Graham v Queensland Nursing Council
[2009] QDC 121
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- Unreported Judgment
- Graham v Queensland Nursing Council[2009] QDC 121
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Graham v Queensland Nursing Council[2009] QDC 121
Graham v Queensland Nursing Council[2009] QDC 121
DISTRICT COURT OF QUEENSLAND
CITATION: | Graham v Queensland Nursing Council [2009] QDC 121 |
PARTIES: | JUANITA GLORIA GRAHAM Appellant v QUEENSLAND NURSING COUNCIL Respondent |
FILE NO/S: | 1967/2008 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Queensland Nursing Tribunal |
DELIVERED ON: | 1 May 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 February 2009 |
JUDGE: | TUTT DCJ |
ORDER: |
I shall hear the parties on costs. |
CATCHWORDS: | APPEAL – Queensland Nursing Tribunal – where conduct of a registered nurse is in issue – whether “unsatisfactory professional conduct” – whether charge of “discreditable conduct” under s 31(1)(e) of the Nursing Act 1976 made out – whether Tribunal’s findings of “discreditable conduct” amounted to an error of law – whether Tribunal gave sufficient weight to appellant’s prior knowledge of patient’s history in the particular circumstances – whether Tribunal misdirected itself in relying too much on “hindsight” in determining appellant’s attitude towards the welfare of her patients Nursing Act 1976 (Qld) s 31 Nursing Act 1992 ss 104, 104A, 116, 137 Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 Brigginshaw v Brigginshaw (1938) 60 CLR 336 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] 203 CLR 194 House v The King (1936) 55 CLR 499 at 505 Qidwai v Brown 1984 1 NSWLR 100 Stevenson v Yasso (2006) 2 Qd R 150 Walker v Durham & Anor [2003] QCA 531 Warren v Coombes (1979) 142 CLR 531 Whisprun Pty Limited v Dixon [2003] HCA 48 |
COUNSEL: | Mr B Farr SC for the Appellant Mr D Tait SC for the Respondent |
INSTRUCTORS: | Queensland Nurses Union for the Appellant Rogers Barnes and Green for the Respondent |
Introduction
- [1]This is an appeal pursuant to s 137(3)(c) of the Nursing Act 1992 (“the Act”) from the decision of the Queensland Nursing Tribunal (“the Tribunal”) delivered on 24 June 2008 whereby the Tribunal found the appellant guilty of “unsatisfactory professional conduct” contrary to s 104A(1) of the Act in that it was conduct discreditable to a registered nurse within the meaning of s 31(1)(e) of the Nursing Act 1976 arising out of an incident which occurred over 6 years earlier on 3 January 2002[1].
- [2]The charge against the appellant in this appeal was prosecuted by the Queensland Nursing Council the respondent to this appeal, pursuant to its powers under the Act.[2]
Particulars of Charge
- [3]The particulars of the alleged discreditable conduct against the appellant are as follows:
“On 3 January 2002 at or about 5:10am, whilst on duty as a registered nurse at the Arthur Gorrie Correctional Centre at 3068 Ipswich Road, Wacol in the State of Queensland, you failed to conduct any clinical nursing assessment, or any proper clinical nursing assessment, of inmate Mark Anthony Herricane (aka Mark Anthony Waldon) (‘the inmate’) in circumstances where:
- The correctional manager and 2 prison officers accompanied you to the inmate’s cell for the purpose of opening the inmate’s cell door to facilitate the conduct by you of a clinical nursing assessment of the inmate; and/or
- You knew, or should have ascertained, that a request for medical assistance had been made on more than 1 occasion that morning on behalf of the inmate by his fellow inmate; and/or
- The inmate was sitting on the floor of the cell with an arm on or around the toilet; and/or
- You declined an offer by the correctional manager to enter the inmate’s cell to conduct an assessment of the inmate; and/or
- Your role was to conduct a clinical nursing assessment of the inmate.”[3]
- [4]Having found the charge proved the Tribunal imposed a number of sanctions upon the appellant to which later reference will be made, pursuant to s 116 of the Act, including the immediate cancellation of the appellant’s registration as a nurse.[4]
Background
- [5]The circumstances giving rise to the charge against the appellant are summarised in the “Statement of Agreed Facts”[5] between the parties tendered at the commencement of the hearing before the Tribunal. That statement is as follows:
“1. The respondent[6] was first registered as a nurse in Queensland under the provisions of the Nursing Act 1992 on 16 December 1994 and has maintained continuous registration to date.
- The respondent was born on 29 September 1947.
- The respondent first met Mark Anthony Weldon (also known as Mark Anthony Herricane) (‘the deceased’) when she performed a nursing assessment of him upon his arrival at the Arthur Gorrie Correctional Centre on 28 December 2001.
- The deceased was suffering from opiate withdrawals and the respondent placed him on the standard drug withdrawal program on 28 December 2001.
- The deceased was born on 18 April 1972.
- On 1 January 2002 at 4.15pm the deceased collapsed on the laundry floor in Unit B4 of the Arthur Gorrie Correctional Centre. He was held overnight in the Medical Centre for observation.
- The deceased was returned to Unit B4 on 2 January 2002 and at 3.00pm was transferred to share cell B402 with inmate Paul Robert Beaumont at the request of Mr Beaumont.
- On 2 January 2002, Mr Beaumont made a call for medical assistance on behalf of the deceased at 9.21pm. He made a further six (6) calls for assistance on 3 January 2002 at the following times: 4.31am, 5.04am, 5.16am, 5.30am, 6.09am and 6.35am.
- At approximately 5.10am on 3 January 2002, the respondent attended the deceased’s call for the purposes of conducting a nursing assessment of the deceased.
- The correctional manager, Leonard Lackey, and two (2) prison officers, David Weight and John Lewin, accompanied the respondent to the deceased’s cell.
- The respondent was informed by the correctional manager, Leonard Lackey that a request for assistance had been made on more than one (1) occasion on the morning of 3 January 2002 on behalf of the deceased by his fellow inmate, Mr Beaumont.
- The respondent declined an offer by the correctional manager to open the door to the deceased’s cell.
- At or about 6.00am on 3 January 2002, the respondent gave a hand-over to registered nurse Anastasios Kambouris.
- At or about 6.00am on 3 January 2002, the respondent completed her shift and went home.
- At or about 8.40am on 3 January 2002, registered nurse Meryll Fraser attended Unit B4 to dispense medication to inmates.
- RN Fraser conducted an assessment of the deceased’s medical condition at 8.40am on 3 January 2002 and made arrangements for the deceased to be sent to the Medical Centre for a medical assessment.
- The deceased was pronounced dead at 9.41am on 3 January 2002.”
- [6]In addition to the above statement the respondent (to this appeal) relied upon the affidavits and oral evidence from a number of other witnesses including the appellant’s work colleagues and other Correctional Centre officers. The respondent also relied upon the affidavit and oral evidence of Ms Joanna Bruce, a registered nurse who reviewed various material relevant to the subject matter under review and provided a report to the respondent and ultimately to the Tribunal with respect to the appellant’s conduct at the relevant time. At the hearing the appellant relied upon her affidavit and she gave additional oral evidence upon which she was cross-examined.
- [7]The hearing before the Tribunal extended over two days with most witnesses who provided affidavits being cross-examined.
- [8]The Tribunal ultimately found the charge against the appellant proved and imposed the following sanctions upon her:[7]
“Accordingly, the Tribunal, having found the charge proved, orders as follows:
- (1)The respondent’s registration is forthwith cancelled
- (2)The respondent is prohibited from re-applying for registration or applying for enrolment until:
- (i)a period of two years from the date of these orders has elapsed;
- (ii)the respondent has completed, at her expense, university level courses to be nominated by the respondent and approved in writing by Council in the following areas:
- (a)professional responsibility and accountability;
- (b)nursing ethics; and
- (c)nursing assessments of patients;
- (iii)the respondent has provided to Council reports from the course convenors satisfying Council that she has successfully completed the courses referred to in sub-paragraph (ii);
- (iv)the respondent has sat, or re-sat if necessary, an oral examination at a time to be nominated by Council before two senior nurses to be chosen by Council, in order to demonstrate a sufficient level of knowledge of the practice areas set out in sub-paragraph (ii);
- (v)Council has received a written report from the two senior nurses following the oral examination certifying that the respondent has a sufficient level of knowledge pertaining to the practice areas set out in sub-paragraph (ii).
- (3)All costs and expenses in relation to the matters set out in paragraph (2) are to be paid by the respondent including, but not limited to, the courses and provisions of reports.
- (4)The respondent is to pay Council’s costs fixed in the sum of $10,000 within two years.
- (5)Liberty to apply on giving not less than seven days notice to the other party.”
Grounds of Appeal
- [9]The appellant appeals the decision of the Tribunal on the following grounds:[8]
“(i) The Tribunal erred by finding that the appellant’s conduct amounted to discreditable conduct;
- (ii)The penalty imposed was manifestly excessive;
- (iii)The Tribunal erred in placing insufficient weight on the appellant’s previous good record;
- (iv)The Tribunal erred by failing to consider or adequately consider the appropriateness of alternative penalties;
- (v)The Tribunal erred by finding that the appellant lacked insight into her offending behaviour.”
The appellant therefore appeals her conviction of the charge and/or the severity of the penalty imposed.
The Law
- [10]Firstly s 104A(1)(a) of the Act provides among other things that “a ground for disciplinary action against a relevant person” (a nurse) is that:
“(a) the relevant person has behaved in a way that constitutes unsatisfactory professional conduct”.
Section 104A (3) defines “unsatisfactory professional conduct” as including:
“(e) conduct discreditable to the nursing profession”.
- [11]It is common ground in this appeal that whether the appellant’s conduct constitutes “discreditable conduct” of a registered nurse is to be determined within the meaning of s 31(1)(e) of the Nursing Act 1976[9] and that the appropriate test to be satisfied is that stated in Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 at 507[10] having regard to the principles enunciated in Briginshaw v Briginshaw (“Briginshaw”) (1938) 60 CLR 336 at 361. See also Qidwai v Brown 1984 1 NSWLR 100 at 105 where Priestly JA stated that an allegation of “infamous conduct in a professional respect”[11] is to be determined based on:
“…whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence.”
It is trite to say that in a matter such as this the words of Dixon J (as he then was) in Briginshaw of “the seriousness of the allegation made … or the gravity of the consequences flowing from a particular finding” demand that the Tribunal be satisfied to a high standard that the charge has been proved.
Appeal to this Court
- [12]Pursuant to s 137(3)(c) of the Act an appeal to this court “is by way of rehearing on the material before the … tribunal or, if the judge hearing the appeal so orders, on material submitted on the appeal, or on both.” Pursuant to sub-section (8) “On the appeal, the judge may make such orders as the judge considers just.”
General Principles
- [13]In appeals of this nature the general principles upon which an appellate court must operate are well established. In the ordinary case of an appeal by way of rehearing it is necessary for the appellant to show that the decision appealed against was wrong and the Appeal Court although ultimately making up its own mind on the matter,[12] has due regard to such advantages that the court or tribunal at first instance had because of the opportunity to see and hear witnesses and to have the full consideration of all of the relevant evidence that was presented by the original hearing. As was stated when considering an appeal under s 222 of the Justices’ Act 1886 (and the nature of this appeal is in similar terms) this court must give due deference and attach a good deal of weight to the magistrate’s view: Stevenson v Yasso (2006) 2 Qd R 150 at para [36] per McMurdo P.
- [14]Further to this:[13]
“An appellate court will not readily overturn a trial judge’s primary findings of fact where those findings are based on his or her assessment of the credibility of witnesses. As Kirby J said recently in Whisprun Pty Limited v Dixon [2003] HCA 48 –
‘67.However, normally, to secure reversal of a primary judge’s credibility-based conclusions, it is necessary for the challenger to demonstrate that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony: showing that the primary judge’s decision was erroneous, notwithstanding that it appears to be (or is stated to be) based on credibility findings. Such was the case in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (‘SRA’). There a witness, disbelieved by the primary judge, was supported by contemporaneous documentary evidence and unchallenged testimony of other witnesses that had not been considered and that evidence combined to demonstrate the fragility of the judge’s conclusion. Such was also the case in Fox v Percy where the decision of the primary judge, although based on a credibility assessment, could not be reconciled with other testimony that the primary judge accepted. In particular, it did not accord with a contemporary record that contradicted the judge’s conclusion.’
InWarren v Coombes (1979) 142 CLR 531 at 551 the majority of the High Court said of an appellate court’s role in drawing of inferences from proved or uncontested facts –
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’”
- [15]In an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of the evidence before the appellate court the order that is the subject of appeal is the result of some legal, factual or discretionary error.[14]
- [16]
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process.[17] And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretion, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.’[18]”
The Hearing before the Tribunal
- [17]As stated in paragraph [6] above the evidence before the Tribunal was by affidavit of various witnesses with some supplementary oral evidence together with cross-examination of a number of those witnesses.
- [18]The “Statement of Agreed Facts” contains a concise summary of the circumstances of the incident upon which the charge is based and additional evidence was given by Leonard Anthony Lackey, the correctional services manager, which included the following that:
- (i)He was “…the most senior person on duty” at the time;[19]
- (ii)The prisoner Herricane (“Herricane”) was on “…some sort of drug withdrawal program.”[20]
- (iii)Herricane “…was placed on a medical drug withdrawal program” because of illicit substance abuse.[21]
- (iv)He had seen Herricane on the days prior to 3rd January 2002, “…a couple of occasions when I had actually attended to prisoner Herricane with a nurse present” and “…Herricane seemed to be in relatively good health and spirits and he managed to communicate well with everybody.”[22]
- (v)“…there was no policy in place, no procedure, no guidelines, that mandated that the corrective services officer must notify the nurse in the medical centre” (when information is received that a prisoner requires assistance), but there was “a general practice” to do so.[23]
- (vi)At approximately 5:10am on 3 January 2002 he received a telephone call – “Immediately following that telephone call … requested a nurse to accompany me to Unit B4 … I instructed the nurse to accompany me for the purpose of assessing … the condition of the prisoner.”[24]
- (vii)Herricane was observed through the cell door window;[25]
- (viii)“…Herricane was on the floor next to the toilet”;[26]
- (ix)Herricane was not vomiting or dry retching;[27]
- (x)Herricane was “…in a condition that I’d seen many prisoners before, in an emaciated condition, that I attributed to his drug withdrawals or his drug condition;[28]
(xi)The appellant declined the offer to open the cell door by saying “No, I can see him from here, we dealt with him before, he’s on a drug withdrawal program”;[29]
(xii)Herricane appeared to be in a similar state to “many prisoners going through drug withdrawal”.[30]
- [19]Ms Bruce was cross-examined on her evidence and report and agreed:
- (i)That the fact the appellant “…had seen Mr Herricane before, and she had looked after him in the preceding two days … (would) be relevant to her assessment of him”;[31]
- (ii)“…that many registered nurses carry out visual observations of their clients and patients”.[32]
- (iii)“…many registered nurses take into account what they know to be the previous history of the patient or client in making an assessment of that patient.”[33]
- [20]Ms Bruce disagreed “…that the standard visual inspection or conversation with someone in that environment would be satisfactory.”[34]
Appellant’s evidence
- [21]The appellant was cross-examined on her affidavit and stated:
- (i)Her assessment of Herricane “…was adequate in the circumstances … Based on (her knowledge of) … His previous complaints and the responses I got from him at that time to my questions.”[35]
- (ii)Details of the assessment she made of Herricane.[36]
- (iii)She “…commenced him on the detox regime.”[37]
- (iv)Had knowledge of Herricane collapsing “…on the laundry floor” on 1 January 2002;[38]
- (v)Had given Herricane Panadol “…about 1 o’clock in the morning of the 2nd (January)” for “cramping pain” which is a common “…by-product of withdrawal”;[39]
- (vi)When she saw Herricane (on morning of 3 January 2002) in the cell and considered she “…got an adequate history from him.”[40]
- [22]The appellant was then asked a number of questions about whether she was “…perfectly satisfied with the clinical assessment” she made of Herricane on 3 January 2002, “…after six years of opportunity to think about your actions”.[41]
- [23]Not surprisingly, the appellant answered in the affirmative.
- [24]Further cross-examination ensued in addition to questions from the Tribunal’s Chairperson in respect of the appellant being able to make a proper assessment of Herricane without opening the cell door and examining him more closely or asking him further questions of his then complaints.
- [25]In general terms the appellant’s response was that she considered her manner of assessment of Herricane at the time was adequate because of her prior knowledge of his case history and the fact he had been returned to his cell from the medical centre “about 3”[42] on the previous afternoon of the 2 January 2002.
Tribunal’s findings
- [26]
Correctly identified the onus of proof which the respondent to this appeal is required to satisfy;[44]
Identified the central issue it had to determine, namely, “…whether the respondent’s conduct at the time of her attendance at the deceased’s cell at 5.10 am on the morning of 3 January 2002 constituted unsatisfactory professional conduct within the meaning of section 104A of the 1992 Act, in that it constituted conduct discreditable of a nurse within the meaning of section 31(1)(e) of the 1976 Act”;[45]
Referred to the evidence of the witnesses before it and made findings including that:
- (a)It “…prefers and accepts the evidence of Ms Bruce” that the appellant’s assessment of Herricane was inadequate and “…did not constitute any adequate clinical assessment of the deceased in the circumstances”;[46]
- (b)
- (c)“…the respondent conducted what could only be described as a cursory and grossly inadequate examination of the deceased, such conduct is conduct discreditable to a registered nurse within the meaning of the 1976 Act”;[49]
- (d)“The respondent totally failed to discharge her professional responsibilities to the deceased”;[50]
- (e)“…the respondent’s evidence exhibits a total lack of insight as to the inadequacy and inappropriateness of the assessment undertaken by her that evening. This is a matter of grave concern to the tribunal”;[51]
- (f)The respondent’s conduct “…raises concerns as to the lack of empathy for the needs of her patients and, in particular, their need for professional care and assistance at all times.”[52]
- [27]In its decision the Tribunal placed great weight on the fact that the appellant failed to have the cell door opened to enable her to examine Herricane more closely and ask more questions in the circumstances and in particular, her answers to questions under cross-examination at the hearing as to her perceived “lack of insight” and “total lack of empathy for the needs of her patients … causes the tribunal to have great concern as to the respondent’s skills and judgment in the practice of nursing generally”.[53]
- [28]Ultimately the Tribunal “found the charge proved” and ordered:[54]
“(1) the respondent’s registration is forthwith cancelled;
- (2)the respondent is prohibited from re-apply for registration or applying for enrolment until:
- a period of two years from the date of these orders has elapsed;
- the respondent has completed, at her expense, university level courses to be nominated by the respondent and approved in writing by Council in the following areas:
- (a)professional responsibility and accounting;
- (b)nursing ethics; and
- (c)nursing assessments of patients;
- the respondent has provided to Council reports form the course convenors satisfying Council that she has successfully completed the courses referred to in subparagraph (ii);
- the respondent has sat, or re-sat if necessary, an oral examination at a time to be nominated by Council before two senior nurses to be chosen by Council, in order to demonstrate a sufficient level of knowledge of the practice areas set out in subparagraph (ii);
- Council has received a written report from the two senior nurses following the oral examination certifying that the respondent has a sufficient level of knowledge pertaining to the practice areas set out in subparagraph (ii).
- (3)All costs and expenses in relation to the matters set out in paragraph (2) are to be paid by the respondent including, but not limited to, the courses and provisions of reports.”
Appellant’s submissions (Conviction)
- [29]The appellant submits that her conduct on the morning in question not to enter Herricane’s cell and examine him more closely, being the primary particular of the charge against her does not amount to “discreditable conduct” within the terms of her professional capacity as a registered nurse for a number of reasons including:[55]
“her previous knowledge of Mr. Herricane’s condition;
the lack of any written protocols or guidelines within the Correctional Centre requiring close physical examination;
the fact that Mr. Herricane responded to Ms. Graham’s questions albeit, non-verbally;
the knowledge that Ms. Graham had as to the medication that Mr. Herricane was at that time receiving.”
- [30]The appellant further submits that although it is conceded she could have done more in assessing Herricane, her omission to do more does not amount to “discreditable conduct” when her conduct is “…looked at in the context of this matter” in that she:
“…had prior knowledge of the prisoner, his medical history;
…had nursed him previously recently;
…was familiar with his symptoms and the symptoms of the complaint that she knew he was suffering from;
…was familiar with his appearance;
…was familiar with his treatment and the medication regime he was on;
…asked about his leg cramps … which he had already complained of previously;
…could see his breathing pattern;
…asked about any other problems and asked if he could wait a little while for the stronger drugs to arrive which … would occur on the medication round which was to commence in about 2 hours time.”[56]
- [31]It is further submitted that on the basis of findings of “discreditable conduct” in other matters[57] the Tribunal erred in finding that the appellant’s conduct “…amounted to conduct discreditable to the nursing profession”[58] but was in the nature of “a spontaneous error of clinical judgment.”[59]
Appellant’s Submissions (Penalty)
- [32]On the alternative ground of penalty the appellant submits that the penalty imposed by the Tribunal was “manifestly excessive” for the following reasons:
- (i)The appellant had been “…employed as a clinical nurse at the Arthur Gorrie Correctional Centre from 8th September, 1997 to 24th June, 2002. She had no previous (or subsequent) disciplinary breaches”;[60]
- (ii)Its finding of the appellants “lack of insight” is further “without factual foundation” and “…overlooks the years of competent nursing” that she has performed;[61]
- (iii)does not “…address the appropriateness of alternative penalties”;[62]
- (iv)generally “…does not favourably compare to penalties imposed in other matters involving a similar type of conduct”;[63]
- (v)erred in its understanding of the respondent’s submissions on penalty before the Tribunal when it stated during the course of its findings “The counsel submits that the appropriate penalty is cancellation with conditions being imposed, should the respondent ever seek to be re-registered at a subsequent time”; whereas the submission made on behalf of the Council was that the conduct “…warrants a cancellation or suspension”;[64] (emphasis added)
- (vi)That the “cancellation” of the appellant’s registration is “…unreasonable, unnecessary and inappropriate…(and) that a period of suspension with undertakings as to the completion of courses of study should have been imposed.”[65]
Respondent’s Submissions (Conviction and Penalty)
- [33]The respondent submits that the appellant’s conduct as a nurse on the morning in question “…in performing the most cursory of examinations of a patient who she knew was withdrawing from drug addiction, who could not seek treatment himself because of his incarceration, in circumstances when his cell mate had been seeking medical attention for him for some hours, fell short of, to a substantial degree, the appropriate conduct of a nurse.”[66]
- [34]The respondent further submits that the appellant:[67]
“…showed no remorse, insight or contrition whatsoever”;
“…made the most grudging of concessions that she might do things differently now”;[68]
“…the orders made, cancelling her registration for two years, and requiring re-training, were entirely appropriate.”[69]
Findings
- [35]On a review of all the evidence, and submissions made I find that the Tribunal has erred in law in finding the appellant guilty of “discreditable conduct” by failing to consider appellant’s conduct in the context of the appellant’s prior knowledge of and participation in Herricane’s medical history and treatment respectively.
- [36]My reasons for this finding are that the Tribunal failed to give due or adequate weight to the evidence that:
- (a)the appellant had assessed Herricane upon his arrival at the Correctional Centre on 28 December 2001;
- (b)the appellant had then commenced Herricane on a “drug withdrawal program … and on 15 minute visual observations”;[70]
- (c)“…in the days prior to 3 January … prisoner Herricane seemed to be in relatively good health and spirits and he managed to communicate well with everybody”;[71]
- (d)Herricane had been assessed by a Dr Todd on 2 January 2002 after Herricane had collapsed on 1 January 2002 and after assessment by Dr Todd was returned to his unit.
And the Tribunal:
- (e)further erred in placing too much weight on the evidence that the appellant observed Herricane only through the cell door at or about 5.10 am on 3 January 2002 rather than entering the cell and physically examining him at closer quarters, when the appellant was aware of Herricane’s medical history and treatment in the preceding six days he had been in the Correctional Centre and where he appeared to be no more “in a distressed state” than others who were undergoing drug withdrawal programs;[72] and
- (f)misdirected itself by relying on hindsight in its finding that the appellant’s evidence “exhibits a total lack of insight as to the inadequacy and inappropriateness of the assessment undertaken by her that evening”[73] and her perceived exhibiting of “a total disregard for her professional responsibility towards the health and safety of the deceased.”[74] These findings can only be based upon the appellant’s answers to provocative (and probably unfair) questions put to her in cross examination,[75] when she was understandably defending her actions that morning in the face of a serious charge of professional misconduct the onus of proof of which rested with the respondent to this appeal. The questions were asked of her with the benefit of hindsight that the prisoner Herricane had died later that morning, and they invited comment from the person charged on the very point the respondent to this appeal had the onus of proving; and
- (g)failed to take into account that, although the evidence of the witness Joanna Bruce (upon whose evidence the Tribunal also relied in making its findings) exhibited a number of documents in the “Appendix” to her affidavit, none of those documents contained any guidelines, procedures or protocols which were specifically relevant (as distinct from being of general application) to the appellant’s obligations in carrying out her duties as a registered nurse in a Queensland Correctional Centre.[76]
- [37]I find further that the Tribunal misdirected itself generally in finding the charge proved to the standard required, by its failure to take into account all of the surrounding circumstances relevant to the appellant’s assessment of Herricane that morning for the reasons set out above and that as a result, its findings are not sustainable in law.
- [38]It follows therefore that the appeal against conviction is allowed and it is unnecessary for me to consider the alternative ground of appeal.
- [39]My orders are as follows:
- The Appeal is allowed;
- The orders of the Tribunal of 24 June 2008 are set aside and in lieu thereof the order of the court is that the charge of “discreditable conduct” against the appellant has not been made out.
I shall hear the parties on costs.
Footnotes
[1]Nursing Tribunal’s Reasons delivered 24 June 2008 (“Tribunal’s Reasons”) at paragraph [21].
[2]Section 104 of the Act.
[3]Notice of Charge – Exhibit 1 at the Tribunal Hearing.
[4]Tribunal’s Reasons at paragraph [31].
[5]Exhibit 10 at the Tribunal Hearing.
[6]Ie., the respondent to the original charge – Juanita Gloria Graham.
[7]Tribunal’s Reasons at paragraph [31].
[8]Appellant’s written outline of submissions page 2 – “Grounds of Appeal”.
[9]See Appeal Transcript (A.T.) page 20 line 24.
[10]“The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency (Ex parte Attorney-General; Re A Barrister and Solicitor at 242-243 and 245-246)”. As a result of the legislative amendments the test now is that, of a “lesser” standard rather than one which falls “substantially” below the relevant standard (A.T. page 19 line 54 – page 20 line 1).
[11]See Ex Parte Meehan; Re medical Practitioners Act [1965] NSWR 30 by Sugerman J.
[12]Aldrich v Ross [2001] 2 Qd R 235 at 257; Warren v Coombes (1979) 142 CLR 531 at 551; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 327; Fox v Percy (2003) 214 CLR 118 at [29].
[13]See Walker v Durham & Anor [2003] QCA 531 at paragraph [6].
[14]Allesch v Maunz (2000) 203 CLR 172 at 180.
[15] (1936) 55 CLR 499 at 505.
[16] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] 203 CLR 194 at [21].
[17]See Norbis v Norbis (1986) 161 CLR 513 at [518]-[519], per Mason and Deane JJ.
[18]House v The King (1936) 55 CLR 499 at [505], per Dixon, Evatt and McTiernan JJ.
[19]Tribunal Transcript (T.T.) page 8 line 25.
[20]T.T. page 8 line 31.
[21]T.T. page 8 line 35.
[22]T.T. page 8 lines 39-46.
[23]T.T. page 10 lines 34-45.
[24]Affidavit of Leonard Anthony Lackey sworn 13 May 2008 at paragraphs [6]-[7]; T.T. page 11 lines 42-47.
[25]T.T. page 13 lines 23-25.
[26]T.T. page 15 lines 11-12.
[27]T.T. page 15 lines 33-35.
[28]T.T. page 15 lines 44-46.
[29]T.T. page 16 lines 23-24.
[30]T.T. page 18 lines 26-27.
[31]T.T. page 43 lines 35-37.
[32]T.T. page 46 lines 39-40.
[33]T.T. page 46 lines 45-46.
[34]T.T. page 47 lines 10-11.
[35]T.T. page 61 lines 32-36.
[36]It is agreed the appellant assessed Herricane upon his arrival at the centre on 28 December 2001 as per Item 3 of Statement of Agreed Facts.
[37]T.T. page 62 line 5.
[38]T.T. page 62 lines 18-22.
[39]T.T. page 63 lines 19-23.
[40]T.T. page 64 lines 9-10.
[41]T.T. page 66 lines 15-16.
[42]T.T. page 70 line 37; See also Statement of Agreed Facts at paragraph [7].
[43]Tribunal’s Reasons delivered 24 June 2008; T.T. pages 92 – 99.
[44]T.T. page 92 lines 14-17.
[45]T.T. page 92 lines 29-33.
[46]T.T. page 96 lines 13-17.
[47]Appellant in this appeal.
[48] T.T. 96 lines 19-20.
[49]T.T. page 96 lines 30-33.
[50]T.T. page 96 lines 36-37.
[51]T.T. page 96 lines 39-42.
[52]T.T. page 97 lines 13-14.
[53]T.T page 97 lines 6-11.
[54]Tribunal’s Reasons delivered 24 June 2008 at paragraph [31].
[55]Appellant’s written outline of submissions at paragraph [15].
[56]Appeal Transcript (A.T.) page 37 lines 22-46.
[57]Julianne Stephanie Bell – Professional Conduct Committee decision dated 17 October 2000; Michael David Blair – Nursing Tribunal Decision delivered 20th December 2004; Alison Jane Craswell – Professional Conduct Committee decision dated 11th May 2001; Steven John Gilbert – Professional Conduct Committee decision dated 17 October 2000; David Lindsay Robert Jeynes – Nursing Tribunal Decision delivered 21st October 2004; Laetitia Jai Kelly – Nursing Tribunal Decision delivered 29th June 2004.
[58]Appellants written outline of submissions at paragraph [25].
[59]Ibid at paragraph [24].
[60]Ibid at paragraph [26].
[61]Ibid at paragraph [28]-[29].
[62]Ibid at paragraph [31].
[63]Ibid at paragraph [32].
[64]A.T. page 18 lines 37-48; T.T. page 90 line 25.
[65]Applicant’s written outline of submissions at paragraph [33].
[66]Respondent’s written outline of submissions at paragraph [1.2].
[67]Ibid at paragraph [1.3].
[68]Ibid at paragraph [1.4].
[69]Ibid at paragraph [1.5].
[70]Appellant’s affidavit sworn 20 June 2008 at paragraph [12] – Exhibit 11 in the Tribunal Hearing. The “drug withdrawal program” involved Herricane being prescribed various medications – see T.T. p 62 lines 10-15.
[71]T.T. page 8 lines 39-46 (cross-examination of witness L.A. Lackey).
[72]T.T. page 18 lines 25-30 (cross-examination of witness L.A. Lackey).
[73]T.T. page 96 lines 40-41.
[74]T.T. page 96 lines 21-22.
[75]See T.T. page 66.
[76]It should be noted that Ms Bruce was a midwifery nurse and much of the material dealing with the “Code of professional Conduct for Nurses in Australia” dealt with the standards of nursing conduct in that discipline with general polices only for nurses per se, namely being expected to maintain an acceptable standard of professional competency.