Ord v Nursing and Midwifery Board of Australia (No 2)
[2015] QCAT 102
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- Unreported Judgment
- Ord v Nursing and Midwifery Board of Australia (No 2)[2015] QCAT 102
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Ord v Nursing and Midwifery Board of Australia (No 2)[2015] QCAT 102
Ord v Nursing and Midwifery Board of Australia (No 2)[2015] QCAT 102
CITATION: | Ord v Nursing and Midwifery Board of Australia (No. 2) [2015] QCAT 102 |
PARTIES: | Geraldine Catherine Ord (Applicant/Appellant) |
v | |
Nursing and Midwifery Board of Australia (Respondent) |
APPLICATION NUMBER: | OCR361-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
DELIVERED ON: | 7 April 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – LICENCES AND REGISTRATION – OTHER MATTERS – where immediate action taken against registrant imposing conditions – where conditions greatly restricted registrant’s ability to work – where the Nursing and Midwifery Board of Australia’s basis for taking immediate action not the basis on review – where large period of time between immediate action and review – where immediate action wrongly taken – where registrant succeeded in review application – whether just and reasonable for a registrant to be indemnified for costs incurred on successful review of immediate action – where costs awarded to registrant |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]In October 2012, and in August 2013, the Nursing and Midwifery Board of Australia took immediate action in relation to Ms Ord, a registered nurse. On each occasion the immediate action was the imposition of conditions on Ms Ord’s registration.
- [2]Ms Ord had sought a review of the Board’s October 2012 decision. After the Board made its further decision in August 2013, the Tribunal ordered that the application for review be amended so that the decision to be reviewed was the August 2013 decision.[1] That order was made on 13 September 2013. The Tribunal ordered that the costs in the proceeding to that date be reserved.
- [3]Ms Ord succeeded in her review application. The Tribunal set aside the August 2013 decision of the Board and removed the conditions on Ms Ord’s registration.[2] She now applies for her costs of the proceedings, including the reserved cost. The Board contends that there should be no order as to costs.
- [4]The history of the proceeding is set out in the Tribunal’s reasons on the substantive review and will not be unnecessarily rehearsed here. However, some recitation of that history is necessary.
- [5]The conditions imposed under the Board’s original decision in October 2012 included a prohibition on Ms Ord undertaking any roles requiring direct or indirect patient contact until approved to do so by the Board. She was also unable to work in a sole charge or supervisory capacity. Ms Ord contends that these conditions, effectively, restricted her to practice nursing only in an administrative capacity.
- [6]That immediate action had followed Ms Ord, on 19 August 2012, having been charged with 2 counts of stealing as a servant and 2 counts of falsifying records. The stealing charges related to her having allegedly stole in schedule 8 drugs from her then employer, Queensland Health. Those matters, and the fact that she was then also the subject of a Queensland Health investigation was the basis for the Board’s belief, at that time, that she posed a serious risk to persons and that it was necessary to take immediate action to protect public health and safety.[3] The Board also based its belief in that regard on a further allegation that misappropriated antibiotics, needles and syringes were used to administer drugs to a person in his home.
- [7]The prosecution of the criminal charges against Ms Ord failed and on 8 March 2013 they were dismissed.
- [8]Following the dismissal of the criminal charges, on 21 March 2013, Ms Ord had received notice from Queensland Health that she was being investigated in respect of 33 allegations. Ms Ord responded to the Queensland Health allegations on 12 April 2013 and a copy of that response was provided to the Board’s solicitors on 27 May 2013. She admitted 3 of the 33 allegations.
- [9]Queensland Health’s findings were set out in a letter of 29 May 2013. It found, in addition to the 3 admitted allegations, that a further 3 allegations had been substantiated.
- [10]That letter invited further submissions from Ms Ord as to why her employment should not be terminated. Ms Ord provided a further response dated 6 June 2013 which included further detailed responses to the allegations.
- [11]The second immediate action decision taken by the Board on 21 August 2013 was based upon Queensland Health’s investigation. As was stated in the Tribunal’s earlier reasons, it was apparent that the conduct of Ms Ord which the Board considered gave rise to a serious risk to persons, at that time, was her alleged misappropriation of schedule 8 drugs, fentanyl, and the falsification of records in the control drug register, and that it was this mishandling of schedule 8 drugs to which the new conditions on her registration were directed.[4] Those conditions were less onerous than those imposed under the original immediate action.
- [12]The case ultimately run by the Board in the review proceedings was somewhat different. Its submissions identified 3 matters upon which it contended a reasonable belief as to serious risk could be based. They were a failure to accurately document administration of fentanyl; administration of fentanyl when not indicated or in contravention of a medication order; and allegedly fraudulent entries in the control drug register.
- [13]In respect of the alleged failure to accurately document fentanyl the Board relied upon the 3 allegations in the Queensland Health investigation which Ms Ord had admitted, and the 3 further allegations which she had denied, but which it had found to be substantiated.
- [14]In respect of the first of the admitted matters the Tribunal found that an examination and proper understanding of Ms Ord’s response of 5 June 2013 and her affidavit filed in the proceedings in November 2013, which largely put in solemn form that which she had set out in her June response, revealed that her evidence could not be characterised in the way it had been by the Board. She had not stated that her admitted error was common practice as suggested by the Board. Nor had she sought to misrepresent or trivialise the importance of accurate documentation as the Board had also suggested.
- [15]Similarly, in respect to the second admitted allegation, the Tribunal did not consider that her responses, or evidence in the proceedings, trivialised her admitted failings or displayed a nonchalance which the Board had sought to attribute to her. To the contrary, the Tribunal found that she had demonstrated an understanding of how omissions may occur.
- [16]Similar findings were made in relation to the third admitted allegation.
- [17]Of the allegations which Ms Ord had denied, but which Queensland Health had found substantiated, one, allegation 2, had been addressed by Ms Ord jointly with her response to allegation one which she had admitted. The Tribunal found that even if it were substantiated, the observations which had been made in respect of allegation 1 concerning how her statements were to be properly viewed also applied to allegation 2.
- [18]Allegation 6(a) was the second of the allegations denied by Ms Ord but found to have been substantiated by Queensland Health. The allegation concerned whether Ms Ord had failed to document the administration of a medication in the patient’s medication chart. That alleged failure was substantially based upon Ms Ord having signed the “checked by” column in the control drug register in respect of that medication. Ms Ord denied that the signature was hers. Queensland Health found it was more likely her signature. Ms Ord repeated her denial in her further response and swore to that fact in her affidavit. This occurred after Queensland Health had made its decision. The Tribunal for its part was unable to conclude that the entry was Ms Ord’s. The Tribunal noted that the breach found by Queensland Health was in respect of her failure to document the administration of the drug rather than it having been erroneously administered.
- [19]The third allegation denied by Ms Ord but found by Queensland Health to have been substantiated concerned an entry in the control drug register which was made at a time at which the patient was ready to be discharged. The Tribunal noted in respect of this allegation also that it concerned inappropriate documentation rather than inappropriate administration. It also observed that when making its findings Queensland Health did not have available to it the detailed further response of Ms Ord to this allegation contained in her further response of June 2013 and to which she had subsequently deposed in her affidavit of November 2013.
- [20]The Tribunal found that the matters raised concerning Ms Ord’s failure to document the administration of Fentanyl did not cause it to believe that she posed a serious risk to persons.
- [21]The Board advanced 2 allegations concerning the administration of Fentanyl when not indicated or in contravention of a medical order. In respect of the first, the Tribunal found that the findings of Queensland Health (upon which the Board relied) were inconsistent with evidence of Ms Ord which Queensland Health had accepted. Furthermore, the Tribunal found that the finding of Queensland Health was not that the administration of Fentanyl was inappropriate; merely that a mild analgesic may have been more appropriate.
- [22]In respect of the second finding of Queensland Health upon which the Board relied in support of its assertion concerning the maladministration of Fentanyl, the Tribunal found that Ms Ord’s responses on that matter had been inconsistent. It found that it appeared that a dose had been administered contrary to a prescription and that it may have been inappropriate to refer back to an earlier stat order for authority for the dose. There was no evidence that the dose placed the patient at risk. The Tribunal noted that in taking immediate action, which was taken on the basis of schedule A drugs having been misappropriated and records falsified, there was no indication that Ms Ord was incompetent in the performance of her nursing duties.
- [23]In respect of the third finding of this kind made by Queensland Health, the Tribunal observed that Queensland Health reached the finding in the absence of a further detailed explanation provided by Ms Ord in June 2013 to which she had also deposed in her affidavit that she did not make the relevant entries in the drug register and that the signatures which had been attributed to her were not hers. The Tribunal noted that the evidence did not establish which control drugs Ms Ord may have obtained on the occasions on which she accessed the drug store, nor who else may have gained access. Therefore, and in light of Ms Ord’s sworn evidence that the entries in the register were not hers, the Tribunal could not be satisfied that she posed a serious risk to persons.
- [24]I have set out this history of the proceedings because it is illustrates that this is not a review of an immediate action decision which came before the Tribunal at a time shortly after the action was taken. In the substantive decision, having referred to the approach to be taken in reviews of immediate action decisions as summarised in WD v Medical Board of Australia[5], the Tribunal observed:
That approach, must, of course, be applied in the context and circumstances of each particular case. In some cases the Tribunal’s review will be conducted very soon after the relevant decision was made. In other cases, the review will be conducted after the passage of a large period of time during which more may have become known about matters upon which the original decision to take immediate action were based.[6]
- [25]This is a case of the latter kind. Considerably more was known about the matters upon which the original decision was based by the time the review came to be determined. The review was conducted on detailed formal evidence.
- [26]Here, the Board took immediate action first in October 2012 and then in August 2013. On both occasions the basis for the immediate action was the alleged misappropriation of schedule 8 drugs and associated falsification of records. Neither of these allegations formed the basis of the case ultimately run by the Board in response to the review application.
- [27]It is submitted for Ms Ord that at time of making each of the decisions to impose conditions on her registration the documents before the Board did not enable it to form a reasonable belief that she posed a serious risk to persons and that it was necessary to take immediate action to protect public health and safety. Conversely, it is submitted for the Board that it was able, at the relevant times, to form that belief. It says that ‘circumstances in WD were satisfied’. That is a reference to the Tribunal’s decision in WD v Medical Board of Australia[7] in which the Tribunal summarised the approach to be taken in reviews of immediate action decisions as referred to above.
- [28]The Board’s reference to WD is somewhat misplaced. The approach to be taken as set out in WD is the approach to be taken by the Tribunal on the review of an immediate action decision made by a National Board. It is not, directly, a statement of the approach to be taken by the Board in deciding to take the immediate action.
- [29]That said, all the aspects of the approach to be taken by the Tribunal could also be absent to the decision making of the Board in a particular case. Of course, a National Board will often be called upon to consider taking immediate action against a registered practitioner with little material available to it and with a necessity to act with real urgency. The belief formed by the Board as to the Registrant’s risk to the public and the need to take action may be reasonable in that context, even though the Tribunal later does not form that belief on the material before it.
- [30]When deciding whether an applicant who has succeeded on the review of an immediate action decision should have his or her costs it would be wrong, in my view, to focus too closely upon whether the decision of the Board was reasonable based upon the material before it. That is because any such analysis would be conducted with perhaps a keener forensic eye, and with the benefit of calm reflection and consideration which may well not have been available to the Board at the time of making its decision.
- [31]So to, an acceptance that the decision of the Board was reasonable at the time at which it was made ought not be considered a complete answer to the question of whether a successful applicant for review of that decision should be awarded costs.
- [32]In some cases it may be quite apparent that the belief formed by the Board was not reasonable at the time at which, and on the material upon which, it was formed. Li v Medical Board of Australia[8] was such a case. The submissions on behalf of Ms Ord rely upon the following concluding passage from Li where the Tribunal found:
[24] The discretion by s 201 (sic) of the National Law to award costs is broad. It simply provides that the Tribunal may make any order as to costs it considers appropriate for the proceedings. In my view, Dr Li, having been wholly successful in this matter, should have her costs.
[25] I will order that the Medical Board of Australia pay Dr Li’s costs of and incidental to the proceedings on the standard basis in accordance with matters in the District Court scale (sic).
- [33]As the Board submits, that passage should not be taken in isolation as authority for the awarding of costs to successful applicants. That passage does not capture the considerations favouring the award of costs in that particular case which had been exposed earlier in the Tribunal’s decision. Those considerations included that in making its decision, which it only preceded the hearing of the review by a little more than 2 months, the Board had acted upon an opinion of a person that Dr Li was unable to professionally communicate and function independently as a medical practitioner in Australia. That opinion had been expressed by a person lacking in capacity to do so, and against the opinion to the contrary expressed by persons who were eminently qualified to do so. The Board’s decision at the time was quite contrary to the evidence. The Tribunal observed that given the significance of the conditions which had been imposed, Dr Li was left with little option but to seek a review of the conditions.[9] The Board maintained its position after the commencement of the review notwithstanding further expert evidence to the contrary.
- [34]All such matters would be relevant to the overall consideration of whether it was just and reasonable for a practitioner who has succeeded on a review of an immediate action decision to be reimbursed for costs incurred. Such matters must always be considered with an understanding, though, that ‘the purpose of an order for costs is to indemnify or compensate the person whose favour it is made, not to punish the person against whom it is made’.[10]
- [35]In the context of the unsuccessful prosecution of disciplinary proceedings brought against a registered practitioner, O'Brien DCJ (as his Honour then was) sitting as the then Health Practitioners Tribunal, observed after referring to the judgment of Gleeson CJ in Ohn v Walton, that:
In my view these observations provide useful guidance as to the approach which should be taken in proceedings before this Tribunal. The mere fact that a Board has been unsuccessful in its prosecution of a registrant should not automatically result in an award of costs against that Board. There may well be cases in which the Registrant’s conduct has so contributed to the bringing of the charge that it would be unjust to make such an order. On the other hand, the mere fact that the Board has proceed according to a statutory duty so to do should not of itself prohibit the making of an award in favour of the registrant.[11]
- [36]A review of a decision of a Board to take immediate action is somewhat different to a disciplinary proceeding. Often, as I have already observed, the decision will, quite reasonably, have been taken quickly and on limited material. Such a decision will be in accord with the Board’s duty to protect the public. By contrast, a decision to prosecute a disciplinary charge against a practitioner will usually be made after a thorough investigation and with an understanding of the practitioner’s response to the allegations and of the available evidence in support of the allegations (and often in defence of them also).
- [37]When a review of an immediate action decision is commenced by a practitioner, the Board has a statutory role to fulfil by operation of s 21(1) of the QCAT Act. It must use its best endeavours to help the Tribunal so that it can make its decision. That duty includes, in all cases, a requirement to provide a statement of the reasons for the decision and any document or thing in the Board’s possession or control that may be relevant to the Tribunal’s review. Beyond the specific matters, how the Board discharges its duty under s 21(1) will vary from case to case. It will not always require the Board to take a position of opposition to the relief sought by the applicant on review. In some cases, a position of neutrality neither supporting nor opposing the relief sought, but acting to assist the Tribunal with submissions as to the construction or operation of relevant legislation, may be appropriate and in accord with the duty.
- [38]In other cases it may be that the duty would require the Board to take a position in support of the review application and to contend, for example, for the setting aside of its own original decision. Such a position may be appropriate, for example, if a decision, made reasonably at the time, was based upon a particular allegation which subsequently became known to the Board to be false and where there was no other basis to support the decision.
- [39]These too would be matters relevant to the consideration of whether it just and reasonable for a successful applicant to be indemnified or compensated for his or her costs incurred, but never with a view to punishing the Board for the position taken.
- [40]Here, the Board has actively opposed the review of the two decisions to take immediate action. The second decision imposed conditions different to the first but upon the essentially the same basis: the alleged misappropriation of schedule 8 drugs and the associated falsification of records. The only option available to Ms Ord to challenge the conditions imposed on that basis was to seek a review of the decisions. At the hearing the Board sought to support the second decision on different basis. Those basis were rejected by the Tribunal.
- [41]Ms Ord has been required to prepare for and meet over a long period the cases which the Board has advanced against her in support of its decisions.
- [42]This has, no doubt, resulted in quite considerable expense.
- [43]In those circumstances it is just and reasonable that Ms Ord be compensated for her costs, including the reserved costs. She should have those costs on the standard basis on the District Court Scale.
Order
- [44]The Nursing and Midwifery Board of Australia is to pay Ms Ord’s costs of and incidental to the review proceedings, including reserved costs, on the standard basis for matters in the District Court, as agreed or assessed.
Footnotes
[1] See QCAT Act s 64.
[2] Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688.
[3] See Health Practitioner Regulation National Law (Queensland) s 157.
[4] [2014] QCAT 688 at [10].
[5] [2013] QCAT 614.
[6] [2014] QCAT 688 at [9].
[7] [2013] QCAT 614 (WD).
[8] [2013] QCAT 594.
[9] Ibid at [12].
[10] Ohn v Walton [1995] 36 NSWLR 77 at 79 per Gleeson CJ; Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ, 562 – 563 per Toohey J and 566 – 567 per McHugh J.
[11] Medical Board of Queensland v Heiner [2008] QHPT 001 at [8].