Judgment Number: [2003] TASSC 122

1 The appellant, a registered nurse, was found guilty by the Professional Review Tribunal ("the Tribunal") established by the Nursing Act 1995 ("the Act") of four complaints of professional misconduct in that on 24 March 2001 between 3.40pm and 4.45pm at Glenview Nursing Home, Glenorchy, she, in the course of her duties as a registered nurse at Glenview, contravened the Nursing Code in that:

"1 ... she was not competent to practice during the said period. Namely Ms Walters' speech was slurred, Ms Walters' breath smelled of alcohol, Ms Walters' gait was unsteady and Ms Walters cried uncontrollably in the nurses' station.

2 ... Ms Walters' behaviour was animated, loud and unprofessional.

4 ... Ms Walters behaved in an unprofessional manner in the presence of a dying resident and the resident's family."

Having announced the Tribunal's findings, its Chairperson invited both parties to make submissions in writing to it in relation to penalty. The respondent Board submitted that certain orders should be made, including one to the following effect:

"5 That Ms Walters practice be supervised by another registered nurse for a period of twelve (12) months full time equivalent from the date of the Tribunal's decision. Specifically Ms Walters is not to be in charge of a shift, facility, hospital, ward or their equivalent, nor can she practice as a sole practitioner in a community setting. There must be another registered nurse on duty with Ms Walters at all times she is practising nursing."

"The Board also submits that when the Tribunal is considering what action it may take that it is cognizant of the long established principle that such actions are not punitive but rather protective of the public and the actions suggested by the Board as outlined herein have been made with this principle in mind; there is no element of punishment sought."

Some 14 days later, the appellant's solicitor wrote to the Tribunal making detailed submissions, to which I shall return. A month later the Tribunal made the following orders:

"1 That Mrs Walters undergo an assessment of whether she is mentally fit to practice nursing by an 'approved medical practitioner' as defined by the Mental Health Act 1996 within 14 days from the date of this decision and give her authority for the report of such assessment to be provided to the Board within ten (10) days from the date of the assessment.

2 That Mrs Walters undergo assessments of her ability to demonstrate competence in accordance with the ANCI National Competency Standards for the Registered Nurse 3rd Edition at intervals of one (1) month, six (6) months and twelve (12) months from the date of this decision or if not practising at that time the date of commencement of next practice and the reports of such assessments are to be provided to the Board within seven days (7) from the date of the assessment.

3 That in the event the report referred to at paragraph one (1) herein reveals that Mrs Walters is not mentally fit to practice as a nurse or if she fails to demonstrate competence at any time as a result of the assessments referred to at paragraph two (2) herein that the matter be remitted to the Professional Review Tribunal.

4 That Mrs Walters' practice be supervised directly or indirectly by another registered nurse for a period of twelve (12) months full time equivalent from the date of this decision or if not practising at that time the date of commencement of next practice. Specifically Mrs Walters in not be in charge of a shift, facility, hospital, ward or their equivalent, nor can she practice as a sole practitioner in a community setting. There must be another registered nurse on duty with Mrs Walters at all times she is practising nursing.

5 That Mrs Walters pay costs in the sum of $1,500. Such payment to be made within three months of the date of this decision."

2 The appellant has appealed order number 4 only. Her grounds are as follows:

"1 The Tribunal erred in its consideration of the matter by overlooking or not paying sufficient regard to the fact that the Appellant was no longer employed at the Glenview Home facility.

2 The Appellant was denied natural justice in that the Tribunal informed itself on the issue of the availability of employment under the supervision of another registered nurse without warning the Appellant of that evidence or affording her an opportunity to dispute it.

3 The Tribunal erred in its conclusion that the Appellant showed no insight into the potential harm that could arise from her behaviour nor the disruption that she caused to the duties of other staff members, in that that conclusion was not supported by the evidence, or alternatively against the weight of the evidence.

4 The finding by the Tribunal that the requirement that a second registered nurse be on duty with Mrs Walters would not destroy her prospects of employment was against the weight of the evidence, or alternatively the imposition of the obligation to be supervised directly or indirectly represented an unfair unnecessary and unjustified balance favouring the interest of the public over Ms Walters' interests."

3 The gravamen of this complaint is that the Tribunal misdirected itself in relation to where the appellant was employed at the time the sanction was imposed and mistakenly proceeded on the view that she was still employed at Glenview. Her solicitor had said in his letter to the Tribunal by way of mitigation and in response to the Board's submissions as to sanction:

"5 (i) The order sought by the Nursing Board in paragraph 5 is a Draconian penalty indeed and goes far beyond what Mrs Walters' conduct on the evening in question could justify in any way. Were the Tribunal to make such an order moreover, for the reasons which appear below, the order would have the effect of terminating Mrs Walters' present employment and ensuring that she could not obtain alternative employment.

(ii) Mrs Walters is at present a permanent employee of the Ambulatory Dementia and Associated and Related Diseases organisation as an aged care nurse. She has held this employment since May 2001. It is not possible for Mrs Walters to work in that position in the supervised fashion demanded by the Board. Her work is subject to the direct supervision of her qualified superior for approximately two-thirds of the time but the remaining one-third is unsupervised in the sense that her superior is not actually on site during that time. He is however always available twenty-four hours a day, three hundred and sixty-five days a year at the end of a direct line which runs to his telephone through the switchboard, apart from holidays when he has a substitute of equivalent qualifications. She works between twenty-four hours and thirty-six hours per week according to her roster.

(iii) Since she left her former employment at Calvary Hospital in about February 2000, Mrs Walters has suffered from acute back pain culminating in her undergoing two lumbar microdiscetomy operations in October and December 2001. She is now unable as a result of her back disabilities to lift patients or engage in constant bending or regular manual handling work. Her employment in consequence is confined to aged care or office work. There is probably no aged care employment for registered nurses working under the kind of supervision sought by the Board under this paragraph. The Board of course is aware of this, as well as Mrs Walters' physical disability.

(iv) To impose a regime of this kind in these absolute terms world destroy Mrs Walters' prospects of employment, and remove her and her family's principal source of financial support."

In its reasons for making the orders it did make, the Tribunal stated:

"The Tribunal does not accept that the requirement that a second registered nurse be on duty with Mrs Walters will destroy Mrs Walters' prospects for employment. The evidence in the hearing was that two registered nurses are on duty in the facility on a day shift and this is the experience of the specialist members of the Tribunal."

It is submitted that the reference to "the facility" must be a reference to Glenview and that it is only explicable on the basis that the Tribunal ignored the information that the appellant was in fact working at ADARDS and proceeded on the view that she was still employed at Glenview. I find this very difficult to accept. The appellant's employment at ADARDS at the time the submissions were made was clearly stated and the problem of complying with the supervision order sought by the Board and ultimately made by the Tribunal was clearly addressed. There was evidence at the hearing that the appellant had been put in a position where she had little option but to resign from Glenview and had done so. There was no reason why the Tribunal should have been confused about her then employment. Furthermore, in the paragraph immediately preceding that quoted, the Tribunal stated "at the time of this incident Mrs Walters was in charge of the facility known as Glenview Homes as well as being the sole registered nurse in charge of the shift". The reference to the facility having two registered nurses on duty on a day shift no doubt was to Glenview, but that does not indicate a belief that the appellant was still employed there. The Tribunal was addressing a submission that a supervisory order would have the effect of terminating her employment at ADARDS and that there was "probably no aged care employment for registered nurses working under the kind of supervision sought" by the Board. The Tribunal's response was that, contrary to this assertion, Glenview was a facility which did have employment for two registered nurses during a day shift and that "this is the experience of the specialist members of the Tribunal" indicates that there were prospects of the appellant finding work where she could be supervised at other similar aged care facilities. I am quite satisfied that the Tribunal did not err as alleged.

4 The appellant does not dispute that the Tribunal was entitled to use its own expert knowledge in reaching a conclusion about the appellant's prospects of employment when subjected to the requirement for supervision. What she complains of is a denial of natural justice in that as her submissions in this regard had not been challenged by the Board, the Tribunal should not have proceeded to use expert knowledge without revealing its intention to do so and without giving her the opportunity to dispute it.

5 The Tribunal's procedures are governed by the Act, Sch3, cl 4, which provides:

(a) must conduct its proceedings with as little formality and with as much expedition as a proper consideration of the matter before it permits; and

(c) may inform itself on any matter in any way it considers appropriate; and

6 In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583, Mason J said:

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it."

Undoubtedly the order here was one which deprived the appellant of a right or interest and in the proceedings which exposed her to the risk of such deprivation, she was entitled to know the case sought to be made against her. She was informed of the Board's submission that order 4 was being sought and given the opportunity to argue against it. That argument took the form of a submission that her employment, because of certain physical disabilities, was confined to aged care and office work and in this context the submission was made that:

"There is probably no aged care employment for registered nurses working under the kind of supervision sought by the Board under this paragraph (ie, par5 of the Board's submission which was mirrored by order 4). The Board of course is aware of this, as well as Ms Walters' physical disability".

The Board did not reply to this contention but that did not mean that the Tribunal was obliged to accept it at face value (Hopwood v Cuthbertson [2001] TASSC 64; (2001) 10 Tas R 186 at 196). It was clearly in conflict with the evidence heard by the Tribunal that two registered nurses are on duty at Glenview on a day shift. The Tribunal was entitled to reject the contention on that basis alone. But it was also in conflict with the experience of the specialist members of the Board and in my view it was not necessary for the Tribunal to have formally put the fact of that experience to the appellant with a view to enabling her to dispute it before the Tribunal determined the extent of its orders. In any event, as there is no suggestion that this statement, if I have correctly interpreted it as asserting that other aged care facilities, in addition to Glenview, had employment for two registered nurses during a day shift was untrue, it is hard to see how the appellant has been prejudiced or treated unfairly.

7 In handing down the sanctions in January 2003, the Tribunal found that the appellant "showed no insight into the potential harm that could arise from her behaviour nor the disruption that she caused to the duties of other staff members". Counsel for the appellant contends that this finding seems to have been made in reliance upon the evidence of the Executive Officer of Glenview, Ms Dibley. She interviewed the appellant on 4 April and 30 April 2001 concerning her alleged conduct on 24 March 2001. Part of her evidence was as follows:

"16 During the meeting of the 30th April 2001 Ms Walters main concern was that I might report the matter to the Board. She had no insight into the matter that she should not have presented to work unfit for duty and under the influence on Valium and alcohol.

17 She expressed no remorse, nor appeared to have any insight into the fact that she ought take responsibility for her behaviour. She considered that none of this was her responsibility nor did she have any concern for the residents that would have been under her care on that day.

21 Ms Walters never expressed any sorrow over the matter and her only concern appearing to be that I would report the matter to the Board. She also blamed other staff members for her actions."

8 The appellant's complaint is that Ms Dibley's judgment was precipitate and that as the appellant had little recall of the details of the incidents the subject matter of the complaints, it was not surprising that she should be preoccupied with her future employment. Furthermore, she was suffering from an anxiety disorder by reason of which her general practitioner was of the view it was unwise of her to attend an interview unrepresented. In addition, Ms Dibley was of the view that the appellant had been, at the time of the incident, under the influence of alcohol and Valium (a finding which was not made by the Tribunal) and that this had impaired her assessment of the appellant's conduct and attitude. Mr Griffits for the appellant concedes that the assessment of Ms Dibley was open to her and that it was open to the Tribunal, accordingly, to adopt it in making its findings, but claimed that it was not supported by the rest of the evidence. I am unpersuaded by these submissions. Although the appellant attended the first meeting on 4 April 2001 against her general practitioner's advice, that meeting appears to have been adjourned to 30 April, by which time statements of witnesses had been made available to the appellant. Ms Dibley noted that during the second meeting, the appellant was critical of the staff on the day of the incident, saying that they should have realised that she was unfit for duty and sent her home. Ms Dibley said in evidence that she pointed out to the appellant that the staff were trying to do that on a number of occasions, but that the appellant would not leave the premises. It was open to the Tribunal to accept Ms Dibley's assessment of the level of the appellant's insight. The Tribunal was aware of the appellant's condition at the time of each interview and did not accept that she was under the influence of alcohol or Valium, notwithstanding consumption of both in small quantities shortly before coming on duty. The Tribunal also had the advantage of seeing the appellant give evidence about her recollection of the incident. Even if her recollection was poor at the time of the interview, she was aware of the allegations, but expressed no concern at the effect these may have had on staff, residents and family who had witnessed them. In my opinion, there is no sound basis for criticism of the Tribunal's finding in respect of a lack of insight.

9 Two complaints are raised here. The first is that the Tribunal ought to have been persuaded that the requirement that a second registered nurse be on duty with the appellant would destroy her prospects of employment and that its finding to the contrary was against the weight of the evidence. I adverted to the relevant material in dealing with grounds 1 and 2. The Tribunal was entitled to take the view that aged care facilities in Tasmania did normally employ two registered nurses during a day shift and thus the requirement for supervision could be accommodated. It did not dispute the proposition that her current employment at ADARDS was in jeopardy, nor did it suggest that she had any prospects at Glenview, from which she had resigned in circumstances making her re-employment there unlikely. The finding that the appellant's prospects of employment were not destroyed by the requirement for supervision was not against the weight of the evidence. Indeed, there was no evidence suggesting that there were no vacancies for a registered nurse at another aged care facility on day shift.

10 The second complaint is that the imposition of the requirement of supervision was draconian and unfair. In this respect it should be noted that the "supervision" was almost nominal. The Tribunal said immediately prior to making its orders:

"The Tribunal in its role as protector of the public accepts the appropriateness of Mrs Walters undergoing a period of supervision. It does not accept however that Mrs Walters requires direct supervision. The interests of the public can be met so long as Mrs Walters is not the sole registered nurse on duty at the facility."

Order 5, the subject of the appeal, permits indirect supervision and goes on to make it clear that the requirement for supervision will be met, provided she is not in charge, and that there is another registered nurse on duty with her at all times while she is practising nursing.

11 The conduct found proved was serious misconduct by the appellant in her professional capacity as a registered nurse. It involved actions likely to cause friction with other staff members and distress to a dying patient and members of her family visiting her at the time. The Tribunal expressed the view that it was not its role to impose punitive measures for breaches of the Act, but that it was appropriate to impose a sanction which would support her in her continued nursing practice, but subject to such restrictions as were necessary to protect the public from further professional misconduct. In the circumstances it cannot be said that the restrictions imposed demonstrably went beyond those which were necessary for the protection of the public and amounted to remediable error.

12 In the determination of an appropriate penalty for members of their own profession, disciplinary tribunals made up substantially of members who belong to that profession are in a better position to assess the appropriate penalty than a court (Mercer v Pharmacy Board of Victoria [1968] VicRp 9; [1968] VR 72 at 93 - 94 and McMillan v Pharmaceuticals Council of Western Australia [1983] WAR 166 at 174). In deciding what is a proper penalty, it has been said "a court must accord considerable weight to the order of the Tribunal to which the original responsibility was given" (Beaumont v Beesley [1973] 2 NSWLR 341 per Reynolds JA at 350). See also Skinner v Beaumont [1974] 2 NSWLR 106 at 112, where Samuels JA said in respect of an appeal by a medical practitioner from an order of the tribunal established under the Medical Practitioners Act 1938 (NSW), directing that his name be removed from the Register:

"Against this background, I turn to consider whether this Court should interfere with the penalty which the tribunal has imposed. The appellant bears, of course, the usual appellant onus of persuading this Court that the penalty was too severe. It is right to give weight to the fact that the tribunal is an expert body specifically charged with the task of policing its own profession."

That is not to say that this Court should not interfere where the discretion to impose an appropriate sanction has clearly miscarried. However, in the circumstances of this case, although the supervision requirement may well reduce her employability as an aged care nurse, that has not been destroyed and the requirement was an appropriate response to the Tribunal's perception of the need to protect the public from similar episodes of unprofessional conduct. The appeal is dismissed.