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Wright v Nursing and Midwifery Board of Australia[2021] QCAT 153

Wright v Nursing and Midwifery Board of Australia[2021] QCAT 153

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Wright v Nursing and Midwifery Board of Australia [2021] QCAT 153

PARTIES:

Michael john wright

(applicant)

v

nursing and midwifery Board of australia

(respondent)

APPLICATION NO/S:

OCR163-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 May 2021 (ex tempore)

HEARING DATE:

11 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms Harriet Barker

Dr Peter Glazebrook

Ms Barbara Soong

ORDERS:

Pursuant to section 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal sets aside the decision of the Nursing and Midwifery Board of Australia of 19 May 2020 and substitutes its own decision, pursuant to section 179(2)(a) of the Health Practitioner Regulation National Law (Queensland), to take no action in relation to the matter.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – LICENSES AND REGISTRATION – where the Board imposed conditions on the applicant’s registration – where the applicant sought a review of the Board’s decision to impose conditions on his registration – whether the decision of the Board should be set aside

Health Practitioner Regulation National Law (Queensland), s 3, s 3A, s 127, s 178, s 191

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

Da Horta v The Podiatry Board of Australia (No 2) [2017] WASC 264

George v Rockett (1990) 170 CLR 104

Kapser v Psychology Board of Australia (No. 2) [2015] NTCAT 179

Mahboub v Medical Board of Australia [2020] QCAT 459

Solomon v Australian Health Practitioners Regulation Agency [2015] WASC 203

Vega Vega v The Medical Board of Australia [2014] QCAT 328

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented.

Respondent:

L Nixon of TurksLegal

REASONS FOR DECISION

  1. [1]
    Michael John Wright (the applicant) was first registered as a nurse in 1973 and has practised as a registered nurse, primarily in mental health nursing, and engaged in other occupations since that time. Between July 2018 and June 2019, the applicant was contracted to work as a mental health nurse at the Mental Health and Psychology Section (MHPS) of the Lavarack Health Centre, which provided services to members of the Australian Defence Force.
  2. [2]
    On 20 February 2019, an RAAF member (the patient) presented to the MHPS reception. After the patient had completed some forms, including a consent form and a K10 screening tool, he was interviewed and assessed by the applicant. The way in which the applicant conducted that assessment is in issue in these proceedings.
  3. [3]
    On 6 June 2019, the patient’s wife lodged a complaint with the Office of the Health Ombudsman about the applicant on behalf of the patient. I will return to the terms of the complaint later. The complaint was referred by the Office of the Health Ombudsmen to the Australian Health Practitioner Regulation Agency (AHPRA) on 3 July 2019. During the course of an investigation by AHPRA, the applicant made written submissions addressing the complaint. He had, even prior to the complaint, made written statements recording his version of events. I will return to the terms of the applicant’s written statements later.
  4. [4]
    On 19 May 2020, the Nursing and Midwifery Board of Australia (the Board) decided to impose conditions on the applicant’s registration pursuant to section 178(2)(c) of the Health Practitioner Regulation National Law (Queensland) (National Law). The conditions required the applicant to complete a minimum of two hours approved education including a reflective practice report “in relation to communication.” The reasons for the decision were communicated to the applicant in the letter from AHPRA dated 21 May 2020. I will return to those reasons later.
  5. [5]
    On 29 May 2020, the applicant filed in the Tribunal an application to review the decision of the Board. He sought the revocation of the Board’s decision from the national register and the removal of conditions on his registration, the matter to be stricken from his record and an apology issued. Notwithstanding the filing of the application, the applicant went on to complete education on communication and produced a reflective practice report to the Board.
  6. [6]
    On 13 August 2020, the Board decided to remove the conditions from the applicant’s registration pursuant to section 127 of the National Law. The conditions are no longer operative and were removed from the public register on 13 August 2020. The Board correctly submits that, even though the reviewable decision has ceased to operate, it may remain the subject of an appeal before this Tribunal.[1]
  7. [7]
    In conducting its review of the Board’s decision, the Tribunal is to produce the correct and preferable decision by way of a fresh hearing on the merits.[2] The Tribunal stands in the shoes of the Board in determining the matter afresh, and so is required to determine whether, pursuant to section 178(1)(a)(i) of the National Law, it reasonably believes that the way the applicant practices the profession of nursing or the applicant’s professional conduct is, or may be, unsatisfactory. In doing so, regard must be had to the paramount consideration of the health and safety of the public[3] and that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.[4]
  8. [8]
    With respect to the terms of section 178(1)(a) of the National Law, I note that “belief” is the inclination of the mind towards assenting to, rather than rejecting, a proposition.[5] The condition for the exercise of the power pursuant to section 178 of the National Law turns on the existence of the relevant reasonable belief and does not require a finding on the balance of probabilities that the belief is correct or true.[6] The words “is or may be” must also be given their natural meaning. I am not required to hold a reasonable belief that the applicant’s practice or his conduct is unsatisfactory, it is sufficient if I reasonably believe it may be. The words “or may be” clearly indicate that reasonable belief as to the possibility that the practitioner’s practice or professional conduct is unsatisfactory is sufficient.[7]
  9. [9]
    Before turning to the events of 20 February 2019, it is necessary to note some important background facts. On 19 February 2019, the patient attended upon a general practitioner along with his wife. He reported suffering anxiety and panic for some time, drinking more than he should, and was tearful. The GP told the patient and his wife that he would attempt to get a psychiatrist to assess him the following day. The patient and his wife left that appointment with the GP believing that he would make arrangements for the patient to be seen by a psychiatrist at the mental health unit at the MHPS the following day. It seems that the GP failed to make such arrangements prior to the arrival of the patient and his wife at the MHPS on the morning of 20 February 2019. Indeed, it would appear from the material that it was only after the assessment by the applicant of the patient on 20 February 2019 that any process of referral of the patient by the GP for psychiatric treatment was completed.
  10. [10]
    In the meantime, the assessment by the applicant, which is at the heart of this matter, took place. It is clear that both the patient and his wife understood that they would be attending the MHPS that day for the patient to be reviewed by a psychiatrist. Instead, what occurred was the normal screening process that would occur with any “walk-in” patient. The patient completed the consent form and screening tool before being interviewed by the applicant. The applicant understood that he would be undertaking the normal screening process of a “walk-in” patient that he had undertaken hundreds, if not a thousand, times before. That is apparent from the applicant’s entry in the electronic records at 11.22 am describing the presentation of the patient as a “self-referral”.
  11. [11]
    The applicant has stated that he spent about 40 minutes interviewing and assessing the patient. There is no evidence to the contrary which would lead the Tribunal to find otherwise. It is clear that the applicant made detailed records during the process of his assessment before referring the patient for psychological counselling and making him aware that he could attend MHPS intake in the future if he believed he required additional assessment and support. It seems also clear, on both the accounts of the patient’s wife and the applicant, that it became apparent during the course of the assessment that the patient and his wife had expected to see a psychiatrist that morning rather than undertake a screening process which did not lead to any psychiatric examination. It seems that they, soon after the assessment, contacted the GP to express their dissatisfaction with the process.
  12. [12]
    The GP then went on to record in the patient’s electronic records not only the retrospective record of his attendance upon the patient the previous day, but also, apparently based upon the complaint of the patient and/or his wife, derogatory comments about the applicant’s conduct.
  13. [13]
    Those are the facts about the applicant’s assessment and the surrounding circumstances which appeared to be non-controversial. There is a significant dispute, though, between the applicant and the patient’s wife as to the way in which the applicant conducted the examination. The applicant vigorously disputes the complaint by the patient’s wife that he was anything other than clinically appropriate during the course of the assessment. The extent of that dispute can be discerned from considering the terms of the complaint by the patient’s wife and the versions of events given by the applicant.
  14. [14]
    In the complaint made to the Office of the Health Ombudsman on 6 June 2019, the patient’s wife referred to notes made on 20 February 2019. She described the events during the assessment of her husband by the applicant on 20 February 2019 in terms including the following:

As we walked into the appointment, [the patient] asked (requested) for me to be present, which was met with what can only be described as a stupid joke. [The patient] was extremely unwell and the joke was not met with humour. I found it very inappropriate to joke about the condition of our marriage at such a stressful time.

The appointment began with the nurse asking [the patient], “Why are you here?”

At this point, [the patient] and I were both unsure of who we were speaking with. There was no introduction about what or who this person was except that his name was Michael. We actually thought that he might be a doctor, or even a psychiatrist, to begin with. We had no idea this was a “screening” at the time, as there was no explanation of how this appointment would run. “Michael” did not even explain his role in this. He never told us he was a nurse until later in the appointment. It was very confusing.

[The patient] is very unwell at the moment and at times it takes a few extra moments to gather his thoughts. As [the patient] was trying to gather himself to answer the question, the nurse started asking more questions to prompt him, like, “Not sleeping?” to which [the patient] would try to respond. He was not given much of an opportunity to explain why he was there, or what we wanted, or anything really – every few moments was interrupted with another suggested symptom.

Once available to, [the patient] was attempting to answer the questions and explain his mindset and the way he was feeling.

[The patient] explained that he is having a lot of trouble with sleeping and that he has been experiencing anxiety, including NUMEROUS instances of “what I’ve been told could be a panic attack” (referring to his previous appointments with doctors). I also voiced my concern at this point regarding the panic attacks – as this had occurred while [the patient] was driving to work – putting him in what I perceived to be immediate danger on the road. I felt dismissed as the Nurse barely even made eye contact with me at this time, and did not acknowledge my comment. The Nurse was obviously following a list of questions. He asked about drinking alcohol and [the patient’s] consumption of alcohol, to which [the patient] honestly responded that he had been drinking in excess, as a response to his feelings and lack of sleep. I confirmed this and told the Nurse that I was gravely concerned that he needed to resort to using alcohol to sleep, and we know it’s not healthy but he is desperate for help. Unfortunately, the Nurse was focused on one thing only following that point of the appointment, and that was to tell [the patient] that his problem was his drinking.

And along with a number of other condescending “strategies”, some of the suggestions made to us were:

-Take a paper bag in the car to breathe into when you have a panic attack

-Panic attacks are a learned behaviour and it is up to you to unlearn it

-Alcohol is the reason for your anxiety and sleeplessness, and we will not help you with anything until you reduce your alcohol intake (so go away, reduce your alcohol intake and report back if you’re still unwell)

-You will not see a psychiatrist unless your condition is severe enough (implying that alcohol-induced sleeplessness was his problem, and that is not considered severe enough to see the psychiatrist – the nurse felt that [the patient] situation did not warrant a visit with [redacted].)

[The patient] was quizzed regarding his experiences at his current work place. [The patient] explained that he had no personal qualms with his chain of command or colleagues, there was no events or issues with his work mates that he could attribute his anxiety to. I tried to, at this point, explain that [the patient] had some experiences when he was in the Army that I believed were directly attributing to his condition, but again I was dismissed. When [the patient] attempted to elaborate or explain why he was feeling this way, the nurse interrupted him saying “I am not here to find out why (you feel like this), I'm here to take notes and get  psychology referral if need be.”

This last part infuriated me because I knew that for [the patient] to come to the barracks and report to the mental health unit for help was a huge deal to begin with, and this nurse shut him down like there was nothing wrong with him.

We were also upset by the notion made by the Nurse that [the patient] was “caught up in a drinking culture” and that the Nurse “knew” exactly how it was because apparently he had been in the forces himself, and used to drink a lot (which he told us a number of times).

The appointment escalated slightly when we were told “I don't know who this [redacted] thinks he is, never heard of him, don't know if he’s a good doctor or not, but you can't just walk in here and expect to see a psychiatrist. That's not how this works.”

[The patient]  got very upset at this point and frustratingly stated that he didn't care about the administrative processes - he was told by the MO that he required immediate help, and that they were going to arrange for [redacted] to see him as a matter of urgency.

[The patient] also stated that he hadn't slept for weeks and was desperate for some sort of help immediately. He was starting to sound quite distressed and so the nurse said, “I’m not telling you this, I’m not allowed to tell you this but if you are that desperate for help sleeping go to the chemist and ask for some melatonin.”

[The patient]  and I both were shocked and just sat in silence while the nurse told us that he was going to refer [the patient]  to Open Arms for a psychology assessment and to expect to hear from them in 1-2 days. I stormed out at this stage, [the patient] following me and the nurse pulled him up at the door and re-iterated that someone would call him to make an appointment and asked [the patient] “are we all good?”.

I then proceeded to contact [redacted] by phone as I was walking out of the appointment (I was dialling the number before I even stood up to leave) – I rang the medical centre on the RAAF base and left a message for him to call me back immediately. [redacted] returned my call within 10 minutes and I explained what happened and that I was furious. I am so glad I did contact [redacted] because he then arranged for [redacted] to see [the patient] the very next day.

  1. [15]
    The applicant has provided written accounts of his version of events in the context of his own complaint against the GP and in response to the AHPRA investigation and proposed relevant action. In a memorandum to the regional manager of his employer on 24 February 2019, the applicant made a complaint against the GP for failing to complete a referral for the patient in a timely manner as he had advised the patient, and failing in his duty of care to communicate with the appropriate services within the MHPS. He complained that the GP attempted to cover up his own failings by using the medical records of the patient to attack and defame the applicant’s professional reputation. He went on to provide an account of the assessment on 20 February 2019 in the following terms:
  1. Without making comment on all of that has occurred, the following information provides an overview of events and documented evidence is provided as an attachment to substantiate what is mentioned in this document.
  1. At 1100hrs approximately on Wednesday, 20 Feb 19, the RAAF Member presented to the MHPS and Psychology Section Reception in the company of his wife seeking to be seen by someone.
  1. The Member requested that his wife be present during the interview which was agreed to.
  1. The Member and his wife were interviewed by myself in my capacity as Intake Officer at 1115hrs approximately following the completion of the K10 Screening Tool and Consent Form by the Member.
  1. The initial housekeeping statement regarding the Intake Role, Consent and Risk Assessment were explained by myself prior to the commencement of the Intake process.
  1. Member was then asked why he was here and what he wished to occur.
  1. Member stated that he had been experiencing increasing anxiety states and sleeping disturbance but was unable to specify reasons or issues that could be responsible for these matters.
  1. Member was very stilted and difficult to engage and his wife did not actively participate in the assessment but answered questions directly if asked.
  1. Member gave a history of experiencing these issues since he commenced training at RAAF Base Amberley in January 2018 following re-enlistment in the Service.
  1. During the interview the Member mentioned consuming alcohol stating that he often used it to assist him in getting to sleep at night.
  1. Following these statements and ETOH screening process was followed and it was identified by the Member's own admission which was also verbally supported by his wife that the Member was consuming large amounts of alcohol on a regular basis.
  1. Member was provided with a ETOH Brief Alcohol Intervention and advised of the danger of excess ETOH intake. He was also advised that excess consumption of ETOH on a regular basis could exacerbate his underlying anxieties and sleep disturbances.
  1. Member stated that he did not believe he had an alcohol issue and that he had presented to MHPS expecting engagement with a Psychiatrist. When advised that the MO would have to make a formal referral to a Psychiatrist and that it was not as simple as arriving and being seen the Member became angry stating that he is not interested in administrative issues or who is responsible for what.
  1. Member appeared to settle easily when the process was explained to him and he agreed to accept a referral to Open Arms Counselling Service to engage a Psychologist. It was also explained that his MO may make a Psychiatrist referral.
  1. Member also became angry when asked about home and relationship issues, initially denying them stating that all of his issues are work related. He later stated that he does not have work issues and stated that his COG is aware of his issues and are supportive.
  1. The Member's wife sat through all of the Interview and never made comment. She was asked to corroborate the Member's Sleep Disturbances, ETOH consumption and comment on possible domestic issues that may being impacting on the Member. She denied there were any domestic issues but confirmed the statements regarding sleep disturbance and ETOH consumption.
  1. The Member was advised of the process for the Open Arms referral and provided with a copy of the NQ Emotional Well-Being and Mental Health Services for ADF Members.
  1. The Member was also asked if he had any other questions or if he had any other issues that he wanted to raise but he stated no and left MHPS.
  1. I stand by my assessment and referral process and state that I did conduct the Intake Process with the utmost professionalism and respect for the Member and his wife and deny the written assertions levelled against me by Dr McGee in the Member's Medical Record. I also did perform a mini mental state exam and assess member's risk and he denied any thought of self-harm or any other concerning behaviour.
  1. At no time during the Interview and in the presence of the Member and his wife did I act in an unprofessional manner and did not behave in any manner verbally or otherwise that could be seen as insulting either the Member or his Wife again as asserted against me by Dr McGee in the Member's Record.
  1. [16]
    The applicant gave a consistent account of the events of the assessment on 20 February 2019 in a statement dated 25 February 2019 as follows:
  1. At 1100hrs approximately on Wednesday, 20 Feb 19, [redacted] presented to the MHPS and Psychology Section in the company of his wife seeking to be seen by someone.
  1. [redacted] and his wife were interviewed by myself in my capacity as Intake Officer at 1100hrs approximately following the completion of the K10 Screening Tool and Consent Form by the Member.
  1. The Member requested that his wife be present during the interview which was agreed to.
  1. The initial housekeeping statement regarding the Intake Role, Consent and Risk Assessment were explained by myself prior to the commencement of the Intake process.
  1. Member was then asked why he was here and what he wished to occur.
  1. Member stated that he had been experiencing increasing anxiety states and sleeping disturbance but was unable to specify reasons or issues that could be responsible for these matters.
  1. Member was very stilted and difficult to engage and his wife did not actively participate in the assessment but answered questions directly if asked.
  1. Member gave a history of experiencing these issues since he commenced training at RAAF Base Amberley in January 2018 following re-enlistment in the Service.
  1. During the interview the Member mentioned consuming alcohol stating that he often used it to assist him in getting to sleep at night.
  1. Following these statements and ETOH screening process was followed and it was identified by the Member’s own admission which was also verbally supported by his wife that the Member was consuming large amounts of alcohol on a regular basis.
  1. Member was provided with a ETOH Brief Alcohol Intervention and advised of the danger of excess ETOH intake. He was also advised that excess consumption of ETOH on a regular basis could exacerbate his underlying anxieties and sleep disturbances.
  1. Member stated that he did not believe he had an alcohol issue and that he came here expecting engagement with a Psychiatrist. When advised that the MO would have to make a formal referral to a Psychiatrist and that it was not as simple as arriving and being seen the Member became angry stating that he is not interested in administrative issues or who is responsible for what.
  1. Member appeared to settle easily when the process was explained to him and he agreed to accept a referral to Open Arms Counselling Service to engage a Psychologist. It was also explained that his MO may make a Psychiatrist referral.
  1. Member also became angry when asked about home and relationship issues, initially denying them stating that all of his issues are work related. He later stated that he does not have work issues and stated that his COC is aware of his issues and are supportive.
  1. The Member’s wife sat through all of the Interview and never made comment but answered questions when asked. She was asked to corroborate the Member’s Sleep Disturbances, ETOH consumption and comment on possible domestic issues that may being impacting on the Member. She denied there were any domestic issues but confirmed the statements regarding sleep disturbance and ETOH consumption.
  1. The Member was advised of the process for the Open Arms referral and provided with a copy of the NQ Emotional Well-Being and Mental Health Services for ADF Members.
  1. The Member was also asked if he had any other questions or if he had any other issues that he wanted to raise but he stated no and left MHPS.
  1. I stand by my assessment and referral process and state that I did perform a mini mental state exam and assess member's risk. He denied any thought of self-harm or any other concerning behavior.
  1. At no time during the Interview and in the presence of the Member and his wife did I act in an unprofessional manner and did not behave in any manner verbally or otherwise that could be seen as insulting either the Member or his Wife.
  1. [17]
    Such documents were also supplied to AHPRA by the applicant under cover of letter dated 16 September 2019 in which the applicant stated:

In response to the allegations I categorically deny all the allegations against me and state that my demeanour and practice during the mental health assessment of [the patient] was strictly professional and at a high clinical standard throughout the client engagement.

  1. [18]
    In an email to AHPRA on 26 March 2020, the applicant stated:

I can assure you and the Board that I am not guilty of any breach of professional standards and my notes clearly demonstrate that I conducted a full and thorough mental health assessment, including the K10 as required in my role as intake officer for MH Services at the army’s Lavarack Barracks in Townsville.

For the record, I conducted 1054 mental health intake assessments in the 12-month period that I worked as intake officer at the Lavarack Barracks Mental Health Service without issue, with most of these intakes having been referred on to a psychologist either internal or to Open Arms.

  1. [19]
    Further, in a letter to AHPRA dated 31 March 2020, the applicant stated, amongst other things: “I absolutely deny and refute any allegation that my clinical practice in this complaint breached any of the principles or standards as alleged by the Board.”
  2. [20]
    The applicant then went on to provide a detailed explanation as to the processes of the MHPS, the staffing of that service and the role of intake officers and psychologists. He categorically denied allegations that he had not conducted an adequate mental health assessment of the patient and stated as follows:

I also note the comment by the Board that based “on the information available, particularly with reference to the clinical records, the Board held RN Wright’s mental health assessment was not inappropriate, although notes that if there were no communication issues, a different assessment may have occurred.”

I state that the assessment conducted was in accordance with the policy and protocols of the defence department’s MHPS service and further state that a different assessment would not have occurred.

I acknowledge that [the patient] and his wife’s experience fell short of the standard they would reasonably have been allowed to expect given how their expectations were managed, so it is understandable they have communicated that fact through this complaint process.

However, this experience was not of my doing and the member’s medical records clearly demonstrate that the source of this confusion and the angst experienced by [the patient’s wife] were a direct result of [the GP’s] failure to understand the process and service provisions of the MHPS services.

Evidence clearly demonstrates that I am not guilty, as accused by the Board, of failing to meet the principles of the Board’s Code of Conduct for Nurses and Standards 2.2, 2.3 and 4.3 of the Board’s Registered Nurse Standards for Practice.

My clinical practice was conducted at all times in accordance with defence department policy and protocols and in accordance to my obligations to adhere to the Code of Conduct and Standards for Nurses.

  1. [21]
    I also note the terms of the reflective practice report provided to the Board in June 2020. They include the following:

At the time I believed I was complying with the clinical practice standards established by defence department policy and was upset at being accused of providing a poor clinical service as well as displaying a lack of communication skills by not being inclusive and engaging the member’s wife.

She had been told during our engagement that she was not entitled to a service and I did provide her with advice and contact details for services that she could access for support, and provided her with a brochure containing these details.

On reflection, I now understand why this was difficult for her but did not think at the time that I would be able to do anything to help, other than what I had already provided her, not realising at the time that the issue was about carer engagement and support, not as I had done, treating the member and his wife as separate entities.

…

The intake assessment sessions at the MHPS were restricted to a maximum of 30 minutes and due to the workload often these session times were under pressure to complete as soon as possible. As such, my explanation was limited to telling her that she should engage external services for information and support.

At the time, I was confident that I had completed the Intake Assessment professionally and within the scope of my clinical practice, identified the core issues and developed and presented a specific and appropriate care plan for the Member.

I can now understand from the Member’s wife’s point of view this may have meant very little at the time, and so my explanation of what exactly service I was providing to her Husband may have added to her frustration of what appeared to be a failure for her and her husband to receive the service that  that had an expected outcomes that they would receive.

Having been denied her expectations after this point, it is no surprise she became angry and not accepting of intake engagement process and assessment outcome.

…

At the time, I thought that my engagement with the Member and his wife and my subsequent my explanation and care plan was very good, and the Member seemed happy with this at the end of the Session.

On reflection and as a result of formal online training that I have undertaken, it would have been useful to have spoken to the Member’s wife, listened to her concerns and expected outcomes and developed a broader and inclusive understanding of the Member’s Mental Health Issues and the impact on family. This would have included contacting the referring Medical Officer as soon as possible to obtain any relevant information that would have informed my decision-making as well as development of an appropriate and inclusive care plan.

In addition to this, at the completion of the Intake Session, I did not ask the member’s wife if she was happy with the Intake Assessment Outcome and acknowledged that I may have been able to reduce her frustration further by answering a few more questions or even recognised any other issues at home that may have needed addressing as part of a holistic and family inclusive care plan. Although the information given at the time was correct, it was obviously not understandable to the Member and his wife. If this had all been quickly clarified at the time, the Member and his wife may have been far more satisfied by the Service and outcome that they had received.

  1. [22]
    The Board, of course, did not have the benefit of consideration of the contents of the applicant’s reflective practice report at the time it made the decision under review.
  2. [23]
    Given the nature of the review, it is not necessary for the applicant to demonstrate error on the part of the Board. However, it is of some assistance to consider the reasons of the Board for reaching its decision in the process of deciding whether such decision will be confirmed or substituted by another decision.
  3. [24]
    There are a number of aspects of the reasons of the Board, as stated in the letter from AHPRA of 21 May 2020, that cause me concern.
  4. [25]
    Firstly, the terms of the decision itself, which were expressed as follows:

The Board formed a reasonable belief that RN Michael Wright’s professional performance was below the standard reasonably expected of a health practitioner of a similar level of training and experience and decided under section 179(2)(b)(i) of the Health Practitioner Regulation National Law to impose conditions on RN Michael Wright’s registration under section 178(2)(c) of the National Law.

  1. [26]
    Those terms could be read as being addressed to the definition of “unsatisfactory professional performance” in section 5 of the National Law, which of course is not actually the relevant statutory formula in section 178(1)(a)(i) of the National Law. A finding of unsatisfactory professional performance is a serious matter and, for example, can only be made by a panel pursuant to section 191(1)(b)(i) of the National Law upon completion of a process involving a hearing at which the practitioner may choose to be legally represented, and only upon a positive finding of unsatisfactory professional performance, as compared to the lower threshold of proof of a reasonable belief as to a possibility of unsatisfactory practice or professional conduct required by section 178(1)(a)(i) of the National Law. It perhaps would not have provoked my concern except that both the earlier show cause letter from AHPRA to the applicant dated 18 March 2020 and the letter detailing the reasons of the Board for the review of the decision dated 21 May 2020 make an even more serious error in conflating terms used by the National Law.
  2. [27]
    In the show cause letter dated 18 March 2020, it is stated as follows:

In this matter, it is reasonably believed that RN Wright’s conduct fell below the standard reasonably expected of a health professional and amounts to unprofessional conduct.

  1. [28]
    Such statement was repeated in identical terms in the letter from AHPRA to the applicant dated 21 May 2020. This is a similar error to an invocation of a suggestion of unsatisfactory professional performance, but even more egregious. “Unprofessional conduct” is also defined in section 5 of the National Law and is generally regarded as a more serious category of misconduct than that of unsatisfactory professional performance. Section 178 of the National Law does not authorise a Board to make a finding of unprofessional conduct. That may only be done by a panel after the statutorily required process, or indeed by this Tribunal after a referral of a disciplinary complaint. And it may only be done upon satisfaction of the Briginshaw standard of proof which is very far removed from the standard of satisfaction required by section 178 of the National Law of a reasonable belief that the practitioner’s practice or professional conduct is or may be unsatisfactory.
  2. [29]
    It is most unsatisfactory that the Board, whilst clearly acting pursuant to section 178(1)(a)(i) of the National Law, expressed much more serious findings of unsatisfactory professional performance and unprofessional conduct which were clearly not open to the Board as a matter of law. That error does not vitiate the Board’s decision. This is a hearing de novo and of course the Tribunal has directed itself towards the correct question pursuant to section 178 of the National Law as identified earlier in these reasons. Nevertheless, the Board should exercise more care before bandying about such terms which are not only beyond power but would have the potential to cause serious offence and distress to practitioners.
  3. [30]
    It also seems to me that, although the Board has identified the relevant material, and that there is a conflict between the accounts given by the patient’s wife and the applicant, and noted that the applicant refutes all allegations, it has not apparently grappled with the crucial issue as to whether, in such circumstances, one version should be preferred above another or if no finding can be made as to such matter, how that should affect the Board’s determination as to whether it has a reasonable belief of the relevant matters. It appears to have passed over that difficult question and justified its decision based upon the nature or tone of the applicant’s responses to the allegations. The Board’s reasons include the following:
  1. RN Wright’s explanations and reflections of the event have continued to raised question about his level of insight and understanding about the severity of the concern. The Board remains concerned that RN Michael Wright has failed to provide evidence of his empathy or demonstrated any attempt to offer or provide an apology for the alleged miscommunication/ lack of communication in any interaction with the patient or his wife. Rather, RN Michael Wright has referred to the information sheet and consent forms the patient completed prior to the consultation as evidence to suggest he was not to blame as the patient should have been triaged correctly earlier.
  1. There appears to have been a failure of communication at a number of times in the patient’s journey that stems from a mistaken referral to the MHPS by the MO. The practitioner provides a reasonable explanation as to why the referral to a psychiatrist was not made and that his assessment and consult was according to the ADF standards. RN Michael Wright does not, however, acknowledge the significance of the patient and partner’s perception of the assessment and consultation, even though this has been based on incorrect information. The practitioner does not acknowledge that the expectations of the patient and partner were not met. The referral was real to the patient and partner – a different approach to managing his misunderstanding may have elicited a different outcome and the Board acknowledged that the notifier and patient were quite distressed when they presented at the clinic.
  1. Based on the information available, particularly with reference to the clinical records which were provided with RN Wright’s response to the action proposed by the Board, the Board held RN Wright’s mental health assessment was adequate. On this basis, the Board decided not to proceed with imposing conditions requiring education in relation to providing proper patient centred care.
  1. (7)
    However, the fact that RN Wright does not appear to have taken the appropriate responsibility for his actions, it is considered that the Board imposing conditions for education in relation to communication on RN Wright’s registration adequately addresses the deficiencies identified with this area of his practice.
  1. [31]
    As to the comment in the last sentence of paragraph 4 of the Board’s reasons, I do not myself read the applicant’s references to the intake process prior to his examination of the patient as an attempt to shift blame, rather than a reference to a further missed opportunity so as to clarify the miscommunication for which he was not at fault himself. I do not think it is logical or fair to characterise his emphatic refutation of allegations against him as evidence of a lack of empathy or insight. The applicant consistently maintained, and did so during the course of this hearing, that he had conducted an appropriate examination according to the applicable policies and protocols binding him as an employee.
  2. [32]
    The criticisms made by him of the Board can only be based upon an unexpressed but implicit finding that his assessment was inadequate in that he utilised inadequate communication skills in the circumstances of miscommunication for which he was not initially at fault. I do not see how the Board could reach such a conclusion unless it was to accept the version of events of the patient’s wife over that of the applicant.
  3. [33]
    The applicant’s version of events was supported by his contemporaneous notes as to the examination. His accounts were consistent through his communications with his employer and AHPRA. No doubt the views of the patient’s wife would have been coloured by her quite understandable disappointment and, indeed, distress as to the miscommunication that flowed from the failure of the GP to adequately refer her husband for psychiatric examination.
  4. [34]
    In those circumstances, I am certainly not prepared to reject the applicant’s account as being anything other than quite possibly, if not likely, accurate. I repeat again, however, that I also have the advantage of the contents of the applicant’s reflective practice report when declining to follow the Board’s reasoning that the applicant’s communications demonstrate a lack of empathy for the patient and his wife.
  5. [35]
    I acknowledge the possibility, and indeed the applicant appears in his reflective practice report to do so as well, that in the circumstances that transpired on the morning of 20 February 2019, the applicant may have done more to address the concerns of the patient and his wife as to the situation they found themselves in because of the failure by the GP to properly refer the patient. That may well be the case. But perfection is not expected of any professional and an absence of perfection or a single lapse in best practice is not something which would normally reasonably base a belief that a practitioner’s practice or professional conduct is or may be unsatisfactory. I construe the terms of section 178(1)(a)(i) of the National Law to be concerned with characterisation of a practitioner’s practice or professional conduct in a wider sense than whether a particular act, such as a clinical examination, may have been less than a model of perfection.
  6. [36]
    For these reasons, I do not have a reasonable belief that the way the applicant practices the profession of nursing or the applicant’s professional conduct is or may be unsatisfactory. For these reasons, the Board’s decision of 19 May 2020 will be set aside and the Tribunal will substitute a decision that it takes no action in relation to the matter. Given that there will be no contrary order, pursuant to section 24(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), that decision will have effect as from 19 May 2020.
  7. [37]
    As mentioned earlier in these reasons, the applicant also sought that the matter be stricken from the applicant’s record and an apology issued. As earlier noted, since the time that the applicant filed his application seeking such orders, the Board has removed the conditions on his registration and the conditions have been removed from the national register. I accept the submissions made on behalf of the Board that the Tribunal has those powers and functions prescribed by the National Law[8] and those powers do not include any order affecting the internal record-keeping of the Office of Health Ombudsmen or AHPRA of matters investigated by them or requiring an apology to be made by AHPRA or the Board.
  8. [38]
    Before concluding these reasons, I return to an issue which I have recently addressed in the reasons for decision in the matter of Mahboub v Medical Board of Australia [2020] QCAT 459. In that matter I considered the decision of the Northern Territory Civil and Administrative Tribunal in Kapser v Psychology Board of Australia (No. 2) [2015] NTCAT 179 (Kapser). Although I declined to follow the construction of section 178(1)(a)(i) of the National Law adopted by the Northern Territory Civil and Administrative Tribunal in Kapser, I noted the attraction of that decision because of considerations of fairness. I stated at paragraph [29] as follows:

Why should a Board, merely on the basis of a reasonable belief that a practitioner’s practice may be unsatisfactory, be empowered to place conditions on the practitioner’s registration, whereas a panel, after a hearing if requested by the practitioner, at which the practitioner may be accompanied by a legal practitioner and legally represented if leave is given, may only do so if it decides, presumably on the Briginshaw standard of proof, that a practitioner has behaved in a way that constitutes unsatisfactory professional performance? Such considerations underlay the conclusion that NTCAT in Kapser that in circumstances such as that of the applicant, the Board should consider referral of the matter to a panel for such a more rigorous process of consideration or, if it chose to determine that matter itself, would apply the same standard of proof and determine the same question as the panel. Such a construction is consistent with the guiding principle that the National Law operate in a “fair way”.[9]

  1. [39]
    In circumstances such as this matter, where there was a clear conflict between the accounts of the patient’s wife and that of the applicant, and where there was no concession by the applicant that conditions should be placed upon his registration, this was an appropriate matter for the Board to consider referring to a panel so that any findings of unsatisfactory professional performance or unprofessional conduct would be made only upon actual satisfaction according to the Briginshaw standard of proof and following upon a hearing process that would have afforded the applicant a similar opportunity to be heard in person as have these proceedings. The process of imposition of conditions upon registration pursuant to section 178 of the National Law on the basis of a reasonable belief as to a possibility of unsatisfactory performance or conduct is not one which, in my view, is appropriate to contested matters of this nature.
  2. [40]
    So the order of the Tribunal will be:

Pursuant to section 24(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal sets aside the decision of the Nursing and Midwifery Board of Australia of 19 May 2020 and substitutes its own decision, pursuant to section 179(2)(a) of the Health Practitioner Regulation National Law (Queensland), to take no action in relation to the matter.

Footnotes

[1] Vega Vega v The Medical Board of Australia [2014] QCAT 328 at [34].

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), section 20.

[3]  National Law, section 3A.

[4]  National Law, section (3)(3)(c).

[5] George v Rockett (1990) 170 CLR 104.

[6] Solomon v Australian Health Practitioners Regulation Agency [2015] WASC 203; Da Horta v The Podiatry Board of Australia (No 2) [2017] WASC 264 at 56; see also Mahboub v Medical Board of Australia [2020] QCAT 459.

[7] Mahboub v Medical Board of Australia [2020] QCAT 459 at [24] – [30].

[8]  QCAT Act, section 19.

[9]  Footnotes omitted.

Close

Editorial Notes

  • Published Case Name:

    Wright v Nursing and Midwifery Board of Australia

  • Shortened Case Name:

    Wright v Nursing and Midwifery Board of Australia

  • MNC:

    [2021] QCAT 153

  • Court:

    QCAT

  • Judge(s):

    Judge Allen QC

  • Date:

    11 May 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
George v Rockett (1990) 170 CLR 104
2 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
Horta v Podiatry Board of Australia (No 2) [2017] WASC 264
2 citations
Jump To
Cite 1 - [2017] WASC 264
Cite 2 - [2017] WASC 264
Kapser v Psychology Board of Australia (No.2) [2015] NTCAT 179
2 citations
Jump To
Cite 1 - [2015] NTCAT 179
Cite 2 - [2015] NTCAT 179
Mahboub v Medical Board of Australia [2020] QCAT 459
4 citations
Jump To
Cite 1 - [2020] QCAT 459
Cite 2 - [2020] QCAT 459
Cite 3 - [2020] QCAT 459
Cite 4 - [2020] QCAT 459
Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203
2 citations
Jump To
Cite 1 - [2015] WASC 203
Cite 2 - [2015] WASC 203
Vega Vega v Medical Board of Australia [2014] QCAT 328
2 citations
Jump To
Cite 1 - [2014] QCAT 328
Cite 2 - [2014] QCAT 328

Cases Citing

Case NameFull CitationFrequency
Price v Nursing and Midwifery Board of Australia [2022] QCAT 4392 citations
Smith v Nursing and Midwifery Board of Australia [2023] QCAT 911 citation
Trakosas v Nursing and Midwifery Board of Australia [2023] QCAT 4322 citations
1

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