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Nursing and Midwifery Board of Australia v Faulkner

 

[2018] QCA 97

SUPREME COURT OF QUEENSLAND

 

CITATION:

Nursing and Midwifery Board of Australia v Faulkner [2018] QCA 97

PARTIES:

NURSING AND MIDWIFERY BOARD OF AUSTRALIA

(appellant)

v

KAREN FAULKNER

(respondent)

FILE NO/S:

Appeal No 5876 of 2017

QCAT No 28 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2017] QCAT 141

DELIVERED ON:

25 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2017

JUDGES:

Holmes CJ and Philippides and McMurdo JJA

ORDERS:

  1. Extend the time for applying for leave to appeal to 13 June 2017.
  2. Grant leave to appeal.
  3. Dismiss the appeal.
  4. The appellant to pay the respondent’s costs of the appeal.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – LICENCES AND REGISTRATION – where the respondent is a registered nurse against whom the appellant made allegations of professional misconduct – where the responsible tribunal accepted the appellant’s case at first instance, reprimanded the respondent and ordered that the respondent’s registration be subject to certain conditions – where the respondent’s professional misconduct consisted of incorrectly administering drugs, lying about the administration of drugs, and taking the personal belongings of a colleague – where the responsible tribunal found that the respondent’s impugned conduct and conduct before the tribunal was dishonest – where the responsible tribunal was satisfied that the respondent would be unlikely to engage in similar conduct again – whether the responsible tribunal erred by not ordering that the respondent’s registration be suspended

Health Ombudsman Act 2013 (Qld), s 97, s 126, s 127

Health Practitioner Regulation National Law Act 2009 (Qld), s 4, s 5

Health Practitioner Regulation National Law (Qld), s 3, s 3A, s 5, s 35, s 193, s 193B(2), s 196

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 149, s 151, s 154

Attorney-General v Bax [1999] 2 Qd R 9; [1998] QCA 89, cited

Bawden v ACI Operations Pty Ltd [2003] QCA 293, cited

Collins v Medical Practitioners Board [2003] VCAT 1755, cited

Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462; [1995] QCA 187, cited

De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; (2000) 170 ALR 709; [2000] FCA 335, cited

Fletcher v Queensland Nursing Council [2011] 1 Qd R 111; [2009] QCA 364, cited

Graham v Queensland Nursing Council [2010] 2 Qd R 157; [2009] QCA 280, cited

Ha v Pharmacy Board of Victoria [2002] VSC 322, distinguished

Medical Board of Queensland v Thurling [2003] QCA 518, cited

Medical Practitioners Board of Victoria v McGoldrick (1999) 15 VAR 462; [1999] VSCA 215, considered

Naheed v General Medical Council [2011] EWHC 702 (Admin), cited

Nursing & Midwifery Council v Ademiluyi [2014] EWHC 4459 (Admin), cited

Suncorp Insurance and Finance v Hill [1998] QCA 112, cited

COUNSEL:

I Freckleton QC, with C Wilson, for the appellant

J J Allen QC for the respondent

SOLICITORS:

Moray & Agnew Lawyers for the appellant

Hall Payne Lawyers for the respondent

  1. HOLMES CJ:  I agree with the reasons of McMurdo JA and the orders he proposes.
  2. PHILIPPIDES JA:  I have had the advantage of reading the reasons for judgment of McMurdo JA.  I agree with his Honour’s reasons and the orders proposed.
  3. McMURDO JA:  This is an appeal against orders made by the Queensland Civil and Administrative Tribunal against the respondent under the Health Practitioner Regulation National Law (Qld) (“National Law”).  The respondent is a registered nurse against whom the appellant (“the Board”) made allegations of professional misconduct in respect of events occurring at two Brisbane hospitals in 2012.  The respondent admitted that she had engaged in unprofessional conduct but the Tribunal accepted the Board’s case that it constituted professional misconduct.  There is no challenge to the Tribunal’s findings in that respect.
  4. The issue in this appeal is whether the Tribunal erred in reprimanding the respondent and subjecting her registration to certain conditions, rather than ordering that her registration be suspended.
  5. The decision of the Tribunal involved the exercise of a discretion, so that the question here is whether there was an error by the Tribunal, rather than whether this Court would have made the same orders.  For the reasons that follow, no specific error is demonstrated and nor can an error be inferred from the outcome.  The orders made by the Tribunal should not be disturbed.

Statutory regime

  1. The National Law is a national registration and accreditation scheme for health practitioners.  It has the force of law in Queensland by s 4 of the Health Practitioner Regulation National Law Act 2009 (Qld).[1]
  2. An objective of the national scheme is to provide for “the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.”[2]  The health and safety of the public are declared to be paramount for the administration of the National Law.[3]
  3. The National Law establishes National Health Practitioner Boards, of which the appellant is one, with functions that include the oversight of the assessment and investigation of matters involving registered health practitioners and, in particular, the referral of practitioners to a responsible tribunal or to the Health Ombudsman in the relevant jurisdiction.[4]  In Queensland, that responsible tribunal is the Queensland Civil and Administrative Tribunal (“QCAT”) constituted by a judicial member.[5]
  4. By s 193 of the National Law, the Board must notify the Health Ombudsman if it forms a reasonable belief, based on a complaint or for any other reason, that a registered health practitioner has behaved in a way that constitutes professional misconduct or that there is another ground for the suspension or cancellation of the practitioner’s registration.  The Board may refer a matter about a practitioner to the Tribunal if the Health Ombudsman asks the Board to continue to deal with the matter.[6]
  5. In the present case, the Board notified the Health Ombudsman on 3 October 2014, and on 22 October 2014, the Ombudsman requested the Board to continue to deal with the matter.  On 7 November 2014, the Board referred the matter to the Tribunal.
  6. The term “professional misconduct” is defined in s 5 of the National Law as follows:

“(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

  1.  more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
  1.  conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.”

The National Law provides that less serious conduct may constitute “unprofessional conduct”, and conduct which is less serious again, may constitute “unsatisfactory professional performance”.[7]

  1. By s 196 the Tribunal may make various findings upon which it can make various orders.  According to s 196(2) any one or more of those orders may be made if the Tribunal makes any of the findings described in s 196(1)(b), namely that there has been unsatisfactory professional performance, unprofessional conduct or professional misconduct, the practitioner has an impairment or the practitioner’s registration had been improperly obtained upon the basis of false or misleading information.
  2. The range of orders open to the Tribunal are:
  • a caution or reprimand;
  • the imposition of a condition on the practitioner’s registration, such as a condition for education, training or counselling or for the supervision of the practitioner for a specified period;
  • the imposition of a fine;
  • the suspension of the practitioner’s registration for a specified period;
  • the cancellation of the practitioner’s registration.
  1. By s 196(3), if the Tribunal decides to impose a condition on the practitioner’s registration, it must decide a “review period for the condition”.  That is the period during which a condition may not be changed or removed by the Board.[8]
  2. By s 126 of the Health Ombudsman Act 2013 (Qld), the Tribunal, in conducting a hearing of a disciplinary proceeding, must be assisted by three assessors, two of whom are to come from a panel who are registered practitioners in the same profession, and the other from the so-called public panel of assessors.  By s 127(1) of that Act, the function of an assessor is “to sit with the tribunal and advise the Tribunal about questions of fact”.  The Tribunal in this matter was constituted by the Deputy President of QCAT, Sheridan DCJ.
  3. By s 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), a party to the proceeding in the Tribunal may appeal to this Court against a decision of the Tribunal on a question of fact only or a question of mixed law and fact, but only with this Court’s leave.[9]  Such an appeal must be decided by way of re-hearing, with or without additional evidence as decided by this Court.[10]  The Court may confirm or amend the decision of the Tribunal, or set it aside and substitute its own decision.[11]

The respondent’s misconduct

  1. There were four allegations of misconduct made against the respondent.  Three of them concerned the respondent’s conduct, in the course of her duties as a nurse, at a Brisbane hospital in July 2012.  The other involved misconduct, not as a nurse, but in her personal capacity, in that as she left work at the Wesley Hospital in October 2012, she took with her a handbag which belonged to another nurse.
  2. At the hearing, the facts were not uncontroversial; but according to the findings of the Tribunal, which are unchallenged, they were as follows.
  3. A patient was admitted to the Brisbane Private Hospital for a hip replacement.  The respondent was allocated to care for that patient along with six others.  Her shift commenced at 6.30 pm and finished at 7.00 am on the following morning.  The surgeon ordered that the patient be administered with a certain antibiotic pre-operatively to protect her against infection.  The medical chart for the patient recorded that she was administered the drug by the respondent at 6.00 am, that is to say about an hour before the end of the respondent’s shift.  In truth, the respondent had not administered the antibiotic or anything else in substitution for it, to that or another patient.
  4. When another nurse took over the care of this patient at the conclusion of the respondent’s shift, she became concerned that the patient had not been administered the antibiotic.  The cannula appeared to be untouched and there was no other equipment to indicate that an intravenous antibiotic had been administered.  The patient could not recall any medication having been administered.  The nurse telephoned the respondent, asking for clarification.  Before the Tribunal, it was undisputed that the respondent then told that nurse that she had administered the antibiotic to the patient.  Unconvinced, the nurse arranged for a blood test, which indicated that the antibiotic had not been administered.
  5. Her Honour found, on the basis of her observation of the respondent when giving evidence, that “there is no reason to doubt that when [the respondent] first spoke to [the other nurse] … [the respondent] believed that she had administered the drug”.  Her Honour accepted that “the failure by [the respondent] to administer the drug was inadvertent and that initially [she] did not intentionally provide false information … as was alleged against her by the Board”.[12]  But her Honour also found that given what the other nurse had told her, the respondent’s failure to then acknowledge the possibility that she had made a mistake was unreasonable and commented that it was fortuitous that no harm had been caused to the patient.[13]
  6. Her Honour added that it was “also troubling that in giving evidence in these proceedings, [the respondent] says that she must have administered the drug to another patient by mistake”.[14]  Her Honour concluded that:

[The respondent] wrote the medication chart up prior to the administration of the drug, a process she admitted to having done previously, and that she inadvertently failed to subsequently administer the drug to any patient.”[15]  (Emphasis added.)

  1. That incident was the subject of three proved allegations, namely that the respondent signed a patient medication chart in advance of the medication being administered, she failed to administer the medication having signed the chart, and she advised the other nurse that the medication had been administered.
  2. The other incident occurred as follows.  Having worked a nightshift at the Wesley Hospital, the respondent finished work at about 7.15 am.  Another nurse was working a shift commencing that morning, in the same ward.  She arrived at the ward at about 6.50 am and placed her handbag underneath a desk in the nurses’ station.  At about 7.30 pm on that day, she realised that the handbag was missing and she notified hospital security, who reviewed CCTV footage.
  3. The footage showed the respondent picking up two handbags at the nurses’ station and then walking through the corridors of the hospital to the carpark.  After picking up the two bags from under the desk, the respondent was seen to put the two bags over her left shoulder before moving them to her right hand after she had left the ward.  The Tribunal found from the footage that apparently deliberately, the respondent placed her own bag in front of the other bag.  Next, the footage showed her own bag on her shoulder and the other bag being carried by hand, but covered by her jumper.  The Tribunal found that the respondent was “very deliberately” covering the other bag as she continued to walk through the hospital.[16]
  4. The respondent gave evidence that she only realised that she had someone else’s bag as she was driving out of the carpark and reaching for her Navman in her own bag.  She said that at that moment she realised “[t]hat’s not my bag”.  She said that she then opened the wallet in that bag and realised that it belonged to the nurse with whom she had worked.  She considered going back to the carpark but, she said, she had no money.  And she said that she could not find the front entrance to the hospital to leave the handbag.[17]
  5. The respondent admitted that she made no attempt to contact the hospital, nor did she ring her employment agency or the police.  Instead, she said, she was in a “panicked mode.”[18]
  6. On the following day, a member of the public handed the bag in to the Dutton Park Police Station.  Missing from the bag were a pair of sunglasses and $80.  The respondent was issued with a Notice to Appear for the alleged theft of the bag, but the charge was discontinued after a process of mediation, at which the respondent agreed to pay restitution of $537.[19]
  7. The respondent’s evidence was that she took the bag with her by mistake but the Tribunal found that this evidence was inconsistent with her attempts to hide it and her subsequent behaviour, which was not that of an honest person.  In the Tribunal’s view, the respondent’s explanation was “contrived and unbelievable”.[20]

The Tribunal’s assessment of the misconduct

  1. The Tribunal accepted that the respondent had made changes to her life, which were necessary and appropriate.  The respondent had “acknowledged the effects of fatigue including … its effect on her ability to make proper decisions.”[21]  However the Tribunal said that the respondent continued to show a degree of lack of insight and that she had “not reached a point where she is prepared to admit her failings”.[22]  The Tribunal said that her evidence had been untruthful with respect to her practices at that time in relation to pre-signing medication charts and it found that at that time, her practice of pre-signing medication charts was “very ingrained”.[23]
  2. However, the Tribunal made this critical finding:[24]

“With the changes made to her working hours and having regard to the numerous references provided, if she continues to work in the manner she is working now, it would be unlikely there would be re-offending.”

  1. The Tribunal then expressed its satisfaction that the respondent had behaved in a way that constituted professional misconduct.[25]

The Tribunal’s reasons for its orders

  1. The Tribunal was taken by counsel for the respondent to the decision of the Supreme Court of Victoria in Ha v Pharmacy Board of Victoria.[26]  In that case the practitioner, a pharmacist, had pleaded guilty to three charges of indecent assault upon prospective employees for which he had been fined $1,500 without a conviction being recorded.  The Tribunal quoted this passage from the judgment of Gillard J:[27]

[98] The appellant has been punished through the criminal law system.  He has been charged and found to have committed three serious offences.  He has come before the courts.  He has been punished in accordance with the criminal law.  In addition, he has incurred substantial legal costs.

[99] On any view, he has been severely punished for his stupidity and serious misconduct.  His reputation has been tainted.  What he has experienced to date should be a constant reminder to him of what he has risked by his stupidity, namely, the permanent loss of reputation, position in the community and his business.”

  1. The Tribunal noted that in that case, the judge did not consider that a period of suspension was warranted where that would cause financial ruin and that the “experience through the courts and punishment meted by the court could serve as a constant reminder not to transgress.”[28]
  2. The Tribunal noted a comment by counsel for the Board that the Victorian judgment was relatively old, but said that this was irrelevant unless there had been a significant change in the legislative regime and that no submission had been made to that effect.  The Tribunal said what it described as “the philosophical approach which was taken and is detailed by the decision of Justice Gillard”, remained relevant.[29]
  3. After referring to cases which were suggested as comparable in the submissions for the Board, the Tribunal said that the conduct in all of them was “quite different and involved more prolonged and more serious acts of dishonesty”, a statement which was then explained by reference to the nature of the conduct in each of those cases.[30]  The Tribunal concluded as follows:

[60] In the circumstances, the Tribunal is of the view that a reprimand is an appropriate sanction and a suspension·is not necessary. As observed by the Supreme Court of Victoria in Peeke v Medical Board of Victoria, a reprimand is not a trivial penalty and has the potential for serious adverse implications.

[61] In Medical Board of Australia v Jones, Judge Kingham, Deputy President said the sanction of reprimand was not trivial as it was a public denunciation of the professional conduct which is recorded on the public register of practitioners. Further, under the National Law, the reprimand will remain on the register until the National Board "considers it is no longer necessary or appropriate for the information to be recorded on the Register."

[62] The Tribunal considers, having regard to the conditions proposed by the Board, that the imposition of some conditions would be appropriate and would help to serve as a reminder to Ms Faulkner as to the consequences of her transgressions. The Tribunal also considers it is important Ms Faulkner understands the critical importance of medication charts.

[63] Having reviewed the conditions proposed by the Board, the Tribunal considers that conditions in accordance with the attached would be adequate. The Tribunal believes that the next 12 months will be an important period for Ms Faulkner. Ms Faulkner will no longer have these proceedings looming and it will be important that she continue to reflect on her behaviours which led to the criminal charges and to these proceedings.

[64] Having imposed conditions on Ms Faulkner's registration, under s 196(3) of the National Law the Tribunal is also required to impose a review period for the conditions. As the mentoring period is 12 months, it would be appropriate at the end of that time for the conditions in question to be reviewed.” (Footnotes omitted.)

  1. The conditions required that, for a period of twelve months, the respondent was to practise only at a certain hospital or such other places approved by the Board and was not to engage in agency work without its approval.  The respondent was required to undertake and successfully complete a program of education to be approved by the Board, in relation to responsibilities and duties in respect of the administration, documentation and management of medicines.  That program of education was be to completed within six months, followed by a report by the respondent to the Board demonstrating, to its satisfaction, that the respondent had incorporated the lessons learnt from the program into her practice.  A further condition required the respondent to be mentored by another registered health practitioner for a period of 12 months.  It was ordered that the review period for those conditions be 12 months.  In all, the conditions subjected the respondent to an extensive regime of education and mentoring within a defined workplace.

Leave to appeal

  1. The Board requires an extension of time because it did not file a proceeding in this Court until one day outside the 28 days permitted for an application for leave to appeal or an appeal to be made.[31]  The Board’s delay was inadvertent and the extension of time is not opposed.  The extension of time should be granted.
  2. The Board filed a notice of appeal, not an application for leave to appeal.  As I have earlier noted, this appeal requires the Court’s leave.  The question of leave was not argued.  I would grant leave to appeal in this case.

The arguments in this Court

  1. The submissions for the Board emphasise the discreditable conduct of the respondent, both in the events in question and in some of her evidence to the Tribunal.  In essence, it is said that her conduct at the time and in the Tribunal was dishonest and that “dishonesty undermines the whole basis upon which a nurse can work.”[32]  The argument cites the judgment of the Victorian Court of Appeal in Medical Practitioners Board of Victoria v McGoldrick, where Buchanan JA (with whom Tadgell and Phillips JJA agreed) said that the practitioner’s false evidence in that case was a matter which the Victorian Civil and Administrative Tribunal had been obliged to consider in deciding whether the practitioner should remain registered.[33]  Buchanan JA said that the false evidence which that practitioner had given was a grave reflection upon his character, which was inconsistent with the public interest in medical practitioners being trustworthy.  That case was remitted to the Tribunal for reconsideration because the Court held that the practitioner’s dishonesty as a witness had not been considered.
  2. It is submitted that where a practitioner has been dishonest, especially persistently so, there is a fundamental problem with only imposing conditions upon the practitioner’s registration.[34]  In the circumstances, it is submitted that the Tribunal’s decision to permit the respondent to remain in practice was made without proper regard to the importance of honesty and trustworthiness for a health practitioner.
  3. Another specific error, it is argued, was the Tribunal’s acceptance of Ha v Pharmacy Board of Australia, and another decision which had followed it, Collins v Medical Practitioners Board,[35] as relevant in this case.  It is said that they were irrelevant because, in the present case, the respondent was not convicted of any offence.  Therefore what was described as the “philosophical approach” of Gillard J in Ha v Pharmacy Board of Australia should not have been applied.  Involved in that argument is the premise that the reasoning in that case was applied in the present one.
  4. It is argued that the Tribunal failed to give adequate reasons because in this case, such reasons as were given did not disclose what had been taken into account or explain the Tribunal’s conclusions.[36]  This argument is focussed upon the conclusion stated in paragraph [60] of the Reasons which I have set out above.
  5. Finally it is submitted for the appellant that if no specific error appears, it should be inferred that there was an error because the sanction imposed was manifestly inadequate.
  6. For the respondent it is submitted that this Court should be circumspect in its approach to a decision of the Tribunal as to the appropriate sanction, where the exercise of the discretion of the Member must have been informed by the assistance of the assessors.  For that submission, counsel cites Medical Board of Queensland v Thurling,[37] Graham v Queensland Nursing Council[38] and Fletcher v Queensland Nursing Council.[39]
  7. It is submitted for the respondent that in this case, it could not be said that the Tribunal had overlooked the relevance of the respondent’s dishonesty, including in some of the evidence which she gave to the Tribunal.  It is submitted that Ha v Pharmacy Board of Australia and Collins v Medical Practitioners Board were relevant cases and were properly considered.  It is further submitted that the Tribunal gave adequate reasons.
  8. It is submitted for the respondent that the sanction was not manifestly inadequate, when the following matters are considered: the respondent’s work and financial stresses at the time of the conduct which led to poor decision making;[40] the fact that the conduct was out of character; the lengthy delay from the events in question, during which time there had been no recurrence of misconduct; the respondent’s expression of shame and embarrassment and the changes made by the respondent to her financial circumstances and work practices.

Consideration

  1. The appellant’s first argument is not critical of the Tribunal’s findings of fact.  It is not said that the Tribunal overlooked some discreditable conduct or misunderstood the respondent’s dishonesty.  The argument is that having made those findings, including that about the honesty of some of the respondent’s evidence, the Tribunal then overlooked that conduct when considering the appropriate outcome.
  2. The question here is not whether the respondent’s dishonesty, and in particular her dishonesty as a witness, was relevant conduct which the Tribunal was obliged to consider.  The question is whether the Tribunal failed to do so.  In my view, such a failure does not appear from the Tribunal’s Reasons.  In particular, the Tribunal’s understanding of the relevance of the respondent as an untruthful witness is demonstrated at paragraph [48] of the Reasons which should be set out in full:

[48] Unfortunately, given the Tribunal's findings, Ms Faulkner has not reached a point where she is prepared to admit her failings. She has not admitted to having deliberately taken the handbag, nor any of its contents. Further, in her evidence to the Tribunal she has not been truthful with respect to her practices at that time in relation to pre-signing medication charts. Clearly, at that time, her practice of pre-signing medication charts was very ingrained. Finally, when challenged regarding the possible non-administration of medication, she would not acknowledge the possibility that she had not administered the drug.”

  1. As to the argument about Ha v Pharmacy Board of Australia, I am not persuaded that the Tribunal considered that the present case was of that kind, and upon that basis decided that the sanction should be moderated to allow for the fact that the practitioner had been punished already. Clearly the present case was distinguishable, because the respondent had not been punished under the criminal law.
  2. Unfortunately, it is not rare for the misconduct of a professional, which constitutes the ground for disciplinary action against him or her, to have been conduct for which the professional has been punished under the criminal law.  In general, the practitioner’s punishment under the criminal law is not a factor which should moderate the disciplinary sanction, because the purpose of that sanction is not to punish the practitioner, but to protect the public.  It is recognised that the protection of the public extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners.[41]  There is a deterrent element involved in the protection of the public in this context.[42]  In that way, where a substantial punishment has been imposed on the practitioner under the criminal law for the misconduct for which the practitioner is to be disciplined, that punishment can be relevant.  But its relative importance will obviously depend upon the facts and circumstances of the particular case.
  3. In the present case, although the Tribunal’s Reasons set out the passage from Ha v Pharmacy Board of Victoria that referred to prior punishment, the Tribunal did not say that it affected the outcome here.  There was no misapprehension that this respondent had been “punished through the criminal law system”, or that she had “incurred substantial legal costs” in that context.  At paragraph [56] of the Tribunal’s Reasons, what was described as the “philosophical approach” in Ha v Pharmacy Board of Victoria was, in my view, a reference to the statement by Gillard J in that case, as quoted in the preceding paragraph of the Tribunal’s Reasons, that “[t]he ultimate issue for the decision maker on penalty is the risk of repetition of the misconduct.”  In my conclusion, there is no demonstrated error in the Tribunal’s consideration of Ha v Pharmacy Board of Victoria and the other case which had applied it.[43]
  4. I do not accept that the Tribunal gave inadequate reasons for its ultimate conclusion.  Notably, the appellant’s submissions refer to paragraph [60] of the Reasons, but not to the paragraphs which followed it.  It is clear that the Tribunal considered that the protection of the public could be adequately served by orders which did not affect the respondent’s registration.  A critical finding expressed in the Reasons was that, with the changes made to the respondent’s working hours and having regard to the numerous references provided in her favour, it was unlikely that there would be any “re-offending” if the respondent continued to work as she had been at the time of this decision.[44]  That finding, in the context of the Reasons as a whole, explained the basis for the Tribunal’s conclusion, and the Reasons disclosed what had been taken into account.
  5. That leaves the submission that the sanction imposed was manifestly inadequate.  As I have noted, in this State the tribunal for disciplinary proceedings against a practitioner under the National Law is QCAT constituted by a judicial member, but with the assistance of assessors, two of whom must be members of the relevant profession.  The availability of that assistance is relevant when this Court is considering the findings of a Tribunal about the fact and extent of a practitioner’s misconduct and determination of the appropriate sanction.[45]  In some cases, that consideration can have a particular importance, although this is not one of them.
  6. The present question is whether there is a manifest inadequacy in these orders, because the Tribunal did not suspend the registration of the practitioner.  The effect of the appellant’s argument is that it was not open to the Tribunal to make orders which left intact the respondent’s registration.  It is argued that the respondent had demonstrated that she remained untrustworthy and that there is an unacceptable risk involved in such a person working as a registered nurse, regardless of the controls which might be imposed by conditions such as those ordered by the Tribunal.
  7. The respondent submits that this conduct was out of character, for which is cited the Tribunal’s Reasons at [42] and [45].  But, for the most part, those paragraphs record the submissions to the Tribunal by the counsel for the respondent and there is no finding that the conduct was out of character.  The Tribunal referred there to the character references in favour of the respondent, which were found to be relevant, but about which the Tribunal noted that it was unclear whether the referees had been made aware of the criminal charge or of this proceeding.  The respondent’s argument refers to her expression of shame and embarrassment, within her affidavit.  Again, there was no express finding as to that evidence, but it is sufficiently clear that the Tribunal did not entirely accept it.
  8. Otherwise, the matters referred to in the respondent’s submissions provided a sufficient basis for the orders which were made.  Most importantly, there was the finding that the respondent was unlikely to re-offend, in a context where, for whatever reason, nearly five years had passed between the events in question and the Tribunal’s decision.
  9. In my conclusion, the Tribunal was not bound to impose a period of suspension and the orders which it made are not manifestly inadequate.

Orders

  1. I would order as follows:
    1. extend the time for applying for leave to appeal to 13 June 2017.
    2. grant leave to appeal.
    3. dismiss the appeal.
    4. the appellant to pay the respondent’s costs of the appeal.

Footnotes

[1]  The National Law is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld).

[2]  National Law, s 3(2)(a).

[3]  National Law, s 3A.

[4]  National Law, s 35.

[5] Health Practitioner Regulation National Law Act 2009 (Qld), s 5; Health Ombudsman Act 2013 (Qld), s 97.

[6]  National Law, s 193B(2).

[7]  Each being defined by s 5 of the National Law.

[8]  National Law ss 5, 125 - 127.

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 149(3)(b).

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 154(2).

[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 154(3).

[12] Nursing and Midwifery Board of Australia v Faulkner [2017] QCAT 141 at [18] (“Tribunal’s Reasons”).

[13]  Ibid at [20].

[14]  Ibid at [21].

[15]  Ibid at [23].

[16]  Ibid at [25] – [29].

[17]  Ibid at [30] – [31].

[18]  Ibid at [32].

[19]  Ibid at [33] – [34].

[20]  Ibid at [35].

[21]  Ibid at [47].

[22]  Ibid at [48] – [49].

[23]  Ibid.

[24]  Ibid at [50].

[25]  Ibid at [51].

[26]  [2002] VSC 322.

[27]  Ibid at [98] – [99].

[28]  Tribunal’s Reasons at [55].

[29]  Ibid at [56].

[30]  Tribunal’s Reasons [58].

[31]  By s 151(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[32]  Appellant’s written submissions paragraph 12 quoting Nursing & Midwifery Council v Ademiluyi [2014] EWHC 4459 (Admin) at [7].

[33]  [1999] VSCA 215 at [24] – [25].

[34]  Appellant’s written submissions paragraph 16, citing Naheed v General Medical Council [2011] EWHC 702 (Admin) at [26].

[35]  [2003] VCAT 1755.

[36]  Citing Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 at 476 – 477; [1995] QCA 187; Suncorp Insurance and Finance v Hill [1998] QCA 112; Bawden v ACI Operations Pty Ltd [2003] QCA 293 at [29].

[37]  [2003] QCA 518 at [12].

[38]  [2010] 2 Qd R 157 at 169 [24] and 170 [29]; [2009] QCA 280.

[39]  [2011] 1 Qd R 111 at 135 – 136 [86]; [2009] QCA 364.

[40]  Tribunal’s Reasons at [40] and [47].

[41] De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335 at [42]; (2000) 170 ALR 709 at 724 [42] (per French J, as he then was and with whom the other members of the Full Federal Court agreed).

[42] Attorney-General (Qld) v Bax [1999] 2 Qd R 9 at 22 (Pincus J); [1998] QCA 222.

[43] Collins v Medical Practitioners Board [2003] VCAT 1755.

[44]  Tribunal’s Reasons at [50].

[45]  In the latter respect, see Fletcher v Queensland Nursing Council [2011] 1 Qd R 111 at 136 [86] (Chesterman JA).

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v Faulkner

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v Faulkner

  • MNC:

    [2018] QCA 97

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Philippides JA, McMurdo JA

  • Date:

    25 May 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QCAT 141 15 May 2017 Respondent found to have committed professional misconduct and was reprimanded; respondent's registration subject to conditions to be reviewed in twelve months: Sheridan DCJ with Members Barnett, Elliot and Lewis.
Notice of Appeal Filed File Number: Appeal 5876/17 13 Jun 2017 -
Appeal Determined (QCA) [2018] QCA 97 25 May 2018 Leave to appeal granted; appeal dismissed: Holmes CJ and Philippides and McMurdo JJA.

Appeal Status

{solid} Appeal Determined (QCA)