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Nursing and Midwifery Board of Australia v Lockie[2023] QCA 96

Nursing and Midwifery Board of Australia v Lockie[2023] QCA 96

SUPREME COURT OF QUEENSLAND

CITATION:

Nursing and Midwifery Board of Australia v Lockie [2023] QCA 96

PARTIES:

NURSING AND MIDWIFERY BOARD OF AUSTRALIA

(appellant)

v

SHIRLEY INGRID LOCKIE

(respondent)

FILE NO/S:

Appeal No 15966 of 2022

QCAT No 154 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2022] QCAT 391 (Judicial Member J Robertson)

DELIVERED ON:

9 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2023

JUDGES:

Mullins P and Flanagan and Boddice JJA

ORDERS:

  1. Leave to appeal be granted.
  2. The appeal be dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent is a registered nurse against whom the appellant made allegations of professional misconduct – where the responsible tribunal accepted the respondent had engaged in professional misconduct, reprimanded the respondent and ordered that the respondent’s registration be suspended for nine months – where the respondent’s misconduct consisted of the issuing of a prescription in the name of the respondent’s doctor husband to a patient, falsely holding herself out on the practice website as a “nurse practitioner” and providing false or misleading information in response to a compulsive notice issued under the Health Practitioner Regulation National Law (Queensland) – where the responsible tribunal found that the respondent’s impugned conduct emanated from one episode of serious lack of judgment and that the respondent had an otherwise unblemished professional history – where the responsible tribunal was satisfied the respondent was a fit and proper person to hold registration – whether the responsible tribunal erred by not ordering that the respondent’s registration be cancelled – whether the responsible tribunal’s finding that the respondent was a fit and proper person to hold registration was reasonably open on all of the evidence

Health Practitioner Regulation National Law (Queensland), s 3, s 3A, s 196

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21, cited

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, applied

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, cited

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

COUNSEL:

S Robb and N I Congram for the appellant

C Wilson for the respondent

SOLICITORS:

McCullough Robertson Lawyers for the appellant

Synkronos Legal for the respondent

  1. [1]
    THE COURT:  On 21 November 2022, the Queensland Civil and Administrative Tribunal (“the Tribunal”) found that the respondent had behaved in a way that constituted professional misconduct, pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Queensland) (“National Law”).[1]
  2. [2]
    The Tribunal reprimanded the respondent, pursuant to section 196(2)(a), and ordered that the respondent’s registration be suspended for nine months, pursuant to section 196(2)(d).
  3. [3]
    On 19 December 2022, the appellant filed a Notice of Appeal against the order suspending the respondent’s registration, contending that the Tribunal erred at law in suspending, rather than cancelling, the respondent’s registration as a registered nurse, as the Tribunal’s finding that the respondent was a fit and proper person to hold registration was not reasonably open on all of the evidence.
  4. [4]
    At the hearing of the appeal, the appellant sought, in the event that the alleged error not be a pure question of law, that leave be granted for the appellant to appeal the Tribunal’s decision on the same ground.

Tribunal proceeding

  1. [5]
    On 2 June 2021, the appellant referred allegations regarding the respondent’s professional conduct to the Tribunal.  Relevantly, that referral related to a consultation with, and the issuing of a prescription in the name of the respondent’s doctor husband to, a patient LC (ground 1); the respondent falsely holding herself out on the practice website where she worked, and still worked, as a “nurse practitioner” (ground 2); and the respondent providing false and/or misleading information in response to a compulsive notice issued under the National Law, requiring her to produce clinical records relating to the patient LC (ground 3).
  2. [6]
    At the hearing, the parties agreed a number of facts, although other facts remained in dispute.  Relevantly, those agreed facts included that:
    1. (a)
      the respondent, with her husband, (through a corporate entity and/or a family trust) was the owner of a suburban-based medical practice, which had been established in 2007 (“the medical practice”);
    2. (b)
      the respondent’s husband was a surgeon specialising in bariatric, hernia and general surgery, operating at a number of hospitals in South East Queensland;
    3. (c)
      in or about 1991, the respondent obtained registration to practise as a nurse in Ireland, and on or about 11 January 2006, in Australia;
    4. (d)
      in or about 2010, the respondent completed a Master of Clinical Science (Perioperative Nurse – Surgical Assistant);
    5. (e)
      on 1 July 2010, the respondent gained registration as a registered nurse, under the National Law;
    6. (f)
      at all times relevant to the conduct the subject of the referral, the respondent was a registered health practitioner as a registered nurse, and did not hold an endorsement as a “nurse practitioner” under the National Law;
    7. (g)
      at all relevant times, the respondent practised as a nurse at the medical practice;
    8. (h)
      in an affidavit filed on 4 April 2022, the respondent had stated she had been awarded a Master of Nursing (Nurse Practitioner) by a university in Victoria, and that it was common ground the respondent had applied to be registered as a “nurse practitioner”, but consideration of that application had been deferred, pending the outcome of the referral;
    9. (i)
      prior to and since the referral, the respondent has had no disciplinary history;
    10. (j)
      on or about 29 May 2017, the Office of the Health Ombudsman (“OHO”) received a confidential notification, including allegations that the respondent had consulted with a patient in the absence of her husband, logged into his computer, printed out a prescription for a Schedule 4 drug, and signed it in the name of her husband;
    11. (k)
      on or about 11 July 2017, the respondent provided a submission to the OHO, in which she denied ever having printed or signed a prescription on behalf of her husband;
    12. (k)
      on or about 17 August 2017 and on or about 18 September 2017, the OHO received two notifications alleging that the respondent was holding herself out as a “nurse practitioner” on the practice website;
    13. (m)
      the OHO referred the three notifications to the Australian Health Practitioner Regulation Agency (AHPRA);
    14. (n)
      on 27 October 2017, the respondent provided a submission to AHPRA in which she stated, inter alia, that she had never signed a prescription on her husband’s behalf or otherwise;
    15. (o)
      on 8 February 2018, the appellant decided to investigate the notifications, pursuant to section 160(1)(a) of the National Law;
    16. (p)
      on 9 March 2018, a notice was issued to the respondent requiring the production of information relevant to the three notifications;
    17. (q)
      on 23 November 2018, the respondent provided a submission to AHPRA in which she stated that she wrote a prescription for the patient on 22 November 2016, under her husband’s name, and signed it as her husband.
  3. [7]
    The Tribunal hearing was conducted on the basis of a number of admissions by the respondent.  They were:
  1. “(a)
    on or about 22 November 2016, she:
  1. (i)
    accessed the clinical record system at her place of employment to enter records into the system in respect of patient LC;
  1. (ii)
    consulted with patient LC and made treatment recommendations;
  1. (iii)
    issued a prescription for Augmentin Duo Forte to patient LC in the name of [her husband];
  1. (iv)
    did not hold registration as a medical practitioner;
  1. (v)
    was not authorised to prescribe S 4 medication;
  1. (vi)
    knew she was not authorised to prescribe medication on behalf of [her husband] or at all; and
  1. (b)
    the clinical records show that a prescription for Augmentin Duo Forte was issued to the patient LC in the name of [her husband] on about 22 November 2016;
  1. (c)
    that the conduct set out in (a)(iii) was contrary to section 146(3) over [sic] the Health (Drugs and Poisons) Regulation 1996 (Qld) (the Regulation); and
  1. (d)
    the conduct described in (a) above amounts to professional misconduct within the meaning of section 5 of the National Law.”
  1. [8]
    The respondent did not admit the following allegations, as framed in the referral, namely, that on or about 22 November 2016:
  1. “(a)
    she inappropriately accessed the clinical record system at her place of employment as [her husband] in order to enter clinical records into the system in respect of patient LC when not legally entitled to do so;
  1. (b)
    she falsified and/or inappropriately entered a clinical record of the patient LC purporting to be [her husband], recording that a prescription for Augmentin Duo Forte was issued by [her husband];
  1. (c)
    the treatment recommendations she made in respect of LC were outside her permitted scope of practice;
  1. (d)
    she falsified and/or forged a prescription issued by her to patient LC in the name of and with the purported signature of [her husband] for Augmentin Duo Forte; and
  1. (e)
    the conduct the subject of Ground 1 of the referral was in contravention of the provisions of the Board’s Code of Professional Conduct for Nurses in Australia 2008 and Code of Ethics for Nurses in Australia 2008.  In relation to Ground 2 in the referral, the respondent disputes the factual basis of alleged conduct.”
  1. [9]
    At the Tribunal hearing, the respondent further admitted that:
    1. (a)
      in her submissions to the OHO dated 11 July 2017 and AHPRA dated 27 October 2017, she contended she had never purported to issue a prescription for any patient on behalf of her husband, and she knew this contention to be false; and
    2. (b)
      in her response dated 21 March 2018, to a compulsive notice issued on 9 March 2018 under schedule 5, clause 1(b) of the National Law, she did not include a record of a prescription for Augmentin Duo Forte tablets issued in the name of her husband.  The respondent disputed that she intended to mislead the regulator or that her omission was deliberately deceptive.

Tribunal decision

Ground 1

  1. [10]
    The Tribunal accepted the respondent had issued the prescription to LC in circumstances where LC had presented in a very distressed state, very concerned about the state of her abdominal wounds.  At the time, the respondent’s husband was not at the practice, working outside of Brisbane on an operating list and generally not contactable.  The Tribunal also accepted the respondent had examined LC and noticed immediately that the wound was showing signs of infection, and that the respondent understood, from her professional training and experience, that the prompt treatment of an abdominal wound showing signs of infection is extremely important.
  2. [11]
    The Tribunal further accepted that LC asked the respondent if there was anything she could do to treat the wound, as LC was unable to get an appointment to see her general practitioner.  It was in those circumstances the respondent formed the view the appropriate medical intervention would be the administration of a broad-spectrum antibiotic.
  3. [12]
    The Tribunal accepted Augmentin Duo Forte is a broad-spectrum antibiotic and that its prescription was in keeping with the respondent’s husband’s normal practice.  It was in that context that the respondent accessed the clinical records of LC and issued the prescription to LC in the name of her husband.
  4. [13]
    The Tribunal accepted the prescription was issued in circumstances where the respondent did not attempt to contact her husband, prior to or in the immediate aftermath of issuing the prescription; where the respondent knew she was not allowed to issue prescriptions for Augmentin Duo Forte in any circumstances; and that as soon as she had issued the prescription, the respondent immediately regretted doing so, realising it was outside her scope of practice and was a serious breach of trust with her supervising surgeon.
  5. [14]
    The Tribunal accepted the respondent decided not to tell anyone about the prescription in the hope she could leave the decision behind her and it would go unnoticed.  The respondent’s sole motivation was to provide immediate care to LC, in circumstances where a wound was infected and causing her extreme distress, and where the respondent believed that it may be difficult for LC to see her general practitioner in a timely fashion.
  6. [15]
    The Tribunal accepted the respondent had never issued a prescription before or after issuing the prescription to LC.  Further, although the respondent had issued and signed the prescription for LC, she did not attempt to forge her husband’s actual signature, although as he would not have authorised her to sign his name on a prescription, in so signing the respondent falsified the prescription.
  7. [16]
    The Tribunal found the respondent knew immediately that what she had done was wrong, and beyond her scope of practice as a registered nurse.  Further, the respondent admits her actions in issuing the prescription amounted to professional misconduct, but “[s]adly, this competent and obviously intelligent person, has then proceeded over a number of years to lie to regulators about this conduct”.  The Tribunal accepted the respondent’s motivation to lie was because she felt ashamed and did not want her husband to know the truth.
  8. [17]
    The Tribunal was satisfied to the requisite standard that in issuing the prescription to LC in the name of the respondent’s husband, and in falsifying his signature on the prescription in circumstances in which the respondent knew that she was not authorised to prescribe such medication on her husband’s behalf or at all, the respondent had engaged in conduct amounting to professional misconduct.  The Tribunal was further satisfied that in doing so the respondent breached the Code of Professional Conduct for Nurses in Australia, or the Code of Ethics for Nurses then in force.

Ground 2

  1. [18]
    The Tribunal found the statement in the submission to AHPRA dated 27 October 2017, that prior to being notified by AHPRA on 9 October 2017, she was unaware she was being described as a “nurse practitioner” on the practice website, was false.
  2. [19]
    The Tribunal found the respondent knew from 30 June 2016 that she was being described in a number of places on the practice website as a “nurse practitioner” and did not take steps to remedy, until contacted by AHPRA on 9 October 2017.  The Tribunal found the reference on the website occurred as a result of an error by another, and there was no evidence the respondent otherwise held herself out as a “nurse practitioner”, for example, to patients.  It was, however, serious to use a protected accreditation under the National Law in any circumstance and, accordingly, her proven conduct, given its nature, amounted to unprofessional conduct.  The respondent, once she knew of that designation, given her central role in the practice, should have taken steps to correct the record.

Ground 3

  1. [20]
    The Tribunal found that whilst the respondent withdrew her denial about issuing the prescription before the filing of the referral, her denials in relation to the failure to include the prescription in the documents produced as a result of the compulsive notice, were maintained right up to the end of her cross-examination when she accepted she had unrestricted access to the relevant clinical records covered by the notice.  Further, the respondent finally accepted she had omitted the prescription in the records sent to AHPRA as part of her ongoing attempt to cover up what she had initially done in relation to issuing the prescription to LC.
  2. [21]
    The Tribunal was satisfied to the requisite standard that the respondent had falsely contended in submissions to the OHO/AHPRA on two occasions, that she had never purported to issue a prescription for any patient on behalf of her husband.  Further, in her response to the compulsive notice, she deliberately misled or attempted to mislead the OHO/AHPRA as to the issuing of that prescription.
  3. [22]
    The Tribunal was also satisfied to the requisite standard that the respondent, in her submissions to AHPRA on 27 October 2017, falsely asserted she was unaware prior to 9 October 2017 that the practice website listed her as a “nurse practitioner”, and that no one had ever raised the issue with her previously.
  4. [23]
    The Tribunal accepted the respondent had been prepared to maintain a false position in response to both the OHO and AHPRA over extended periods, and had demonstrated that for a lengthy period she was prepared to actively and knowingly mislead her regulatory bodies.  Those actions had the impact of prolonging the investigation to some extent.  Further, whilst her decision to admit her deception in the July and October submissions about the prescription could be seen as an indication of remorse and insight, that remorse and insight was undermined by the maintenance of her position in relation to the compulsive notice, both in her affidavit and in her evidence, until confronted with overwhelming evidence that her position was untenable.  It was also undermined by the findings of fact in relation to ground 2.
  5. [24]
    The Tribunal found the most serious conduct engaged in by the respondent was that reflected in ground 3, both in her admitted deceptions on two occasions about issuing the prescription, and her deliberate deception in relation to the compulsive notice.

Sanction

  1. [25]
    The Tribunal was satisfied to the requisite standard that the respondent’s proven conduct, when viewed as a whole, was conduct substantially below the standard reasonably expected of a registered nurse of equivalent training or experience.
  2. [26]
    The Tribunal found the disciplinary proceedings were protective in nature and not punitive; with the jurisdiction of the Tribunal being exercised for the purpose of protecting the health and safety of the public, and the reputation of the profession in the public mind.
  3. [27]
    The Tribunal accepted that in exercising its protective jurisdiction, it was appropriate to consider a range of factors, including the nature and seriousness of the conduct; the extent to which the practitioner has shown contrition, insight and/or remorse for the conduct; the need for specific and/or general deterrence; evidence of rehabilitation or otherwise good character, including cooperation with the disciplinary process and the regulator; and other mitigating factors personal to the practitioner.
  4. [28]
    The Tribunal further accepted that an assessment of the ongoing risk proposed by a practitioner is essential to any determination of sanction, and that the degree to which the practitioner has acquired insight, will be relevant.
  5. [29]
    The Tribunal further accepted that the respondent’s decision to issue the prescription involved a serious error of judgment and went well beyond her scope of practice, but noted that there was no challenge made to the clinical decision in relation to LC.  The Tribunal found that the respondent’s whole course of misconduct followed from that error of judgment.
  6. [30]
    The Tribunal accepted that the description of the respondent as a “nurse practitioner” on the website appeared to have resulted because of an error made by the web developer, and there was no evidence the respondent had attempted in any other way to hold herself out as a “nurse practitioner”.  Further, as the respondent had, upon being advised by AHPRA of the error on the website, immediately had the error corrected, her version, given many years after the event, was not indicative of any serious lack of candour and was not in the same area of seriousness as her conduct in relation to the compulsive notice denials.
  7. [31]
    The Tribunal did not accept that the respondent’s denials in respect of the compulsive notice involved merely a significant lack of judgment, but did accept that the respondent had never had any other disciplinary notifications or allegations, and was otherwise a caring professional and a strong advocate for her patients.
  8. [32]
    The Tribunal found that in respect of her denial in relation to the prescription, that election probably arose because of shame and embarrassment in relation to her actions, particularly, as they affected her husband.  However, her conduct in relation to the compulsive notice was inexplicable, as it should have been obvious to her that her actions would be uncovered.  There was no evidence of any impairment, health or otherwise, that would explain her actions.  It was also difficult to understand her decision to dispute the conversation with the web designer and her misdescription of her qualifications on the practice website.[2]
  9. [33]
    The Tribunal found that the respondent’s lack of candour was multifaceted; extended over lengthy periods; and, in relation to the compulsive notice, continued in her affidavit and in her evidence, until a final admission late in her cross-examination, that omitting the prescription was deliberate and intentional as part of her general attempt to cover up her original misconduct.
  10. [34]
    The Tribunal concluded:
  1. “[86]
    The lack of candour here is so serious as to call for a period out of practice to reflect the principles set out above.  The respondent accepts that she should be reprimanded and a reprimand is not a trivial penalty in itself as it represents a public denouncement of her conduct.  The question for the Tribunal is whether the conduct is so serious as to lead it to be satisfied that the respondent is now not a fit and proper person to hold registration.  Not without some hesitation I have decided that the evidence is not such as to lead me to conclude to the relevant standard that she presently is unfit to practice.
  1. [87]
    In summary the following matters (which are referred to in more detail in these reasons) have persuaded me that a period of suspension would adequately reflect the relevant principles together with the reprimand:
  1. (a)
    her lack of candour with regulators emanates from one episode of serious lack of judgment;
  1. (b)
    her otherwise unblemished professional history both before and since (taking into account the Ground 2 finding and the Ground 3 findings in relation to the practice web page and the compulsive notice);
  1. (c)
    the character evidence and the lack of any other evidence of a propensity for dishonesty in relation to the practice of her profession; and
  1. (d)
    her co-operation with the applicant to the extent set out above which saved time and expense.
  1. [88]
    In my opinion, the protection of the public and the profession’s reputation can be achieved by ordering a period of 9 months suspension of her registration…Specific deterrence can be emphasised as can general deterrence by such a response, representing, as it does, a strong denunciation of health practitioners who choose to mislead regulators and engage in dishonest conduct for whatever reason.”

Submissions

  1. [35]
    The appellant submits that a finding that the respondent was a fit and proper person to hold registration as a registered nurse was not open, as the evidence established a lack of remorse and insight, and all of the respondent’s dishonest or less than truthful conduct implied a defective character, rather than emanating from one episode of serious lack of judgment.  Further, the respondent’s dishonesty and preparedness to act outside of her scope of practice gave rise to real concerns regarding her fitness to practise, and tended to undermine public confidence in the profession and its regulation.
  2. [36]
    The appellant further submits that the respondent’s dishonest conduct was not out of character, as her conduct as a whole demonstrated her preparedness to be dishonest in varied circumstances, despite it being obvious that her actions would be uncovered.  As such, the conduct was not discrete, nor isolated, nor exceptional, and public and professional confidence could not now be reposed in her to conduct herself honestly as a registered nurse.
  3. [37]
    The appellant submits that the Tribunal’s finding that the respondent was initially motivated to mislead by desire to avoid the shame and embarrassment of her actions, did not tend to suggest that her conduct would not be repeated in the future.  Accordingly, a conclusion that the respondent would conduct herself in a different way in similar circumstances in the future, was not open as at the date of the hearing, nor could the Tribunal be satisfied that at the end of a nine-month suspension the respondent would be fit to practise.

Consideration

  1. [38]
    The first order made by the Tribunal was that the respondent had behaved in a way that constituted professional misconduct.  “Professional misconduct” is a defined term in s 5 of the National Law as being conduct “that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience”.  The Tribunal was satisfied that the respondent’s proved conduct, when viewed as a whole, constituted conduct that was substantially below the standard reasonably expected of a registered nurse of equivalent training or experience.
  2. [39]
    Having made a finding of professional misconduct pursuant to s 196(1)(b)(iii), the Tribunal had a discretion pursuant to s 196(2) to decide to do one or more of the following:
  1. “(a)
    caution or reprimand the practitioner;
  1. (b)
    impose a condition on the practitioner’s registration, including, for example—
  1. (i)
    a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
  1. (ii)
    a condition requiring the practitioner to undertake a specified period of supervised practice; or
  1. (iii)
    a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
  1. (iv)
    a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
  1. (v)
    a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
  1. (vi)
    a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons,
  1. (c)
    require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
  1. (d)
    suspend the practitioner’s registration for a specified period;
  1. (e)
    cancel the practitioner’s registration.”
  1. [40]
    Section 196(2) does not contain any express limitation on the Tribunal’s discretion to impose one or more of the identified sanctions.  There are, however, two limitations that arise.  First, as a matter of statutory construction, the Tribunal’s discretion under s 196(2) is to be exercised in accordance with the general objects and purposes of the National Law.  Section 3(2)(a) provides that the objectives of the national registration and accreditation scheme are 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.  Section 3A states that the main guiding principle of the national registration and accreditation scheme (described as “paramount”) is the health and safety of the public.  The Tribunal, in exercising the discretion to impose sanctions of reprimand and suspension rather than cancellation of registration, expressly took into account these objects and purposes of the National Law, as referred to at [26] above.  There was no error in the expression of those principles.  Further, a consideration of the Tribunal’s reasons amply supports the conclusion that there was no error in the application of those principles.
  2. [41]
    The second limitation on the Tribunal’s exercise of its statutory discretion in imposing a sanction pursuant to s 196(2) arises as a matter of law.  It is implied as a matter of the law that a statutory discretionary power will be exercised reasonably.[3]
  3. [42]
    In Minister for Immigration and Citizenship v Li (“Li”), Hayne, Kiefel and Bell JJ considered how an inference of unreasonableness in the exercise of a statutory discretion may arise:

“As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’.  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”[4]

  1. [43]
    The appellant faces a considerable barrier in seeking to establish that the Tribunal’s exercise of discretion in imposing sanctions of reprimand and suspension rather than cancellation of registration was “unreasonable” in the sense considered by the plurality in Li as set out above.  It is not for this Court to substitute its own view as to how the Tribunal should have exercised its discretion under s 196(2).  As observed by Hayne, Kiefel and Bell JJ in Li:

“The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker.”[5]

  1. [44]
    The effect of the appellant’s submission is that in exercising its discretion, it was not open to the Tribunal to impose a sanction other than cancellation of the respondent’s registration.  There are two primary reasons why this submission cannot be accepted.
  2. [45]
    First, the submission fails to recognise that in circumstances where the Tribunal has decided that a practitioner has behaved in a way that constitutes professional misconduct, the Tribunal has a wide discretion to impose sanctions ranging from a caution or reprimand of the practitioner through to cancellation of registration.
  3. [46]
    Second, there was a body of evidence upon which the Tribunal could rely, for the purposes of finding that the respondent was a fit and proper person to practice.  The Tribunal in its Reasons at [80] noted:

“It is common ground that the respondent’s decision making on 22 November 2016 involved a serious error of judgment.  Although she went beyond her scope of practice, no challenge is made to the clinical decision she made that day in relation to LC.  The whole course of misconduct set out in Ground 1 and 2 follows on from that error of judgment.”

  1. [47]
    As outlined at [34] above, the Tribunal made a number of findings in determining that a period of suspension would adequately reflect the objects and purposes of the National Law.
  2. [48]
    None of these findings of the Tribunal are challenged on appeal.  In light of these findings, it cannot be said that the exercise of the statutory discretion by the Tribunal pursuant to s 196(2) was unreasonable.
  3. [49]
    The Tribunal imposed the sanctions after due and proper consideration of the significance of the Tribunal’s findings, in the context of the principles applicable to the imposition of sanctions in exercising that protective jurisdiction.
  4. [50]
    Although the Tribunal was satisfied that the respondent had engaged in deceptive conduct over an extended period of time, involving not only the appellant, but also AHPRA and the OHO, it was open to the Tribunal to conclude that that deceptive conduct flowed from the significant error of judgment in providing a prescription to a patient under a falsified name, outside the respondent’s scope of practice.
  5. [51]
    That error of judgment did not involve a clinical error of judgment, and there was no suggestion that the respondent had committed a similar error of judgment either in the past or since issuing that prescription.
  6. [52]
    Against that background, and having regard to the accepted motivation, that it was in a desire to avoid the shame and embarrassment occasioned both to herself and her husband from that error of judgment that she had engaged in the thereafter significant deceptive conduct, the Tribunal’s conclusion that, notwithstanding that conduct, the respondent was, at the date of the imposition of the sanction, a fit and proper person to practise as a registered nurse, was reasonably open.
  7. [53]
    The respondent had an otherwise unblemished record.  She had not been the subject of further disciplinary notifications since the error of judgment.  She had expressed remorse for the error and, ultimately, accepted her deceptive conduct.  She had cooperated, saving time and money, and there was evidence of otherwise good character, and of a lack of propensity to be dishonest in her profession otherwise.
  8. [54]
    All of these matters were proper matters for the specialised tribunal to consider, and it was reasonably open to the Tribunal to find that those matters supported the conclusion that the respondent was a fit and proper person to practise as a registered nurse.

Conclusion

  1. [55]
    There is no basis upon which to set aside the Tribunal’s sanctions.  There was no error by the Tribunal.[6]  The exercise of the discretion did not lack “an evident and intelligible justification”.[7]
  2. [56]
    A conclusion that there was no error of law in the Tribunal’s decision means there would be a requirement for the appellant to obtain leave to appeal.
  3. [57]
    As it was necessary to consider whether there was an error of law, in order to determine the appellant’s notice, we would grant leave to appeal, but dismiss the appeal.

Orders

  1. [58]
    We would order:
  1. Leave to appeal be granted.
  2. The appeal be dismissed.

Footnotes

[1]  The decision below erroneously referred to s 196(1)(a)(iii).

[2]  On 30 June 2016, there was a meeting between the respondent and a web designer regarding a redesign of the practice website.  Each had a completely different recollection of what was discussed.  The Tribunal accepted it was not necessary to resolve that dispute.

[3]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 per Brennan J; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 650 [126] per Gummow J; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63] per Hayne, Kiefel and Bell JJ.

[4]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76] per Hayne, Kiefel and Bell JJ.

[5]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [66] per Hayne, Kiefel and Bell JJ.

[6]Nursing and Midwifery Board of Australia v Faulkner [2018] QCA 97, [5].

[7]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76] per Hayne, Kiefel and Bell JJ.

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v Lockie

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v Lockie

  • MNC:

    [2023] QCA 96

  • Court:

    QCA

  • Judge(s):

    Mullins P, Flanagan JA, Boddice JA

  • Date:

    09 May 2023

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QCAT 39121 Nov 2022-
Notice of Appeal FiledFile Number: CA15966/2219 Dec 2022-
Appeal Determined (QCA)[2023] QCA 9609 May 2023-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Attorney-General (NSW) v Quin [1990] HCA 21
1 citation
Jump To
Cite 1 - [1990] HCA 21
Attorney-General (NSW) v Quin (1990) 170 CLR 1
2 citations
Jump To
Cite 1 - (1990) 170 CLR 1
Cite 2 - (1990) 170 CLR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
1 citation
Jump To
Cite 1 - [2013] HCA 18
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
5 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Cite 3 - (2013) 249 CLR 332
Cite 4 - (2013) 249 CLR 332
Cite 5 - (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
1 citation
Jump To
Cite 1 - [1999] HCA 21
Minister for Immigration v Eshetu (1999) 197 CLR 611
2 citations
Jump To
Cite 1 - (1999) 197 CLR 611
Cite 2 - (1999) 197 CLR 611
Nursing and Midwifery Board of Australia v Faulkner [2018] QCA 97
2 citations
Jump To
Cite 1 - [2018] QCA 97
Cite 2 - [2018] QCA 97
Nursing and Midwifery Board of Australia v Lockie [2022] QCAT 391
1 citation
Jump To
Cite 1 - [2022] QCAT 391

Cases Citing

Case NameFull CitationFrequency
Medical Board of Australia v Sadeghi [2025] QCAT 1632 citations
1

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