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Yates v Nursing and Midwifery Board of Australia[2016] QCAT 313

Yates v Nursing and Midwifery Board of Australia[2016] QCAT 313

CITATION:

Yates v Nursing and Midwifery Board of Australia [2016] QCAT 313

PARTIES:

Daniel Yates

(Applicant)

v

Nursing and Midwifery Board of Australia

(Respondent)

APPLICATION NUMBER:

OCR012-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 September 2016

HEARD AT:

Brisbane

DECISION OF:

Hon J B Thomas, Judicial Member

Assisted by:

Ms M Barnett

Ms F Petty

Mr A Urquhart

DELIVERED ON:

On the Papers

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Board concerning the applicant dated 8 January 2016 under

s 112 of the Health Practitioner Regulation National Law Act 2009 (Qld) is set aside.

  1. The twelve conditions contained in Annexure 'A' of the joint submissions of the parties in this matter dated 31 August 2016 and filed in the Queensland Civil and Administrative Tribunal registry are imposed on the applicant's registration.
  1. The conditions take effect from the date of this order.
  1. The review period for the purposes of sections 125-127 of the Health Practitioner Regulation National Law Act 2009 (Qld) is 12 months from the date of this order.
  1. There will be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – LICENSES AND REGISTRATION – where the applicant sought to review a decision of the Board to impose conditions on his registration as a nurse – where the conditions involved supervision and monthly reports – where the applicant’s employer was not prepared to provide that supervision – where an allegation of misconduct was made but could not be proven – where the parties agreed on an alternative set of conditions – whether this is the correct and preferable decision

Health Ombudsman Act 2013 (Qld) ss 125, 126, 127, 128, 129, 130, 131, 132, 133

Health Practitioner Regulation National Law Act 2009 (Qld) ss 9, 112(3)(b), 199(1)(e)

Queensland Civil and Administrative Act 2009 (Qld) ss 20, 24(2)(b)

REASONS FOR DECISION

Jurisdiction

  1. [1]
    This is a review of a decision by the respondent (The Board) to impose conditions on the registration of an enrolled nurse (Mr Yates).
  2. [2]
    The Board has power to impose conditions upon a registrant’s registration under s 112(3)(b) of the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law).
  3. [3]
    Such a decision is reviewable under s 199(1)(e) of the National Law and, under s 9 of the Act it is to be dealt with by the Queensland Civil and Administrative Tribunal (QCAT) as a review.
  4. [4]
    By the time of the compulsory conference, the parties were agreed as to the terms of an appropriate order by way of the substitution of alternative more manageable conditions upon Mr Yates’s registration. However as this is a “disciplinary proceeding” as defined by the Health Ombudsman Act 2013 (Qld) (the HO Act) the necessary order can only be made by a Tribunal properly constituted under sections 126-133 of that Act. It is therefore necessary for this Tribunal to consider “the correct and preferable decision”.[1]

Relevant Facts

  1. [5]
    Mr Yates was at all material times, and still is, a registered and enrolled nurse.
  2. [6]
    This matter arises out of a work incident involving Mr Yates, which was reported to the Board by his employer Townsville Hospital and Health Service (THHS) stating that Mr Yates had falsified a medical record by entering fifteen minute visual observations of a patient that had not been carried out. The THHS had asserted that this misconduct was “dishonest and negligent". The Board chose to deal with the matter by attaching conditions to the renewal of his general registration.
  3. [7]
    The conditions included a requirement that he practice only under the supervision of a registered nurse (the supervisor), and that he provide monthly written reports by the supervisor concerning his competence and fitness to practise in the profession.
  4. [8]
    Those conditions rendered him unable to work for his employer THHS which was not prepared to provide the supervision that was required by those conditions.
  5. [9]
    The Board’s initial action proceeded on the footing stated by the THHS, namely that the conduct in question was dishonest and negligent. Upon review, however, the Board concedes that this allegation was not satisfactorily proven.
  6. [10]
    It is now accepted that Mr Yates’ entries were made in error or misunderstanding of the requirements and the significance of clinical note-taking and visual observations. It appears that Mr Yates made the relevant entries upon the advice or instruction of another registered nurse, in circumstances where he should have exercised greater insight and care into whether what he was being instructed was correct.
  7. [11]
    On this basis, the parties formulated an alternative set of conditions, which will ensure mentoring, and Mr Yates' participation in a course, which includes ethical education.

Discussion

  1. [12]
    The conditions presently proposed will involve a measure of inconvenience, for Mr Yates, but are well fashioned to overcome what seems to have been an irresponsible and unacceptable approach on his part, and will encourage a greater awareness of the obligations of his calling. They are in my view (with the assistance of the assessors) an appropriate response to the circumstances.
  2. [13]
    The specified conditions are quite lengthy, and are clearly identified in Annexure 'A' to the Joint Submissions that are filed in the QCAT registry in this matter. No purpose would be served by repeating them at length in these reasons, or in the tribunal's order. As they are identifiable and available in the QCAT registry, and will again be set out in the Board's registration records concerning Mr Yates, it will be sufficient for the purposes of the formal order that the relevant conditions are identified by reference to the said annexure.
  3. [14]
    There is one further issue that has been raised, concerning the time from which this decision should take effect for the commencement of the review period.
  4. [15]
    The parties have requested that it be directed that the conditions take effect from the date of the Tribunal’s order. In the ordinary course, the Tribunal’s decision takes effect from the date when the reviewable decision took effect.[2] It is desirable that it should start now rather than from the earlier date, as Mr Yates must attend an education course and engage in mentoring for a period of 12 months from that date of the Tribunal’s order. Unless the commencement date is postponed, the review period would expire prior to his having had the chance to complete the conditions. It will therefore be ordered that the conditions and review period of the 12 months will commence from the date of this order.

Orders

  1. [16]
    The following orders will be made:
    1. The decision of the Board concerning the applicant dated 8 January 2016 under s 112 of the Health Practitioner Regulation National Law Act 2009 (Qld) is set aside;
    2. The twelve conditions contained in Annexure 'A' to the Joint Submission of the parties in this matter dated 31 August 2016 and filed in the Queensland Civil and Administrative Tribunal registry are imposed on the applicant’s registration;
    3. The conditions will take effect from the date of this order.
    4. The review period for the purposes of sections 125-127 of the Health Practitioner Regulation National Law Act 2009 (Qld) is 12 months from the date of this order;
    5. There will be no order as to costs.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1).

[2] Queensland Civil and Administrative Act 2009 (Qld) s 24(2)(b).

Close

Editorial Notes

  • Published Case Name:

    Yates v Nursing and Midwifery Board of Australia

  • Shortened Case Name:

    Yates v Nursing and Midwifery Board of Australia

  • MNC:

    [2016] QCAT 313

  • Court:

    QCAT

  • Judge(s):

    Judicial Member Thomas

  • Date:

    08 Sep 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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