Queensland Nursing Council v Dodd

[3] It seems to me, however, that there is no valid cross-appeal by the respondent before me. Section 137 of the Act provided for appeals to this court from an order of the Tribunal, with the appeal to be instituted within 28 days after the person receives notice of the decision or order by the filing of a notice of appeal in the appropriate registry at the District Court and by complying with any rules of court applicable to the appeal. That suggests that a person who is aggrieved by an order is required to appeal in that way whether or not someone else has also appealed in that way. But even if the effect of subsection (3)(b) is to pick up the provisions of the Uniform Civil Procedure Rules and hence rr 784 and 785, so that the latter picks up rr 754 and 755 dealing with cross-appeals to the Court of Appeal, no notice of cross-appeal has been filed by the respondent.

[4] Rule 755 requires that notice of cross-appeal be in an approved form and be filed within 14 days after the date of service of the notice of appeal on the respondent. The purpose of such a rule is to ensure that the institution of the cross-appeal is attended with appropriate formality, so that there is no doubt whether or not the respondent is also seeking to challenge the decision under appeal in some, and what, respect. I do not consider that merely including in an outline of argument filed pursuant to the practice direction an assertion that some part of the order was wrong or should be changed is sufficient compliance with the rules, or provides a sufficient basis for allowing a cross-appeal to proceed notwithstanding non-compliance with the rules. I am therefore not prepared to consider the respondent's purported cross-appeal raised in the last page of his outline of argument.

[5] The notice of charge brought by the appellant before the Tribunal was amended by leave of the Tribunal on the morning of the final hearing, although notice of the proposed amendment had been given earlier. As amended, the charge alleged:**

"(i) You have behaved in a way that constitutes unsatisfactory professional conduct contrary to s 104A(1) of the Nursing Act 1992.

On 11 November 2005 at Mudjimba in the State of Queensland you abused your position as a registered nurse by unlawfully wounding [a named person] with a syringe containing suxamethonium chloride which you had stolen from your employer, the Sunshine Coast Private Hospital, and in circumstances where you knew, or ought to have known, that suxamethonium chloride was a neuromuscular blocking agent capable of causing respiratory suppression and should only be administered under the strict supervision of an anaesthetist and/or only when facilities are instantly available for endo-tracheal intubation and the providing of adequate ventilation.

(ii) You were convicted by his Honour Judge Robertson in the District Court of Queensland at Maroochydore on 7 June 2007 of two indictable offences, contrary to s 104A(1)(g) of the Nursing Act 1992, namely:

(a) That between 1 November 2005 and 11 November 2005 at Buderim in the State of Queensland you, being a servant of Sunshine Coast Private Hospital, stole an ampoule of suxamethonium chloride the property of Sunshine Coast Private Hospital which had come into your possession on account of Sunshine Coast Private Hospital.

(b) On 11 November 2005 at Mudjimba in the State of Queensland you unlawfully wounded [that person]."

**[6] When the matter came on for hearing before the Tribunal the solicitor for the respondent advised that his instructions were to plead guilty to both charges in accordance with the amended notice of charge. The Tribunal Chair raised the issue of whether there was any contest in respect of facts within that notice of charge, counsel for the appellant indicated that that was not her understanding, and the solicitor for the respondent did not express any dissent from that position.

[7] By way of background, on 5 June 2007 the respondent appeared before the District Court at Maroochydore charged with three counts, one count of stealing as a servant to which he pleaded guilty, one count of unlawful wounding with intent to disable to which he pleaded not guilty, and one count (advanced in the alternative to the second count) of unlawful wounding, to which he also pleaded not guilty. The matter proceeded to trial, and on 7 June a jury found the respondent not guilty of Count 2 but guilty of Count 3. On the same day the respondent was sentenced to six months' imprisonment on Count 1 and 18 months' imprisonment on Count 3, to be served concurrently, and a parole release date of 7 December 2007 was fixed.[1]

[8] The evidence at the trial showed that the respondent had previously been married but his wife had passed away in December 1996. The complainant on Counts 2 and 3 had had a relationship with the respondent in 1997 and 1998 as a result of which she became pregnant, and a child was born. The respondent went overseas in April 1998, returning in the year 2000 by which time he had married again, a woman he had known when he was much younger. After a DNA test confirmed paternity the respondent paid child support, and by 2005 was visiting the complainant from time to time talking about their child. During 2005 sexual intercourse occurred between them on two occasions, and subsequently she fell pregnant. On 13 October 2005 they had a conversation about her pregnancy, during which the respondent indicated that he wanted her to have an abortion.

[9] In 2005 the respondent was a registered nurse employed by the Sunshine Coast Private Hospital. He had qualified as a nurse at the Concord Hospital in Sydney, and subsequently worked in various hospitals, and in the army. After the army he worked as a nurse until he had to cease that work because of his then wife's illness. After he returned to Australia he returned to nursing, presumably after December 2001 when his registration was reinstated, having been cancelled because of non-payment of fees earlier that year. At the Sunshine Coast Private Hospital he worked as an anaesthetics nurse.

[10] Suxamethonium chloride was described at the trial by a specialist in forensic medicine as a drug used to paralyse people because they are going to surgery or because they need to be put on a breathing machine in intensive care. The drug is used to prevent muscles twitching during surgery, or to prevent a patient who is intubated, that is having air pumped artificially into the lungs, from attempting to breathe independently of the machine. It prevents normal breathing. The drug is supplied in ampoules, glass tubes from which it can be extracted using a syringe. The standard ampoule contains 100 milligrams which would be at the top of the dosage range for a person weighing 100 kilograms (the weight of the complainant), and could be expected to produce muscle paralysis for about six to eight minutes. If the complainant were unable to breathe for that period her life, or at least her ongoing health, was put at risk.

[11] The respondent gave different versions about how it came about that he stole the ampoule from the hospital. He said at the trial and in his submissions to me[2] that he had taken several ampoules of different drugs from the drug fridge and placed them into the pocket of his scrubs to restock his anaesthetic trolley during the course of his duties. He discovered the ampoule at his home only after doing his laundry, when it had been through a hot wash in the pocket of his scrubs.[3] He decided to keep it to try using it to euthanase sick birds; he then kept parrots and similar birds.

[12] He claimed in his submissions to me that this was consistent with what he told the police. That was not true. A copy of the police interview, which was before the Tribunal, was also before me.[4] At the foot of page 10 he was asked how he came by the drug and he said: "I use it at work and so it was just something I grabbed out of the fridge." On page 12 he was asked: "Did you get it at the start of the shift or the end of the shift that you were working" and he answered, "End of the shift". This is plainly inconsistent with the version he later gave, including to me. When asked where he put it once he had taken it from the fridge, his answer to the police was simply, "I took it home".

[13] He was then asked, "When you took it from the hospital, what were you thinking at that stage?" His answer was:**

"At that stage I thought, if I could do anything - because I wasn't sure what to do - if I could do anything, this was something I could use somehow and it would be the safest way of either using it or not using it. I didn't really want to use it, but if I was to use it I could - I knew exactly what I had in there. I only had a minimal amount. I probably had 30 mls as in 30 milligrams, which is only a very small amount diluted with saline."

[14] That was a clear admission that he consciously and deliberately removed the ampoule from the hospital. In his sentencing remarks[5] Robertson DCJ said at p 2:

"You pleaded guilty on the morning of the trial to stealing as a servant and your version to the jury I do not accept; I proceed on the basis of what you told the police officer, that you took it from the fridge and you stored it at home. You clearly knew that it was a dangerous drug in this sense, that used outside appropriate clinical boundaries it had the capacity to paralyse and in the worst case scenario to cause a person to stop breathing."

**[15] The respondent arranged to meet the complainant beside a park on 11 November 2005. He took in the glove box of his car a syringe into which he had drawn some of the drug. After the complainant pulled up he took the syringe, removed the cap from the needle, and walked to the applicant's car. When she opened her door he stood beside her, said there was a mark or something on her neck and inserted the needle. When she felt something sharp in her neck, she pushed his hand away. A struggle ensued in which he persistently came at her with the syringe and she suffered a number of needle stick injuries to her arm. Eventually she was able to pull the plunger out of the syringe, and at that point he stopped attacking her and walked away.

[16] Robertson DCJ said at p 3 of his sentencing remarks:**

"At some stage after taking the suxamethonium you conceived this irrational, crazy plan to take a syringe, to take some of the suxamethonium up in to the syringe and to use it to frighten this unfortunate lady. She had made it clear, as she did on the previous occasion in relation to [the first child], that despite your wishes, she did not want to terminate the pregnancy. I think it is quite clear that you simply could not accept the awful reality of that, bearing in mind the effects that would obviously have on your wife and your family. Clearly, it was planned, in the sense that you met her after this series of exchanges of emails and texts at what was clearly an isolated place ... you had a plan then because you took the suxamethonium in the syringe with the needle capped in your glove box to the meeting. So, you had plenty of time then to think about it, harking back again to your professional qualifications. Immediately she arrived you obviously uncapped the syringe, left your car with the motor running and the door open, went straight to her, distracted her by pretending that there was a mark on her neck, and I proceed on the basis that you deliberately stabbed her with the needle. You didn't inject her with any of the drug I am satisfied. ... It clearly was a highly dangerous act, an act with potential for serious harm to her that you must have well known. ... It was obviously a desperate act of a desperate man; it was an irrational act but I do not find that it was impulsive. ... Thankfully, she was not seriously hurt and the pregnancy was not compromised."

[17] Under s 104A(1)(g) it is a ground for disciplinary action against a relevant person if the relevant person has been convicted of an indictable offence. The offence to which the respondent pleaded guilty, and the offence of which he was convicted by the jury, were indictable offences. The acts constituting the offences and the surrounding circumstances were matters which were determined by what passed at the criminal trial, and ultimately by the findings made for the purpose of sentence by the trial judge. In my opinion the position is analogous to the situation of an application for compensation under the Criminal Offence Victims Act 1994. That is a civil proceeding between different parties, the complainant and the defendant, but it is well established that for the purposes of such a proceeding the nature and features of the criminal offence are those determined at the criminal trial, and that in dealing with an application for compensation the judge should take a view of the evidence consistent with that taken at sentencing, although evidence relevant to a specific issue which arises under that Act may be led and relied on provided it is not inconsistent with those matters.[6] Accordingly, when considering the nature and content of an indictable offence of which a person has been convicted, it was appropriate for the Tribunal to proceed on the basis that the factual basis and circumstances of the offence were as determined for the purpose of sentence.[7] It was also open to the Tribunal to investigate aspects of the matter relevant to penalty even if they were not elements of the offences or facts found for the purpose of sentence.[8]

[18] In the outline the respondent asserted that the two charges were separate events and not a plan as depicted by the DPP, the presiding judge and senior counsel for the appellant. That probably was the way in which the case was presented at the trial, but it is clear that although the presiding judge found that there was a plan he did not find that the plan encompassed both of the charges, that is, he did not find that the stealing offence was undertaken pursuant to a plan to carry out the unlawful wounding. It is also not apparent to me that that was the basis upon which the matter was advanced by the appellant before the Tribunal, nor for that matter was that advanced before me.

[19] All the Tribunal said (at paragraph 6) in relation to the circumstances in which the offences occurred was:**

"He claimed the drug had initially inadvertently been taken by him to his home. Versions subsequently given by him at times contain inconsistencies in respect of that version of events. It is unnecessary to determine the circumstances as to how the drug came into his possession, as there is no doubt that it was taken from his employer, and part of it was used by him in a syringe, which he took to a meeting with the woman, intending to use it to cause fear so as to have her confess as to her actions."

**[20] Essentially this was consistent with the sentencing remarks, in relation to the characterisation of the stealing offence, and that the respondent planned to use the syringe to frighten the complainant. The reference to getting her to confess to her actions related to something said by the respondent during cross-examination at the criminal trial, when he was asked what he had planned to say when he showed her the syringe, to which he answered: "That I want to hear the truth, that I wanted to know that she had tricked me into this pregnancy and that she'd done it wholly and solely for her own benefit."[9] The respondent can hardly complain about the Tribunal's proceeding on the basis that this answer was true.

[21] Before the Tribunal evidence was given by a psychologist, Ms Bendall, who had provided some reports on the respondent,[10] and by a psychiatrist, Dr Lawrence, who had also provided a report[11] and who gave evidence by telephone. Objection was taken to the evidence of Dr Lawrence on the grounds that she had not seen the respondent, but had merely seen various documents. That was rejected as that went only to the weight of her evidence. In the event, the Tribunal preferred the evidence of Dr Lawrence. One of the reasons why Ms Bendall's evidence was rejected was because she was focused on the need for the respondent to continue to be employed from the point of view of his rehabilitation, whereas the real issue was whether what the Tribunal described as the respondent's reprehensible conduct rendered him not a fit and proper person to be a registered nurse: reasons para 12.

[22] The Tribunal found that that conduct was "totally unacceptable behaviour for any registered nurse to engage in, however extenuating the stressors in the professional's life." [para 13] The Tribunal was further concerned by the evidence of a failure on the part of the respondent to recognise the inappropriateness of his behaviour.[12] It referred to and accepted Dr Lawrence's assessment as to the concerning nature of the respondent's failure to acknowledge that his own actions were significant contributors to what occurred, and noted other evidence of failure including in a letter dated 4 June 2007 from the respondent to his solicitor. The Tribunal considered that the behaviour and the failure to recognise its inappropriateness called for significant sanction, by way of cancellation of registration.

[23] The appellant sought before the Tribunal to have the respondent prohibited from reapplying for registration for a period of 15 years, a period which the Tribunal characterised as effectively covering the balance of his working life.[13] Such a proposition was said to be inconsistent with the notion of rehabilitation (para 16) and inconsistent with the position adopted by the Council up until the hearing. I shall return to this aspect of the Tribunal's reasoning later, but no preclusion period was imposed.

[24] The Tribunal cancelled the respondent's registration and prohibited him from applying for registration or applying for enrolment or authorisation to practice nursing until he had satisfied a list of eight conditions. He had to complete a course of counselling with a psychiatrist or psychologist approved by the appellant until that counsellor was of the opinion that further counselling was unnecessary,[14] complete a course in professional ethics approved by the appellant,[15] sit for an oral examination before two senior nurses chosen by the appellant who were prepared to certify that he had a satisfactory knowledge of professional ethics,[16] and undergo assessment by a forensic psychiatrist chosen by the appellant who had reported that the respondent was fit to practice as a registered nurse.[17]

[25] Under s 137(3)(c) of the Act this appeal is by way of rehearing on the material before the Tribunal. The appellant sought to put additional material before the court only in relation to the purported cross-appeal sought to be raised by the respondent, and it is unnecessary to have regard to that. The ordinary consequences of an appeal by way of rehearing are well established. It is necessary for the appeal court to make up its own mind on the basis of the findings of primary fact made at the previous hearing, unless those findings are set aside in accordance with the established principles,[18] but it is necessary for the appellant to show that the decision under appeal was wrong.[19] Where the appeal is from the exercise of discretion, that involves showing that there was an error of principle in the exercise of the discretion, or that the discretion miscarried, in that the result was manifestly inappropriate.[20]

[26] The grounds advanced for the appeal were as follows:

1. The Tribunal erred in law in failing to properly exercise the discretion relating to imposition of an appropriate sanction.

2. The Tribunal erred in failing to give adequate weight to the respondent's demonstrated lack of remorse and insight.

3. The Tribunal erred in failing to give adequate weight to the gravity of the respondent's actions constituting the conviction for the criminal conviction.

4. The Tribunal erred in giving inadequate weight to the accepted expert opinion of Dr Lawrence as to the unfitness of the respondent to practice as a nurse.

5. The Tribunal erred in failing to give appropriate weight to the protective provisions of the Nursing Act 1992.

6. The Tribunal did not give adequate reasons for its failure to impose a period during which the respondent could not reapply for registration as a nurse.

7. The Tribunal erred in placing too much emphasis on the respondent's ability to usefully practice as a nurse since the imposition of conditions on his registration.

8. The Tribunal erred in finding that "it was unnecessary to determine as to how it came to be in his (the respondent's) possession" when the respondent had given different versions of the circumstances of how the drug came into his possession and the purpose for which he decided to utilise it when such were relevant and aggravating features of the respondent's behaviour..

9. The Tribunal erred in exercising its discretion in making the order for costs and not ordering the maximum allowable under s 116(4) of the Nursing Act 1992, in various ways which I need not set out.

[27] In relation to grounds 1 and 5, what was in fact argued was that the penalty was inadequate in the light of other decisions of the Tribunal, particularly where nurses have been convicted of offences which were less directly concerned with the conduct of their profession than was the case here, and where ordinarily some period of preclusion was imposed as well as conditions designed to effect rehabilitation before there was any re-registration. The argument in substance was that this decision was inconsistent with other decisions of the Tribunal. No other decisions of this court (or the Court of Appeal) were relied upon.

[28] Six decisions were relied upon. The earliest in time was the matter of McPherson.[21] The nurse pleaded guilty to conduct discreditable to an enrolled nurse. The particulars of that charge were that in October 2000 she had abused her position of influence and trust gained by virtue of a nurse-patient relationship by misappropriating the sum of $2,500 from the patient, and that on 20 October 2000 she had done something similar but with a sum of $5,000. She was also charged with having been convicted of indictable offences of dishonestly obtaining property; the money which was obtained was charged as the property of the Commonwealth of Australia. The offence was said by the Tribunal to be directed against an 82-year-old man, and noted that when the nurse was sentenced in the Magistrates Court the magistrate had referred to there having been a previous offence which involved a similar amount of money, and had taken deterrence into account in formulating the sentence, which was a 12-month intensive correction order. The nurse had sought cancellation of his enrolment which had already been effected. The Tribunal reprimanded him, excluded him from reapplying for five years, and imposed conditions similar to Conditions 1, 2, 7 and 8 here.

[29] That was a case where the nurse had pleaded guilty and had accepted that there was a breach of the Act but had claimed to have been rehabilitated through the intensive correction order and to be retraining for work within a different field. No findings were made about any particular indication of a lack of insight or remorse. That case like the present involved a connection with the practice of the profession; in that matter the contact arose because the nurse was attending the complainant in the course of his employment with Blue Care, and the misappropriation was the product of an abuse of a position of influence and trust gained in that way.

[30] In the present case the stealing offence involved a direct abuse of the respondent's professional position, while the subsequent attack on the complainant involved the use of a syringe containing the drug which had been stolen in that way, and in circumstances where as a result of his professional responsibility he ought to have been aware of the particular hazards associated with that drug. This involved an offence of violence, the commission of which was also accepted as amounting to unsatisfactory professional conduct. Overall this is a worse case.

[31] In the matter of Nicholson[22] the nurse was charged with having been convicted of the indictable offence of stealing, and being guilty of conduct discreditable to an enrolled nurse in that she had abused her position of trust reposed in her as treasurer of a sporting club by stealing $25,000 from that club. Her enrolment was cancelled, a preclusion period of six months was imposed as a condition of reapplication for enrolment, as well as a requirement that she complete a course of counselling with a psychiatrist or psychologist authorised to provide the appellant with a report as to whether the respondent posed a significant risk of committing any offence of dishonesty in the workplace against patients or staff. The nurse had pleaded guilty to both charges. The committee took into account that the conduct by which the amount had been taken was committed over a number of years, and involved an abuse of a position of trust, and was concerned that there might be a propensity for dishonesty which could intrude into the workplace. Significantly here there was no particular association between the offending and the practice of the nurse's profession.

[32] In the matter of Arch[23] the nurse was convicted of a charge of defrauding the Commonwealth. The offence involved obtaining social security payments to which she was not entitled in an amount of about $85,000. The nurse had cooperated with the appellant, had pleaded guilty to the criminal charge and cooperated fully with the prosecuting authorities, indeed initially had voluntarily disclosed the wrongful payments to Centrelink and made admissions which led to her being charged. It appears the offending was prompted by need; the nurse was supporting three sons of a failed marriage who were not receiving support from the father, and she was induced to provide the father with some money to pay gambling debts after she and one of her sons had been bashed by unknown assailants. The committee acknowledged the seriousness of the charge and cancelled the nurse's enrolment but granted limited enrolment subject to her not practicing as a nurse or performing nursing service for a period of two months and that she undergo counselling and the counsellor provide a report to the appellant in relation to dishonesty and secrecy. That matter did not involve offending in connection with the profession, and there were very strong mitigating factors.

[33] In the matter of Plage[24] the nurse was convicted of a number of offences in connection with obtaining a Newstart Allowance which had been overpaid. The total amount involved in the charges was not disclosed in the material, but when convicted and sentenced on 12 February 2002 in the Magistrates Court an order to make reparation was in the sum of just over $16,000. She was also sentenced to a short term of imprisonment. The nurse pleaded guilty to the charge before the Committee, which found that there was no doubt she was remorseful and that she had made a committed effort to repay the monies owing to the Commonwealth. She placed very favourable references before the Committee and had obtained permanent part-time employment since her release from prison. The Committee made an order, which had been jointly proposed by the parties granting the respondent limited enrolment on condition that she undergo counselling for at least six months in relation to particularly her maturity and responsibility regarding Social Security offences, that she notify the Council in writing immediately of any change of employment, and that she authorise any employer to report to the Council in the event that the employer holds any concerns about her trustworthiness. Limitations and conditions were to be reviewed not more than two years from the date of the order, but after the counselling. For practical purpose therefore the preclusion period there was six months.

[34] In the matter of Crooks[25] the nurse was convicted of a number of offences of Social Security fraud. The reasons of the Tribunal do not disclose the amount of the fraud, or the penalty imposed in the Magistrates Court when the nurse was convicted, but note that the sentencing magistrate had referred to the nurse's prior criminal history for dishonesty including a Social Security fraud. In that matter the nurse did not appear before the Tribunal, and neither consented to nor opposed the orders sought. The Tribunal reprimanded the nurse and cancelled registration and imposed a preclusion period of 18 months (rather than the two years sought by the Council) and other conditions designed to achieve rehabilitation. Full details of the orders made are not before me, but there was a requirement for counselling and a requirement that she attend before the Tribunal for the Tribunal to find that she was a fit and proper person to be considered for registration or enrolment before she could practice as a nurse in Queensland. Accordingly, other conditions requiring proof of rehabilitation in addition to the preclusion period were imposed.

[35] In the matter of Coates[26] the nurse had been convicted of offences under the Bankruptcy Act of obtaining credit while an undischarged bankrupt. She had been an assistant nurse or nurse for over 20 years, and the fraud did not occur in her professional capacity. There were various mitigating circumstances, the nurse had undergone counselling following conviction of her own volition, and tendered outstanding testimonials, including a peer and supervising references speaking of her demonstrated honesty and personal integrity. In that matter the respondent was reprimanded and conditions were imposed upon her registration but the registration was not cancelled so no question was raised of a preclusionary period. The conditions were in operation for a period of one year.

[36] I should also note two decisions of the Court of Appeal, to which reference was made for other purposes. In Graham v Queensland Nursing Council [2009] QCA 280 a nurse was found guilty by the Tribunal of conduct discreditable to a registered nurse in somewhat unusual circumstances; the nurse was working in a correctional centre and it was alleged that, in circumstances where an inmate had sought medical assistance, she had refused to enter the inmate's cell in order to conduct an assessment for the inmate. The Tribunal cancelled the nurse's registration and imposed a preclusion period of two years, required her to complete a university course in the areas of professional responsibility and accountability, nursing ethics and nursing assessment of patients, and undertake an oral examination in relation to these matters similar to that contemplated by conditions 5 and 6.

[37] Before the Court of Appeal it was only relevant for the President to consider the appropriateness of the sentence,[27] the nurse having appealed against the sentence on the ground it was excessive. Her Honour noted that the role in imposing a sanction was primarily to protect the public through ensuring safe and competent nursing practice, that the nurse had shown a serious breach in conducting herself in a way discreditable to a registered nurse and that afterwards had shown very limited insight into her unprofessional behaviour and the seriousness of her lapse which was disturbing. "The Tribunal was entitled to consider that a heavy deterrent penalty had to be imposed on Ms Graham and that before she returns to practice 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." [s 29]

[38] In Queensland Nursing Council v Fletcher [2009] QCA 364 a nurse had been charge with unsatisfactory professional conduct in abusing her position of influence and trust in respect of a former patient in that she over-involved herself in the deceased's affairs; she did not adequately make clear when she had ceased to be in fact in a position of a paid carer or nurse towards the deceased; she failed to maintain adequate distance when the deceased was making decisions about his will; she failed to relinquish entitlements under the last will; and she had sought to influence the deceased to benefit her under the will. The Tribunal found the charge made out but not all of its particulars, cancelled the nurse's registration and ordered that she be prohibited from reapplying for a period of two years and then only after successfully completing a course in ethics, professional responsibility and accountability [49]. In addition, for two years after any further registration she was required to provide a copy of the Tribunal's order to any employer and authorise the employer to report any concerns about her interaction with patients to the Council. She was also prohibited from undertaking employment in the community health-nurse environment or in an aged care facility.

[39] On appeal there was an issue as to the validity of the preclusion period of two years; it is sufficient to say that the court confirmed that there was power to impose such a period under s 116(1)(h). Chesterman JA, with whom on this the other members of the court agreed, noted that the Tribunal had described the nurse's conduct as "totally unacceptable and deserving of condign punishment" and said that he would decline to come to any different opinion in the absence of disclosed error in the process by which the Tribunal formed its opinion: [97].

[40] Overall, these earlier decisions do suggest that, particularly in more serious cases but to some extent even in some less serious cases, a preclusion period of some length has been a common condition imposed when registration or enrolment was cancelled, notwithstanding the presence of other conditions designed to ensure that there would not be re-registration or enrolment until the person concerned was again in a position to demonstrate fitness. There were no previous cases which were closely comparable to this in terms of the factual basis, but the factual basis of this matter was more serious than the others. On the face of it the decision does seem in this respect to be out of line with earlier decisions, and it is curious that the reasoning of the Tribunal did not deal with the question of whether a preclusion period should be imposed at all. I shall return to this aspect of the matter when dealing with the reasons of the Tribunal in more detail.

[41] Ground 2 was concerned with the weight given to the respondent's demonstrated lack of remorse and insight. The difficulty with this ground is that ordinarily the question of weight to be given to a particular feature is a matter for the decision-maker, and it is difficult to conclude that inadequate weight has been given to a particular matter unless the outcome is shown to be manifestly inappropriate. The Tribunal was certainly aware of a lack of insight on the part of the respondent, and commented on this feature itself. But I do not think that it can be said that it necessarily followed that the presence of evidence of a lack of remorse or insight into the inappropriateness of his behaviour necessarily required the imposition of a preclusionary period, though it may well have suggested one.

[42] The same considerations apply in relation to ground 3, alleging a failure to give adequate weight to the gravity of the respondent's actions.

[43] Ground 8 asserted that there was an error in finding that it was unnecessary to determine how the drug ampoule came to be in the respondent's possession. I have in substance already dealt with this point: insofar as the question was as to the characterisation of the criminality involved in any indictable offence of which the respondent was convicted, in my view the Tribunal was bound to proceed on the view of the facts adopted for the purpose of sentencing by the trial judge. In that sense strictly speaking it was unnecessary to determine the point, although it may be that that is not quite what the Tribunal meant by what is said here. There is the further consideration that the other charge focused on the circumstances surrounding the unlawful wounding offence, and referred to the stealing of the drug without identifying the basis upon which it was alleged that the drug had been stolen. It seems to me that the Tribunal might well have taken the view that the seriousness of the conduct associated with the unlawful wounding offence was not greatly influenced by the question of whether the respondent had taken the ampoule of the drug home deliberately, or "taken it home inadvertently but then decided to keep it". In these circumstances I do not consider that this passage in the reasons discloses any error on the part of the Tribunal.

[44] As to ground 4, it was submitted that there had been an error in not giving any or inadequate weight to the opinion of Dr Lawrence as to the unfitness of the respondent to practice as a nurse. But it seems to me with respect that the Tribunal did accept that view and did come to the conclusion that the respondent was unfit to practice as a nurse. The issue is not whether at that time he was unfit to practice, but whether there should be a preclusion period. It may be that Dr Lawrence in the course of her evidence went further than this, and expressed some doubt as to whether the respondent would ever be fit to practice as a nurse.[28] It seems to me, however, that this was a fairly slender basis for a conclusion, which evidently the Tribunal was not prepared to draw, that the respondent would necessarily never be a fit person to be registered or enrolled as a nurse. The Tribunal certainly accepted the possibility of rehabilitation, and may be seen in this way to have impliedly rejected the proposition that the respondent was beyond rehabilitation. I think it is reasonable to presume that a person may be rehabilitated, so that there was an onus on that appellant to demonstrate fairly clearly that that was not the case here before it might have been said that the Tribunal was bound to disregard the possibility of rehabilitation, and I do not think that that has been made out by the evidence before the Tribunal.

[45] Ground 7 was concerned with the question of whether too much emphasis had been placed on the respondent's ability to act usefully as a nurse since the imposition of conditions. In principle the question of what weight this should be given was a matter for the Tribunal unless it produced an unreasonable outcome to the exercise of the discretion. This, however, is closely associated with the question of what the actual reasons were of the Tribunal, as is ground 6, concerned with the adequacy of the reasons of the Tribunal. It is therefore appropriate that I return to those reasons and analyse them in a little more detail.

[46] The crucial part of the reasons for the Tribunal's decision appears at paragraph 16:**

"However, the Tribunal is not satisfied that that cancellation must continue for a period which effectively covers the balance of the respondent's working life. Such a proposition is inconsistent with the notion of rehabilitation. It is also inconsistent with the position adopted by the Council up until this hearing, which was to allow ongoing registration, subject to limitations and conditions. In the Tribunal's view, no satisfactory explanation was provided by the Council as to this significant change in stance. Whilst the Tribunal notes that Dr Lawrence's opinion has only recently been expressed, and that opinion provides grounds for the Council to take the view that it justifies cancellation of the respondent's limited registration, the fact that the respondent has shown an ability to usefully act as a registered nurse since the imposition of restrictions on his registration suggests that, with appropriate re-education in relation to matters such as professional ethics, together with counselling and a favourable reassessment by a forensic psychiatrist, there is a prospect the respondent could sufficiently rehabilitate himself to justify re-registration in the future. In the Tribunal's view, that possibility is to be encouraged, as it is to the benefit of both the respondent and the public that the respondent have an opportunity to return to the workforce once he has satisfied specified requirements designed to ensure appropriate safeguards against future unsatisfactory professional conduct."

**[47] The first reason, that a preclusion period covering the balance of the respondent's working life is inconsistent with the notion of rehabilitation, would provide a reason for not imposing a preclusion period of that length, but does not provide a reason for not having a preclusion period at all. As for the question of the position adopted by the Council up to the hearing which was to allow ongoing registration, it was submitted before me that under the Act the appellant had little scope prior to the establishment of grounds for disciplinary action under Division 4 of Part 5 of the Act to cancel or suspend the registration of the respondent, or otherwise prevent the respondent from working at all. The Council had imposed limited registration pursuant to its power to do so under s 65 of the Act, but that section did not give power to cancel registration without granting limited registration to the respondent. There is a power in s 67 of the Act to suspend registration, but only "if the Council is satisfied that the ability of a nurse to continue to practice nursing is seriously impaired to such an extent that a patient's health or safety could be at risk."

[48] It strikes me as plausible that the appellant might well have felt that it was not in a position to act under this provision because, however much it might have thought that the respondent's behaviour rendered him unfit to be registered as a nurse, it was not for reasons which gave rise to concern about a risk to a patient's health or safety. There is also a power in s 68 which parallels s 67, which is conferred on the executive officer. Nothing in s 70, which gives a power to cancel registration in other circumstances, would apply. On the face of it, prior to establishing grounds for disciplinary action, the only course open to the appellant was to impose limited registration under s 65, which was what had been done. In these circumstances, it is difficult to understand how the Tribunal characterised this as amounting to a change in the appellant's position.

[49] I have in the material before me a transcript of the proceedings before the Tribunal, including the transcript of the submissions. Although at p 78 of that transcript the Chair of the Tribunal noted that a 15-year preclusion period meant that the respondent could never practice again, and in response counsel for the appellant referred to other matters where preclusion periods of eight years and 10 years were imposed, the issue about whether this involved a change in the appellant's position was not raised initially with counsel for the appellant. The solicitor for the respondent before the Tribunal in the course of his submissions at p 83 said that the respondent had proven by virtue of the undertaking in the current order that there was no cause for concern. He had had the opportunity to prove himself and he had done so. That submission was addressed to the question of whether the registration of the respondent should be cancelled, and it was advanced on the basis that the behaviour of the respondent in the period prior to the hearing showed that his registration should not be cancelled. It did not in terms raise an argument that the appellant's position had in some way changed. The Chair then raised with the solicitor the question of whether the appellant should be allowed to practice until he had satisfied the various conditions.

[50] When it came to the reply of the appellant at p 90, the Chair then raised the question about whether there was any inconsistency in the appellant allowing the respondent to continue to practice. In response counsel for the appellant noted that there were fairly onerous conditions placed on the respondent, but the argument was not advanced that there was really no power just to cancel the registration prior to the Tribunal's hearing. Indeed at one point counsel for the appellant said "of course there would be power in certain circumstances no doubt to do that." This was in a context where it was suggested that the appellant might have been criticised for doing that without the matter proceeding to a hearing, because of natural justice considerations. When the point was pressed by the Chair of the Tribunal, counsel for the appellant referred to the fact that the evidence of Dr Lawrence, and her concern about the ultimate issue of fitness to practice in the long term, had only become available relatively recently. Dr Lawrence's report was dated 27 January 2009 and the hearing before the Tribunal was on 6 February 2009, at which oral evidence had been given by her.

[51] The Tribunal noted that Dr Lawrence's opinion had only recently been expressed, and that that opinion provided grounds for the Council to take the view that cancellation of the respondent's registration was justified, but presumably did not regard that as a satisfactory explanation of a "significant change in stance". Part of the problem here is that the Tribunal did not identify what was said to be the relevant inconsistency. If it was said to be inconsistent for the appellant to have allowed the respondent to continue to work albeit with limited registration while now calling for the cancellation of his registration, that was justified by the decision of the Tribunal to cancel the registration. The Tribunal seems to have considered the relevant inconsistency to be in relation to the imposition of a preclusion period, though it is not immediately obvious why there is any inconsistency there.

[52] In any case, I think it is not really a matter for attempting to determine exactly what the Tribunal had in mind. It seems to me that in principle there are two errors here. The first is that, insofar as the issue is what disciplinary action is appropriate, that is a matter which is only to be determined by the Tribunal at the conclusion of the hearing and after the issue of whether or not the charge as made out has been resolved. It might be inappropriate for the appellant to seek to anticipate a disciplinary order which was imposed once the charge had been proved, and relevant material and submissions on penalty had been put before the Tribunal. It is at that stage that the Tribunal has the function of determining what is the appropriate order to make. This argument was advances at the hearing and should have been accepted by the Tribunal.

[53] The point made by counsel for the respondent was a somewhat different one and one which had with respect some force; that in the interim the respondent had taken advantage of the opportunity he had to continue working as a nurse to demonstrate that he was in fact fit to be registered, and could work usefully and well. That was a matter which the Tribunal could legitimately take into account, and evidently did. But it does not seem to me that the appellant can be validly criticised for inconsistency simply because it did not anticipate the decision of the Tribunal and had not prior to the hearing imposed the penalty which was to be sought before the Tribunal. In any event, the appellant could not have imposed a preclusion period prior to the hearing, so I cannot see how there is any real inconsistency in asking for one to be imposed by the Tribunal.

[54] Apart from that, if the appellant had no power to cancel registration prior to the hearing in the circumstances, then there was plainly no inconsistency. This question is simply one of law, so the fact that the argument was not advanced on this basis below is not an impediment to its being advanced on appeal. It seems to me that this is a further reason why this was not a proper matter for the consideration of the Tribunal.

[55] In those circumstances, it seems to me that the Tribunal in dealing with the question of penalty, and particularly in the context of the imposition of a preclusion period, has approached the matter on the wrong basis. It has taken into account a supposed inconsistency which was not really present, and which ought not to have been taken into account. That was an error in the exercise of the discretion which justifies the discretion being exercised again.

[56] Nevertheless, it is appropriate for me to give weight to the views that the Tribunal expressed,[29] and particularly in relation to the prospect of rehabilitation and the notion that that is to be encouraged both from the respondent's and the public's point of view. There necessarily would be some effective preclusion period anyway in satisfying the requirements of the conditions which were imposed by the Tribunal, and there is also the consideration that those conditions were directed specifically to the issue of whether rehabilitation had been achieved. But in circumstances where it is common for there to be a preclusion period, and where there was a proper basis for concern as to whether the respondent had really accepted the wrongfulness of his conduct, so that there was concern about the extent to which there had been any rehabilitation so far, a matter which was accepted by the Tribunal (paragraphs 13, 14), it would be reasonable enough to expect that there would be some preclusion period.

[57] If there usually is a preclusion period in a matter as serious as this, it is somewhat surprising that one was not imposed. If the Tribunal was going to change its established practice in relation to the imposition of preclusion periods, it should have given specific reasons for doing so. That this was a very serious matter was obvious and amply shown by the view taken of it by the Tribunal, yet in this important respect the penalty imposed was less severe than that imposed by the Tribunal in other matters, even in matters where there were compelling mitigating circumstances.

[58] There is also the consideration that there is legitimately an aspect of general deterrence associated with the imposition of a disciplinary order under these provisions in the Act. Although the essential purpose of powers of this nature is to protect the public, that deterrence is an appropriate consideration when making such an order was recognised by McMurdo P in Graham v Queensland Nursing Council (supra) at [29]. That part of the process of maintaining public confidence in the profession and maintaining the reputation of the profession is by making orders which have a general deterrent effect for other members of the profession was recognised by the equivalent New South Wales Tribunal in HCCC v Flynn [2009] NSWNMT 1 at [14]. The proposition seems with respect obviously correct.

[59] The issue is not just the narrow question of whether in particular highly emotionally charged circumstances the respondent behaved in a way which he was most unlikely to repeat in the future. That may well be so, and it is understandable that his solicitor made the submission to the Tribunal that the issue was whether "a person can make one isolated mistake and not pose any ongoing danger" (p 89). But this was not a case of a mistake, however isolated the conduct may have been. It was really a manifestation of an extraordinary degree of selfishness on the part of the respondent, to the point where he was prepared, in order to obtain an outcome which was convenient to him, to engage in serious criminal conduct. The fact that he then sought to justify his behaviour by blaming the victim and not accepting responsibility for his choice to engage in unprotected sex with her is also suggestive of a seriously deficient moral framework which must give rise to a concern about whether, if at some point in the future a conflict arose between the interests of the respondent and the interests of his patients, he could be trusted to put the interests of his patients first. The facts of this matter must give rise to a serious concern as to whether such a degree of confidence could be reposed in the respondent as would justify recognising him as a person who was fit to practice as a nurse, and in that way authorising his registration.[30]

[60] For all of these reasons, in my opinion a significant preclusion period was justified in this case. In view of the regard which it is appropriate for me to pay to the views of the Tribunal in this matter, however, I do not think that the preclusion period should be as long as 15 years. But I do consider that, even having such regard as is appropriate to the approach of the Tribunal, the preclusion period should not be shorter than seven years.

[61] I will therefore vary the order made by the Tribunal by inserting a further condition, that "any application for registration, enrolment or authorisation be made at least seven years after the date of this order." The period will run from the date of the order of the Tribunal.

[62] The appellant sought costs before the Tribunal, and the Tribunal ordered costs in the amount of $9,000. There was virtually no dispute before the Tribunal in relation to the question of costs, an issue which was obviously heavily influenced by the fact that under s 116(4) "the Tribunal may make an order about costs it considers appropriate to a maximum amount equivalent to 135 penalty units." At the time of the hearing, that translated to $13,500. There was affidavit evidence before the Tribunal to the effect that the appellant's costs had well exceeded that amount, and the only point taken by the respondent was to seek 12 months within which to pay such costs. No issue was raised by the Tribunal at the hearing as to the quantum of the costs, but in its reasons at [18] the Tribunal said:**

"However, the Tribunal considers the costs sought by counsel to be excessive. The matter proceeded as a plea, with evidence being called as to sanction only. That evidence was of limited scope. In the circumstances, the Tribunal orders the respondent to pay costs fixed in the sum of $9,000."

**[63] Where there is a limitation on costs there are obviously more than one way in which the existence of the limitation can be reflected in the order for costs which is made. Two possible approaches may be illustrated by analogy with the way in which compensation has been assessed under the Criminal Code and the Criminal Offence Victims Act: in the former, compensation was assessed as damages at common law would have been assessed, subject to the imposition of any statutory maximum.[31] In the latter, compensation was scaled by reference to a table in a schedule to the Act, according to the seriousness of the particular injury within the range of possible injuries within the applicable item in the table.[32] One could in the present case treat the limitation in subsection (4) in either of these ways: the Tribunal could determine the question of whether an order for costs should be made as a matter of discretion, and decide whether in a particular case what amount of costs should be allowed, except where an appropriate amount would be in excess of the statutory limit, in which case it would simply apply the statutory limit. For practical purposes, therefore, it will be appropriate to award the statutory limit if satisfied that an order for costs should be made and that costs assessed on an appropriate basis would exceed the amount of the statutory limit. On the other hand, the Tribunal could treat the statutory limit as reflecting the maximum amount which could be awarded and therefore one which should be saved for what might be regarded as the worst kind of case, that is the most expensive case for the party having the benefit of the order, with the particular order made in a particular case being scaled by reference to this.

[64] It seems to me that the Tribunal may have been approaching the present matter in this way, because of the reference to the costs being confined because the matter proceeded only as to sanction with limited evidence. The real difficulty here, however, is that none of this was raised at the hearing. I accept of course that costs are a matter of discretion and the Tribunal has a wide discretion in these matters, but in circumstances where there was no dispute about a particular matter before the Tribunal, in this case that the respondent should pay costs in the sum of $13,500, I consider that there was a breach of the rules of natural justice on the part of the Tribunal in making a different order, without having at least raised that issue with the appellant. The Tribunal was bound to observe natural justice: s 105(6)(a). That discretion therefore also miscarried.

[65] It is therefore necessary for me to exercise the discretion as to costs afresh. Given that there was no dispute before the Tribunal as to the appropriateness of the costs order sought by the appellant, and in circumstances where the respondent in his written submissions did not raise any particular submissions except to say that they should not exceed the $9,000 already ordered, and that the payment agreement should continue (presumably the agreement to allow payment over 12 months), I consider that the appropriate order to make is to order that the respondent pay the appellant's costs of the proceeding before the Tribunal fixed at the sum of $13,500. I will also vary the order to allow the sum to be paid within 12 months from the date on which I deliver judgment on the appeal.

[66] As to the costs of the appeal, I am concerned that the respondent did not really contribute to the errors made by the Tribunal which have resulted in the appeal succeeding. There is also the consideration that the argument that there was no power to cancel registration prior to the hearing of the proceeding before the Tribunal was not advanced before the Tribunal. It may be that the Tribunal would not have been led astray on the question of inconsistency if the point had been raised squarely that it really was not open to the appellant just to cancel the registration prior to the hearing before the Tribunal. As to the question of costs, that appears to have arisen simply because of the independent actions of the Tribunal. In these circumstances, it is a bit hard if the respondent is confronted with additional costs as a result of errors made by the Tribunal which were not the result of accepting any particular submissions advanced on behalf of the respondent. No particular submissions are advanced on the hearing of the appeal in relation to the costs of the appeal, and I will hear such submissions when these reason are published.**

[1] Despite the plea at the beginning of the trial, the respondent was given credit for an earlier expressed willingness to plead guilty to unlawful wounding.

[2] Outline of argument filed 26 May 2009 paragraph 16.

[3] The propositions that he washed his own scrubs, and that a glass ampoule could survive going through a wash, strain credulity.

[4] Affidavit of Lucey filed 24 July 2007 Exhibit MJL-2.

[6] Facer v Bennett [2001] QCA 395; [2002] 2 Qd R 295 at 300; R v Chong; ex parte Chong [2001] 2 Qd R 301.

[7] There is the further consideration that, when the Chair of the Tribunal raised the issue of whether there was a contest in respect of the facts within the notice of charge, no such issue was identified on the part of the respondent. It was open to the respondent to dispute the factual content of the first count, but not the factual basis of the offences of which he had been convicted.

[8] Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582 at 591, 596.

[9] Exhibit MJL-15, trial transcript, p 131. The respondent said the complainant had told him she was on the pill: Exhibit MJL-2 p 16. The complainant admitted this: Exhibit MJL-13 p 34.

[10] Affidavit of Lucey Exhibit MJL-12, an affidavit of an officer of the appellant to which the reports were Exhibits RDM-6, RDM-8, RDM-15 and RDM-28.

[11] Affidavit of Lucey Exhibit MJL-11.

[12] It is apparent from his outline of argument that that failure is persisting.

[13] The respondent was 48 years of age at the date of the hearing before the Tribunal.

[14] Condition (1); condition (2) was to provide evidence of this to the appellant.

[15] Condition (3); condition (4) was to provide evidence of this to the appellant.

[18] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [22] - [29]; Stevenson v Yasso [2006] 2 Qd R 150 at [36]; Parsons v Raby [2007] QCA 98 at [23]. [24]; Graham v Queensland Nursing Council [2009] QCA 280 at [69], [70].

[19] Warren v Coombes (supra) at 552.

[20] House v R (1936) 55 CLR 499 at 504-5; Queensland Nursing Council v Fletcher [2009] QCA 364 at [97].

[21] No. 8 of 2001, Professional Conduct Committee (which became the Nursing Tribunal in 2003: see Health Legislation Amendment Act 2003 s 84), 31 January 2002.

[22] No. 8 of 2002, Professional Conduct Committee, 18 November 2002.

[23] No. 9 of 2002, Professional Conduct Committee 19 November 2002.

[24] No. 12 of 2002, Professional Conduct Committee, 19 March 2003.

[25] No. 2 of 2005, Nursing Tribunal, 29 March 2006.

[26] No. 6 of 2006, Nursing Tribunal, 14 December 2006.

[27] The other members of the court held the charge not established.

[28] Oral evidence of Dr Lawrence before Tribunal p 38 lines 20-22, p 40 lines 24-31.

[29] Graham v Queensland Nursing Council [2009] QCA 280 at [21]; Queensland Nursing Council v Fletcher [2009] QCA 364 at [97].

[30] Dr Lawrence spoke of the implications of the respondent's behaviour for his character in her report: Affidavit of Lucey Exhibit MJL-11 report p 6, paragraphs 6.15 and 6.19.

[31] R v Jones, ex parte McClintock [1996] 1 Qd R 524.

[32] Dooley v Ward [2000] QCA 493; [2001] 2 Qd R 436.