Nurses Act 1993-SS7 and 58 - Refusal to register - Application to review decision of Nurses' Board of Victoria - Whether applicant is a person suffering from "a mental impairment which significantly impairs ability to practise as a registered nurse"

DATE OF HEARING: 13 December 2001 and 6 February 2002

Medium Neutral Citation [2002] VCAT 181

Application for review of the decision of the Nurses' Board of Victoria refused.

1. This is an application pursuant to S58 of the Nurses Act 1993 in which RR ( "the applicant" ) seeks review of a decision of the respondent board of February 2000 whereby it refused RR's application for registration as a nurse.

2. I have come to the conclusion that it is necessary to set out the applicant's background in considerable detail. Before turning to that however I wish to outline the history of contact between the applicant and the respondent board and its predecessor.

3. RR's initial nursing qualifications were obtained in New Zealand. RR appears to have practised there for some time. After coming to Australia and working for a while in South Australia, RR obtained registration with the predecessor of the respondent, the Victorian Nursing Council, in about 1985. In about mid 1988 the applicant began to make contact with the council, indicating a desire to no longer be registered. Initial advice was that there was no grounds for cancellation but that RR need not renew registration when it was next due for renewal. RR did renew it for 1989 but not for 1990.

4. By early 1990 RR's registration had lapsed. RR began to make abusive calls to the council. RR made an application for a practising certificate pursuant to s28(3) of the Nurses Act 1958. The response of the council was that it had to be satisfied by RR that RR had no physical or mental impairment which would interfere with ability to practise as a nurse. This appears to have been a reaction to the abusive calls. RR was told that without such material the council would not again register RR.

5. At that time there seems to have been a significant issue between the applicant and the council as to which practitioner should be engaged to make an assessment of the applicant for the purposes of that application. Eventually a Dr E, consultant psychiatrist, saw the applicant and provided a report dated 2 August 1990. I have a copy of this report and will refer to it at a later stage.

6. The executive committee of the council considered the application for the issuing of a practising certificate on the 7 and 21 November 1990. The decision of the council was that RR had not satisfied it that RR had no physical or mental impairment which might interfere with ability to practise nursing.

7. On 10 July 1991 the council executive committee held an inquiry under S23C of the Nurses Act 1958 in relation to the proposed registration of the applicant. In circumstances which are in issue, the applicant did not attend the inquiry. It found that RR had become incompetent in the branches of nursing in which RR had been registered. It recommended that RR's application for registration be refused. The council complied with that recommendation.

8. On 1 October 1991 the applicant successfully appealed to the Melbourne Magistrates' Court against that decision of the council. In turn it appealed to the Supreme Court. On 18 March 1992 the decision of the Melbourne Magistrates' Court was set aside. On 25 September 1992 an appeal to the Full Court was unsuccessful.

9. On 19 August 1992 a further letter from the applicant to the council was treated as a fresh application for restoration of registration. The response of the council of 21 August 1992 was that any application for registration would have to be supported by evidence of continuing medical treatment over a period of at least two years.

10. A further application for registration was received by the council on 5 April 1993. The response was similar to that which had been given on 21 August 1992. A further application was made on 15 December 1993. On 31 January 1994 it was dismissed. Another appeal to the Magistrates' Court was dismissed by consent in March 1994. The respondent Nurses Board of Victoria was established on 1 July 1994. Shortly afterwards the applicant made a further application for registration. It was withdrawn on about 27 September of that year.

11. In the meantime the applicant complained to the Equal Opportunity Board. The complaint was heard on 17 February 1995. Dr LW was engaged to provide a report. Dr LW subsequently complained that the applicant had telephoned Dr LW on many occasions, often anonymously. Dr LW said that the calls were "routinely abusive". I have a report from Dr LW of 22 March 2001. In it Dr LW declines to re-examine RR on the ground that Dr LW's previous contact with RR would make it impossible for both of them. Dr LW asserts that upon RR becoming aware that Dr LW may again have a role in an assessing RR, the abusive phone calls resumed.

12. The application to the Equal Opportunity Board was unsuccessful. The applicant appealed to the Supreme Court. By consent the appeal was dismissed. In August 1995 the applicant again applied for registration. On 12 December 1995 that application was dismissed. An application for review was made with the then Administrative Appeals Tribunal. It came on for hearing before Mr M. Macnamara, DP. On 23 November 1995, it was dismissed and the applicant was ordered to pay costs. A further application for re-registration was made in April 1999. On 1 February 2000 this was dismissed. It appears to have been further considered on 20 July 2000 but was again refused.

13. The applicant commenced this review on 28 July 2000. The proceedings were dismissed on 6 October but reinstated on 20 November. They were stayed by Judge Davey, Vice President on 7 March 2001 until such time as the applicant underwent psychiatric examination. For that purpose RR consulted a Dr LC in March and April of that year. In May RR withdrew Dr LC's authority to provide a report. The proceedings were further stayed by Ms S. Davis, DP on 6 June 2001 again until such time as the applicant provided a psychiatric report.

14. In compliance with this condition the applicant consulted Dr MC. Dr MC saw RR on 12, 17 and 19 July. I have Dr MC's report of 3 August. Apparently following receipt of that report the applicant wrote to the Tribunal requesting the proceedings be withdrawn. This was done. However in mid October RR sought to have the proceedings reinstated. In contested proceedings before the President on 13 November it was ordered that they be reinstated. Those proceedings came before me on 13 December. Thus it can be seen that this application has a long and tortured history.

15. On the hearing of the application the applicant was not represented. RR did not call any evidence, indeed RR did not give evidence. RR was content to outline from the bar table what RR clearly believes to have been a history of discrimination and unfair conduct on the part of the respondent and others. Dr MC gave evidence. I will refer to Dr MC's evidence at a later stage. The only other oral evidence put before me was that of Dr LC, Alison Patricia Breaden a nurse adviser in professional conduct employed by the respondent and Mr David Were the director of professional training at the Leo Cussen Institute. Mr Peter Ryan the secretary of the Board of Examiners produced an affidavit filed by the applicant in RR's application for admission as a legal practitioner, explaining RR's history of offences.

16. Apart from that evidence the respondent put before the Tribunal a very large amount of material consisting for the most part of the applicant's medical records. Since the hearing I have spent a considerable amount of time examining that material. To a substantial extent it has expanded on my knowledge of the applicant's background. The substance of the respondent's case is that this material, seen as a whole, should satisfy me that RR has a psychiatric disability that is at a level that would inhibit RR's capacity to practise as a nurse and that this disability is at a level that requires it to be classified as a "mental impairment" for the purposes of s7(2)(e) of the Nurses Act 1993.

17. The respondent contends that this conclusion is the only one open from an examination of RR's personal history, RR's history of medical treatment, the opinion of medical practitioners who have seen RR and the behaviour RR has exhibited to those practitioners and others over the years. The respondent also seeks to rely upon the applicant's presentation in the proceedings before me and, earlier, before the President. It also refers to difficulties this Tribunal has had in preserving a proper relationship with the applicant. Without going into detail the difficulty has been that the applicant's behaviour when in contact with this Tribunal was such that the Chief Executive Officer directed that any contact between the applicant and the Tribunal administration be with a designated officer only. The applicant is one of just a handful of litigants in respect of whom this direction has been given.

18. To understand that submission it is necessary to go into the applicant's history in more detail that I have thus far. I acknowledge that this history has been gleaned from the medical records to which I have had access. It was made perfectly clear in the course of proceedings that RR strongly disputes many of the assessments that have been made and the justification for a number of the orders that have been made against RR. I acknowledge those issues. My reference to this history does not represent a conclusion on my part that it is completely accurate or an assumption that orders that have been made against the applicant were justified. I refer to these matters only because it is essential to do so to understand the way the respondent put its case before me. My conclusion will be influenced by the broad sweep of that history taking into account what the applicant has said about many of these episodes. Accordingly, it proceeds upon an assumption that the history is largely, but not necessarily completely, accurate. As will be apparent however, my conclusion has been more significantly influenced by the more recent assessments in the context of evidence of the applicant's conduct over many years, particularly a tendency to make unwelcome contact with health professionals together with behaviour in the course of the proceedings before me.

19. The history that emerges from the various files is more detailed that the summary which I will now give but it seems to me that this summary is sufficient for present purposes. The applicant was born in 1946 in New Zealand. RR was an only child. RR father's died in 1977 but RR's mother is still alive. RR's has filed an affidavit by RR's mother. I have had access to it.

20. In numerous medical histories the applicant has described a very happy childhood. RR was successful at school. RR commenced medicine at Otago University in 1965. After two years RR dropped out and commenced nursing training. RR successfully completed that three year course. Following graduation RR spent approximately three years overseas. RR then returned to a Bachelor of Science course in Dunedin majoring in psychology. It appears RR returned to nursing in about the late 1960's. In 1973 RR was working at Cherry Farm Hospital in New Zealand. RR was a state registered nurse, a graduate midwife and was studying psychology and physiology apparently with the intention of returning to medical school.

21. RR began to harass a doctor at the hospital at which RR was working. At first the harassment was anonymous. It seems to have continued at a very significant level. With time the repeated phone calls became threatening. The applicant made a number of uninvited visits to the doctor's home. At one stage RR gave as an explanation for this conduct a claim that he had unfairly reprimanded RR in front of a patient in 1969. These events culminated in the applicant being admitted as an in-patient at a psychiatric institution.

22. Upon discharge the applicant then came to Australia with the intention of pursuing studies in clinical psychology. RR started a masters program at Melbourne University. In 1979 RR was working at the Glenside hospital in Eastwood in South Australia. As a result of what was said to have been a worsening relationship between RR and other members of staff RR took an overdose of diazepam and alcohol resulting in RR's admission to the Glenside hospital. RR then returned to Victoria.

23. On 11 November 1983 RR was admitted to the Willsmere hospital in Kew. This was said to be because of aggressive and threatening behaviour at the Austin hospital at which RR had been working. Before me RR disputed the justification for this admission. In any event RR was admitted for three days only. The Austin hospital records note that there had been a complaint of threatening telephone calls to a doctor at home. Apparently at the Willsmere hospital a diagnosis of a paranoid personality with underlying schizophrenic illness was made.

24. Following discharge from Willsmere the applicant appears to have been in a state of considerable conflict with the Austin hospital. This was characterised by demanding aggressive behaviour with numerous abusive phone calls to various departments of the hospital. Despite the applicant at one stage agreeing to desist with this conduct it continued. It resulted in admission to the Larundel hospital on 6 September 1984. It is clear that those examining at Larundel had great difficulty reaching a conclusion about the applicant's condition. Ultimately they reached a diagnosis of either schizophrenia or bi-polar disorder. RR was discharged on 25 September 1984.

25. The hospital records suggest that the numerous abusive phone calls to the Austin hospital continued following discharge. The file records many events involving conflict with the staff particularly the psychiatric staff in the early part of 1985. In February 1985 the applicant was assessed by Dr FJ a senior psychiatric registrar in consultation with a Dr O. The applicant was initially hostile but later co-operative and pleasant. RR claimed to have been wrongfully sent to psychiatric hospitals, that the entries in RR's Larundel file were deliberate distortions of the truth and that RR had been persecuted by Professor B at the Austin hospital. That interview resulted in a provisional diagnosis of schizophrenia. The comment was made that RR's lack of insight into RR's condition meant that it was very unlikely that RR would undergo any psychiatric treatment. The level of conflict between the applicant and the Austin hospital continued. On 2 May 1985 RR was again certified under S42 and admitted to the Willsmere hospital. RR came under the care of a Dr S. A relationship involving considerable conflict between the applicant and Dr S appears to have developed.

26. The applicant absconded from Willsmere on 12 May 1985. On 11 June, after the Royal Melbourne Hospital reported receiving abusive telephone calls from RR, RR was returned to Willsmere by police. The hospital file records frequent and persistent phone calls by the applicant to senior hospital staff and external authorities to protest against detention and in an attempt to secure release. One of these calls was described as having been abusive. Otherwise, however, the applicant's period of detention appears to have been uneventful. On 14 July 1985, RR once again absconded and then returned to New Zealand. Even though RR had absconded, a discharge form was prepared. It concluded that RR was suffering from hypomania and chronic paranoid features.

27. I have found it difficult to determine the course of events between RR's return to New Zealand in July 1985 and further contact with Australian authorities from 1988 onwards. It is clear, however, that that the applicant came back to Australia and resumed working as a psychiatric nurse at Larundel Hospital. An internal memo from Professor B of the Austin Hospital dated 27 November 1987 states that the hospital had received numerous "abusive", "aggressive" and "delusional" phone calls from the applicant, sometimes using a false name. The memo noted that Professor B's enquiries had established that the applicant's work at Larundel was regarded as excellent. Professor B instructed staff at the Austin to refuse to speak to the applicant.

28. The Applicant began to make contact with the Nursing Council in 1988 and 1989. As mentioned above, RR also seems to have attended the Lincoln Institute, obtaining a Bachelor of Applied Science Degree in advanced psychiatric nursing. For a time RR worked at Royal Park psychiatric hospital.

29. On 29 February 1988, the applicant was involuntarily detained pursuant to the Mental Health Act at the psychiatric in-patient section of the Plenty Hospital. The hospital records indicate that this followed the applicant attacking staff and damaging property at a doctor's surgery at Doncaster. RR was discharged the following day without any follow-up treatment.

30. The records of the Ellery Clinic record three phone calls from the applicant in May 1988 and a further three in late July and August. The records indicate that the applicant was requesting psychiatric treatment and a reference for the purposes of employment.

31. On 7 September 1989, the applicant was involuntarily detained at Larundel pursuant to the Mental Health Act. The hospital records indicate that RR's local doctor had reported that RR was suicidal. RR was reportedly abusive at the time of admission and attacked the certifying psychiatrist. Hospital records indicate that RR attacked two other staff members after having been admitted. RR was discharged on 9 September 1989 following a determination by the Hospital's Director of Clinical Services that there were no grounds for continued detention pursuant to the Mental Health Act. It was suggested that RR should seek follow-up treatment from a general practitioner.

32. An internal memo of the Koonung Community Health Centre dated 3 October 1989 reports frequent telephone calls and "difficult behaviour" by the applicant. The memo directed staff to read a prepared statement to the applicant in reply to requests for treatment and for an employment reference.

33. On 6 April 1990, the applicant was again involuntarily detained at Larundel pursuant to the Mental Health Act. The hospital records indicate that RR had behaved violently towards a general practitioner and his receptionist. RR was discharged on 9 April 1990. RR's discharge form suggested that RR was suffering from a personality disorder. It was again suggested that RR should seek follow-up treatment from a general practitioner.

34. After the loss of registration in 1990 as outlined above RR went to NSW and worked at the Cumberland Hospital in Paramatta. In 1990 RR was working at the Genista Nursing Home in Burwood when RR commenced a Master of Psychology course at Sydney University. This RR did not complete.

35. On 21 August 1990, the applicant was once again involuntarily detained at Larundel pursuant to the Mental Health Act. RR was eventually discharged on 29 August in compliance with a decision of the Mental Health Review Board. The applicant was reportedly admitted after making threatening phone calls to a general practitioner and then assaulting him. A consultant psychiatrist's evidence to the Mental Health Review Board was that the applicant had verbally abused and physically attacked a number of doctors in the past. RR reportedly refused to be examined for three days following admission. RR was also reported to have refused oral medication but to have eventually accepted an injection. However, whilst the applicant was described as being "demanding" of staff, the period of detention in August 1990 appears to have been otherwise relatively uneventful.

36. RR claimed to have been assaulted by a number of doctors in Sydney and by the police. The Board noted that the applicant was still at that stage a registered and practising nurse in New South Wales.

37. The Mental Health Review Board noted of the applicant that:-

"Despite RR's frequent admissions to psychiatric institutions, RR had received no regular medication or psychiatric supervision in the public hospital system. The one exception to this was a period of approximately twelve months in 1973 following RR's first admission to hospital in New Zealand when RR had been placed on the anti-psychotic medication Modecate. The effect of this treatment was unclear. In part the lack of supervision was attributable to RR's refusal to persist with it. Alternatively, RR became abusive to the treating psychiatrist and contact had been terminated. Principally, however, RR had not been treated because RR's core diagnosis had been one of personality disorder....

Psychiatric intervention was complicated, Dr SY said, by the fact that, on this occasion, no clear diagnosis for RR's condition had emerged. Dr SY's provisional diagnosis was that RR suffered from an atypical psychosis with histrionic, narcissistic and borderline personality features. The lack of clarity with respect to diagnosis made treatment difficult....RR's predominant diagnosis had been one of personality disorder of the histrionic or borderline type."

38. The Board took note of the opinion of the consultant psychiatrist who had declined to extend the applicant's involuntary detention at Larundel Hospital in April 1990. At that time, Dr SJ believed that the applicant suffered from a severe personality disorder with histrionic, narcissistic and borderline features which was "not likely to be amenable to any form of treatment". At the time of the applicant's admission in August 1990, Dr SJ stated that diagnosis of the applicant's mental condition presented formidable problems. Dr SJ's provisional diagnosis at that time was that that the applicant was suffering from a severe paranoid personality disorder. By the time of the hearing some eight days later Dr SJ had concluded that RR "may be suffering from an atypical psychosis" and that "a trial of anti-psychotic medication is justified".

39. The reasons of the Board include a statement that RR had suggested that RR had a "histrionic personality disorder" which did not amount to a mental illness. RR acknowledged finding it difficult to control impulses when angry. RR described the behaviour which had led to involuntary detention as having been provoked but inappropriate. RR apologised for the assault and property damage. RR promised to pay for the cost of the property damage and to refrain from repeating such behaviour. RR also admitted to having overdosed on medication in the past, although not for a period of more than a year preceding the Board's hearing. RR agreed to treatment with Modecate as an outpatient whilst noting a view that it had proved unsuccessful in the past.

40. As noted above, the Mental Health Review Board ordered the applicant's release from involuntary detention on 29 August 1990. In doing so, it noted that any further injury or damage inflicted by the applicant could result in criminal charges.

41. Larundel Hospital's records indicate that the applicant declined to attend for follow-up treatment as an outpatient. A note on the applicant's file at Koonung Community Health Centre dated 16 October 1990 records 10-15 abusive calls from the applicant in one day.

42. On 14 October 1992, the applicant was again involuntarily detained at Larundel pursuant to the Mental Health Act. RR was eventually discharged on 21 October again in compliance with a decision of the Mental Health Review Board. RR was reportedly admitted after making threatening phone calls to a local Member of Parliament whom RR blamed for failing to have RR's nursing registration restored. No direct evidence in support of this allegation was presented to the Mental Health Review Board.

43. The certifying psychiatrist reported that the applicant was exhibiting symptoms of hypomania. Another examining psychiatrist reported symptoms of bi-polar effective disorder. It was noted again that the major professional diagnosis of the applicant had been that of a personality disorder. It was felt that the applicant required further assessment but it was also noted that examination was hindered by rudeness and lack of cooperation. Hospital records repeatedly describe the applicant as "demanding and intrusive" towards staff. RR informed the Mental Health Review Board that RR was refusing to take medication because RR did not believe that RR was mentally ill. In ordering RR's release from involuntary detention, the Board again noted that threatening and disruptive behaviour on RR's part could be dealt with by the criminal law.

44. The applicant started a law course in Sydney in about 1992. RR graduated in 1995. RR came to Melbourne in that year and commenced at the Leo Cussen Institute. I have access to RR's file at Leo Cussen. Initially RR performed very well. Later RR fell into conflict with Mr David Were Director of Professional Training. The result was that RR was unable to obtain the necessary certificates to pursue an application for admission into legal practice. The Leo Cussen file was put into evidence. It records a number of angry and accusative, but not abusive, calls.

45. Records of the Central East Crisis Assessment and Treatment Team record a referral of the applicant on 1 December 1994, a further seven referrals between October 1995 and March 1996, two more referrals in June 1996 and a final referral in December 1996. Of the eleven referrals during this two year period, three came from the Koonung Community Health Centre, one from each of the Monash Medical Centre and the Doncaster police and a further six from various general practitioners or their staff. The referrals all related to telephone calls from the applicant, almost all of which were described as abusive and many of which were described as threatening. These events occurred in this State despite the applicant being a full-time student in New South Wales.

46. In 1996 RR decided to go to India to undertake a course at the Kasturba Medical College in Manipal. RR claimed this was the third ranked medical school in a country of many medical schools. RR has successfully completed the course. RR's detailed results have been supplied. They are outstanding. The all up cost to RR of the course has been something like $200,000. Obviously RR hopes ultimately to gain registration as a medical practitioner in this country and, perhaps, elsewhere. RR has already sat for a number of exams to this end. RR has completed a brief period as an intern at the Box Hill Hospital.

47. I had been under the impression that RR was absent from Australia for some years whilst pursuing medical studies. However, records subpoenaed for the hearing of this matter indicate that in 1997 and 1998, the applicant was again in contact by telephone with a number of health services in Victoria. The calls were made exclusively between October and February of the relevant years. It may be that that these dates fell outside the Indian academic year.

48. The records of the Koonung Community Health Centre record persistent and occasionally somewhat abusive phone calls from the applicant from October 1997 to February 1998. There are at least ten file notes recording these calls and a similar number recording calls received from the applicant in December 1998, but some file notes purport to record multiple calls. The phone calls recorded in December 1998 were mainly abusive in character. Records of the Central East Crisis Assessment and Treatment Team also record further referrals with respect to the applicant during these periods of time. Referrals were received on 8 January 1997, 22 October 1997, 29 October 1997, 7 January 1998 and 12 December 1998. All referrals related to alleged abusive telephone calls from the applicant. A referral to the Preston and Northcote Community Hospital on 28 October 1998 also related to alleged abusive telephone calls from the applicant.

49. On the 20 of March last year, the applicant was involuntarily detained at the Austin and Repatriation Hospital pursuant to the Mental Health Act. RR was eventually discharged on 2 April in accordance with a decision of the Mental Health Review Board. In February and March 2001, RR had made numerous telephone calls to a number of the mental health services with whom RR had been in contact in the 1990s. I have had access to the records of these calls on the files of the relevant services. The records indicate that RR's calls were almost exclusively focused on a request for psychiatric assessment for the purposes of the proceedings before this Tribunal. I have recounted earlier that His Honour Judge Davey ordered the proceedings stayed on 7 March 2001 until the applicant underwent psychiatric examination.

50. The records of RR's telephone calls on the relevant medical files indicate that advice was given to RR about availability of treatment. Overwhelmingly, however, the focus is on RR's previous history, concern over the possibility that RR might respond abusively or violently to dissatisfaction with handling of requests and need for liaison with other health professionals about how to deal with RR. A memo dated 7 March 2001 to Central East Area Mental Health Services duty workers from Consultant Psychiatrist Dr SW directed that contact from the applicant should be dealt with as follows:-

"1. A general but brief appraisal of circumstances and needs/risks should be made ( to the extent possible with RR's limited cooperation ). An extensive attempt at phone assessment is not appropriate.

2. If RR wishes RR can access our services at any time by attending an interview with Dr SW and a co-worker on the next available Tuesday at 2.00 pm. This will be for the purpose of discussing treatment and care options and not for the purpose of assessing capacity for reporting to the Nursing Board.

3. Should RR wish to access psychiatric assessment in order to return to nursing RR has been provided with a list of appropriate professionals by the Nurses Board and the Chief Psychiatrist's Office and RR should be referred to these.

4. In cases where circumstances warrant consideration of alternate treatment approaches please contact Dr SW at any time.

5. At no time should RR be seen alone by any member of staff due to the risk of assault."

51. I have also had access to the "Report on Continued Detention for the Mental Health Review Board" prepared for the applicant's hearing on 2 April 2001. The report notes threats made by the applicant in the course of telephone calls, citing two specific examples. It states that admission was arranged "given past history of actual violence". A perusal of copies of the original records of the applicant's very numerous telephone calls indicates that only a small number could reasonably be characterised as threatening or abusive. The files also record calls believed by the workers who received them to have been made by the applicant anonymously or using false names or identities. However, apart from demanding behaviour toward staff and persistent requests to be released, the applicant's period as an involuntary inpatient appears to have been as uneventful as the earlier ones.

52. The Mental Health Review Board ordered the applicant's release from hospital on 2 April 2001. On the basis of the medical evidence presented in support of the applicant's continued detention, the Board found that on the balance of probabilities, the applicant was suffering from a personality disorder rather than a mental illness. The records of the Austin and Repatriation Hospital indicate that diagnosis of the applicant's condition upon discharge was unclear. A question mark appears before the words "schizoid personality disorder" and a further question mark before the words "schizoaffective disorder".

53. In addition to the report and oral evidence of Dr MC I have had access to reports of Professor Yof 5 December 1990 and 5 February 1991 and Dr E of the 20 February 2001. In Professor Y's earlier report, Professor Y reported to the Victorian Nursing Council, he thought at that time the applicant was "in good spirits and working successfully". I gather at that time RR was working at a hospital in NSW. Professor Y thought that RR's psychiatric history was explicable in terms of a mood disorder. RR dominant mood disorder had been depression but one episode in 1985 of which he had a description involved unusual energy, productivity and decreased need for sleep. Professor Y thought that met the criteria for a manic episode, thus thought RR suffered from bi-polar disorder. At that stage Professor Y thought RR should be re-issued with a practising certificate. It is apparent that upon receipt of that report the Victorian Nursing Council responded to Professor Y enclosing documentation providing a more detailed history than that to which Professor Y had previously had access. I would assume that this material is consistent with that which I have outlined above.

54. In outlining the effect of that material Professor Y said

"RR was repeatedly observed to be irritable, verbally aggressive, abusive, socially intrusive and acting in ways that were socially and thus professionally harmful to RR. RR's irritable mood may well represent part of the manic phase of a bi-polar disorder. I think that your correspondence brings out the manic pole of RR's illness much more clearly than does RR's own history."

Professor Y concluded that RR had a bi-polar disorder for which RR has never had appropriate treatment. He regarded the condition as "imminently treatable".

55. It is clear that in 1991 Professor Y thought that if only RR would accept appropriate treatment RR would be well able to do professional work. Although Professor Y does not say so specifically, my interpretation of Professor Y's opinion is that Professor Y thought that without such treatment RR ought not be permitted to return.

56. Dr E a consultant psychiatrist saw the applicant in 1990. Dr E thought RR was acutely psychotic. Dr E thought the condition was of long standing and was severe. The respondent provided Dr E with material giving its version of the intervening events in January 2000. Dr E interpreted that material as demonstrating that the illness had continued. Dr E thought that the best possible outcome would have been that RR would consent to continuing psychiatric management. If that were to occur it was possible that RR would have a good outcome. However, in the absence of an acceptance of treatment and a good outcome Dr E thought RR unsuitable for a return to nursing.

57. Dr LC who had been engaged to provide a report prior to Dr MC also gave evidence. Dr LC saw the applicant on 22 and 31 May 2001. Following the second consultation Dr LC began to receive numerous phone calls from the applicant. The number and nature of these calls intimidated Dr LC. Dr LC refused to have further contact with the applicant. According to Dr LC RR then started to call staff at the hospital at which Dr LC worked and who knew nothing of the applicant. Dr LC said a characteristic of these calls was that the applicant was highly excited and ultimately threatening. RR was abusive towards Dr LC and his staff. RR warned Dr LC he should "be careful". RR withdrew Dr LC's authority to provide a report, and thus Dr LC declined to do so. To me Dr LC said that the total number of calls received from the applicant was between 20 and 30.

58. It will be noted that over the years there has been considerable difficulty in providing a diagnosis of the applicant's psychiatric condition. For present purposes I have no hesitation in concluding that the applicant suffers from at least, a severe personality disorder. It appears to have histrionic, narcissistic and paranoid features.

59. It is apparent from Professor Y's report from which I have quoted that even if RR's condition is to be properly defined as a bi-polar disorder, of itself it would not disqualify RR from returning to active nursing provided RR was prepared to undertake a course of proper psychiatric treatment. This the applicant has always refused to do. RR's ostensible reason is that RR is convinced that RR does not suffer from any psychiatric illness and thus is not in need of any treatment.

60. As RR reiterated many times, RR is convinced that the current predicament is a result of a conspiracy involving numerous psychiatrists, the Nursing Board and others with whom RR has been in conflict. RR's major point is that any person who has achieved academically to the extent that RR has could not be "mad" ( as RR put it ).

61. There is no doubt that the applicant's academic achievements have been remarkable. It is very easy to understand how any person with that academic background would feel frustrated and discriminated against when not permitted to employ those academic qualifications in a professional life. It is relevant to observe that the nursing registration that RR now seeks is only one of a number of professions for which RR is academically qualified. The others are psychology, the law, medicine and, perhaps science. This spread of academic qualifications would, I assume, be quite unique in an applicant for nursing registration. Although unique and perhaps in a large part unnecessary for an applicant for nursing registration, it seems to me that those qualifications, particularly the medical degree, must strengthen RR's application.

62. As mentioned earlier there is no doubt that the applicant suffers from at least a personality disorder. As RR pointed out of itself the existence of a personality disorder would not mean that RR was not a fit and proper person to hold registration as a nurse. The difficulty for the applicant is the extreme nature of the behaviour which, I assume, is the manifestation of that personality disorder. In RR, the most adverse feature of that behaviour has been a tendency to harass, to a remarkable degree, people with whom RR has come into conflict.

63. For the most part that conflict seems to be of RR's own creation. The tendency to harass, mostly by telephone, has been of long standing. The history to which I have access demonstrates that it has been a feature of the applicant's behaviour for almost thirty years. In so far as it emerges from the history that I have outlined above, it consists of the following:-

* When RR was about 26 or 27 years of age RR significantly harassed a medical practitioner working at the Otago Hospital and the medical practitioner's partner. This resulted in RR's initial certification.

* The threatening telephone calls to a doctor recorded in the Austin Hospital records referred to in Paragraph 23.

* A year later again to the Austin Hospital numerous calls were received by it in 1984 and 1985. These are referred to in Paragraphs 24 and 25.

* In 1985 to the Royal Melbourne Hospital referred to in Paragraph 26.

* In 1987 again to the Austin Hospital. These are described as numerous abusive, aggressive and delusional phone calls from the applicant. These are referred to in Paragraph 27.

* The applicant's criminal history refers to one count of using a phone service to menace, harass or offend which was heard at the Preston Magistrates' Court on 28 April 1988. The charge was adjourned for 12 months upon the applicant entering into a good behaviour bond. It was a condition of the bond that RR not contact the surgery or home of a Dr G. On 8 March 1990 at the Melbourne Magistrates' Court RR was convicted, it appears, of four counts of using a telecommunication service to harass and fined $100 on each count.

* In 1989 to the Koonung Community Health Centre in the circumstances referred to in Paragraph 32.

* In 1990, there were multiple calls to a general practitioner in the circumstances referred to in Paragraph 35.

* In 1990, again, to the Koonung Community Health Centre as described in Paragraph 41.

* In 1992 to a local member of Parliament as set out in Paragraph 42.

* In 1995, and then again in 2001, to Dr LW as described in Paragraph 11.

* In 1994, 1995 and 1996 as reported to the Central East Crisis Assessment Team as described in Paragraph 45.

* In 1996 to Mr David Were at the Leo Cussen Institute as described in Paragraph 44. Mr Were did not claim that these calls were abusive.

* The multiple calls referred to in Paragraph 47 took place in 1997 and 1998.

* In 1997 and 1998 again to the Koonung Community Health Centre in the circumstances referred to Paragraph 48.

* In 2001 to Dr LC in the circumstances outlined in Paragraph 57.

* To the nurse advisor in professional conduct employed by the respondent, Alison Breaden, between 1999 and October 2001. Ms Breaden gave evidence that on many occasions she had been the applicant's point of contact with the respondent board. Her first telephone communication was in December 1999. Ms Breaden said that in evidence that on that occasion the applicant said in a loud screaming voice "I know you. You killed my baby. I hope you are raped while you are walking down the street and if I happen to come across you when this was happening, I would laugh my head off". Other calls were received from the applicant in February 2001. Ms Breaden said that on 2 March 2001 she received a call from RR in which RR screamed that the Nurses Board of Victorian was manipulating RR's telephones in Australia and India. RR further threatened to bring a shotgun and kill everyone at the Board and that we had better be wearing our flak jackets. On 15 March 2001 amongst other things the applicant said "I hate your guts and if I was violent I would kill the lot of you". There were numerous other calls not all of which have been abusive. Ms Breaden said, and I accept, that the majority of calls received from the applicant were abusive in character.

* The history of the applicant's contact with this Tribunal. As indicated the nature of that contact has been such that registry staff are no longer permitted to speak to the applicant. Any contact with this Tribunal must be through a designated officer.

64. The Board also asked me to take into account my observations of the applicant's conduct before me. They made the comment that RR's conduct before me has been unbalanced or irrational. However they claimed that this was not as obviously so as it had been on a previous occasion when the applicant appeared before the President. I was provided with both a transcript and a tape of that hearing. There is no doubt that, at times, to the Tribunal the applicant presents as angry and emotional. It should be noted however, that at no time has RR's behaviour been abusive or threatening.

65. In so far as it is relevant S7 of the Nurses Act 1993 provides:-

"(1) The Board must grant registration in a division of the register to an applicant, if--

(a) the applicant is qualified for registration in that division; and

(b) there are no grounds under sub-section (2) under which the Board may refuse to grant registration to the applicant; and

(2) (e) that, in the opinion of the Board, the applicant is unfit to be registered because she or he has a physical or mental impairment which significantly impairs her or his capacity to practise as a registered nurse;"

66. It is common ground that the applicant is qualified for registration pursuant to s7(1)(a). The primary issue before me is whether in my opinion RR is "unfit to be registered because RR has a ...mental impairment which significantly impairs RR's...capacity to practice as a registered nurse"

67. The respondent contends that the applicant has such a mental impairment. It relies upon the opinions of medical practitioners who have seen the applicant over the years and who have expressed an opinion. It also relies upon the history which I have outlined in detail above. The point made on behalf of the Board is that I am entitled to draw my own conclusion from all of the evidence. As I understand his point, it is that the only conclusion open in respect of a person who has behaved in the manner that I have attempted to describe and who has the history that I have outlined is that such person has the condition defined by S7(2)(e).

68. I have already referred to the relevant medical opinions. The most recent is, of course, that of Dr MC. Dr MC made it clear that in a case like this a proper evaluation of the applicant's psychiatric condition required not only a consultation but access to a detailed history. The type of history that an examiner was likely to obtain in a consultation would be simply inadequate and not give the degree of insight into the applicant's psychological state that a more detailed history would disclose.

69. Following his three consultations on the 12, 17 and 19 of July Dr MC said:-

"Having emphasised the fact that my opinion is simply one of many expressing different views as to a diagnosis, I can only say that I believe that RR has not shown any specific evidence of psychiatric abnormality in my presence. However I must defer to the evidence of unusual and at times aggressively hostile statements documented and from my own experience on cases such as this that an opinion might be based on behaviour rather than admitted symptom may be more helpful. On this basis I believe RR is suffering from the presence of a Behaviour Disorder associated with many activities outside those acceptable in the community at large. This might also include antisocial behaviour, such as abusive phone calls, directed to a number of examining doctors and their staff."

70. When that report was provided to the respondent it made available to Dr MC various hospital records and psychiatric reports. Again I assume that this is same material to which I have access and which I have summarised in these reasons. After an analysis of that material Dr MC provided the following further opinion:-

"In my view I believe the diagnosis is that of an inherent personality disorder which may display itself in a wide variety of symptoms so that it is just as much as an illness as any other diagnostic category in psychiatry. It might be said that RR's is a condition which has attracted many diagnoses and in my view may be called either an antisocial personality disorder or a narcissistic personality disorder. The first is self explanatory as the sufferer exerts a number of antisocial characteristics which often may lead towards criminality. I do not believe this to be the case with RR. However the second diagnosis of a narcissistic personality I believe is more than likely to be the correct one. It embodies a grandiose sense of self importance and believes that he/she is special or unique characteristics but lack empathy and is unwilling to recognise or identify with feelings and needs of others. A full list of characteristics appears in DSM 4."

71. In the course of oral evidence Dr MC said that the applicant apparently suffered from a personality disorder the symptoms of which had been displayed on many occasions. It is a condition that RR has had for a very long time. The variety of symptoms is the reason for the variety of diagnoses that have been made over the years. This is a characteristic of a behaviour disorder and is just as disabling psychiatrically as the conditions of schizophrenia or depression. Dr MC thought that the applicant was mentally ill and was not a fit and proper person to practise as a registered nurse by reason of that illness. Dr MC thought that the evidence that had been collected over the years established that this was the position.

72. In the course of cross-examination the applicant put what might be said to be contrary opinions to Dr MC. They included the opinion of Dr B who apparently saw the applicant for the first time in December of last year. The applicant did not put Dr B's reports before me but had delivered a copy of it to the respondent. It was part of the material the respondent put before me. As at December 2001 Dr B thought that the applicant's "mental state is stable and her affect behaviour and cognition are appropriate".

73. I accept Dr MC's evidence. It was clear from Dr MC's demeanour in cross-examination that Dr MC has become intolerant of the applicant. That was not always the case. Dr MC's conclusion following the original consultations was a sympathetic one. Nevertheless it is apparent that particularly after access to the applicant's history in so far as it emerges from the material I have referred to above, Dr MC has concluded that the applicant is "mentally ill". I agree with this conclusion. In doing so I have taken into account the history I have outlined above, my observations of the applicant and the expert evidence that has been placed before me.

74. In my opinion, it does not necessarily follow that each person who suffers from a personality disorder or even one who is mentally ill necessarily has a "mental impairment which significantly impairs capacity to practise as a registered nurse." Nevertheless, I think that standard has been reached in this case. The position is not straightforward. The applicant has been working in institutions within the health care system on and off for over 30 years. Further RR has the very considerable advantage of medical degree. The history that I have outlined above involves episodes of considerable conflict arising in the workplace, most noticeably at the Austin Hospital over a considerable period of time. Nevertheless, there are other periods when it would appear RR has worked in a manner that has satisfied superiors.

75. The fact remains that the applicant is now a person who suffers from a mental illness the most obvious manifestation of which is a tendency to come into conflict with others. To a very remarkable degree when in conflict the applicant is prone to become abusive and threatening, particularly over the phone. Had the applicant's history of such episodes been confined to just a few or if there were no recent examples of this manifestation of psychiatric or mental illness, I would be of the opinion that I could not be satisfied that the difficulty "significantly" impaired capacity to practise as a registered nurse.

76. I do not accept RR's claim that RR's psychiatric history is the consequence of a conspiracy of, or discrimination by, health professionals. On the contrary, I believe it to have been the proper outcome of competent evaluation of RR's behaviour over the years. The applicant's condition appears to be treatable. I have little doubt that if RR could develop an insight into RR's condition and accept treatment RR would be able to pursue the professional career for which RR is otherwise so well qualified. At the moment RR appears to have no such insight.

77. For RR the problem is that this long term demonstration of a psychiatric or mental condition appears to be part of RR's current demeanour. By no means am I satisfied that it is a reducing feature of RR's presentation. My conclusion is that RR does suffer from a mental impairment which significantly impairs RR's capacity to practise as a registered nurse.