Shelley v Nurses & Midwives Tribunal of NSW & Anor

There was no order as to costs. 9 The plaintiff, by summons filed on 11 August 2006, appealed to this court pursuant to s 67 of the Act. The summons sought the following relief: "(1) A declaration and order that the Determination of the First Defendant in relation to s 64 Orders in the matter of the Nurses and Midwives Tribunal Inquiry under s 61 of the Nurses and Midwives Act 1991 (NSW) ("the Act") dated 20 July 2006 to the effect that the Tribunal had the jurisdiction to make the orders is invalid, void and of no effect.

(2) An Order that the Determination of the First Defendant that the Plaintiff's name be removed from the Register of Nurses and from the Register of Midwives for a minimum period of 2 years and 9 months from 20 July 2006 be set aside.

(3) Such further and other orders that the nature of the case may require.

(4) Costs." The complaint 10 The amended complaint alleged the plaintiff, being an accredited nurse under the Act: Complaint One Has been guilty of unsatisfactory professional conduct within the meaning of section 4 of the Act in that the nurse: (i) has demonstrated a lack of adequate knowledge, skill, judgment and/or care in the practice of nursing; and/or (ii) has been guilty of improper or unethical conduct relating to the practice of nursing. Particulars of Complaint One: On 7 June 2003 the nurse performed an evening shift in Ward G3 surgical at John Hunter Hospital Newcastle. During the shift:

1. The nurse rubbed Patient A's bottom, thigh and hip in an inappropriate manner, prior to administering an injection.
2. The nurse addressed Patient A in an inappropriate manner calling her darling and sweetheart.
3. The nurse rubbed and stroked Patient A's bottom, thigh and hip in an inappropriate manner whilst offering to shower Patient A.
4. Whilst showering Patient A the nurse: (a) threw a face washer and soap at Patient A which hit her in the groin, (b) washed Patient A's legs in an inappropriate and suggestive manner, (c) inappropriately touched and rubbed Patient A's breasts, (d) hit Patient A on the head with a shampoo bottle.
5. After Patient A had been showered the nurse…swung Patient A's underpants above her head and laughed.
6. The nurse gave Patient A an injection of Pethidine at about 18:15: (a) less than three hours after the patient's last injection of Pethidine given at about 17:15, contrary to the patient's written medication order, (b) in circumstances where the patient indicated to the nurse she did not require further analgesia.
7. The nurse gave Patient A a further injection of Pethidine at about 21:15 in circumstances where the patient indicated to the nurse she did not require further analgesia and the patient had been given three doses of Pethidine 50mg in the previous seven hours.
8. The nurse gave Patient B an injection of Pethidine at about 21:00: (a) less than four hours after the patient's last injection of Pethidine given at 19:40, contrary to the patient's written medication order, (b) in circumstances where the patient indicated to the nurse she did not require further analgesia, (c) the drug was administered intravenously when the patient's medication order specified it should be given intramuscularly, (d) the nurse failed to properly record the dose of Pethidine the patient received in that the nurse's entries in the patient's records show that the patient was given 75mg at 19:40 and 21:00 whilst the nurse's corresponding entries in the drug register show that the patient received 50 mg and 25 mg was discarded on each occasion.
9. The nurse provided nursing care when she was adversely affected by drugs and/or alcohol.
10. The nurse self administered Pethidine whilst on duty. Complaint Two

This complaint was in the same terms as complaint one save that the words 'unsatisfactory professional conduct' in the first line of complaint one were replaced by the words 'professional misconduct' in complaint two. Complaint Three Has been guilty of unsatisfactory professional conduct within the meaning of section 4 of the Act in that the nurse: (i) has demonstrated a lack of adequate knowledge, skill, judgment and/or care in the practice of nursing; and/or (ii) has been guilty of improper or unethical conduct relating to the practice of nursing. Particulars of Complaint Three

1. At about 1245 hours on 22 April 1998 at Warners Bay Hospital the nurse administered to Patient C an injection of Pethidine less than four hours after the patient's last injection of Pethidine given at 10.35 hours the same day, contrary to the patient's written medical order.
2. On 12 August 1998 at Warners Bay Hospital the nurse destroyed 25 millilitres (25 milligrams) of Pethidine without having the destruction witnessed in accordance with Clause 123(2)(a) Poisons and Therapeutic Goods Regulations 1994.
3. On 12 August 1998 at Warners Bay Hospital the nurse recorded a telephone order from Dr Mitchell to administer 75 to 100mg of Pethidine to Patient D but did not have the telephone order witnessed by another nurse as required by the hospital and New South Wales Health Department policy.
4. At 0915 hours on 20 September 1998 at Warners Bay Hospital the nurse administered an injection of Pethidine to Patient E when the administration of that drug had not been authorised or directed by a medical practitioner. Clause 100 Poisons and Therapeutic Goods Regulations 1994.
5. At 1210 hours on 20 September 1998 at Warners Bay Hospital the nurse administered Pethidine to Patient E when the administration of that drug had not been authorised or directed by a medical practitioner. Clause 100 Poisons and Therapeutic Goods Regulations 1994.
6. At 1400 hours on 20 September 1998 at Warners Bay Hospital the nurse administered Pethidine to Patient E when the administration of that drug had not been authorised or directed by a medical practitioner. Clause 100 Poisons and Therapeutic Goods Regulations 1994.
7. At 1210 hours on 20 September 1998 at Warners Bay Hospital the nurse administered to Patient E an injection of Pethidine to Patient E: (a) Less than four hours after the patient's last injection of Pethidine given at 0915 hours, contrary to the patient's written medical order. (b) When the nurse should have known the interval for administration in the medical practitioner's order had been altered and not initialled by the authorising medical practitioner. Clause 100 Poisons and Therapeutic Goods Regulations 1994.
8. At 1400 hours on 20 September 1998 at Warners Bay Hospital the nurse administered an injection of a schedule 8 drug, Pethidine to patient E contrary to the medical officer's written order for Patient E.
9. On 20 September 1998 at Warners Bay Hospital the nurse destroyed Pethidine without having the destruction witnessed in accordance with Clause 123(2)(a) Poisons and Therapeutic Goods Regulations 1994.
10. About 2100 hours on 30 January 1999 at Warners Bay Hospital the nurse dispensed Pethidine 300mg into a patient controlled analgesia syringe driver for patient F without having the removal of the drug from the drug safe or the dispensing of the drug into the syringe driver witnessed by a second registered or enrolled nurse.
11. About 1300 hours on 31 January 1999 at Warners Bay Hospital the nurse destroyed 10 millilitres of Pethidine without having the destruction witnessed in accordance with Clause 123(2)(a) Poisons and Therapeutic Goods Regulations 1994.
12. On 31 January 1999 at Warners Bay Hospital the nurse recorded a telephone order from Dr Santhanan to administer 100mg of Pethidine to Patient G every three to four hours but the nurse did not have that telephone order witnessed by another nurse as required by the Hospital and New South Wales Health Department policy. Complaint Four

This complaint was in the same terms as complaint three. This was erroneous as complaint four should have substituted the words 'professional misconduct' for 'unsatisfactory professional conduct' in the first line. The proceedings were however conducted on the basis that the words "Professional misconduct" were substituted for "Unsatisfactory professional conduct" in the first line. Complaint Five Suffers from an impairment within the meaning of section 4A of the Act Particulars of Complaint Five

1. … suffers from a physical and/or mental impairment, condition or disorder, namely addiction to narcotics and/or migraine headaches, which detrimentally affects or is likely to detrimentally affect her physical and/or mental capacity to practise nursing.

The findings of the Tribunal as to the complaint 11 "Unsatisfactory professional conduct" is conduct that demonstrates a lack of adequate knowledge, experience, skill, judgment or care in the practice of nursing or midwifery. It includes any other improper or unethical conduct relating to the practice of nursing or midwifery. "Professional misconduct" is unsatisfactory professional conduct of a sufficiently serious nature to justify the removal of the nurse's or midwife's name from a Register or the Roll. A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practice nursing or midwifery. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder - see ss 4 and 4A of the Act. 12 The Tribunal found:

(a) the plaintiff engaged in the conduct described in particulars 1 - 5 in complaints one and two. There was no sexual intent or motivation for that behaviour. The plaintiff's behaviour was a result of her use of pethidine on that evening;

(b) particulars 6, 7 and 8 (excluding 8(d)) in complaints one and two were established;

(c) particulars 9 and 10 in complaints one and two were established. The plaintiff self administered pethidine whilst on duty on the evening of 7 June 2003. The plaintiff was under the influence of pethidine whilst on duty on 7 June 2003. There was no evidence to suggest the plaintiff was providing nursing care when she was adversely affected by alcohol.

(d) each of the particulars of complaints 3 and 4 (a number of which were admitted in a fashion by the plaintiff) were made out except particular 2. These complaints all related to the mishandling of pethidine by the plaintiff whilst she was employed at Warners Bay Private Hospital in 1998 and 1999. (e) in respect of complaint five, the plaintiff suffers from a physical and mental condition or disorder or impairment, namely migraine headaches which detrimentally affect her physical and mental capacity to practice nursing. 13 The Tribunal concluded the particulars established in relation to complaints 1 - 4 (except particular 2 in complaints 1 and 2) constituted unsatisfactory professional conduct and professional misconduct.

The Tribunal's reasons for finding the complaint proved. 14 The reasons for the Tribunal's conclusion that the plaintiff's conduct constituted unsatisfactory professional conduct and professional misconduct as disclosed in the statement of reasons dated 22 May 2006 were, essentially, as follows:

(a) The plaintiff had mishandled S 8 drugs. She had failed to follow doctor's orders in the administration of pethidine and had put the lives, comfort and health of patients at risk.

(b) The mishandling of S 8 drugs by the plaintiff persisted from 1998 to 2003, in which year the plaintiff ceased to practice as a nurse.

(c) The mishandling remained unchanged in nature during that period notwithstanding detailed discussions by the plaintiff with the Director of Nursing, a lengthy interview with an officer of the Pharmaceutical Services Branch and firm undertakings, both verbal and written, by the plaintiff.

(d) The plaintiff's attitude to the handling of the S 8 drug pethidine appeared to be casual if not reckless. The Tribunal was extremely concerned with the lack of appreciation shown by the plaintiff for the seriousness of her conduct. She did not show signs of awareness or concern that her conduct may have distressed patients in her care. Further, she put their health at risk by administering medication not strictly in accordance with an order from a medical officer. Apart from those drugs which are listed as nurse initiated, it is one of the fundamental roles of the RN to ensure that all medication is administered only in accordance with an order from a medical officer. Stepping outside those orders creates an unacceptable danger to the patient and potential personal liability for the nurse.

(e) The conduct in complaint one goes to matters that are at the heart of nursing. The public is entitled to expect that a nurse would correctly administer medication, will interact with the patient in an appropriate manner and will not be adversely affected by extraneous matters be it drugs, alcohol, migraine headaches, or some other medical or physical impairment. Complaint One is made out. The conduct is of such a serious nature that it amounts to professional misconduct as it may warrant the removal of the plaintiff's name from the Register. Complaint Two is made out.

(f) The conduct in Complaints Three and Four demonstrates a lack of adequate judgment and care in the practice of nursing and is improper and unethical conduct relating to the practice of nursing and amounts to unsatisfactory professional conduct. The conduct is of such a serious nature that it amounts to professional misconduct.

(g) The manner in which the plaintiff gave evidence was evasive, imprecise and deceptive. The Tribunal accepted the evidence given by all the witnesses called on behalf of the HCCC and preferred their evidence to the evidence of the plaintiff where they were in conflict. 15 In respect of complaint five, the Tribunal found:

(a) the plaintiff had suffered from migraine headaches for around 20 years. She continues to suffer from such headaches; (b) the plaintiff acknowledged that her behaviour and appearance changed while she was suffering from a migraine headache and this was supported by evidence from other witnesses and was accepted by the Tribunal; (c) the treatment for this condition has included the use of pethidine, both in the past and at present; (d) the plaintiff clearly has, at least from time to time in the past, abused pethidine to the extent that she has misappropriated pethidine in her workplace. The plaintiff also persuaded a number of doctors to prescribe a large amount of pethidine. She is dependent upon the use of pethidine for the current management of her migraine headaches; (e) the Tribunal cannot be comfortably satisfied that the plaintiff is currently addicted to pethidine although it is of the view the plaintiff has a significant problem with that drug; (f) there was evidence the plaintiff has not demonstrated an ability to predict the onset of a migraine headache or to follow the instructions from her nurse managers to report off duty sick when she is suffering from a migraine headache.

The Tribunal's decision in relation to s 64 orders 16 Section 64 of the Act confers various powers upon the Tribunal where the subject matter of a complaint has been proved. The powers range from a caution or reprimand to directing that the person's name be removed from the Register, the latter pursuant to s 64(1)(g)(ii). Section 64(5) provides: "If the Tribunal makes an order under subsection (1) (g) (ii) or the Tribunal finds the subject-matter of a complaint against a person who has ceased to be registered or enrolled to be proved: (a) the Tribunal may by its order fix a time after which the person whose name is removed from a Register or the Roll, or a person who has ceased to be registered or enrolled, may apply to be registered or enrolled, and (b) if a time has been so fixed, the person is not entitled to be registered or enrolled before that time, despite Part 4." 17 The second defendant submitted the plaintiff's name should be removed from the registers of nurses and midwives and that an order should be made fixing a time of three years after which the plaintiff may apply to be registered. The plaintiff submitted that the matter should be dealt with by imposing appropriate conditions on her registration. 18 The Tribunal concluded that the only order that would satisfy the Tribunal's obligations was to remove the name of the plaintiff from the Register and that a period of 2 years 9 months from the date of these orders was required to elapse before the plaintiff was entitled to make an application for re-registration. The appeal 19 Section 67 of the Act provides: "(1) A person about whom a complaint is referred to the Tribunal under s 45, 46 or 54, or the complainant, may appeal to the Supreme Court against: (a) a decision of the Tribunal with respect to a point of law, or (b) the exercise of any power under s 64 by the Tribunal, within the prescribed time. (2) The Supreme Court may stay any order made by the Tribunal, on such terms as the Court sees fit, until such time as the Court determines an appeal made under this section. (3) In determining an appeal under this section, the Supreme Court may: (a) dismiss the appeal, or (b) make such order as it thinks proper having regard to the merits of the case and the public welfare and, in doing so, may exercise any one or more of the powers of the Tribunal under section 64. (4) In any case where the Supreme Court dismisses an appeal against an order directing that the name of a nurse or midwife be removed from a Register or the Roll or a person has ceased to be registered or enrolled: (a) the Court may by its order fix a time after which the person whose name is removed from a Register or the Roll, or the person who has ceased to be registered or enrolled, may apply to be registered or enrolled, and (b) if a time has been so fixed, the person is not entitled to be registered or enrolled before that time despite Part 4…" 20 The plaintiff's appeal is against the Tribunal's exercise of power under s 64 to order that her name be removed from the Register of Nurses and the Register of Midwives and to order that she is not to reapply for registration for a minimum of two years nine months from the date of the orders. 21 The right of appeal pursuant to s 67(1) of the Act is limited. The Court has no authority to make a general review of the Tribunal's findings of fact - Childs v Walton (unreported, NSWCA, 13 November 1990). The extent of the limitation has been the subject of consideration by the Court of Appeal in respect of similar legislation relating principally to medical practitioners. The principles established by the Court of Appeal in those cases have application to this case. 22 Those principles are:

(1)(a) Where the challenge is to findings made by the Tribunal which lead to an ultimate finding that the complaint has or has not been proved, the findings may be challenged only where there has been an error with respect to a point of law - ( Lindsay v Health Care Complaints Commission [2005] NSWCA 356 at [40], [41]).

(1)(b) The power to review an order made under s 64 must be exercised upon the basis that the facts found by the Tribunal as proving the complaint are not open to scrutiny - Bannister v Walton (1993) 30 NSWLR 699 at 734-5 per Priestley and Clarke JJA.

(1)(c) The requirement that there be an error with respect to a point of law is stringent - Kirumba v Walton (unreported, NSWCA, 4 October 1990). The relevant principles, essentially, are those set out in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 where, at 155-6, it was said: "To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the findings of a Workers' Compensation Judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law… Errors may be committed…in determining the facts by way of primary findings and inferences… At [that] stage the determination of facts by a reasoning process marred though it be by patent error, illogicality, or perversity will…never be vulnerable to attack as an error of law."

(2)(a) A challenge to the powers exercised by the Tribunal as a consequence of the complaint being proved is generally not restricted to errors with respect to a point of law. As the exercise of those powers by the Tribunal is discretionary however, an appeal will succeed only if it is shown that the discretion miscarried, in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505 - Lindsay at [42].

(2)(b) In House v The King it was held: "It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so."

(2)(c) Clarke JA observed in Bannister v Walton at 735: "It may be, however, that the Tribunal may reach conclusions on a number of factual issues [when considering the complaint] which, while not strictly relevant to the complaint, may be considered to be of importance in determining what is the appropriate order to be made pursuant to [s 64]. In cases where this occurs, it would seem to me that this court would be entitled to examine those conclusions in exercising its power to review the order under [s 67(1)(b)]. However, it is unnecessary to consider this particular question in this case." In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85] Basten JA said in relation to the above: "These comments, which were not central to the determination of Bannister, have been referred to in subsequent cases without significant elaboration: see Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [6] and Lindsay v Health Care Complaints Commission at [41] and [42]." 23 The second defendant submitted that all of the grounds of appeal save for grounds (i), (ii) and (x) sought to challenge findings made by the Tribunal which led to the ultimate finding that the complaint was proved, those grounds were not "with respect to a point of law" and accordingly did not give rise to a valid ground of appeal. The plaintiff submitted that each of the grounds of appeal was viable. This issue will be addressed in considering the grounds of appeal.

Grounds of appeal 24 The plaintiff amended her summons at the hearing by the addition of Ground (vii)(o). The plaintiff's grounds of appeal are set out in the amended summons and are reproduced in the schedule to this judgment. They are considered hereunder. Ground (i) The Tribunal lacked jurisdiction/power to make the Order under s 64 of the Act because the plaintiff was denied procedural fairness and natural justice in that the Tribunal's determination does not disclose the basis on which the Tribunal determined the Order made pursuant to s 64 of the Act 25 Ground (i) is in identical terms to Ground (ii) save for the addition in Ground (ii) of the words 'contrary to s 66(4) of the Act' at the end of the paragraph. It is convenient to consider Grounds (i) and (ii) together. 26 Section 66(4) of the Act provides: "(4) A written statement of a decision must: (a) set out any findings on material questions of fact, and (b) refer to any evidence or other material on which the findings were based, and (c) give the reasons for the decision." 27 The plaintiff submitted there was a denial of natural justice by the Tribunal, in essence, because:

(a) it failed to give reasons for its decision to fix the time after which the plaintiff may apply to be registered at two years nine months from 20 July 2006;

(b) the Tribunal, in its reasons dated 20 July 2006, stated that the plaintiff will require some considerable time to address the issues raised in this matter, but did not identify the issues to which it referred;

(c) the Tribunal, in its reasons dated 20 July 2006, stated that it substantially accepted the submissions made by the second defendant but did not identify which of those submissions was accepted by it. 28 The second defendant's written submissions, in relation to the s 64 hearing, reviewed the Tribunal's original findings, the law, the evidence adduced on 19 July 2006 and other matters, and concluded: "It is the submission of the complainant that the only appropriate order having regard to (a) the seriousness of the proved misconduct, (b) the nurse's lack of insight; (c) the nurse's lack of contrition; (d) the nurse's lack of candour; (e) the lack of any evidence of rehabilitation or other measures taken for the protection of the public; (f) the unsuccessful efforts made by the nurse's employer to assist her to continue in her role as a registered nurse by providing further education and counselling in a system whereby she could cease work whenever she felt a migraine developing; and (g) the nurse's failure to heed both formal and informal warnings, is deregistration. All the evidence suggests that the factors in the nurse's personal circumstances which may have contributed to her committing the proven misconduct are still operating and there is a significant risk she would misconduct herself again." 29 The second defendant spoke to its written submissions, observing that the Tribunal should not accept the plaintiff's migraine condition had currently stabilised; that the plaintiff was an unreliable witness whose attitude was unacceptable; that the plaintiff had not admitted to using pethidine, as found by the Tribunal; had not given evidence at the s 64 hearing, and was apparently still taking pethidine as treatment for migraine headaches; there had been no change in the plaintiff's responses to directions given to her by her employers and the Pharmaceutical Services Branch in the past, and her own undertakings in regard to the handling of S 8 drugs, there was no evidence her future behaviour would be any different or that conditions on her practice would be effective; the plaintiff had worked as a nurse educator, had undertaken further nursing studies, was familiar with the regulations and policy regarding S 8 drugs, therefore further education courses would not be expected to have any effect on her conduct; there was a difference between inadvertent errors and those made to hide misconduct, the plaintiff's "errors" were in the latter category; the plaintiff caused distress to patients on 7 June 2003 and concern to the nursing staff; the appropriate order was removal of the plaintiff's name from the register and the period before she be permitted to reapply for registration should be three years. 30 The Tribunal's decision in relation to the s 64 orders initially referred to its prior findings and stated: "These orders should be read in conjunction with the reasons for decision dated 22 May 2006." Thereafter, the decision was divided under the following subheadings: "Undertaking made by the respondent"

Under this subheading it was noted the respondent gave an undertaking not to work as a registered nurse from 24 October 2005.

Under this subheading, the Tribunal summarised the evidence tendered by the plaintiff on 19 July 2006. That evidence consisted of statements of Dr De Souza and Dr Kirkpatrick dated 7 and 11 July 2006 respectively and a testimonial by a friend of the plaintiff, Ms Steller. This material was tendered by the plaintiff. No oral evidence was given.

Under this subheading, the Tribunal stated that it "substantially accepts the submissions made by the HCCC" and then referred to a number of the second defendant's submissions, generally without comment.

"Submissions - Submissions made by [the plaintiff]"

Under this subheading, the Tribunal referred to a number of the plaintiff's submissions with some comments, including: "It was also submitted there was no evidence that the [plaintiff] self administered pethidine at any time other than when she was suffering from a migraine. However, it was the evidence of the [plaintiff] during the inquiry that under no circumstance would she ever self administer pethidine."

A number of comments relevant to the orders made were set out under this subheading.

Under this subheading formal orders were set out. 31 The comments set out under the subheading "Tribunal comments" can be summarised as follows:

(a) The Tribunal noted the plaintiff did not tender any references from professional nursing colleagues. After noting that fact, the Tribunal did not comment further on this aspect. However, the plaintiff was subsequently described by the Tribunal as "an experienced and senior nurse".

(b) The Tribunal accepted that the plaintiff had "undertaken a number of steps in an attempt to address her migraines. Prophylactic measures may have decreased her reliance on pethidine but pethidine appears to still play a major role in the treatment."

(c) The Tribunal rejected the plaintiff's submissions that: (i) there was some desire on the part of management to be rid of the plaintiff. It found "On the contrary, there was evidence before the Tribunal that the respondent was provided with support by way of counselling, offers of taxi fares and encouragement to go off duty when she felt unwell"; (ii) the plaintiff's conduct should be excused on the basis of allegations that other nurses also made errors in the clinical notes or did not fulfil their obligations regarding administration of S 8 drugs.

(d) The Tribunal considered the matter was about the wilful, even reckless, disregard displayed by the plaintiff for regulations and policies regarding the handling of S 8 drugs.

(e) It was the view of the Tribunal that the only order that would satisfy the Tribunal's obligations to protect the safety of the public, to prevent the recurrence of professional misconduct, to act as a deterrent to other members of the profession and to maintain the standards of the profession and to ensure the maintenance of public confidence in the profession was to remove the name of the plaintiff from the Register.

(f) The Tribunal stated the integrity of the profession cannot be impugned by the maintaining on the register of a nurse who is unsafe. The intention of this order is not designed to be punitive but is to protect the public and her nursing colleagues and to allow the plaintiff to address her problems without the pressure of being a professional registered nurse.

(g) The Tribunal considered a comprehensive set of conditions would not be effective as: (i) the Tribunal had no confidence the plaintiff would comply with any conditions no matter how definitive and explicit they may be because of the plaintiff's behaviour at WBPH where, despite detailed discussions with the Director of Nursing and firm undertakings on her part, she continued to mishandle S 8 drugs and inappropriately held the drug keys whilst she was in the hospital working in another capacity. Several years later, she again mishandled S 8 drugs at JHH despite all of these matters and her interaction with the PSB while still employed at WBPH; (ii) the conditions proposed by the plaintiff would be extremely onerous on all people involved in their execution.

(h) The Tribunal was of the view that the plaintiff "will require some considerable time to address the issues raised in this matter. The Tribunal acknowledged that the plaintiff voluntarily agreed that she would not work as a nurse from 24 October 2005. Since that time the plaintiff has continued to receive treatment from doctors and psychologists. The plaintiff attended the Inquiry. Nevertheless, the severity of the infringements, particularly her apparent lack of ability to recognise the severity of her infringements, leads the Tribunal to the decision that a period of two years nine months from the date of these Orders is required to elapse before the plaintiff is entitled to make an application for re-registration." 32 The Tribunal's decision dated 20 July 2006 must be read with the decision dated 22 May 2006. 33 It is clear from the Tribunal's findings (see [14] hereof) that the infringements by the plaintiff were very serious. As observed by the Court of Appeal in relation to a medical practitioner: "…it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fit at such a time to be a medical practitioner." Spicer v New South Wales Medical Board (unreported, NSWCA, 19 February 1981)

This was acknowledged by the plaintiff in submissions, where it was said: "that the conduct found by the Tribunal to have occurred is conduct which is a most serious contravention of duties, privileges and obligations which arise out of registration as a nurse." 34 In addition to the seriousness of the infringements, it is clear from the Tribunal's written reasons that it had regard to:

(a) the plaintiff's course of conduct which persisted from 1998 to 2003, the year when she ceased to practise as a nurse, despite the intervention of others in authority and undertakings which she gave;

(b) the plaintiff's lack of appreciation as to the seriousness of her behaviour;

(c) there was no satisfactory evidence that the plaintiff's attitude had changed by the time of the hearing;

(d) the plaintiff continued to use pethidine despite steps taken by her in an attempt to address her migraine headaches. She continued to have significant problems with pethidine;

(e) the plaintiff, in giving evidence, was evasive, imprecise and deceptive;

(f) the Tribunal had no confidence the plaintiff would comply with any conditions imposed by it.

It is these factors and the causes of them which were the "issues raised in the matter" which the plaintiff will require time to address. I am unable to accept the plaintiff's submission that the Tribunal did not identify "the issues raised in this matter". 35 A comparison of the Tribunal's written reasons with the written and oral submissions of the second defendant as to the s 64 orders sufficiently identifies the submissions of the second defendant which were accepted by the Tribunal. I am unable to accept the plaintiff's submission that the Tribunal did not sufficiently identify the submissions of the second defendant which were accepted by it. 36 An order removing a person's name from the register is made in protection of the public. It is not intended to be punitive. The likelihood of misconduct recurring is of vital importance in determining the nature of the order. The fact that the Tribunal found the plaintiff had not been truthful is itself a circumstance touching the plaintiff's fitness to practice - Childs v Walton. 37 The determination of the period before which the plaintiff will be permitted to reapply for registration involved the weighing by the Tribunal not only of the plaintiff's situation but the obligations to protect the safety of the public, to prevent the recurrence of professional misconduct, to act as a deterrent to other members of the profession and to maintain the profession's standards and public confidence therein. In determining this matter, the Tribunal had the advantage of observing the plaintiff and forming an opinion as to her attitude and demeanour. 38 The Tribunal's ultimate conclusion is the product of the weighing by it, as a specialist tribunal, of the various factors identified by it in its written reasons. The nature of the weighing process does not lend itself to an arithmetical process. Rather, the process is one of instinctive synthesis in which relevant factors are identified and then weighed as a whole using the specialist experience and knowledge of the Tribunal. 39 In my opinion, the reasons which led the Tribunal to determine that the plaintiff's name should be removed from the Register of Nurses and the Register of Midwives and that the s 64(5) period be two years nine months from the date of the orders is adequately set out in the written reasons of the Tribunal. The Tribunal has a broad discretion. Had it been necessary to do so, I would have concluded that the period of two years nine months was within the discretionary range open to the Tribunal. 40 In my opinion, grounds of appeal (i) and (ii) have not been established.

Ground (iii) The Tribunal erred in the exercise of its discretion by relying on irrelevant matter to guide or affect its decision: (a) A nurse who had acted as a witnessing nurse on 7 June 2003 conducting her own investigation some weeks after that date in relation to how much fluid would remain in a needle drawn up using a needle with a larger bore . 41 This ground of appeal challenges findings made by the Tribunal which the plaintiff asserts led to the ultimate finding that the complaint had been proved. The second defendant asserts the evidence was used to establish the plaintiff's behaviour aroused suspicion among other nurses which, in turn, was relevant to the ultimate finding that the complaint was proven. No question in point of law is asserted or arises. This ground fails.

Ground (iv) The Tribunal erred in the exercise of its discretion in failing to act on and/or consider and/or give any or sufficient weight to [six specified matters of evidence] 42 Three of these matters ((c), (d) and (e)) relate to the Tribunal's reasoning process leading to its ultimate finding that the complaint was proven. No error in point of law is asserted or arises. These grounds fail. Matters (a), (b) and (f) are considered hereunder. 43 Sub-paragraph (a) asserts that the plaintiff had not worked as a registered nurse since 7 June 2003 and therefore could not provide relevant testimonials from professional nursing colleagues which would be helpful to the Tribunal. 44 The Tribunal, in its decision dated 20 July 2006, noted that the plaintiff did not tender any references from professional nursing colleagues. 45 The plaintiff submitted that in taking into consideration that the plaintiff did not tender any references from professional nursing colleagues the Tribunal failed to take into consideration the fact that the plaintiff had not worked as a registered nurse since 7 June 2003 and did not give weight to the fact that the plaintiff therefore could not provide relevant testimonials from professional nursing colleagues which could be of any assistance to the second defendant. 46 In my opinion, the fact that the plaintiff had not worked as a registered nurse since 7 June 2003 did not prevent her providing testimonials from professional nursing colleagues. Such testimonials would have been relevant to the plaintiff's character generally and to her professional capacity and commitment as observed prior to June 2003. The plaintiff gave no explanation for the absence of testimonials from nursing colleagues. It was relevant for the Tribunal to note the absence of such testimonials. 47 In my opinion, the Tribunal did not err in noting the absence of any references from professional nursing colleagues of the plaintiff. In any event, the Tribunal, in its reasons, accepted the plaintiff was an experienced and senior nurse. 48 Sub-paragraph (b) stated that "two medical practitioners who had worked in a professional capacity with the plaintiff to the effect of her considerable skill and expertise as a registered nurse". 49 The plaintiff submitted this evidence was not taken into consideration by the Tribunal. 50 There was no obligation on the Tribunal to advert to every possible relevant fact - Prakash at [99]. The medical practitioners referred to did not give the plaintiff unqualified support and it may be inferred the Tribunal attached little or no weight to their evidence in this regard. In any event, the Tribunal, in its reasons for its s 64 orders, referred to the loss of the plaintiff as the loss of an experienced and senior nurse. Even if the Tribunal had failed to have regard to the evidence of these practitioners, (which has not been established), such an error is not of such significance as to call for the intervention of this Court. 51 Sub-paragraph (f) stated that when a nurse found a yellow injection tray with an empty ampoule of pethidine in the S 8 drug cupboard, there was no evidence that the plaintiff had put it there. 52 The question whether there is any evidence of a particular fact is a question of law. If the Tribunal erred in this respect, its conclusion can be reviewed on appeal as long as the error vitiated the decision - Hevi Lift (PNG) Ltd v Etherington (2005) 2 DDCR 271 at [63]. 53 The plaintiff's submission is, however, misconceived. There was evidence from which the inference could be drawn that the plaintiff had placed the injection tray where it was found. 54 The nurse who found the tray on 21 September 1998 gave evidence that she did not know who had placed it on the shelf. The plaintiff denied any recollection of the incident. However there was evidence that on 20 September 1998 at 1000 a nurse saw the plaintiff draw up an injection which the plaintiff said was for patient E. This was noted in the S 8 register. Patient E's chart did not show the administering of pethidine to the patient at 1000 hours. At 2100 hours the tray was found. The next morning an asterisk was placed at the end of the top line and at the bottom of the page of the drug register where it was written "1000 drawn up not given discarded on 21/9" signed by the plaintiff and the nurse who found the tray. It was thus open to the Tribunal to infer that the plaintiff put the tray with the syringe into the drug cupboard . No error in point of law is demonstrated.

Ground (v) There was no reasonable basis on which the Tribunal could reach [six factual findings]. 55 With the exception of sub-paragraph (a), each of these matters challenges the reasoning processes of the Tribunal which led to the finding that the complaint had been proved. No question in point of law is asserted or arises. Accordingly, these grounds fail. 56 Sub-paragraph (a) stated the conduct of the plaintiff on 7 June 2003 caused distress to other nursing staff when there was no evidence to support that finding. 57 The Tribunal in its decision dated 20 July 2006 stated that the conduct of the plaintiff on that evening also caused distress to other nursing staff. 58 The second defendant accepted that there was no specific evidence that the conduct of the plaintiff on 7 June 2003 caused "distress" to other nursing staff. 59 There was however evidence that nursing staff were concerned about the plaintiff on that occasion. In the second defendant's submissions, it referred to the distress of the patients and then to the concern of the staff. In my opinion, it is probable the reference to distress was intended to be a reference to the concern of the nursing staff. However, even if there be error in such finding, the finding is not of such significance as to call for the intervention of this Court.

Ground (vi) The Tribunal erred in the exercise of its discretion by giving weight to [seven specified matters]. 60 These matters challenge the weight given by the Tribunal to items of evidence leading to the ultimate finding that the complaint had been proved. No question in point of law is asserted or arises. These grounds fail.

Ground (vii) The Tribunal erred in the exercise of its discretion by failing to take into account [fifteen specified material considerations]. 61 These matters challenge the reasoning process and weight given to various items of evidence by the Tribunal leading to its ultimate finding that the complaint had been proven. No question in point of law is asserted or arises. These grounds fail.

Ground (viii) The Tribunal erred by failing to have any or sufficient regard to [sixteen specified items of evidence]. 62 These matters challenge findings made by the Tribunal which led to the ultimate finding that the complaint had been proved. No question in point of law is asserted or arises. These grounds fail.

Ground (ix) The Tribunal erred in exercising its discretion by misunderstanding [three items of evidence] 63 Each of these matters challenges the Tribunal's understanding of evidence which led to the finding that the complaint had been proved. No question in point of law is asserted or arises. Accordingly, these grounds fail.

Ground (x) The Tribunal erred in law in not applying the law of evidence in relation to circumstantial evidence [in that] (a) the Tribunal accepted the plaintiff's evidence and that of independent observers of the effects of migraine but then found that the behaviour observed as the effects of migraine was the effect of self administration of pethidine. In so doing, it dismissed that there was any other rational reason for the behaviour observed. 64 Section 61(4) of the Act provides that: "Schedule 2 has effect with respect to the conduct of any inquiry and the hearing of any appeal by the Tribunal." 65 Schedule 2 cl 1 provides: "In proceedings before it…the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit." 66 In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [129] it was held that: "Where the rules of evidence do not apply, in order to find error of law based on absence of evidence, there must be an absence of material, whether strictly admissible according to the rules of evidence or not." 67 There was evidence to support the Tribunal's finding that the behaviour observed was the effect of the self administration of pethidine by the plaintiff. 68 I reject the plaintiff's submissions that the principles in Chamberlain v R, a case concerned with the criminal law, have any application to the circumstances of this case. In my opinion, no error of law has been demonstrated and, accordingly, this ground of appeal fails.

Conclusion and orders 69 The plaintiff's challenge to the decision of the Tribunal has been unsuccessful. I make the following orders:

2. The plaintiff is to pay the second defendant's costs of and in relation to this appeal. ********** SCHEDULE

(i) The Tribunal lacked jurisdiction/power to make the Order under s 64 of the Act because the Plaintiff was denied procedural fairness and natural justice in that the Tribunal's determination does not disclose the basis on which the Tribunal determined the Order made pursuant to s 64 of the Act.

(ii) The Tribunal lacked jurisdiction/power to make the Order under s 64 of the Act because the Plaintiff was denied procedural fairness and natural justice in that the Tribunal's determination does not disclose the basis on which the Tribunal determined the Order made pursuant to s 64 of the Act contrary to s 66(4) of the Act.

(iii) The Tribunal erred in the exercise of its discretion by relying on irrelevant matter to guide or affect its decision. (a) A nurse who had acted as a witnessing nurse on 7 June 2003 conducting her own investigation some weeks after that date in relation to how much fluid would remain in a needle drawn up using a needle with a larger bore.

(iv) The Tribunal erred in the exercise of its discretion in failing to act on and/or consider and/or give any or sufficient weight to the following evidence: (a) That the Plaintiff had not worked as a registered nurse since 7 June 2003 and therefore could not provide relevant testimonials from professional nursing colleagues which would be helpful to the Tribunal. (b) That two medical practitioners who had worked in a professional capacity with the Plaintiff to the effect of her considerable skill and expertise as a registered nurse. (c) That the Plaintiff was under considerable scrutiny from hospital management and the Pharmaceutical Services Branch of the Department of Health from at least mid 1998. (d) That the mishandling of medication only occurred on 11 days in 1998 (being 22 January; 10 March; 16, 17 & 19 July; 25, 27 & 30 August; 1 and 29 November), one day in 1999 and 1 day in June 2003. (e) That on 7 June 2003 a new process had been implemented in relation to who had possession of the keys to the Schedule 8 drug cupboard on an afternoon shift and that a number of nurses required reminding of the new process. (f) That when a nurse found a yellow injection tray with an empty ampoule of Pethidine in the Schedule 8 drug cupboard there was no evidence that the Plaintiff had put it there.

(v) There was no reasonable basis on which the Tribunal could reach the following factual findings. (a) The conduct of the Plaintiff on 7 June 2003 caused distress to other nursing staff when there was no evidence to support that finding. (b) The Plaintiff had mishandled Pethidine on 6 November 1998 when in attendance as a Nurse Educator from University of Newcastle supervising a student nurse. (c) The Plaintiff in declaring herself unfit to work due to mental health issues in 2002 did so to avoid scrutiny and/or action in relation to her handling of Schedule 8 drugs. (d) The Plaintiff had misappropriated and self-administered Pethidine on one occasion when the Plaintiff was present at Warners Bay Private Hospital in her capacity as Nurse Educator from the University of Newcastle and as such had no access to the Schedule 8 drug cupboard. (e) The Plaintiff had showered Patient A on 7 June 2003 and in the course of that shower had inappropriately touched Patient A. (f) The Plaintiff had not explored all avenues to assist in prophylactic treatment of migraine.

(vi) The Tribunal erred in the exercise of its discretion by giving weight to the following matters: (a) The results of a nurse who had acted as a witnessing nurse on 7 June 2003 conducting her own investigation some weeks after that date in relation to how much fluid would remain in a needle drawn up using a needle with a larger bore. (b) A witnessing nurse on 7 June 2003 had to remind the Plaintiff to give the Schedule 8 drug cupboard key to her after they had administered Pethidine to a patient. (c) The medical records of the Plaintiff's treating doctors generally and Doctor Harvey specifically in circumstances where those medical records contained very little information as to why the Plaintiff attended the doctor and treatment given. (d) The use of the term 'situational depression' by the Plaintiff in a letter to the Human Resources Department of the John Hunter Hospital and the evidence of Doctor de Souza that it was not a diagnosis he had made or a term he used. (e) The reports written by medical practitioners as evidence of what they had been told by the Plaintiff. (f) The differences between the description given by the Plaintiff as to what happens when she is suffering migraine and the descriptions given by observers or others. (g) There was no evidence the Plaintiff failed to follow protocols or make errors in relation to any drug other than Pethidine in circumstances where at both Warners Bay Private Hospital and John Hunter Hospital there was no investigation undertaken in respect of any conduct of the Plaintiff other than in relation to Pethidine and the incidents which were before the Tribunal.

(vii) The Tribunal erred in the exercise of its discretion by failing to take into account the following material considerations: (a) The fact that the two issues of self-administration of Pethidine and the plaintiff suffering migraine, stood alone and separate from each other. (b) The fact that in relation to the Plaintiff administering a Schedule 8 drug, namely Pethidine, to patients on 7 June 2003, there was only one occasion when a second nurse ('the witnessing nurse') did not undertake the process with the Plaintiff in accordance with the requirements of policies and procedures which included checking the patient's medication chart, witnessing the removal of the drug from the locked cupboard, drawing the Pethidine into a syringe, discarding excess, and observing the administration to the patient. (c) The fact that on the one occasion the witnessing nurse who undertook the process up to the administration of the drug with the Plaintiff failed to complete the process because she was called away and that error in the administration process was the error of the witnessing nurse. (d) The fact that in relation to the administration of Pethidine to Patient A on 7 June 2003, a doctor provided a telephone order which she subsequently confirmed and then made a further order for Pethidine. (e) The fact that in relation to Complaints 3 and 4 relating to the mishandling of drugs at Warners Bay Private Hospital in 1998 and 1999, the medical records of patients demonstrate that it was common for nursing staff not to undertake the proper process for the administration of Schedule 8 drugs and to make errors in documenting nursing care. (f) The fact that in relation to Complaints 3 and 4 relating the mishandling of drugs at Warners Bay Private Hospital in 1998 and 1999, the evidence of nursing staff was that it was not unusual for them not to undertake the proper process for the administration of Schedule 8 drugs. (g) The fact that an audit of the Schedule 8 drugs in stock and the Drug Register was conducted by the After Hours Nurse Manager on 7 June 2003. (h) The evidence of the Plaintiff's treating doctors in relation her use of Pethidine in the treatment of symptoms of migraine to the effect that the use was appropriate and effective to her condition and/or that she had significant sensitivities/allergies to other medications. (i) The evidence of Doctor Kirkpatrick that he was alert to the possibility that the Plaintiff was a 'doctor shopper' using him to gain Pethidine when it was not medically required and his own investigations to satisfy himself that she was not. (j) The fact that all of the witnesses, other than Patient A, who gave evidence before the Tribunal in March 2006 including the Plaintiff had significant difficulty remembering events and incidents that occurred in 1998, 1999 and 2003. (k) The period of time which had elapsed between the incidents in January, March, July, August & November 1998, January 1999, September & October 2002 and June 2003 and the Tribunal hearing in March 2006. (l) The evidence of Doctor Kirkpatrick that the medical bags carried by out of hours treating doctors do not contain Schedule 8 drugs. (m) The fact that the investigations carried out by the Pharmaceutical Services Branch in relation to the prescribing of Pethidine to the Plaintiff revealed that the source of prescription was from the same medical practice and/or medical practitioner. (n) The fact that although the Plaintiff was seen by more than one general practitioner from 2000 to July 2006, all of the general practitioners were from the same medical practice and all recorded those attendances in the same medical records. (o) The fact that the plaintiff was accompanied by another nurse when she administered Pethidine to Patient B and that nurse did not give evidence that the injection was given intravenously rather than intramuscularly.

(viii) The Tribunal erred by failing to have any or sufficient regard to the following that: (a) The Plaintiff had voluntarily not worked as a registered nurse since 7 June 2003. (b) In relation to the Plaintiff's alleged conduct on 7 June 2003, the hospital undertook no proper investigation of the allegations. (c) The evidence of the Plaintiff's treating doctors in relation her use of Pethidine in the treatment of symptoms of migraine to the effect that the use was appropriate and effective to her condition and/or that she had significant sensitivities/allergies to other medications. (d) The difference between prophylactic medications and symptom treatment. (e) The evidence of Doctor de Souza in relation to the effects of Pethidine on a person who was not opiate naïve as in the case of the Plaintiff. (f) The Plaintiff's treating doctors and psychologist were responsible for the records they kept in relation to the treatment of the Plaintiff and the reports they wrote to other practitioners. (g) The Plaintiff's treating doctors and psychologist only requiring and/or recording information relevant to why the Plaintiff was consulting them. (h) The weight to be given to the evidence of Doctor de Souza to the effect that he had extensive experience in mental health and his assessment that it has not been necessary to refer the Plaintiff to a psychiatrist. (i) The medical records of Patient E in relation to the administration of Pethidine by the Plaintiff on 20 September 1998 to the effect that Patient E's treating doctor made an error in the recording of the date in the progress notes and that Patient E was having physical therapy for the first time post-operatively on 20 September 1998. (j) There was no evidence of complaints by the treating doctors of the patients from Warners Bay Private Hospital or John Hunter Hospital (including Doctor Malcolm and Doctor Kirkpatrick) to the effect that the Plaintiff had administered Pethidine to their patients contrary to their prescriptions and/or in a manner which was not appropriate in the circumstances. (k) The weight to be given to the evidence of Doctor Kirkpatrick to the effect that he was a member of the Medical Advisory Committee at Warners Bay Private Hospital overseeing all critical incidents including issues relating to inappropriate administration and/or over-medication and that no such complaints regarding the Plaintiff were brought to the committee by management. (l) The investigator from Pharmaceutical Services Branch, when investigating the Plaintiff in 1999, did not seek any information from the Plaintiff's treating doctors which would have either support or not support the statements made by the Plaintiff in relation to the interaction of medication problems she had experienced. (m) Inconsistencies in the evidence of time lines provided by Patient A compared to the evidence of four nurses and other patients who saw the Plaintiff and Patient A on 7 June 2003. (n) The fact that Doctors Kirkpatrick and de Souza and the Psychologist Ms McKimm were seeing the Plaintiff on a regular basis and in the case of the latter two, at least monthly, over a long period of time. (o) The evidence of Doctor Kirkpatrick that the Plaintiff did not have an addiction to Pethidine. (p) The fact that because the Plaintiff was being treated reasonably often with Pethidine by her treating general practitioner, a urinalysis would be of no evidentiary benefit.

(ix) The Tribunal erred in exercising its discretion by misunderstanding the following: (a) Doctor de Souza's evidence in relation to the Plaintiff's use of benzodiazepines to the effect that her use of them was appropriate to her mental health problems, he was prescribing them, that she was not abusing benzodiazepines and that the Plaintiff was taking appropriate measures including reduction in dosage in order to reduce her use. (b) That the ampoules left unattended in the treatment room on 7 June 2003 at John Hunter Hospital were empty. (c) That the Plaintiff informed another nurse on 30 January 1999 that she was having a drug interaction problem when the evidence was that she was suffering from migraine.

(x) The Tribunal erred in law in not applying the law of evidence in relation to circumstantial evidence: (a) The Tribunal accepted the Plaintiff's evidence and that of independent observers of the effects of migraine but then found that the behaviour observed as the effects of migraine was the effect of self-administration of Pethidine. In so doing it dismissed that there was any other rational reason for the behaviour observed."

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