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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Turay v Nursing and Midwifery Board of Australia  QCAT 48
Nursing AND Midwifery Board of australia
Occupational regulation matters
3 February 2020 (ex tempore)
31 January 2020
Judge Allen QC, Deputy President
Ms Harriet Barker
Ms Claire Elliot
Mr Stephen Lewis
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – LICENCES AND REGISTRATION – where the applicant is a registered nurse – where the respondent imposed conditions on the applicant’s registration pursuant to s 178 of the Health Practitioner Regulation National Law – where the conditions required the applicant to practise under indirect supervision – where the applicant did not appeal the original decision – where the respondent refused the applicant’s applications for change or removal of the conditions on her registration pursuant to s 125 of the Health Practitioner Regulation National Law – where the applicant applied to QCAT to review the decisions of the respondent not to change or remove the conditions on her registration – whether QCAT could properly consider the merits of the original decision to impose conditions on the applicant’s registration in determining the application to review the decisions not to change or remove the conditions on the applicant’s registration – whether the conditions on the applicant’s registration should be changed or removed
Health Ombudsman Act 2013 (Qld), s 50(a)(i)
Health Practitioner Regulation National Law (Queensland), s 3A, s 3(3), s 125, s 178
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Azam v Medical Board of Australia  QCAT 611
George v Rockett  170 CLR 104
Solomon v Australian Health Practitioners Regulation Agency  WASC 203
Da Horta v Podiatry Board of Australia (No 2)  WASC 264
Coppa v Medical Board of Australia  NTSC 48 Shahinper v The Psychology Board of Australia  QCAT 593
L Nixon of Landers & Rogers
REASONS FOR DECISION
- Susan Turay (“the applicant”) is registered with the Nursing and Midwifery Board of Australia (“the Board”) as a registered nurse. The applicant was first registered in 2008 after completing a Bachelor of Nursing degree. She has also obtained other qualifications, including a Certificate III in Aged Care and a Graduate Certificate and a Masters degree in International and Community Development. She has achieved such qualifications since arriving in Australia as a refugee from her country of origin, Sierra Leone, and despite other substantial challenges in her personal life. In addition, she has made valuable contributions to her community and in the care and support of her family. She is to be admired for what she has achieved despite those challenges she has confronted.
- Between 13 November 2017 and 19 January 2018, the applicant was employed as a registered nurse with a Blue Care aged care service. Whilst the applicant was engaged through a nursing agency, her employer was Blue Care. On 2 February 2018, the Office of the Health Ombudsman received a notification from a facility manager of the Blue Care aged care service regarding the performance of the applicant in the course of her employment.
- In summary, the notification alleged that the applicant:
- (a)had failed to follow a doctor’s directive for the wound care of a patient;
- (b)had failed to follow a doctor’s directive regarding the close observation, monitoring and administration of certain drugs to a patient;
- (c)did not complete required observations and undertake an appropriate clinical review for a resident who had suffered a fall;
- (d)had failed to follow clinical pathways;
- (e)had left dangerous drugs unsecured and not stored in accordance with applicable legislation;
- (f)altered a schedule 8 drug medication register entry of another staff member; and
- (g)delayed in attending to a resident and undertaking an appropriate clinical review after being requested to do so.
- In accordance with s 50(a)(i) of the Health Ombudsman Act 2013 (Qld), the investigation of the notification was transferred by the Office of the Health Ombudsman to the Australian Health Practitioner Regulation Agency (“AHPRA”).
- On 16 August 2018, after considering submissions from the applicant and information provided by Blue Care and other material relating to the notification, the Board exercised its power under s 178(2) of the Health Practitioner Regulation National Law (Queensland) (“National Law”) to impose conditions on the applicant’s registration. The primary operative condition is in the following terms:
The practitioner must be supervised by another registered health practitioner (the supervisor) when practising as a nurse.
For the purposes of this condition, ‘supervised’ is defined as:
The practitioner must consult with the supervisor who is always physically present in the workplace and available to observe and discuss the management of patients and/or performance of the practitioner when necessary and otherwise at daily intervals.
- Such terms of supervision are consistent with the description of “Level 2 Indirect supervision” according to the guidelines of the Board. Other conditions required the applicant to nominate a primary and secondary supervisor and facilitate AHPRA obtaining reports regarding her performance. The applicant did not appeal such original decision.
- On 5 March 2019, the applicant requested that the Board change or remove the conditions imposed on her registration pursuant to s 125(1)(a)(i) of the National Law. By its decision on 28 March 2019, communicated to the applicant by letter dated 29 March 2019, the Board declined to change or remove the conditions.
- On 30 April 2019, the applicant filed an application to review the decision of 28 March 2019. The applicant subsequently filed material before the Tribunal in support of her application. The Board agreed to review this further material and treat it as a further application by the applicant under s 125 of the National Law for the change or removal of conditions on her registration.
- On 26 September 2019, the Board determined that the additional material provided by the applicant did not alter its decision not to change or remove the conditions and the conditions in the first decision were confirmed. Although no application has been filed to review the decision of 26 September 2019, the respondent has consented to the application being heard as an application to review both the decision of 28 March 2019 and the decision of 26 September 2019.
- In conducting its review of the decisions, the Tribunal is to produce the correct and preferable by way of a fresh hearing on the merits.
- The decisions of the Board were pursuant to s 125 of the National Law. Section 125(1) of the National Law relevantly provides that a registered health practitioner may apply to a National Board to change or remove a condition imposed on the practitioner’s registration. Section 125 prescribes no substantive test to be applied or matters to be considered in determining an application to change or remove conditions. The test to be applied in considering such an application is whether it has been demonstrated that the conditions, in all the circumstances at the time at which the application is being considered, are no longer necessary or appropriate. The circumstances will include, but not necessarily be limited to, the nature of the proceedings by which the conditions were imposed, the purpose of those proceedings, the purpose for which the conditions were imposed, and the current circumstances of the registrant.
- The Board has submitted that a determination of the application would not include any consideration by the Tribunal as to the merits of the original decision to impose conditions on the applicant’s registration. The Board submits that the issues to be determined by the Tribunal do not include whether, as the Board originally determined, conditions are necessary or appropriate, pursuant to s 178 of the National Law. The Board has accordingly submitted that much of the material placed before the Tribunal by the applicant is irrelevant to the application to review. The Board points to the fact that the applicant did not seek to review the original decision to place conditions on her registration, and that the arguments made by her legal representatives on her first application for change or removal of the conditions, pursuant to s 125 of the National Law, were limited to matters that had transpired since the original decision to place conditions on her registration, and did not include any attack upon the merits of the original decision.
- The applicant has placed material before the Tribunal which includes what would otherwise have been privileged communications between herself and her legal representatives. On the material before the Tribunal, I infer that the applicant did not appeal the original decision because her union would not fund such litigation. Consistent with that decision, her union-funded application for change or removal of the conditions was limited to matters transpiring since the original decision, and did not seek to challenge the merits of the original decision.
- The omission to appeal against the original decision and the arguments put forward on the first application for change or removal of the conditions were as a consequence of the applicant being unable to afford the costs of a wider challenge to the merits of the original decision. I do not regard her, by her conduct, as acquiescing in the original decision or as somehow being estopped from challenging its merits now.
- It would be unfair and contrary to the purposes of the National Law and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) if the Tribunal were to refuse any consideration of the merits of the original decision. In my view, in the circumstances of this case, if the Tribunal is to make the correct and preferable decision by way of the fresh hearing on the merits as to whether the conditions on the applicant’s registration should be changed or removed, it should consider for itself whether the conditions were necessary at the time the original decision was made pursuant to s 178 of the National Law.
- The Tribunal has done so.
- The material before the Board, basing its reasonable belief, consisted primarily of the original notification and supporting documents provided to the Office of the Health Ombudsman by Blue Care. The Board also considered material provided by the applicant, including written statements by the applicant herself, and written submissions on her behalf by her lawyers, and an email recording notes of a conversation with the applicant.
- In addition to that material which was before the Board, the Tribunal also has further written material submitted by the applicant and submissions and unsworn evidence from the applicant during the hearing. In that respect, I note that the Board did not require the applicant to be sworn, and had no objection to the applicant making submissions which included what was unsworn evidence from the bar table. Although there were some questions asked by the solicitor for the Board of the applicant, that evidence likewise was unsworn.
- I have taken all that material into account, as well as the views of the assessors.
- In considering the need for conditions, I am guided by the terms of s 178(1)(a)(i) of the National Law in considering whether the Board should have had a reasonable belief that the way the applicant practises the health profession or the applicant’s professional conduct is, or may be, unsatisfactory. In doing so, I need to have regard to the paramount principle that the health and safety of the public are paramount, and that restrictions on the practice of the health profession are to be imposed only if it necessary to ensure health services are provided safely and are of an appropriate quality.
- With respect to the terms of s 178(1)(a) of the National Law, I note that “belief” is the inclination of the mind towards assenting to rather than rejecting a proposition. The condition for the exercise of the power pursuant to s 178 of the National Law turns on the existence of the relevant reasonable belief, and does not require a finding on the balance of probabilities that the belief is correct or true. The words, “is or may be”, must also be given their natural meaning. The Board was not required to hold a reasonable belief that the practitioner’s practice or conduct is satisfactory. It is sufficient to reasonably believe that it may be. The words, “or may be”, clearly indicate that reasonable belief as to the possibility that the practitioner’s practice or professional conduct is unsatisfactory is sufficient.
- There is cogent body of evidence establishing a reasonable belief as to that possibility. The Tribunal does not find that the concerns raised by the material before the Board provided by Blue Care can be dismissed as mere lies and fabrications in retaliation for the applicant asserting her workplace rights, as contended by the applicant. Notwithstanding the obviously difficult and stressful working environment in which the applicant found herself in at Blue Care, there was sufficient evidence before the Board of professional performance deficits to establish the reasonable belief required by s 178(1)(a) of the National Law.
- The Board was then required to determine whether conditions ought to be placed upon the applicant’s registration in light of that reasonable belief. In considering that question, it had to have regard to the paramount guiding principle in s 3A of the National Law, as well as the guiding principle in s 3(3) of the National Law, both referred to earlier. Whilst protection of the public is and must remain the paramount consideration, the impact of conditions upon the registration of the health practitioner is a relevant consideration and therefore conditions imposed ought to address relevant risks specifically and be the least onerous possible to properly address such risks.
- Given the nature of the matters informing the reasonable belief of the Board, no less restriction than the level 2 indirect supervision ordered by way of conditions would adequately address the reasonable belief as to the applicant’s unsatisfactory performance.
- The Tribunal will proceed to consider the applicant’s application to review the decisions of 28 March 2019 and 26 September 2019 on the basis that the conditions imposed by way of the original decision were appropriate at that time. The Tribunal then must determine, by way of a fresh hearing on the merits, whether, pursuant to s 125 of the National Law, the conditions imposed on the applicant’s registration should be changed or removed. I have already referred to the considerations relevant to that determination, citing Azam v Medical Board of Australia.
- In making that decision, I must also take into account those principles provided by section 3A and section 3(3) of the National Law, cited earlier, and be mindful that conditions imposed ought to address the relevant risks specifically and be the least onerous possible to properly address such risks.
- The applicant has not worked as a nurse since the imposition of the conditions pursuant to the original decision of 16 August 2018. Indeed, it is the applicant’s asserted inability to obtain employment as a nurse as a consequence of such conditions that she primarily relies upon in seeking that the Tribunal set aside the decisions of the Board and remove the conditions from her registration.
- The Board submits that the conditions continue to be necessary for the protection of the health and safety of the public, as they provide a means to ensure the applicant’s performance is meeting professional standards. The Board submits that the matters raised in the notification which led to the conditions originally being imposed solely related to the applicant’s clinical practice and that the supervision conditions are necessary to enable the Board to undertake its oversight and monitoring role as to nursing standards. The Board submits that given the applicant has not practised subject to such conditions on her registration, the Board has no independent information that would allow it to verify that the applicant’s nursing practice is now satisfactory.
- As to the basis upon which the applicant submits the conditions ought be removed, the Board submits that it is not uncommon for registered nurses with conditions as, or more, onerous than those currently imposed on the applicant to successfully obtain employment as nurses. The requirements of the conditions do not amount to an effective cancellation of registration. In any event, the Board submits that the difficulties that may be faced by the applicant in obtaining employment do not outweigh the obligations of the Board and the Tribunal to ensure the protection of the public.
- I have considered whether conditions other than those currently imposed on the applicant’s registration could properly be imposed, pursuant to s 178(2) of the National Law, by way of a change of conditions pursuant to s 125 of the National Law. For the reasons submitted by the Board, I agree that conditions requiring education or mentoring would not be appropriate or adequate to address the matters leading to the original finding of a reasonable belief pursuant to s 178(1) of the National Law. Nothing less than the supervision conditions that were imposed were adequate to meet such matters at the time of the original decision. There has been no change of circumstances since the original decision that would suggest that those conditions are no longer appropriate or that any other alternative conditions would adequately address the circumstances of this case. In all the circumstances of this case, I cannot find that the conditions originally imposed are no longer necessary or appropriate. I do not consider that the circumstances of the matter and the protection of the public may be met through the imposition of other conditions. In those circumstances, I do not consider that it is appropriate to change or remove the conditions imposed on the applicant’s registration.
- Accordingly, the Tribunal orders as follows:
- (a)the decision of the respondent of 28 March 2019 not to change or remove the conditions imposed on the applicant’s registration is confirmed;
- (b)the decision of the respondent of 26 September 2019 not to change or remove the conditions imposed on the applicant’s registration is confirmed.
- The applicant is very obviously very passionate about nursing, including aged care nursing. She impresses as someone who is genuinely concerned with the health and welfare of her patients. She clearly found herself in a very difficult position, as the only registered nurse undertaking a night shift in an aged care home, where it seems she was expected to carry out, not only what one would normally expect of a registered nurse, but also the type of duties that would be carried out by personal carers and assistants in nursing. She experienced real difficulty with utilising the computer facilities that were essential to carrying out her duties. She was obviously working very long hours without the benefit of any immediate supervision in carrying out her duties. The matters of concern with her practice must be viewed in that context.
- The applicant clearly has the potential to continue to be a valuable member of the nursing profession. It is concerning that the applicant appears to have enjoyed no success in applications for employment since the imposition of conditions. The terms of the conditions should not prohibit her employment in a wide range of suitable workplaces. Despite the apparent impression of the applicant to the contrary, such conditions do not amount to an effective prohibition from practice and should not prevent her from obtaining suitable employment. The Tribunal would encourage the applicant to consider looking afresh at the way she goes about seeking nursing employment. Despite the apparent tensions in her relationship with her union, the applicant remains a financial member of that union and should consider seeking her union’s assistance in identifying appropriate possible avenues of employment and in the revision and submission of applications for employment.
- Given her obvious abilities and personal attributes, the Tribunal is confident that there are opportunities available for the applicant to demonstrate her fitness to practise, such that the Board may, after a relatively short period of supervised practice, decide to remove the conditions to which the applicant’s registration is now subject.
- Lastly, I have been specifically requested by the assessors to, and readily do, commend Ms Nixon for her commendable fair and sensitive approach to the presentation of the case for the Board.
 Exhibit 3.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
 Azam v Medical Board of Australia  QCAT 611 at -.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
 Cf Azam v Medical Board of Australia  QCAT 611.
 See in particular exhibit 1, pp 24-64, 136-171.
 Exhibit 1, pp 88-96, 236-241, 287-295, 297-305, 312-315, 320-325.
 Exhibit 1, pp 366-456, 634-651, 684-702; exhibit 2, pp 838-848, 1228-1293, 1298-1316, 1321-1369.
 National Law, s 3A.
 National Law, s 3(3).
 George v Rockett (1990) 170 CLR 104.
 Solomon v Australian Health Practitioners Regulation Agency  WASC 203; Da Horta v Podiatry Board of Australia (No 2)  WASC 264 at .
 Coppa v Medical Board of Australia  NTSC 48 at ; Da Horta v Podiatry Board of Australia (No 2)  WASC 264 at .
 Shahinper v The Psychology Board of Australia  QCAT 593 at -.
 See paragraph  of these reasons.
 West v Psychology Board of Australia  QCAT 472.
- Published Case Name:
Turay v Nursing and Midwifery Board of Australia
- Shortened Case Name:
Turay v Nursing and Midwifery Board of Australia
 QCAT 48
03 Feb 2020