting Club Limited [1977] 1 NSWLR 378 at 382 that a "person found guilty cannot really address until he knows of what he has been found guilty". 66The plaintiff also relied on Lucire v HCCC at [60] and [61] and alleged that, like in that case, the complaints against her were serious and complex, there were multiple particulars and the two complaints as pleaded obscured the hearings as the plaintiff did not have any notice of how professional misconduct could be found from the factual particulars alleged. 67There were two critical features that led to the decision in Lucire v HCCC (see [62] - [66]). First, although the complaint was presented as one complaint, it in fact encompassed both unsatisfactory professional conduct and professional misconduct (and the protective orders that may be made in relation to the latter are potentially much broader than the former). Second, both parties had sought the opportunity to present evidence on appropriate protective orders and had been ready to do so at the time that the Tribunal handed down its decision. 68The plaintiff submitted that the two critical features identified in Lucire v HCCC apply to the present case. Further, based on what was stated to the plaintiff on the final day of the hearing, the letter from Mr McMahon confused the purpose for which submissions were to be made. The plaintiff submitted that, given Ms Deano was not able to sum up at the end of the hearing, she assumed her final written submissions were to sum up. A hearing on orders would allow Ms Deano to put forward evidence of her education, training and work record subsequent to the incident at Concord Hospital and prior to the handing down of the Tribunal's decision. 69The case of Donnelly v HCCC must be considered in light of other relevant cases, namely Lucire v HCCC and King v HCCC. In Lucire v HCCC, the plaintiff's counsel had expressly objected to the Tribunal handing down its decision on protective orders when the plaintiff had not yet been apprised of the findings and thus had not had an opportunity to address on those orders. The plaintiff's request for an opportunity to do so was rejected by the Tribunal. At [61] Basten JA (McColl JA and Sackville AJA agreeing) said: "the question is not whether she [the practitioner] had any opportunity [to present her case], but rather whether she had a reasonable opportunity in all the circumstances of the case. This question requires an assessment of practical and strategic considerations and not merely an assessment of abstract possibilities." 70In King v HCCC Handley JA did not elaborate on his finding (at [202]) that the Tribunal should have published its findings and given the parties an opportunity to adduce evidence and make submissions on the appropriate orders consequential on those findings. Handley JA did not express any disagreement with Basten JA's observation in Lucire v HCCC that a finding that procedural fairness had not been afforded in a particular case will depend upon the circumstances of that case, rather than carry what he described as "some general and unfortunate consequences for future hearings in the Tribunal". 71In Donnelly v HCCC the decision to set aside the protective orders and send the matter back to the Tribunal was, as in Lucire v HCCC, a decision made by Fullerton J on the basis of the particular facts of that case. A detailed history of the process that led to the imposition of the protective orders on Dr Donnelly was set out before there was any consideration of what procedural fairness required in the circumstances of that case. The following was said: "160The principles of procedural fairness are well established. While the issue of penalty arises only if guilt is determined, there is no procedural requirement that a separate hearing on penalty must be convened. 161As Basten JA observed in Lucire at [60], whether or not a separate hearing is required in order to ensure that a person has a reasonable or adequate opportunity to present a case on penalty depends, inter alia, on: ... such factors as the number and complexity of the complaints or particulars thereof, the manner in which the case is conducted and the wishes of the parties in respect of further evidence and submissions on protective orders. ... 163The critical question in this case is whether the plaintiff was given a reasonable opportunity to tender evidence and make submissions on penalty in all the circumstances of the case. This obliges me to make an assessment of what Basten JA described at [61] [of Lucire] as "practical and strategic considerations and not merely an assessment of abstract possibilities." 72There were two factors identified as key to the decision in Donnelly v HCCC. First, there were a number of directions hearings held, and procedural orders made; and secondly there was "a disparity between the terms of the protective order made by the Tribunal, namely suspension for three years, and the order sought by the HCCC in it submissions, namely suspension for 18 months" (at [23]). 73A Tribunal is not required to allow submissions to be made as to the appropriate penalty to be imposed at a separate hearing. What is important is whether Ms Deano had a "reasonable opportunity" to present a case on penalty, taking into account factors such as the number and complexity of the complaints or particulars, the manner in which the case is conducted and the wishes of the parties in respect of further evidence and submissions on protective orders. 74In light of the relevant factors, it is necessary to consider whether Ms Deano was aware of the severity of the misconduct alleged against her and the range of penalties that could be imposed. It is my view that Ms Deano was aware of both. On the last day of the hearing, the defendant made submissions by which Ms Deano was put on notice that it considered that professional misconduct had been established and that it was seeking a protective order that the plaintiff be removed from the register for a period of two years. Furthermore, prior to the hearing, Ms Deano received written legal advice from Brett Holmes, General Secretary of the NSW Nurses' Association (dated 14 February 2011). That advice included the following: "1.Chances of success ...As discussed with you at the meeting on 24 January and 12 February 2011, there is a very strong possibility that the Nurses and Midwives Tribunal will believe the evidence of EN [enrolled nurse] Teng...common sense and logic does not support your answers...there is no support for your statements...it must be stressed that it does not matter that there was no hospital policy on what 'we should do during our break or using patient bed'. You know, or should know, through your many years of nursing that...it is never acceptable...That is the view the Tribunal will take. 2.Outcome On the basis of the above, there is a very strong possibility that the Tribunal will find: (a)The complaint against you proved; (b)That you were an untruthful witness; (c)That you haven't taken responsibility for your actions; (d)You don't accept and/or understand the overall seriousness of your conduct and in particular you're not being honest with the Tribunal; (e)That you are guilty of both unsatisfactory professional conduct and professional misconduct. It is therefore a very strong possibility that you will be deregistered and for a significant period of time (at least 1.5 to 2 years)...As was discussed on 12 February 2011, you will find it very difficult to overcome a finding that you were not honest with the Tribunal and it is difficult at this stage to see you being re-registered in the future." 75It is also necessary to consider how the case was run and the wishes of the parties. There is no evidence that Ms Deano sought, or was at any time led to expect, that the proceedings be conducted in two stages. The Tribunal offered the plaintiff an opportunity to provide additional submissions after the hearing. Ms Deano indicated that she had already written what she wanted to write (referring to written submissions she had provided on 31 March 2011) however the Tribunal urged her not to decide there and then and gave her additional time to provide post hearing submissions. 76As stated above, the Tribunal emailed a letter to Ms Deano dated 4 April 2011, in what appears to be a response to a request for an extension of time in which to make submissions, giving her until 29 April 2011. In that letter from the Tribunal, in addition to providing a revised timetable for those submissions, the plaintiff was asked to address a number of proposed conditions. Specifically, the letter stated: "The Deputy chairperson has also asked me to inform you that the Tribunal invites you and the HCCC to make submissions as to whether, in accordance with sections 3 and 149A of the [National Law], it would be necessary, appropriate and sufficient to impose the following restrictions on your practice, as an alternative to removal from the Register [and there followed a list of proposed conditions]." 77Ms Deano did not respond. However, on 29 April 2011 Ms Deano provided the Tribunal with written submissions but did not address the matter of possible conditions on her registration. Ms Deano did not make any further submissions prior to the Tribunal making its decision and publishing its reasons on 14 October 2011. 78It is my view that the Tribunal afforded procedural fairness to Ms Deano. It offered her options which she refused. The letter from the Tribunal to Ms Deano warned her that she should address whether any restrictions should be placed on her practice as opposed to removal from the register. She did not do so. Ms Deano was given a reasonable opportunity to provide submissions relating to the Tribunal's orders. The content of the letter of 4 April 2011 from the Tribunal is clear and would not have created uncertainty. In light of the relevant factors Ms Deano had a reasonable opportunity to present a case on the appropriate orders. She was afforded procedural fairness. 79The result is that the appeal is dismissed. The application for judicial review fails. The further amended summons filed 4 May 2012 is dismissed. 80Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

The Court orders that: (1)The appeal is dismissed. (2)The application for judicial review fails. (3)The further amended summons filed 4 May 2012 is dismissed. (4)The plaintiff is to pay the defendants' costs as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 June 2012