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  4. Smith v Nursing and Midwifery Board of Australia - [2023] QCAT 91

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Smith v Nursing and Midwifery Board of Australia[2023] QCAT 91

Smith v Nursing and Midwifery Board of Australia[2023] QCAT 91

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Smith v Nursing and Midwifery Board of Australia [2023] QCAT 91

PARTIES:

Shaun Smith

(applicant)

v

Nursing and Midwifery Board of Australia

(respondent)

APPLICATION NO/S:

OCR216-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 May 2023

HEARING DATE:

6 September 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Ms Laura Dyer

Mr Michael Halliday

Dr Mary Sidebotham

ORDERS:

  1. Conditions be imposed on the applicant’s registration in terms of the conditions attached and marked “A”
  2. Otherwise, the decision of the Board made 23rd February 2022 is confirmed
  3. I will allow the parties liberty to apply within 14 days

CATCHWORDS

PROFESSIONS AND TRADES-REGISTERED NURSE – REVIEW OF DECISION OF BOARD – where the Board sought and obtained a performance assessment in relation to the applicant’s professional performance and conduct – where applicant had a background of performance difficulties in relation to his employment as a nurse in the 2017-2019 period – where his employment was terminated – where Board formed a reasonable belief that the respondent professional conduct and practice may be unsatisfactory and imposed conditions on his registration – where applicant seeks to review the decision – whether the Tribunal holds a reasonable belief as to the applicant’s professional conduct and practice – whether the conditions imposed are appropriate to protect the public

Health Practitioner Regulation National Law (Queensland) ss 156, 178, 225

Queensland Civil and Administrative Tribunal Act 2009 ss 19, 20, 22, 24, 33

Industrial Relations Act 2016 (Qld)

AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400

AMS v Medical Radiation Practice Board of Australia (No. 2) [2019] QCAT 401

Cormack v The Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

C Templeton, instructed by Clayton Utz

REASONS FOR DECISION

Introduction

  1. [1]
    On 23 February 2022, the Nursing and Midwifery Board of Australia (the Board) gave notice to the applicant, a registered nurse, of its decision to take action under section 178(2)(c) of the Health Practitioner Regulation National Law (Queensland) (National Law), to impose conditions on his registration. The hearing before the Tribunal on 6 September 2022 proceeded on the basis of an amended application to review that decision filed by Mr Smith pursuant to section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). At the hearing Mr Smith represented himself, and Mr Templeton of counsel represented the Board.

The relevant legal principles

  1. [2]
    In exercising its review jurisdiction under the QCAT Act, the Tribunal “has all the functions of the decision-maker for the reviewable decision being reviewed”,[1] and the purpose of the review is to produce “the correct and preferable decision”.[2] The Tribunal must hear and decide the review by way of a fresh hearing on the merits.[3]
  2. [3]
    This allows the Tribunal to consider material beyond that considered by the Board and consider circumstances since the decision of the Board.[4]
  3. [4]
    Each of the parties has a practical onus to advance their respective positions before the Tribunal.[5] In exercising its jurisdiction, the Tribunal stands in the shoes of the Board and has, relevantly, all functions of the Board in respect of the decision being reviewed.
  4. [5]
    The decision which is the subject of these proceedings is one of the Board made pursuant to section 178 of the National Law which states, relevantly:

178 National Board may take action

  1. (1)
    This section applies if—
  1. (a)
    a National Board reasonably believes, because of a complaint or for any other reason—
  1. (i)
    the way a registered health practitioner registered by the Board practices the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory;

…

  1. (2)
    The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student—

…

  1. (c)
    impose conditions on the practitioner’s or student’s registration, including, for example, in relation to a practitioner—
  1. (i)
    a condition requiring the practitioner to complete specified further education or training 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. (3)
    If the National Board decides to impose a condition on the registered health practitioner’s or student’s registration, the Board must also decide a review period for the condition.
  1. [6]
    The Tribunal has set out its two-phased task in respect of review proceedings involving section 178 of the National Law in AMS v Medical Radiation Practice Board of Australia (No. 2) [2019] QCAT 401.
  2. [7]
    The first phase is as follows:
  1. [26]
    I am required to determine whether, pursuant to s 178(1)(a)(i) of the National Law, I reasonably believe that the way the practitioner practices the health profession or the practitioner’s professional conduct is or may be unsatisfactory. In doing so, I need to have regard to the principle that the health and safety of the public are paramount 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.
  1. [27]
    With respect to the terms of s 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. The condition for the exercise of the power pursuant to s 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.
  1. [28]
    The words “is or may be” must also be given their natural meaning. I am not required to hold a reasonable belief that the practitioner’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.
  1. [8]
    The second phase - if the Tribunal reaches the requisite state of reasonable belief – is explained in the associated decision of AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400 (albeit in relation to a practitioner who had a health impairment):
  1. [41]
    On all the material, the Tribunal has a reasonable belief, given the evidence as to the nature and severity of the practitioner’s major depressive disorder and substance abuse disorder (alcohol), albeit both in remission, that the practitioner may have an impairment as defined in s 5 of the National Law. The crucial question is the appropriate conditions to be placed upon the practitioner’s registration in light of that reasonable belief. In considering that question, I have regard to the paramount guiding principle of the health and safety of the public and the guiding principle in s 3(3)(c) of the National Law that restrictions on the practice of the health profession are to be imposed only if necessary to ensure health services are provided safely and are of an appropriate quality. Whilst the protection of the public is, and must remain, the paramount consideration, the impact of conditions upon the registration of the health practitioner is a relevant consideration and conditions imposed ought to address relevant risks specifically and be the least onerous possible to properly address such risks.
  1. [9]
    The Tribunal’s ultimate task, in practical terms, in accordance with section 24(1) of the QCAT Act, is to confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision with the directions the Tribunal considers appropriate.
  2. [10]
    The primary reason for the Board’s decision was as a result of an independent performance assessment conducted by two assessors (both registered nurses) at the Board’s direction on 24 May 2021, and their findings set out in a report to the Board dated 4 June 2021.[6]
  3. [11]
    In support of his application to review, Mr Smith filed a statement to which is exhibited 39 exhibits, and which altogether comprises pages 312 – 1161 of the HB. The Board also relies on material filed before 22 February 2022, and before an earlier decision by the Board made pursuant to section 156(1)(a) of the National Law, which decision was overtaken by its decision now under review. To fully appreciate the  background and content of the decision under review, it is necessary to refer to some of the history of the matter.

Relevant background

  1. [12]
    Mr Smith was born on 13 May 1968, so he is now 54 years of age. He was first registered as a registered nurse (RN) on 10 May 1995. He has a Bachelor of Nursing which he obtained from Deakin University in 1994. His resume[7] shows an impressive array of qualifications, some incomplete, and a work history since being registered that includes significant periods when he has not been engaged in direct clinical work e.g., from 2007 – 2010 when he was Principal Project Officer for Cancer Services Central, and from September 2010 – February 2012 when he was Principal Project Officer with Integrated Electronic Medical Record. As he noted himself in his submissions, he has also worked as an RN Clinical Facilitator (1997 – 2001), which involved “supervision of nursing students to fulfil all the assessments required to become registered as a nurse in Queensland”.[8]
  2. [13]
    As he was criticised in a workplace performance assessment conducted at the direction of his employer about his lack of knowledge of Codes of Conduct and practice for nursing, he was making the point that as a supervisor of students he would have significant knowledge of those instruments to impart to the students.
  3. [14]
    The information considered by the Board in reaching its decision on 23 February 2022 is summarised in the Decision Notice.[9] It includes Mr Smith’s response to the Board on 13 November 2020,[10] to a confidential notification to the Office of the Health Ombudsman (OHO) on 12 August 2020 which was referred by OHO to Ahpra to be managed by the Board on 19 August 2020. The notification related to alleged performance and conduct issues.
  4. [15]
    During the hearing, and to assist the Tribunal, Mr Templeton gave a detailed summary of the history leading up to the decision under review.
  5. [16]
    Mr Smith was employed as an RN at Prince Charles Hospital (part of Metro North Hospital and Health Services (MNHHS)) from March 2016 to November 2016. In February 2017, he commenced as an RN in palliative care in the North Lakes Hospital and Health Precinct (part of MNHHS). His employment is described as RN with Community Palliative Care Service, Community Indigenous and Subacute Service. (CISS) (NNHHS), by his then Nursing Director, Michael Bishop in a letter dated 25 July 2018,[11] which purports to be a response to Mr Smith’s request for “file notes concerning” him.
  6. [17]
    The file notes,[12] (described by Mr Bishop as Doc 1 – 29) have been partly redacted and appear in reverse chronological order in the HB, from 1 August 2017 – 29 June 2018. Many of these notes involve Mr Bishop and/or Karen Gray, the Clinical Nurse Coordinator, Palliative Care Community. Mr Smith blames them for many of his troubles – in Mr Bishop’s case dating back 15 years when Mr Smith says he made a decision which was not appreciated or understood by Mr Bishop. He also accuses them both of bullying and harassing behaviour, however despite letters from his union and lawyer, there is no evidence of him ever having pursued those claims in an appropriate court or Tribunal.
  7. [18]
    The notes at the very least, indicate a degree of antagonism between Karen Gray and Mr Smith, but this does not assist the Tribunal in this hearing. Mr Templeton took the Tribunal to a letter from Mr Bishop to Mr Smith dated 25 July 2018 (as a result of Mr Smith’s request for copies of file notes concerning him), attaching 29 file notes, some of which were redacted. One of these notes (described as Doc 23)[13] is signed by 11 of Mr Smith’s colleagues and is in these terms:

Dear Michael

As the Metro North Community palliative care team, we would like to provide feedback in regards to Shaun Smith.

We as a team have worked with Shaun for 14 months and have been directed to attend joint visits with Shaun for approximately 8 weeks.

Throughout this time, we have found him to have very inadequate communication skills for example.

  • Undermines the information given by other nurses to patients and families by discrediting their advice and implying that he is the expert. (Fabricates the amount of experience he has in palliative care)
  • Talks excessively when handing over patients to other staff. Interrupts and is not focused on the conversations most times.
  • Previous patient complaints have indicated he is critical of their environment and living conditions.
  • Patients and families have commented to other staff that they did not like Shaun’s communication but were too afraid to make a formal complaint and have requested he not attend to them in future. Makes inappropriate jokes and innuendo and in front of staff.
  • He is loud and intrusive within staff working space.
  • When challenged about a concern Shaun gives conflicting information of version and events.
  • Shaun has been witnessed criticising other staff members on many occasions.

(directly telling staff that he does not like staff and being personally critical)

  • Is unable to assess the differences in communication needed for different patients and their circumstances. (example – previous complaints from patients about his communication).
  • Personal texting and handover.
  • Eating leaving food rubbish in car.
  • Criticising NGO services in front of patient and carer.
  • Splitting staff against each other.

It is essential as a nurse to reflect clinical practice. Shaun does not demonstrate the ability to self-reflect or take responsibility to improve his performance.

Recently it has been a direction from the D.O.N to attend joint visits with Shaun. This has created anxiety and tension amongst the staff by his complaining about management and seeking information about complaints towards him.

It has been difficult for other nurses to perform appropriate assessments and care for patients as he interrupts and creates a level of disruption in their usual performance.

Shaun does not appear to acknowledge and adhere to professional boundaries. He can be overly familiar with patients and may comment on their living conditions.

Scheduling of Shaun’s Home Visit activity has resulted in the CNC/CN to be selective in which patients he is allocated to avoid patient and family distress. This is time consuming and adding further work load on others.

Nursing staff and the Medical Registrar have expressed concern about his inability to assess PCOC phases and provide appropriate handover.

Feedback from a joint visit with Medical Registrar demonstrated a lack of clinical knowledge and ability. The Medical Registrar has stated she does not have confidence in the information Shaun communicates regarding patient assessments and handover. It is further identified Shaun’s inability to focus on the relevant issues of the patients care.

Staff are not confident sending Shaun to complete a life extinct because of his inappropriate communication and at times inability to complete correct documentation.

We have reached our capacity to be able to provide effective professional support for Shaun. As a team we have invested time listening and advising Shaun but this has resulted in stress, increased work load and compromised workplace practice. There has been consistent over the time we have worked with Shaun (sic).

  1. [19]
    In his statement,[14] Mr Smith refers to this letter in these terms:
  1. 22.
    On 25 July 2018, Mr Bishop sent a letter to me that contained a number of file notes that were critical of my behaviour at the workplace. The letter gave me an opportunity to respond to the file notes. Most of the file notes were vague and related to my demeanour at the workplace. I had not heard of any file notes being place (sic) in my HR file until I requested them. They were placed in my HR file without my knowledge which is against HR policy, and is also against natural justice.
  1. [20]
    He wrote to Mr Bishop on 27 July 2018.[15] The primary focus of that letter concerns his complaints about Karen Gray of whom he says in his statement:[16]
  1. 23.
    It is evidenced that Ms Gray had solicited complaints from multiple employees at the Unit about me. I believe that because one of the admin officers (Sandy) told me that Ms Gray had approached her and said that her job was “on the line” if she did not make a complaint against me. Some of my colleagues (who I considered my friends as well), told me that Ms Gray had solicited them to complain. They refused!
  1. [21]
    Although this material is not directly relevant to the decision under review, it does show that others in the workplace (apart from Karen Gray) were very concerned about the way the applicant was practising his profession in the 2017 – 2018 period. It simply defies human experience and common sense that 11 of his colleagues, described as the “Metro North Community palliative care team” would all be prepared to join in making complaints about the respondent at the behest of Ms Gray, and there is no evidence that this occurred. The applicant has placed no direct evidence from the colleagues he alleges in his statement “refused” – he does not even name these colleagues.
  2. [22]
    Mr Templeton referred the Tribunal to a number of specific complaints made to Mr Bishop, or other senior staff by individual members of the 11 signatories to Doc 23. One note dated 9 July 2018, (signed by person 6 to Doc 3), referred to a colleague’s day with Mr Smith on 17 June 2018. The colleague states (in part):[17]

…

When visiting a patient who was end stage COPD I found Shaun to be overbearing not listening to patient and relatives about symptoms, talking over the top of them in order to get his point across. I didn’t feel I could challenge him on this in front of the patient as (sic) would appear unprofessional but also as I had witnessed in the passed (sic) communication with Shaun his reaction to any form on (sic) constructive criticism becomes very emotional and heated. I had to spend the rest of the day with him so decided to avoid any altercation at this time.

…

Throughout the day I found Shaun’s behaviour to be very erratic, him becoming agitated and argumentative over certain topics. while trying to sort out charts he became upset as he thought I was doing it the wrong way. In the end I left work an hour early informing CNC as found (sic) the whole day exhausting. Shauns behaviour being so unpredictable and erratic to the point I was fearful of repercussion if anything was pointed out to him.

  1. [23]
    Another concerns colleague 5 to Doc 3,[18] she states (in part):

I wanted to send an email to express my concerns regarding Shaun. I personally no longer feel able to go out with him on the road. My experience is that Shaun continues to be highly anxious, emotionally labile and overly sensitive. I feel that being partnered with him frequently is impacting on my job satisfaction and the quality of my work.

When working with Shaun, the CN needs to be hyper-vigilant to the needs of the client, as Shaun is often not sensitive to his environment. It feels as if I am constantly stretching to emotionally manage every review, which is exhausting. The quality of his work is questionable, I feel he misses things in his assessments and paperwork, and as the level 2 with him, there is an implied responsibility for the work that happens while I am present. I don’t feel I can be responsible for the quality of his work anymore.

  1. [24]
    I agree with Mr Templeton that the subject matter of the concerns set out in these notes, which led to the first work performance assessment, are very similar to the concerns raised about his performance by the Board appointed assessors which ultimately led to the decision under review.
  2. [25]
    The first performance assessment (referred to as an NMBA Registered Nurses Standards for Practice Performance Assessment) was undertaken by CNC Schluter on 11 September 2018.[19]
  3. [26]
    It is clear from the material that the concerns about his behaviour and performance (and other matters of concern that is not necessary to canvass) led to the decision by his employer to direct Mr Smith to have that performance assessment.
  4. [27]
    A constant theme in his statements and submissions is that the people performing the assessments are in some way biased, and/or that the methodology used was flawed. There is no evidence that CNC Schluter was biased. She was specifically unaware of any of the background of concerns and complaints, some of which are referenced above.
  5. [28]
    In her assessment, he was found to be competent in eight of the 41 elements he was assessed in, marginal in 21, poor in seven, and unable to be assessed in five. This assessment was stated to be an “initial assessment”. Some of the elements do amount to nit-picking e.g., item 1.3 relating to a staff car with the words “GOD” in the registration, about which he joked. The assessor gave him a fail in relation to respect for all cultures which I agree is baseless on the evidence stated.
  6. [29]
    Of more concern were her observations[20] in relation to issues of practice. It may well be that Mr Smith was then suffering from some health issues (to which reference will be made later). Her findings in relation to 1.6 are also of concern. Competency in only 8 out of 41 elements is a catastrophic failure for such an experienced nurse; but it probably does not give a precise reflection of his competency at that point.
  7. [30]
    What is clear from the assessor’s comments, is a theme that repeats in the years ahead, and that is a supreme overconfidence in his own abilities; an arrogance with patients at times; a lack of respect for an understanding of the standards e.g., the ICN Code of Ethics for Nurses: although she found him to demonstrate skill with client education, and in-depth knowledge of medication used in the palliative care environment.
  8. [31]
    As a result of her assessment report, Mr Smith was moved to an inpatient ward (the Cancer Care Services), to undertake a Performance Improvement Plan (PIP) over four months.[21] The notes taken by his supervisors during this period are in the HB as part of Exhibit 21 to Mr Smith’s statement.[22] The period was 14 January 2019 to 17 April 2019. In his final submission,[23] the applicant submits:

This statement proves the Boards lack of interest in reading my submissions. I have provided solid supporting evidence to everything I have stated. My submissions have mentioned, on multiple occasions, that the Board showed no signs that they read anything I submitted. The Board submits that they believe that what I state is simply my “subjective opinion”.

  1. [32]
    I agree with the applicant that the notes do not suggest major clinical issues but there are some. I also agree with him that this type of assessment or plan is much more comprehensive than the NMBA performance assessment tool but, understandably, his employer, then faced with many complaints about his performance and behaviour in the field, was doing its bureaucratic best to provide a pathway for him to address his issues, particularly those referred to in the notes attached to the Bishop letter.
  2. [33]
    A document entitled “Milestone Summary,”[24] which was included in the documents before the Board on 24 June 2021 and in the material sent from MNHHS to the OHO on 4 November 2020, contains a legible summary of the notes taken during the PIP. The summary of the clinical notes during the PIP is in the hearing brief in descending chronological order.
  3. [34]
    It was made clear to Mr Smith that the PIP would lead to a final performance assessment. During the PIP, understandably, Mr Smith was at times quite stressed, and had a number of days off on sick leave. There are many examples in the notes of discussions he had with his superiors about what to expect in the final NMBA assessment process. During that period, despite times of stress and absences on sick leave, it is clear from the notes that he was happy with how he was being treated, and he was being skilled in new and different techniques relevant to a cancer ward.
  4. [35]
    He was informed that the NMBA assessment date would be 10 April 2019 on 14 January 2019 i.e., at the commencement of the PIP. There were some examples of alleged behaviour problems e.g., 21 January 2019.[25]Mr Smith recognised that behaviour was inappropriate on 29 January 2019.[26] He showed his inability to take direction from superiors, even in this most controlled situation e.g., 29 January 2019,[27] where he was observed to be “mildly aggressive and passive-aggressive”, when interrupting an Acting Nurse Educator.
  5. [36]
    In summary, the notes indicate primarily quite positive reporting in relation to patient interaction, medication administration, with occasional behavioural issues involving superiors, and going outside the scope of practice in his very controlled role in the ward, including giving advice to junior doctors. His emotions also fluctuated quite dramatically during this period – perhaps due to the situation and his underlying health issues.
  6. [37]
    There are a number of notes (summarised in the Milestone Summary) that do not reflect well on his performance as an experienced nurse in this highly controlled environment e.g. communicating in an insensitive way with patients, difficulties in recalling information at hand over, safe medication concerns, aggressive behaviour toward superiors, being defensive in the face of constructive criticism, and at times being difficult to work with; inappropriately giving advice to doctors, and other issues, all redolent of the previous complaints made to his employer primarily about his conduct and performance.
  7. [38]
    I agree with Mr Templeton that this is all relevant to the Board’s formation of a reasonable belief pursuant to s 178(1)(a)(i) of the National Law.
  8. [39]
    The second NMBA performance assessment was conducted by Nurse Educator Jennifer O'Brien at Ward 6AS (within the same work area, cancer care services) that he had worked during the PIP on 10 April 2019. The assessor found him competent in only six of the 41 elements, marginal in 17, poor in 14, and 4 were not applicable. Mr Smith complains that the assessment is flawed because he was assessed in a cancer ward, and not in a palliative care setting which was his primary area of practice prior to his transfer.
  9. [40]
    Apart from the obvious generalisation that a registered health practitioner should be competent generally, his criticisms ignore the fact that he had been in this work area for the PIP. He submits that it is remarkable (and a reflection of the flawed and unfair nature of the NMBA performance assessment process) that despite his time in PIP and his knowledge of his conduct and performance failures identified in the first assessment, that he obtained an even worse result in the second assessment. The inference I prefer is that the whole process is indicative of an experienced nurse who is not prepared to accept advice and correction from his colleagues, and who has an arrogant and disproportionate belief in his own competency. The process involved the assessor observing Mr Smith during the whole shift in Ward 6AS on 10 April 2019.
  10. [41]
    The areas of concern are similar to those raised in the first NMBA performance assessment – speaking over the top of patients, and his practice partner, an acting clinical nurse, and disregarding her advice – for example in relation to Standard 3 .4, despite his partners advice, it was necessary for the assessor to intervene on three occasions to implement safety measures.
  11. [42]
    As with his criticisms about the NMBA assessment processes and the PIP, Mr Smith relies only on his subjective view of what he describes as a process “full of flaws and designed to ensure that the nurse being assessed would fail”. There is no independent evidence to support the submission. His statement contains much hyperbole and rhetoric e.g., “being punished for a different reason unrelated to my performance”.[28]
  12. [43]
    This refers back to his allegations of bullying. As noted earlier despite the union being involved there is no evidence that he has taken any legal action in this regard.
  13. [44]
    I referred earlier to Mr Smith’s health. As noted, he took many sick days during the PIP process. In the material, is a pro forma assessment of his “psychological capability” signed by his GP on 12 June 2018.[29] He was said to be stressed and grieving. In his material he refers to the death of a much-loved dog. In a statement before the Tribunal,[30] he refers to his GP referring him to a psychologist which, I infer, was during the PIP. I infer that he did see a psychologist and (I assume) his GP prescribed medication which worked and he “was able to complete the PIP with less stress”.[31]
  14. [45]
    It appears that Mr Smith was placed in a non-clinical setting soon after the second assessment. In late May 2019, he commenced an extended period of sick leave after using up accumulated long service leave and annual leave. It seems to be common ground that he has not worked as a nurse since 23 May 2019.
  15. [46]
    In his Tribunal statement he refers to a meeting with Mr Andy Carter, who was at the relevant times a DON at MNHHS. Mr Smith’s impression of his interactions with Mr Carter e.g., in June 2019 and November 2019, was that he could return to work in May 2020, subject to “medical clearance”. He exhibits one email from Mr Carter dated 29 April 2020,[32] and there is another in the Board’s material dated 27 November 2019. A fair reading of both emails suggests that Mr Carter was
    1. (a)
      far more equivocal about Mr Smith’s return to work then Mr Smith now suggests.
    2. (b)
      cognisant that there were many preconditions to such a return to work.
  16. [47]
    On 14 May 2020, his employer directed Mr Smith to attend a medical assessment with Dr Andrew Taylor, a psychiatrist, on 1 June 2020. In the letter from Queensland Health to Dr Taylor, there is information that indicates that MNHHS had been advised by Mr Smith’s GP that he suffered from “anxiety and depression” but had improved with treatment and was aiming to return to work in May 2020. It also indicates the GP provided the employer with an unfitness to work certificate up to 31 May 2020.
  17. [48]
    Dr Taylor saw Mr Smith on 1 June 2020, and his report, dated 12 June 2020,[33] is in the papers as an exhibit to Mr Smith’s statement. Dr Taylor noted that Mr Smith was then on a low dose of an antidepressant prescribed by the GP in 2019. His opinion is expressed in these terms:

In my professional opinion at this time, Mr Smith does not meet diagnostic criteria for any recognised psychiatric or psychological condition.....in my clinical opinion, in 2019 Mr Smith developed a mild adjustment disorder with anxiety and depression in the context of work-related stressors and the predictable death of his dog. Both the GP and I agree that Mr Smith is a stress vulnerable individual.

  1. [49]
    On 15 July 2020,[34] Mr Smith received a letter from the Executive Director of MNHHS outlining a number of concerns including his results in both NMBA performance assessments; and an allegation relating to a breach of confidentiality which is unrelated to the Board’s decision under review. Despite his constant refrain about a lack of natural justice, he was given an opportunity to respond (as he did on previous occasions). He was then suspended on full pay until 27 November 2020 pending the Executive Director’s decision in relation to the allegation.
  2. [50]
    On 12 August 2020, the confidential notification (complaint) about Mr Smith was made to the OHO.
  3. [51]
    On 13 August 2020,[35] solicitors acting for Mr Smith wrote to the Executive Director essentially disputing all the allegations and alleging that he had been subject to “a campaign of bullying and unreasonable conduct” at the hands of various Queensland health employees.
  4. [52]
    On 14 October 2020, the Executive Director advised Mr Smith that she was satisfied that the allegations were proved, and advised him that she was considering terminating his employment and she gave him an opportunity to respond. In that letter, she also rejected the allegations of systematic bullying (by Ms Gray and Mr Bishop) and attached a statement of reasons.[36]
  5. [53]
    Mr Smith’s solicitors responded to that letter on his behalf on 2 November 2020,[37] in which they advised that a decision to dismiss would be “unfair dismissal and a breach of the Industrial Relations Act 2016 (Qld)”
  6. [54]
    On 27 January 2021, the Chief Executive of MNHHS terminated Mr Smith’s employment and advised him of his right to appeal to the Queensland Industrial Relations Commission (QIRC). There is no evidence before the Tribunal that he has done so.

The decision under review

  1. [55]
    The decision made by the Board on 22 February 2022 to impose conditions upon Mr Smith’s registration pursuant to section 178(2)(c) of the National Law are primarily based on the performance assessment undertaken by RN Thomas and RN Buchholz on 24 May 2021, and their report dated 4 June 2021.
  2. [56]
    The relevant reasons for the Board’s decision are as follows:

Reasons

The Board made these decisions for the following reasons:

  1. 1.
    The notification raised concerns that:
  1. a.
    From approximately August 2017 to August 2020 there were several performance and conduct issues raised about RN Smith from within  Metro North Hospital and Health Service (“Metro North”) (RN Smith’s employer at the time).
  1. b.
    RN Smith was required by Metro North to undertake a performance assessment against the NMBA Registered Nurse Standards for Practice. This was a stepped assessment process, completed initially on 11 September 2018, with the final assessment having been completed on 10 April 2019.
  1. c.
    In the first assessment RN Smith only achieved 8 competent marks, none higher. The second assessment saw him attaining only 6 competent marks of the 41 elements. RN Smith achieved less than competent results in areas including critical thinking, hygiene assessments, documentation, communication, and patient education.
  1. 2.
    As a result of the notification, RN Smith was required by the Board to undertake an independent performance assessment on 24 May 2021. The assessors, in their subsequent report dated 4 June 2021, found that:
  1. a.
    RN Smith did not demonstrate a satisfactory understanding of the standards of practice and code of conduct.
  1. b.
    During the simulation assessment session, RN Smith was required to assess, prioritise, and provide care for one patient. He was able to interact professionally with the health care team in some respects but was unable to implement and delegate care in a timely and safe manner. He demonstrated a basic ability to assess the patient but did not utilise this information to inform his plan of care. This was evident in his decision making and nursing interventions. He was not able to evaluate some care as expected of an experienced registered nurse in accordance with Standards 1, 1.4, 1.6, 3.1, 4, 5, 6 and 7.
  1. c.
    RN Smith demonstrated deficits in communication, general patient assessment, medication administration, infection control, comprehensive pain and risk assessment and nursing documentation processes. He requires further education in current policies and procedures, and comprehensive assessment to provide him with knowledge and skills to ensure the safe provision of care.
  1. d.
    In the written assessment, RN Smith achieved an overall score of 68% for the medication knowledge written assessment and 95% for the medication calculation section. This result indicates that RN Smith did not demonstrate satisfactory skills of safe medication administration despite his professional experience. Throughout the reflective interview, it was observed that RN Smith displayed limited insight into the deficits of his nursing knowledge and clinical skills.
  1. 3.
    The performance assessors also raise concerns about RN Smith’s health. The Board the (sic) required RN Smith to undergo a health assessment which was undertaken on 9 August 2021, by psychiatrist Dr Peter Smith. Dr Smith found that RN Smith did not have a health impairment which detrimentally affects his ability to practice. We accept Dr Smith’s report.
  1. 4.
    There are well recognised and inherent risks in circumstances where a practitioner presents with widespread performance deficiencies with respect to their nursing practice which go to the foundation of safe and effective nursing care. The assessor’s found that RN Smith’s performance is below the standard expected of him and recommended regulatory action is required to protect the public.
  1. 5.
    RN Smith provided comprehensive submissions during both the interview with a Nursing and Midwifery Board delegate and written response. These submissions largely focused on aspects of the assessment that RN Smith was unfamiliar with due to his assertions that the assessment was in an acute hospital setting, and not his familiar home-based palliative care practice setting. He also raised concerns about the medication aspect of the assessment, the acting out of the scenario and the lack of access to forms or materials that would have been of assistance during the assessment.
  1. 6.
    We acknowledge that a simulated scenario presents challenges that may not normally bear out in an ordinary clinical setting and we recognise that it appears that there were some difficulties with timeframes and instructions provided during the assessment
  1. 7.
    This notwithstanding, we accept the findings of the performance assessment and have formed the belief that the way that RN Smith practices is unsatisfactory. We have also accepted the assessor’s recommendations and are proposing that RN Smith only practice while supervised and that he completes specified education.
  1. 8.
    We consider that these conditions will help support RN Smith’s performance by providing him with updated knowledge and clinical support.
  1. 9.
    As such, on 21 December 2021, we propose to impose conditions on RN Smith’s nursing registration.
  1. 10.
    On 28 January 2022, RN Smith provided a submission in response to the proposed regulatory action. He submitted, in summary:
  1. a.
    He relies on his previous submissions provided in relation to the performance assessment.
  1. b.
    It doesn’t feel like the Board has considered his previous submissions.
  1. c.
    He believes that the previous performance assessment completed by his employer was flawed and the notification vexatious, thus, he doesn’t believe the Board had enough evidence to put in through another performance assessment.
  1. d.
    The Board has ignored his qualifications in training and assessment, which he submits should be used as evidence of his ability to provide an opinion on the flawed nature of the assessments.
  1. e.
    There is no evidence to show he has, or would ever, put a patient at risk and therefore there is no need to place restrictions of his registration.
  1. f.
    That more weight should be put on his previous training and experience.
  1. 11.
    We acknowledge that RN Smith has noted that he would fulfil competencies that the Board ‘chooses’ and highlight that this is the purpose of the education conditions imposed.
  1. 12.
    We have carefully considered RN Smith’s submission, however, have decided to take the regulatory action proposed due to RN Smith’s lack of insight to the shortfalls in his practice identified by the performance assessment. Whilst he may have extensive previous training and experience, this was not evidenced by the multitude of deficits in the performance assessment.
  1. 13.
    Therefore, conditions are the necessary regulatory response to ensure that he takes appropriate action to bring his education up to date with current standards in the areas of concern identified in the assessment. Ongoing supervision and having Board oversight to his place of practice will protect the public while he completes his education and embeds it in his practice.
  1. [57]
    The conditions imposed relate to limitations on practice, supervised practice and education conditions, they are in these terms:

Conditions

Limitations on practice

  1. 1.
    The Practitioner may practice only in place(s) of practice approved by the Board.

For the purposes of this condition, ‘practice’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a registered nurse in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a registered nurse in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the registered nurse industry.

For the purposes of this condition, the following practice locations have been approved: None.

  1. 2.
    Within 28 days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HP7), acknowledgement that Ahpra may:
  1. a.
    Seek reports from the Director of Medical Services/Director of Nursing/Senior Practice Manager/Senior Manager/Senior Partner/ proprietor/owner (the senior person) at each place of practice on at least a monthly basis or as otherwise required.
  1. b.
    Request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent.
  1. c.
    Have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.
  1. 3.
    Within 28 days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPS7), acknowledgement from the senior person at each place of practice that they are aware Ahpra will seek reports from them.

Supervised practice

  1. 4.
    The Practitioner must only practice as a registered nurse when supervised by another registered nurse (a supervisor).

For the purposes of this condition, ‘supervised’ is defined as:

The Practitioner must consult and follow the directions of the supervisor about the management of each patient before care is delivered and must be directly observed by the supervisor who is physically present at all times.

  1. 5.
    Within twenty-one (21) days of the notice of imposition of these conditions, the Practitioner must, on the approved form (HPN10), nominate a primary supervisor and at least one alternative supervisor to be approved by the Board. The Practitioner must ensure that each nomination is accompanied by an acknowledgement, on the approved form (HPNA10), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that Ahpra will seek reports from them.
  1. 6.
    In the event that no approved supervisor is willing or able to provide the supervision required the Practitioner must cease practice immediately and must not resume practice until a new supervisor has been nominated by the Practitioner and approved by the Board.
  1. 7.
    Within twenty-one (21) days of the notice of the imposition of these conditions, the Practitioner is to provide to Ahpra, on the approved form (HP10) acknowledgement that Ahpra may:
  1. a.
    obtain information from relevant authorities (such as but not limited to Medicare).
  1. b.
    obtain information and/or report from the senior person at each place of practice on a monthly basis, and
  1. c.
    obtain a report from the approved supervisor on a monthly basis.
  1. 8.
    Within twenty-one (21) days of the notice of the imposition of these conditions, the Practitioner is to provide to Ahpra on the approved form (HPS10), acknowledgement from the Director of Medical Services, the Director of Nursing Senior Practice Manager, Senior Manager, Senior Partner or equivalent (the senior person) at each place of practice that Ahpra may seek reports from them.

Undertake education

  1. 9.
    The Practitioner must undertake and successfully complete program of education, approved by the Board including reflective practice report, in relation to:
  1. a.
    Workplace health and safety with a focus on sharps safety.
  1. b.
    Comprehensive patient assessment, care planning and evaluating.
  1. c.
    Infection control and personal protective equipment.
  1. d.
    Medication knowledge.
  1. e.
    Empathetic communication skills.
  1. f.
    Mindful active listening.
  1. g.
    Anger management, and
  1. h.
    Conflict resolution education.

…

  1. 15.
    All costs associated with compliance with the conditions in their registration are at the Practitioner’s own expense.

Discussion

  1. [58]
    Mr Smith places some emphasis on Dr Smith’s positive report about his mental health which mirrors the opinion of Dr Taylor. In that regard he misses the point in my opinion. Throughout the lengthy, and undoubtedly stressful 2018 – 2020 period  with his employer, he was on sick leave regularly, particularly during the PIP period, as a result (I infer) of certificates from his GP. The Board was duty-bound to further investigate his health issues given the recommendations made by the assessors as a result of their interactions with him. In their report, [38] in this regard, they state: 

During this two-hour interview (involving performance assessment)

  • pressurised speech pattern and bruxism
  • rapid speech when recalling past events
  • inability to pick up on cues that allowed the assessors a pause to speak
  • labile affect with emotional outbursts
  • increased volume of speech, above normal volume for the interview situation
  • agitated state with associated exaggerated hand gestures
  • a sustained tone of aggression when discussing the perpetrators of the perceived bullying
  • failure to recognise personal space boundaries
  • disorganised thoughts with constant requirements for redirection in the discussion
  • perseveration on own abilities and perceived ‘unfair dismissal’
  1. [59]
    In their conclusion to session 2, the simulated situation, the assessors note:

… that Mr Smith appeared to have trouble with self-control, management of stress, concentration, focus, memory and organisation.

  1. [60]
    It is clear to me, as it was to the Board, that none of these concerning behavioural issues are due to any underlying health impairment.
  2. [61]
    It is important to emphasise that in terms of the proper construction of section 178(1)(a)(i) of the National Law, in undertaking the first stage of the two-phase task, as was stated in AMS,[39] it is sufficient that the Tribunal holds a reasonable belief that on the material before it there is at the very least a possibility that Mr Smith’s practice of his profession is unsatisfactory. In my opinion, the material before the Tribunal (which is largely uncontested by evidence independent of the practitioner), causes me to form the reasonable belief that his practice and conduct is unsatisfactory.
  3. [62]
    Having regard to the second phase of the task, and acting on the advice of the professional assessors, I have concluded that in some minor respects, the conditions imposed by the Board go beyond what is necessary to protect the public. The safety and protection of the public can be adequately protected by the amendment of the supervision conditions to provide for level two rather than level one supervision. Mr Templeton agrees that condition 9g is unnecessary given conditions 9e, f, and h.
  4. [63]
    The applicant has also submitted that the conditions imposed on his registration ought not appear on the Ahrpa website. The recording of conditions imposed on the practitioner’s registration on the National Register is governed by section 225 of the National Law.
  5. [64]
    Upon the imposition of conditions on his registration, I agree that the Board was required to publish those conditions on the National Register. The cases cited by Mr Smith in support of his submission in this regard[40]are of not assistance to him because the facts in each case are not analogous to the facts here.
  6. [65]
    As a result of the delivery of a copy of these reasons (up to [64]) to the parties in January 2023, the Board has provided a set of conditions which adequately respond to the reasons, and in particular [62]. The suite of conditions now contains level two supervision type conditions which are less onerous than the supervision conditions imposed by the Board.[41]
  7. [66]
    As a matter of fairness, I directed that the applicant be given a chance to respond to the conditions put forward by the Board. He filed a number of documents in the registry on the 15th March which do not respond to the change proposed in the supervision condition, and seeks impermissibly to re-agitate a number of the arguments he made at the hearing, and to put on new evidence (which was clearly available to him at the time of the hearing) which again attempts to go over and re-argue some of the issues he raised at the hearing. He also filed a Response and/or counter-application which does not seek any orders. The only reason I asked my associate to give him an opportunity to respond to the varied suite of conditions – mainly the supervision condition which is less onerous than the one imposed by the Board – was out of fairness, but he does not seem to understand that which may be due to his lack of legal training.
  8. [67]
    The orders of the Tribunal will be as follows:
    1. Conditions be imposed on the applicant’s registration in terms of the conditions attached and marked “A”
    2. Otherwise, the decision of the Board made 23rd Fabuary 2022 is confirmed
    3. I will allow the parties liberty to apply within 14 days

Footnotes

[1]QCAT Act, section 19(c).

[2]QCAT Act, section 20(1).

[3]QCAT Act, section 22.

[4]AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400 at [34].

[5]Cormack v The Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 at [32] – [33].

[6]Hearing Brief (HB), page 167.

[7]HB, page 1339.

[8]HB, page 342.

[9]HB, page 270.

[10]HB, page 837.

[11]HB, page 368.

[12]HB, page 372.

[13]HB, page 384.

[14]HB, page 317, para 22.

[15]HB, page 440.

[16]HB, page 317, para 23.

[17]HB, page 380.

[18]HB, page 402.

[19]HB, page 49.

[20]HB, page 50, 1.4.1 – 1.4.8.

[21]HB, page 491.

[22]HB, pages 543 – 792 (in particular 585 – 643).

[23]HB, page 1181 at [20].

[24]HB, page 68.

[25]HB, page 78, file note 23.

[26]HB, page 77, file note 40.

[27]HB, page 77.

[28]HB, page 318, para 27.

[29]HB, page 357.

[30]HB, pages 324, para 48.

[31]Ibid.

[32]HB, page 518.

[33]HB, page 532.

[34]HB, pages 543 – 792.

[35]HB, page 796.

[36]HB, 808.

[37]HB, page 823.

[38]HB, pages 172 – 173.

[39]Ibid at [28].

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

[41]See [57] above which sets out the conditions imposed by the Board

Close

Editorial Notes

  • Published Case Name:

    Smith v Nursing and Midwifery Board of Australia

  • Shortened Case Name:

    Smith v Nursing and Midwifery Board of Australia

  • MNC:

    [2023] QCAT 91

  • Court:

    QCAT

  • Judge(s):

    Judicial Member J Robertson

  • Date:

    02 May 2023

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
AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400
3 citations
Jump To
Cite 1 - [2019] QCAT 400
Cite 2 - [2019] QCAT 400
Cite 3 - [2019] QCAT 400
AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401
2 citations
Jump To
Cite 1 - [2019] QCAT 401
Cite 2 - [2019] QCAT 401
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115
2 citations
Jump To
Cite 1 - [2015] QCATA 115
Cite 2 - [2015] QCATA 115
Wright v Nursing and Midwifery Board of Australia [2021] QCAT 153
1 citation
Jump To
Cite 1 - [2021] QCAT 153

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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