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  •   Notable Unreported Decision

Re Hampton

 

[2002] QCA 129

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

IN THE MATTER OF AN APPLICATION BY WAYNE LEONARD HAMPTON, LAW STUDENT FOR ADMISSION UNDER THE SAID RULES

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Admission

ORIGINATING COURT:

DELIVERED ON:

5 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2002

JUDGES:

de Jersey CJ, Moynihan SJA and White J

Joint reasons for judgment of de Jersey CJ and Moynihan SJA; separate reasons of White J, concurring as to the order made.

ORDER:

Application dismissed

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – ADMISSION

Where applicant, a former registered nurse, applied for admission as a solicitor having fulfilled the formal prerequisites for admission – whether he was a fit and proper person for admission as a solicitor – where applicant failed to disclose three sets of circumstances which may have been adverse to his admission as a fit and proper person – whether he should have disclosed his cancellation of registration as a nurse after inappropriately dealing with three females while under his care – whether he should have disclosed his plea of guilty to a charge that he had performed a nursing service while not a registered nurse contrary to s 142(1) of the Nursing Act – whether adverse circumstances would have come to light without a letter of objection being presented to the Solicitors’ Board – recognition of the primacy of the pro-active obligation of the candidate to make candid, comprehensive disclosure – whether an application should ordinarily be rendered doubtful where the applicant has not, in some significant respect, been frank with the court – whether a previous professional disbarment and an applicant concededly having acted as a professional contrary to a statutory provision are significant to the assessment of fitness to practise as a solicitor – where consideration to be given to amending the “notice previous to admission as a solicitor” to refer specifically to the duty of disclosure, in candid good faith, of any circumstance which might reasonably bear upon the applicant’s fitness to practice.

Nurses Act 1992 (Qld), ss 104 and 142(1)

COUNSEL:

G Mullins for the applicantP Byrnes for the Solicitors’ Board

SOLICITORS:

Quinn & Scattini Solicitors for the applicant

[1] de JERSEY CJ: Wayne Leonard Hampton has applied for admission as a solicitor.  He is a 37 year old former registered nurse who has now graduated in law from the Queensland University of Technology, and fulfils the formal prerequisites for admission.  The issue is whether he is shown otherwise to be a fit and proper person for admission as a solicitor.

[2] The applicant delivered his “notice previous to admission as a solicitor” to the Solicitors’ Board on 20 November 2001, and on the same day caused publication of an advertisement of that notice in the “Courier Mail”.  On 23 November, the Board received a letter dated 21 November 2001, from a person describing herself as a one time colleague of the applicant, in which the writer objected to the applicant’s being admitted as a solicitor, because of the applicant’s asserted lack of professionalism while a registered nurse.  This prompted the Board to make further enquiries. 

[3] The Board’s subsequent investigations unearthed three sets of circumstances, adverse to the applicant, none of which the applicant had disclosed to the Board with his notice.  It is necessary for me to set out some detail of each of those sets of circumstances. 

The Cairns matters

[4] On 8 June 1991, while on duty as a registered nurse at Cairns Base Hospital and in the resuscitation unit, the applicant massaged skin care cream into parts of the body of a female student nurse, including the sides of her breasts and her buttocks. 

[5] On another occasion, during the first half of 1991, the applicant massaged the neck of a registered nurse and interfered with her uniform.

[6] In December 1992 the Queensland Nursing Council instigated proceedings against the applicant, under s 104 of the Nursing Act, charging him with conduct discreditable to a registered nurse.  The Nurses’ Registration Board of Queensland conducted an enquiry in March 1993, and found the charges established.  Where the evidence conflicted, the Committee preferred to accept the evidence of the complainants rather than that of the present applicant.  The Board effectively placed the applicant on 12 months “probation”.  Although the Board indicated that it would deal further with the matter within the following 12 months, that apparently did not happen. 

Logan

[7] On 6 October 1997 a female person attended at the Logan Hospital while the applicant was on duty as a registered nurse.  She was concerned that she may have been bitten by a red back spider.  The applicant administered an electrocardiogram.  Prior to doing that, the applicant removed the woman’s bra.  The next day, the applicant visited the woman at her home.  The clear inference is that he was aware of her address because he had taken down her particulars the previous evening at the hospital.  While he did not assault or threaten the woman, she not surprisingly felt, in her words, scared, uncomfortable and upset by his being there.  The woman complained to the hospital that same day.

[8] When confronted with the allegation by the District Manager of the Logan-Beaudesert District Health Service, the applicant at once denied it, saying that he did not go to the complainant’s home.  The Human Resources Manager investigated the complaint.  Through his solicitors, the applicant gave that Manager a different account, to the effect that he had been at the complainant’s house, but entirely coincidentally.  He claimed that while driving his car, he thought he had hit and injured a cat.  He stopped the car and followed the cat, which took him to the home of his patient from the previous evening.  The District Manager wrote to the applicant on 12 November 1997, inviting a response to the Manager’s investigation report.  Through his solicitors, on 26 November 1997, while maintaining the claim of coincidence, the applicant added that “at all times he was under the impression that he had been invited to her home”.  The District Manager understandably noted the variability of the applicant’s responses.

[9] The District Manager subsequently dismissed the applicant from his employment at the Logan Hospital.  He considered the applicant’s visit “a clear breach of the professional boundaries inherent in a nurse/patient relationship”.

[10] The Queensland Nursing Council preferred charges against the applicant arising out of these matters.  In an affidavit sworn on 12 January 1998, the applicant confirmed that his attendance at the woman’s home was “uninvited and not coincidental”.  He pleaded guilty before the Professional Conduct Committee on 19 January 1998 to a charge of conduct discreditable to a registered nurse, in that he “used confidential information for private purposes by attending at the private residence of a patient”. 

[11] The Professional Conduct Committee cancelled the applicant’s registration as a nurse, observing that it viewed the conduct with such distaste that it unhesitatingly deregistered him.  The applicant was ordered to pay the Queensland Nursing Council’s costs, fixed at $2,000, within 18 months.  He has satisfied that order.

[12] The applicant swears now that he believed at the time of visiting the woman that he had been invited to visit her, while acknowledging that “belief was subsequently shown to be erroneous”.  The basis upon which he intruded into her private situation is, one infers, even on the applicant’s own account, shaky.  He agrees now that his conduct “in retrieving the patient’s private address was inappropriate”. 

Inala

[13] On 15 September 2000 the applicant pleaded guilty in the Magistrates Court at Inala to a charge that he had performed a nursing service contrary to s 142(1) of the Nursing Act, which prohibits a person who is not a nurse from performing a nursing service.  He was fined $500 and ordered to pay $359.50 costs, the total to be paid within four months.  He has been paying the amount by way of instalments, and $504.50 remains outstanding, owing to his situation of financial hardship.

[14] The Magistrate did not record a conviction.  On the form, “questions to be answered by applicant for admission under rule 17(1)(c)”, submitted to the Solicitors’ Board, the applicant accordingly answered “no” to the question:  “Prior to the date of this statement have you been convicted of any criminal offence whether in Queensland or elsewhere?”, a response by which he presently stands.  While technically correct, the question should itself have alerted an applicant, ethically in tune, to the appropriateness of further disclosure – to which I come later (para 28).  I also later advert to the desirability of amending the form (para 29).

[15] The charge arose from pathology collection and clinical measurement work done by the applicant in 1999 for Lifescreen, a company involved in insurance assessments.  The applicant’s position is that at the time of engagement, he advised the Queensland supervisor of the company that he was not registered as a nurse, and the supervisor informed the applicant that registration was “a formality, not a prerequisite”.  One observes that the applicant knew he was not registered, and that there may well be a barrier to his registration, even if relevant only as a “formality”.  The applicant also says that he took the view that as the work he was doing was frequently carried out by non-nursing personnel, he presumably would not be breaching the Nursing Act in accepting the employment.  This approach was at least careless, if not rather cavalier, an aspect to which I return below (para 23).  It should not be overlooked that the applicant admitted his guilt of an offence, and one bearing on professional responsibility.

 

Board consideration

[16] On 10 December 2001 the Solicitors’ Board determined to oppose the application for admission, pending the obtaining of an independent psychiatric report on the applicant.  It submitted the names of three psychiatrists, from which the applicant selected Dr David Alcorn.  Dr Alcorn interviewed the applicant on 5 February 2002.  His comprehensive report is dated 15 February 2002. 

[17] Asked by the Board whether the applicant might again engage in the sort of conduct which led to his deregistration as a nurse, Dr Alcorn answered that the applicant probably would not, although there is a “substantial possibility” that he will, adding that “it is of concern that the (applicant) may not voluntarily access treatment should his mood state deteriorate with the pressures of professional life”.  This reasoned conclusion is in my view of considerable significance in the determination of the application.

[18] The Board specifically raised with the doctor the issue of the applicant’s having improperly exercised professional power – for example, over the younger student nurse at Cairns, and through the use of the confidential information in locating the patient at Logan.  That misconduct could, in the doctor’s view, be seen as “the exercise of professional powers in pursuance of his own personal emotional needs”, an inappropriate course into which the applicant lacked effective emotional insight.  The doctor suggests the completion of “a necessary course of psychotherapy”.  The applicant’s treating psychiatrist, Dr Moyle, does not, it should be said, suggest any particular treatment is warranted.  There was no attempt to call Dr Alcorn for cross-examination.  That the independently commissioned expert proffers this view should weigh significantly in the court’s consideration.

[19] In relation to fitness to practise as a solicitor, considered with reference to the applicant’s psychiatric condition, Dr Alcorn listed, as significant, these features of “reduced (as opposed to absence of) fitness for practice”:  “limited empathy for victims of past misconduct;  ongoing significant (albeit attenuated) abnormal interpersonal attitudes and behaviours;  grandiosity;  intense competitiveness;  deprecatory attitudes;  contrast between stated empathy for victims of injury admixed with his own personal need for recognition;  isolation from non-professional social supports”.  In relation to the last matter, the applicant says that the question did not arise during his interview with Dr Alcorn, and that in fact he does have substantial social contact with others.  The other matters raise the question whether the applicant demonstrates emotional maturity such as warrants the court’s holding him out as proper to practise as a solicitor.

[20] Having considered Dr Alcorn’s report, and a letter of response from the applicant dated 11 March 2002, the Board on 13 March 2002 was unable to reach a unanimous view whether it should collectively oppose, or not oppose, the application.  We are informed the Board took account of the following considerations:

 

“1.There was substantial concern regarding the dishonest and inappropriate conduct in respect of the use of confidential information shown by the applicant in retrieving the patient’s private address from hospital records, which conduct led to the cancellation of his registration as a nurse.

2.At the time of making his application for admission, the applicant failed in his duty to disclose the adverse matters listed above, namely, the Cairns matter, the cancellation of his registration as a nurse and the Inala prosecution, which came to the Board’s notice only because of its receiving a written objection.

3.The amount of costs and fines imposed in the Inala prosecution has not been fully paid.

4.It may be anomalous if he were to be admitted as a solicitor while his registration as a nurse remained cancelled.

5.The Board considered the option of requiring Hampton to serve additional time as a law clerk to enable his conduct to be further monitored with a view to establishing his fitness to practise.

6.If further time were to pass before he was admitted, it would have the consequence of there being a longer period between the incidents examined by the Board and his admission.

7.The Board considered it could be interpreted that there were insufficient grounds in the report by the consultant psychiatrist, Dr Alcorn, to justify its opposing the application.

8.If the Board were to oppose the application, it would potentially affect the applicant’s livelihood, which issue requires special consideration.”

[21] It appears to me the “balance” of those relevant considerations was adverse to the applicant.  While the Board failed to express a view unanimously, I would see its response, like that of Dr Alcorn (para 25) as, at least, guarded, and that is important to note.

[22] The applicant commenced part-time employment as a law clerk in April 2000, taking on full-time employment in October.  He remains in full-time employment as a law clerk, and those who have supervised his work, or worked with him, support his application.  His work concerns medical negligence and other personal injury claims.  He has completed a course of counselling with Dr Moyle, which is to his credit.

[23] The applicant’s past history shows that, at times when he was a person of mature years, he displayed a considerable lack of professional judgment and discretion.  The events in Cairns involved some misuse of professional power in relation to a subordinate.  The Logan incident involved the misuse of confidential information to the emotional detriment of the complainant.  One senses a degree of reckless opportunism also characterised his working for Lifescreen without more careful investigation whether he would thereby contravene the Nursing Act.

[24] The Cairns incidents raised serious doubt about the applicant’s professional discretion and judgment.  While those events occurred some years ago (an aspect emphasized by his Counsel), the doubt emerging from them endures, largely because fed by the events of 1997 and 1999.  The applicant concedes the inappropriateness of his conduct in 1997, but any consequent strengthening of his position because of that apparent candour is nevertheless again diminished by the nature of the events culminating in his pleading guilty in 1999 to acting in a professional capacity although not registered.

[25] What emerges from the aggregation of those circumstances covering some years, is that the applicant lacks appropriate professional judgment and discretion.  While the sort of dereliction which occurred in his professional capacity as a nurse may not translate directly into practice as a solicitor, the attitude basing that dereliction would raise risks were he to practise as a solicitor, as it did while he was a nurse.  It suffices to point out that solicitors necessarily have very close professional relationships with their clients, and are privy to highly confidential information.  Dr Alcorn’s assessment of the applicant’s present situation is, at best for the applicant, guarded, and in some respects plainly adverse.

[26] Of considerable additional concern, is the feature that the applicant did not initially disclose these significant matters to the Board when making his application.  He certainly should have been aware of the seriousness of the Board’s approach to such applications, and the seriousness of the court’s ultimate determination of them.  An applicant for admission is obliged to approach the Board, and later the court, with the utmost good faith and candour, comprehensively disclosing any matter which may reasonably be taken to bear on an assessment of fitness for practice.

[27] The adverse aspects to which I have referred would not have emerged but for what has become known as a “whistleblower’s” letter of objection.  In these situations the court cannot allow the legitimacy of its endorsement, or otherwise, of a person as fit to practise, to depend on such intervention.  By taking a strong line in a case like this, the court must take the opportunity to emphasize the primacy of the pro-active obligation of an applicant to make candid, comprehensive disclosure.  If it emerges an applicant has not, in some significant respect, been frank with the court, then the application should ordinarily be rendered doubtful at least.

[28] A moment’s reflection would have convinced any reasonable person in doubt, of the relevance to this application of a previous professional disbarment, and of the circumstance of the applicant’s concededly having acted as a professional contrary to a statutory prohibition – even though no conviction was recorded.  All of those matters are potentially highly significant to the assessment of fitness to practise as a solicitor.  The applicant’s either having failed to appreciate that, or having determined not voluntarily to place those matters before the Board, provides further confirmation that he is not a person who should at this stage be held out by the court as fit to practise as a solicitor.

[29] Consideration should however be given to amending the “notice previous to admission as a solicitor” to refer specifically to the duty of disclosure, in candid good faith, of any circumstance which may reasonably bear upon the applicant’s fitness to practise.  That aside, the applicant’s reliance on the form of the question (see “Inala”, para 14 above) as excusing his not disclosing his acknowledged contravention of the legislation, provides yet further evidence of his lack of appropriate ethical awareness and judgment.

[30] It may be that the applicant will at some future time be in a position to dispel the doubts which currently arise and thereby establish his fitness.  It may be that his undergoing treatment in the manner suggested by Dr Alcorn, and the passing of further time, would equip him to overcome the concern which presently warrants refusal of his application.  I appreciate the hardship which refusing the application will unfortunately occasion the applicant, but the court’s focus must, in these cases, rest primarily on the public interest.

[31] I would refuse the application.

[32]  MOYNIHAN SJA: I concur with the reasons of the Chief Justice and with the order he proposes.

[33] WHITE J: I have read the Chief Justice’s reasons and agree with them and the order which he proposes.

[34] It can hardly be the case that the applicant thought that his past professional history as a nurse was irrelevant to the Board’s and, ultimately, the court’s inquiry as to whether he was a fit and proper person to be admitted to practice as a solicitor.

[35] The reasons expressed in the notice received by the applicant in November 1997 from the Executive Officer of the Queensland Nursing Council suspending his registration as a nurse did not relate to his competence as a nurse but to his abuse of the privileged position which he held as a member of a professional body which deals with the public.

[36] To me, the troubling feature of the applicant’s conduct has been his failure to appreciate the need to be frank with the Board about his suspension and the conduct which led to it.  Had he made candid disclosure then he would have been in a better position to advance the testimonials from the legal professionals with whom he has worked and who attest to his legal ability and competence.

[37] His failure to disclose his past demonstrates want of understanding of the high degree of trust which the court, of necessity, must repose in a person whom it endorses as a fit and proper person to practise the profession of solicitor.  It is his want of understanding of this against the background of his past that raises present doubts about his fitness for practice.

[38]  I agree with the concluding observations of the Chief Justice that at some time in the future the applicant may be in a position to dispel these concerns.  I note the hardship which refusing the application occasions the applicant but, in large measure, it has been his own want of candour in recent months which has brought about this state of affairs.

Close

Editorial Notes

  • Published Case Name:

    Re Hampton

  • Shortened Case Name:

    Re Hampton

  • MNC:

    [2002] QCA 129

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Moynihan SJA, White J

  • Date:

    05 Apr 2002

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status