Fletcher v Queensland Nursing Council
[2009] QDC 129
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Fletcher v Queensland Nursing Council[2009] QDC 129
- Add to List
Fletcher v Queensland Nursing Council[2009] QDC 129
Fletcher v Queensland Nursing Council[2009] QDC 129
DISTRICT COURT OF QUEENSLAND
CITATION: | Fletcher v Queensland Nursing Council [2009] QDC 129 |
PARTIES: | Glennys Laurel Fletcher (Appellant) v Queensland Nursing Council (Respondent) |
FILE NO/S: | 3074 of 2008 |
DIVISION: | Appellate |
PROCEEDING: | Appeal against Nursing Tribunal finding of unsatisfactory professional conduct and penalty |
ORIGINATING COURT: | Nursing Tribunal |
DELIVERED ON: | 25 May 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 April 2009 |
JUDGE: | Robin QC DCJ |
ORDER: | Appeal allowed, charge against the appellant dismissed, respondent to pay for costs of the appeal to be assessed on the standard basis, and her costs in the Nursing Tribunal, fixed at $10,000. |
CATCHWORDS: | Nursing Act 1992 s 104A, s 116, s 137 – whether appellant registered nurse faced a single charge of abusing her position of influence and trust, in respect of a former patient whose domiciliary carer she was (by refusing to relinquish a gift of the bulk of his estate under a will made 5 months after his hospitalisation) or multiple charges by reference to particulars – where Tribunal found some but not all particulars proved, but made no finding of abuse – no clear delineation or guidelines available as to “boundary issues” to do with clarifying that the therapeutic relationship had ended when the appellant on a voluntary basis continued to visit the testator in hospital and other institutions, and performed services for him. |
COUNSEL: | J Allen with K Forrester for the Appellant D Tait SC for the Respondent |
SOLICITORS: | Roberts and Kane Solicitors for the Appellant Rodgers Barnes and Green Lawyers for the Respondent |
- [1]This is Mrs Fletcher’s appeal under s 137(2) of the Nursing Act 1992 against an “order” of the Nursing Tribunal (as referred to in subsection (1)(c)) of 6 October 2008 following a hearing of some days’ duration of a charge or charges of unsatisfactory professional conduct as a registered nurse contrary to s 104A(1) of the Act. The orders, made pursuant to “charges” 1, 2, 4 and 5 in an amended notice of charge being found proved, are:
“1. The Respondent’s registration is forthwith cancelled.
- The Respondent is prohibited from re-applying for registration, or applying for enrolment or an authorisation to practise nursing (“the application”) until:
2.1 A period of two (2) years from the date of these Orders has elapsed;
2.2 The respondent has completed, at her expense, a course (or courses) in ethics, professional responsibility and accountability, and nursing and the law, such course or courses to be nominated by the respondent and approved in writing by Council;
2.3 The respondent has provided to Council reports from the course convenors satisfying Council that she has successfully completed the courses referred to in paragraph 2.2;
2.4 After complying with paragraphs 2.2 and 2.3, the respondent has sat (or re-sat if necessary) an oral examination at a time to be nominated by Council before two (2) senior nurses to be nominated by Council, in order to demonstrate a sufficient level of knowledge of those issues referred to in paragraph 2.2;
2.5 Council has received a written report from the two (2) senior nurses following the oral examination certifying that the respondent has a sufficient level of knowledge pertaining to those issues referred to in paragraph 2.2.
- All costs and expenses in relation to the matters set out in paragraph 2 are to be paid by the respondent.
- Upon any subsequent re-registration, the respondent’s registration is to be subject:
- (a)to a condition for a period of two (2) years from the date of such re-registration requiring the respondent to provide a copy of these Orders and a written authority to her nursing employer within seven (7) days of commencing employment as a registered nurse to report to Council if the employer holds a concern about the respondent’s interactions with patients, or if the employer is requested by Council to provide a report about those interactions;
- (b)to a condition prohibiting the respondent from undertaking employment in a community health nurse environment or in an aged care facility.
- The respondent shall pay Council’s costs, fixed in the sum of $10,000 within three (3) months, or such further time as may be agreed by the Council.
- Liberty to apply.”
- [2]Mrs Fletcher is 50. The court’s impression is that her experience is such that order 4(b) (the lawfulness of which under s 116 of the Act[1] is an issue she raises in the appeal[2]) may well preclude her from working in nursing ever again. I understood from counsel (transcript p 55) that the order cancelling registration came into effect immediately so that Mrs Fletcher has already served an effective suspension of several months.
- [3]The amended notice of charge made the following allegations:
“You abused your position of influence and trust in respect of James Robert Paidley (now deceased) (“the deceased”) arising from a nurse/patient (therapeutic) relationship formed in the period up to 22 May 2004 in that:
- You involved yourself in the deceased’s affairs in the period from his admission to the Ipswich General Hospital on 23 May 2004 until his death on 3 July 2005 to such an extent that there was a foreseeable risk that the deceased could become unduly influenced by you in that you:
a) Regularly visited the deceased at Ipswich Hospice Care at 37 Chermside Road, Eastern Heights in the period from 16 June 2004 to 29 December 2004;
b) Regularly visited the deceased at Karinya Village Nursing Home at 26 Samuel Steeet, Laidley in the period from 29 December 2004 to 14 January 2005;
c) Accepted the deceased’s enduring power of attorney on both financial and personal/health matters on or about 4 January 2005;
d) Regularly attended the deceased’s principal place of residence at 16 Yates Street, Rosewood to check mail, feed the deceased’s cat and ensure the house was secure; and/or
e) Regularly visited the deceased at Glenwood Hostel at 49 Main Street, Lowood in the period from 14 January 2005 until his death on 3 July 2005 and had involvement in formulation of the deceased’s care plan;
in circumstances where you had failed to take appropriate steps to make it clear to the deceased that the therapeutic relationship had come to an end subsequent to his admission to the Ipswich General Hospital on 23 May 2004.
2. You failed to take positive steps to ensure clarity in your relationship with the deceased by not informing the family of the deceased (particularly Wayne Paidley) or your colleagues that your relationship with the deceased had changed from that of paid carer or nurse to that of an unpaid friend or confidante.
3. You failed to adequately involve, or reasonably attempt to adequately involve, the family of the deceased (particularly Wayne Paidley) in decisions or discussions about the deceased’s ongoing care requirements.
4. You failed to take positive steps to ensure a greater distance between yourself and the deceased when he was making decisions about his Will in circumstances where it must have been within your contemplation that you may gain a significant entitlement under the deceased’s Will.
2.5You failed to relinquish the entitlements gifted to you under the terms of the deceased’s will dated 23 September 2004.
3.6You sought to influence the deceased at various times in the period from 23 May 2004 until the deceased’s death on 3 July 2005 to benefit you under his will.
By engaging in the conduct alleged, the unsatisfactory professional conduct amounts to any one or more of the following within the meaning of section 104A(3) of the Nursing Act 1992; namely:-
A. Professional conduct that is of a lesser standard than that which might reasonably be expected of you by the public or your professional peers; or
B. Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in nursing practice; or
C. Infamous conduct in a professional respect; or
D. Misconduct in a professional respect; or
E. Conduct discreditable to the nursing profession; or
F. Fraudulent or dishonest behaviour in nursing practice.”
- [4]The original notice of charge did not include the assessments and conclusions underlined except to the extent that in Item 1, “involved” was “over-involved”. Shorn of the expanded allegations, the factual assertions in the notice of charge were made out, essentially – excluding 3 and 6 (the original 3), which were not proved to the Tribunal’s satisfaction. (I observe, however, as to the contention in the last ten words of 1e, that the “involvement” established by the evidence was miniscule, indeed essentially peripheral.) Some additional information was supplied to the court, summarised in a Chronology prepared by Mr Tait SC (for the Council) which required some amendment. The late Mr Paidley was born on 27 May 1930. He did not marry; he had no children, those closest to him, it seems, being Mr Wayne Paidley, a nephew, and the nephew’s sisters. There was a will of 30 July 1959, said to leave “all to family members”. As an employee of Blue Care, Mrs Fletcher commenced nursing James Paidley at his home in September 2002, attending Monday to Friday every week, ignoring breaks for reasons such as his hospitalisation or her taking leave. He suffered serious complications from diabetes, restricted mobility and the like. The court was given conflicting information as to whether Blue Care was paid for the services it provided through Mrs Fletcher; and the last word is that the organisation was paid. In May 2004, James Paidley became seriously ill and was admitted to hospital, to be diagnosed with cancer which was probably expected to be terminal, although (vain) hopes were entertained for a time that he might get back home. On 18 June 2004, a couple of days after hospice care began, a new will was made naming Mrs Fletcher executor and, according to the Chronology leaving “all to Blue Care”. It is unclear whether Mrs Fletcher agreed to the role of executor. The Tribunal (reasons paragraph 33) did “not accept her evidence that she expressly told Mr Paidley she wanted nothing to do with his Will”, having said apropos charge 4 at paragraph 31:
“31.The respondent accepts Mr Paidley raised with her becoming trustee of his Will.[3] Contrary to her professional obligations, the respondent did not decline that position. The Tribunal does not accept the respondent’s evidence she did not understand what a trustee meant. This evidence lacked credibility, particularly when the respondent accepts she had previously been executor to her own mother’s Will.[4]
32.The Tribunal is satisfied the respondent, by her actions, failed to take positive steps to ensure there was a proper professional distance between herself and Mr Paidley when he was making decisions in relation to his Will. In this respect, the Tribunal notes the respondent was involved in cancelling an appointment in June 2004 which had been made with a solicitor for the purposes of preparation of a Will by Mr Paidley. It was this Will which first appointed the respondent Executor of Mr Paidley’s estate.”
- [5]I am unsure whether this constitutes a ruling that Mrs Fletcher acted contrary to her professional obligations by not declining executorship under a will leaving “all to Blue Care”.
- [6]Mrs Fletcher had notice that James Paidley was in will-changing mode given her involvement in cancelling an appointment he had with Mr James Walker, an experienced solicitor for the purposes of preparation of a will in June 2004. I can see nothing in the slightest sinister in that fact alone. Mr Paidley appeared to have organised the appointment, with the solicitor he had used for many years, and was unexpectedly precluded from keeping it by his health crisis and hospitalisation. Mrs Fletcher was the obvious person to advise Mr Walker’s firm that the appointment could not be kept. She does not appear to have had anything to do with Mr Walker’s subsequent attendance on the Testator on 18 June 2004. Three and a half months later, there was another attendance by Mr Walker resulting in execution of what turned out to be the last will. The notice of charge has it dated 23 September 2004, the Chronology says 29 September 2004 and that the effect was “all to Appellant”. I take it this was just a convenient summary (as the descriptions of earlier wills may have been), as there was a bequest of $2,000 to Mr Wayne Paidley.
- [7]The appeal was conducted on the basis that the benefit to Mrs Fletcher was something in excess of $200,000 (see transcript of the Appeal hearing at pp 14 and 99). Mrs Fletcher’s loss of her employment with Blue Care was said to be on the basis of her failing to relinquish her entitlements. The Council’s outline of argument states that “despite being asked by her employer, and by the family of the Deceased, the Appellant refused to surrender any part of the estate, other than, quite grudgingly, a few minor items”. It is not clear whether Blue Care would have regarded the arrangements under the penultimate will as appropriate having regard to its employee’s professional obligations (or its view of those obligations) or whether it would have been prepared to accept largesse from Mrs Fletcher if she had decided to pass her entitlements on to Blue Care. The use of “relinquish” may suggest it was acceptable for Mrs Fletcher to receive benefits, provided she passed them on. Had she renounced, the intestacy rules would have governed the disposition of the estate so far as Mr Wayne Paidley did not receive it.
- [8]There appears to be no question of the whole will (the subject of a grant of Probate in the Supreme Court) being vitiated so as to revive its predecessor. There is reason to believe that the prospects of challenging the Testator’s testamentary capacity from July 2004, have been canvassed and assessed as unpromising. Unfortunately, Mr Walker was overseas, and unable to give evidence, his contribution being by way of file notes produced by a partner. The Tribunal acknowledged (para 34): “the solicitors who witnessed the third will expressed the view in diary notes that they were satisfied he had capacity and had not been coerced, further, Dr Saba, who attended Mr Paidley in the hospice, was of the opinion he was capable of making his own decisions and was a “shrewd” type of person:”
“35.However, Mr Paidley had several medical problems whilst in the hospice, including pain management issues, depression, and decreased appetite. The existence of such conditions following a recent diagnosis of a terminal illness, and an expressed view he had been abandoned by his family, obviously gave rise to a great vulnerability to the care and attention being given to him by a person with whom he had developed a close therapeutic relationship, and the real possibility that the respondent may benefit by receiving a significant entitlement under Mr Paidley’s Will unless she took positive steps to ensure a proper professional distance between Mr Paidley and herself when he was making decisions about his Will.”
36.The respondent’s failure to ensure a proper professional distance between herself and Mr Paidley was a breach of her professional obligations. The Tribunal is satisfied this failure amounts to professional conduct that is of a lesser standard than that which might reasonably be expected of her by the public or her professional peers, and is also conduct demonstrating a lack of adequate knowledge and judgement in nursing practice.
- [9]The Deceased’s sojourn at Karinya Village Nursing Home was brief. He did not like it there. It was a requirement of Karinya Village that residents have executed an Enduring Power of Attorney. This was arranged by Mr Robert B Walker, who got Mr Paidley to affix his signature to the instrument on Christmas Eve, 2004. Mrs Fletcher did not sign to acknowledge that she accepted appointment until 4 January 2005. She never used the power. Indeed, she did not ever have it in her possession to produce. It appears to have been kept with the Donor’s personal effects at the place where he was living. That soon afterwards became Glenwood Hostel, which the court was told is an operation of Blue Care.
- [10]The Donor’s signature on the Power of Attorney has the appearance of being written with some difficulty. Around this time, Mrs Fletcher was completing other documents for him, such as applications for entry to Glenwood, as friend or carer. In that instance, she was identified as first contact, Mr Wayne Paidley as second point of contact. She asserted that was at James Paidley’s request; whatever the Tribunal’s misgivings, I see no reason to doubt that. The preference for Mrs Fletcher is totally understandable. While Mr Wayne Paidley visited his uncle on Sundays (apparently the only family member to exhibit any interest) following his becoming institutionalised, it does not appear that the nephew carried out (or showed any interest in carrying out) the functions taken on by Mrs Fletcher by way of keeping the home household going, paying bills, purchasing incontinence pads, and the like. The Council advanced the view (for example, page 98 of the Appeal transcript) that it was “appropriate for her to inform the solicitor she did not wish to be the patient’s power of attorney, request the patient to change”. I find this approach somewhat remarkable. Effectively, the Council appear to be saying that Mr Paidley should have been denied the right to make his appointment of choice, forced to appoint someone else in whom he may have had no confidence. I respect Blue Care’s concern that the high degree of dependence and trust clients and their families have in relation to its activities produces an imperative that the organisation and its staff be above suspicion of exploiting their roles with a view to obtaining benefits: the potential for “undue influence”, whether or not there is “abuse”, is ever present. The standards Blue Care may insist on for its employees are one thing; the standards the nursing profession in general and the community would expect or should insist on may be another.
- [11]Someone setting out to establish a case against Mrs Fletcher has much to rely on. Over nearly two years of her being the carer in a nursing capacity, the patient became dependent on her and clearly reposed complete trust in her, had very limited alternative sources of support. The extent of her contacts following his institutionalisation, for which she was not paid, is remarkable and was unprecedented in her own experience with former patients. She visited him, often at night, after work and still in her Blue Care nursing uniform – a feature which concerned the Tribunal, since, after work she specifically returned to her home to change vehicles, as the Blue Care one she used was not available for private purposes: the Tribunal apparently considered she should have changed clothes too, presumably as a way of making it clearer to Mr Paidley that she no longer occupied the role of nurse with respect to him. It is probably the case that in the ordinary run of human affairs, it is extraordinarily exceptional for a nurse to be favoured with such generosity as this ex-patient showed. If I may be permitted to offer another thought as to what community standards might have adjudged proper, I would say that Mrs Fletcher’s unwillingness to part with items that might have been of sentimental or personal value to the family was unwise; many in her position might have invited the family to take anything they wanted from the house. There are other features that prompt concern, such as the payment of some of Mr Paidley’s accounts in the first instance from the business account of Mrs Fletcher’s husband. To my mind, unease is generated by the mixing of different parties’ affairs, which would be better avoided, even ignoring any nursing context. There is no suggestion here that the explanation for what was done was anything other than providing Mr Paidley with a way of meeting urgent exigencies.
- [12]The appeal is by way of re-hearing (s 137(3)(c)). The implications of that were considered by Judge McGill SC in Barry v Queensland Nursing Council [2001] QDC 146, when the appeal was likened to one from this court to the Court of Appeal. As the written outline of Mr Allen (who led Dr Forrester for the appellant) put it:
“The inferences to be drawn from the facts as found by the Tribunal and the ultimate conclusion as to whether or not a charge is proved, remain matters to be determined by the District Court on an appeal by way of re-hearing.”
Here, the Tribunal has drawn sinister or incriminating inferences from established facts which I have considered are unfair to Mrs Fletcher; there are other inferences open, such as that she was simply being kind, that she genuinely believed there was nothing wrong in retaining her former client’s bounty when it came to light (only after his death, she insisted).
- [13]The advantages the Tribunal had by way of observing witnesses give their evidence, in particular, ought to be respected. The Tribunal had a very poor opinion of Mrs Fletcher, to the extent of rejecting her evidence where there was any to the contrary, indeed of rejecting much of her evidence even when there was not, for example, evidence that she was “stunned” to discover she was the beneficiary under the will. I am prepared to say that a reading of the transcript leaves an unfavourable impression of Mrs Fletcher as a witness. On the other hand, things were made difficult for her in the witness box in my opinion by the active engagement of the Chairperson of the Tribunal. After unremarkable interventions during the early part of “examination-in-chief” (expanding upon her affidavit), from the fourth of the twelve pages there was questioning by the Chairperson on most pages and sometimes extensive, as at the end (pp 127 – 8):
“What would you have done differently?---I would have said to Monique that, no, I couldn’t do anything. I would have said to Jan, no, I can’t do anything. And it would have been really hard to say no to Jimmy. But I should have said no to Jimmy.
And why didn’t you, at the time?---I thought I was helping him. I didn’t realise that I was doing anything wrong. I thought I was helping him.
MR TAIT: I’m sorry, I can’t hear.
THE WITNESS: Sorry.
CHAIRPERSON: Can you keep your voice up, please?---Sorry. I thought that I was helping him. I didn’t realise at the time – I had always thought that you didn’t get involved with patients, but he was no longer my patient. I know now that that’s not right. So, yes, I would do – I wouldn’t do this again.
MR FORRESTER: I have no further questions.
CHAIRPERSON: But if you knew – if you knew that, and you’ve got a patient who has a terminal illness and says he is feeling abandoned by his family, surely that must have rung alarm bells for you, if you knew that you shouldn’t get involved with patients?---But he was to me, when he was in the hospital, and when they were talking at this stage that he would go – this was when he had immobility problem, that he would need nursing home care. I said to him then – this was before they couldn’t get hold of Wayne – when he was talking about going to a nursing home I said to him, “Jimmy, once you get there and they find Wayne, you know, he’ll be able to do all of these things for you.” And he said, “Yes, I know.” I thought that my nurse role was no longer there.
But you know – you just said you knew you shouldn’t get involved with patients and he was a former patient. You knew that Wayne was seeing him weekly, and you knew that he said that he felt abandoned, and yet you continued to do this. You must have known it was wrong?---No, I didn’t.
But you knew you shouldn’t get involved with patients. You just said that?---But he wasn’t a patient at that stage.
Yes, but he was a former patient, and you knew he was a former patient, and you knew he was a person who felt abandoned and had a terminal illness. Didn’t it occur to you that he was vulnerable?---I thought that I was assisting him.
Who filled out the information about who was to be the contact when he went to the hospice?---To the hospice, I don’t know.
Did you provide the information about contacts?---No, not at the hospital, no.
The hospice, I said, not the hospital?---You said – when he went to hospice.
When he went to the hospice?---That was all filled out at the hospital before he went.
All right. And did you provide that information?---No.
Did you – did the hospital ask you to sign any documents, or the hospice ask you to sign any documents in relation to who was to be the contact, and how people could be contacted?---I don’t remember, no.
When he went to the nursing home, to Karinya, were you asked to provide any information then in respect of that transfer?---I took – I had the application form or – I don’t know if I took it there or if hospice had it there, but I filled it out at his bedside with him.
All right?---Telling me what to write.
And who was put down as the contact, first contact?---Me.
And when he transferred to Glenwood, did you provide that information?---I – when he transferred the application form, yes, I – it was the same back page witnessed signature as the one Ski had done – had signed, I should say – and the front, yes, I did fill it out. And that was also with him at Karinya, and then I faxed it, because I had to show her the form.
And who was put as the first contact?---I think it was me.
Yes. Yes, Ms Forrester.
MS FORRESTER: I have no further questions for the witness, thank you.
CHAIRPERSON: All right, then. Yes, Mr Tait.
CROSS-EXAMINATION BY MR TAIT [12.33 pm]
MR TAIT: Thank you.
You’ve read your affidavit recently?---Yes, I have.
When did you decide that you were wrong and you would have done things very differently? At the funeral?---No.
When you – when there was talk of litigation about the property? Is that when you felt bad, and that you should have done things differently?---No. I started to realise when the Blue Care interview happened.”
(The interview was said to be one some time in the second half of 2005 when Jan Taylor, the Director of Nursing, said “that she was concerned that there were boundary issues.”)
- [14]The Chairperson’s interventions during cross-examination were more extensive, appearing on all but ten of the thirty-six pages, and in some instances taking up the entire page. Mrs Fletcher would probably have been discomfited after the Chairperson’s explanation of the procedure (“Ms Forrester will ask you questions, first of all, and then Mr Tait, no doubt, will have some questions for you.”) to discover that the Chairperson asked more questions than did Counsel. I hasten to observe that I claim no familiarity with Tribunal procedure, and that according to its practices there may be nothing unusual about the course of the taking of her evidence as a respondent facing a disciplinary charge. My observations are made because there may be a partial explanation for my own second-hand unfavourable impression of Mrs Fletcher’s evidence: she may well have found it difficult to give the best account of herself. The appellant’s argument included no complaint about or allusion to this aspect.
- [15]A serious criticism levelled against the Tribunal is that it went wrong in identifying and dealing separately with multiple “charges” when there was really no more than a single charge. The appellant’s outline of argument, following a reference to the parts of the Amended Notice of Charge set out in paragraphs [3] above, succinctly states the point:
“The Amended Notice of Charge then continues:
“NOTICE IS HEREBY GIVEN that the charge has been referred to the Nursing Tribunal for hearing and determination”
(with a reference to the charge in the singular).
- Section 104(1) of the Act provides that the Council may “prefer a charge against a person and refer it to the tribunal if the Council reasonably believes a disciplinary matter exists in relation to the person.” Section 104(2) provides that:
“The charge is contained or be accompanied by sufficient particulars to inform the tribunal and the person of the ground for disciplinary action that is the basis of the charge.”
- There is some ambiguity in the terms of the Amended Notice of Charge itself as to whether or not there is one charge of unsatisfactory professional conduct which is particularised in the body of the Amended Notice of Charge, or whether there are 6 separate charges of unsatisfactory professional conduct preferred against Ms Fletcher. The terms of the reasons of the Tribunal refer repeatedly to “the charges” and the Order of the Tribunal refers to the Tribunal “having found charges 1, 2, 4 and 5 in the Amended Notice of Charge proved”. Both Counsel for Ms Fletcher and Senior Counsel for the QNC, in their respective written submissions, referred to one charge, with particulars. Indeed, Senior Counsel for the QNC even referred to the paragraphs numbered 1-6 in the Amended Notice of Charge as providing “sub particulars”.
- What is of more significance is that all of the paragraphs numbers 1-6 in the Amended Notice of Charge, whether they be properly regarded as separate charges or merely particulars of one charge, are prefaced by the general allegation that Ms Fletcher abused her position of influence and trust. Part of the particulars of any charge or charges of unsatisfactory professional conduct was the allegation of such abuse of position of influence and trust. The written submissions of both Counsel before the Tribunal were couched in terms that assumed proof of such abuse of position of influence and trust as a necessary part of proof of the charge.
- The Reasons of the Tribunal refer to the relevant part of the Amended Notice of Charge as providing particulars of the alleged unsatisfactory professional conduct. The Reasons do not contain any stated finding that Ms Fletcher did abuse her position of influence and trust. The lack of such a finding is consistent with the lack of evidence to establish an abuse of position by Ms Fletcher. The relevant definition of “abuse” in the Concise Oxford English Dictionary (10th edition, revised) is “use to bad effect or for a bad purpose”, with the relevant definition of “use” in the same dictionary being “take, hold, or deploy as a means of accomplishing or achieving something”. An allegation that someone has used or abused their position carries with it the notion of intent or purpose on the part of that person. For the same reasons that the evidence was insufficient for the Tribunal to be satisfied that Charge (or particular) 6 was proved, the evidence is such that the Court would not be satisfied that such an allegation is made out on the evidence. Such an allegation was an essential element of the charge brought against Ms Fletcher and failure to establish such matter means that the charge should be dismissed.
- In the absence of any evidence establishing to the requisite standard that Ms Fletcher engaged in a course of conduct with the intention of gaining some benefit for herself, it is submitted that the evidence is insufficient to base a finding of guilt of a charge of unsatisfactory professional conduct.”
- [16]In my opinion, that argument is correct. I do not think that it is possible in the circumstances to proceed on the basis there was some implied finding to the effect of the finding whose absence is noted in Mr Allen’s paragraph 11. The Council’s case in the Tribunal was as characterised in paragraph 9. Its written submissions there commenced:
“1. SUMMARY OF ELEMENTS OF CHARGE
- The charge is one of behaving in a way that constituted unsatisfactory professional conduct.
- The charge is particularised as being one where the nurse abused her position of trust in respect of a patient James Paidley.
- Six sub particulars are provided, namely:- …”
- [17]Its counsel’s conduct of the proceeding in the Tribunal was on the same basis. It is convenient to reproduce the gravamen of Counsel’s closing oral submissions:
“ … there are two potential levels of activity … the question is whether the undue influence which has existed was deliberate or inadvertent, unintended … there are two levels. The first is: it’s unintended … The second … that it was done deliberately; not to get the whole estate, perhaps, but to get something … the first … is purely passive; there is no ulterior motive … The second … is that she intended to get some benefit … She was offered the opportunity by the Industrial Commissioner to save her job, and she said, “No, I’m keeping the money.” That’s not consistent … with the behaviour of someone who didn’t expect it, didn’t want it. CHAIRPERSON: … It sends a subliminal message, almost, turning up in a uniform and doing the types of duties that a nurse does … MR TAIT: Yes. And bringing incontinence pads, things like that … whether she intended it or not, it could reasonably be expected it had that effect …she’s … not charged with feeding the cat, she’s charged with receiving the money and not surrendering it … the feeding the cat, the mowing of the lawn, all the other things, the 45 minute drives at the end of a long day are consistent with and evidence which could substantiate – would be due to the inference of a plan … for 45 years he was content to leave it to his family and then shortly after meeting her, he changed it and makes her executor … That’s consistent with either accidentally influencing him … which is wrong to do but I wouldn’t submit would warrant punishment … The whole way she dealt with it afterwards, the funeral, the not contacting the family, the no offer to negotiate, the refusal to relinquish the gift or to give it to the RSPCA, the whole of that behaviour is consistent … with her having a plan or a hope at least to get something out of the will.”
- [18]It appears that a clear position that the Council set out to establish “abuse”, connoting something intentional, may have got confused when, invited to address the question of sanctions, counsel submitted for a five year ban before any re-application for registration, but if the Tribunal were “not satisfied in respect of things such as … that other aspect of, in order to benefit”, counsel submitted that it would be a year rather than five years “if it was inadvertent and she was just silly, badly advised, said once I’d been given this money, why should I give it up, but there was never a plan.” (Transcript to page 247). That Dr Forrester (for Mrs Fletcher) also treated the central issue as one of intent, is clear from the conclusion to her written submission to the Tribunal:
“8.3 In [a] disciplinary proceeding … before the Tribunal, the Queensland Nursing Council must prove the elements of the charge to the “reasonable satisfaction of the Tribunal.”[5] It is submitted that the conduct of the respondent clearly evidences a demonstrable lack of knowledge regarding appropriate boundaries, particularly within the community setting and a lack of knowledge of the professional and ethical duty to recognise and avoid potential and/or actual conflict of interest[6] however it did not constitute unsatisfactory professional conduct within the meaning of section 104 A (3) of the Nursing Act 1992 (Qld).
8.4 It is submitted that the respondent did not abuse her position of influence and trust in respect of James Robert Paidley (now deceased) arising out of the nurse/patient (therapeutic) relationship formed in the period up to 22 May 2004 but rather appears to have had little or no understanding of the distinction between “caring for” and “caring about” Mr Paidley.[7] It is submitted that there was no intention on the part of the respondent to abuse but rather an ignorance of the potential conflicts that arise in situations [where] boundaries of practice are not established and maintained.”
- [19]In my opinion, the disciplinary proceeding was conducted on the basis that the Council set out to establish against Mrs Fletcher that she abused her position of influence and trust; it failed to persuade the Tribunal to find there was such abuse, notwithstanding that particular acts or omissions said to contribute to a conclusion there was abuse may have been made out. The charge of abuse should have been dismissed. On the Board’s approach of identifying multiple charges, all of them ought to have been dismissed, not 3 and 6 only.
- [20]It is not entirely satisfactory to resolve this appeal on a basis that may appear technical.
- [21]If one comes to consider the “merits”, in my opinion the case against Mrs Fletcher falls far short of one establishing “abuse”. Blue Care promulgated guidelines for its nurses which precluded their accepting from grateful clients gifts of appreciable value. Those guidelines governed Mrs Fletcher’s employment as indicated above; they should not be accorded recognition in the Tribunal or in the court to the extent of having Mrs Fletcher drummed out of the profession should it be just to assess that she has breached them. What the court was given as a basis for understanding how Mrs Fletcher failed in her professional obligations was the Australian Nursing & Midwifery Council’s Code of Ethics for Nurses in Australia (Exhibit 2) which includes:
“VALUE STATEMENT 2
Nurses value respect and kindness for self and others
Explanation
Valuing respect for self and others encompasses valuing the moral worth and dignity of oneself and others. It includes respecting the individual ethical values people might have in the context of health care. Kindness is the demonstration of simple acts of gentleness, consideration and care. The practise of kindness as a committed and everyday approach to care reduces the power imbalance between a person requiring or receiving care and a nurse, by placing the nurse at the person’s service, which is the appropriate relationship.
- Self: Respecting oneself involves recognising one’s own intrinsic worth as a person …
- Person (health consumer): Respect for people who are health consumers recognises their capacity for active and informed participation in their own health care. Nurses actively preserve the dignity of people through practised kindness and by recognising the vulnerability and powerlessness of people in their care. Significant vulnerability and powerlessness arises from the experience of illness and the need to engage with the health care system. The power relativities between a person and a nurse can be significant, particularly where the person has limited knowledge; experiences pain, illness and fear; needs assistance with personal care; or experiences an unfamiliar loss of self-determination. This vulnerability creates a power differential in the relationship between nurses and people in their care that must be recognised and managed.13
- Colleagues: Respect for colleagues involves …
- Community: Respect for the community requires …
[Endnote 13 is:]
- This part of the explanatory statement also appears in the Code of Professional Conduct for Nurses in Australia and as it goes to the ethical conduct of nurses it has been included in the Code of Ethics as well. The power of nurses comes from their capacity to ration or withhold as well as provide comfort, pain relief, personal care and nurturance. People experience abusive power from nurses where they feel themselves required to plead, express gratitude or feel at the mercy of a nurse caring for them. The preceding comments and the commentary in the explanation were made in a response from the Health Consumers Council WA. It was the view of the Health Consumers’ Council that kindness is irrefutably a professional quality required of nurses. It is their view that the demonstration of kindness diminishes the discrepancy in power between a nurse and a person in their care, and fosters safety and respect. Although the power relationship issue is addressed in the previous draft of the document, the Council found there was no offering to nurses on how the power differential can be managed. The Council went on to say that one of the greatest areas of complaint about nursing conduct is the absence of compassion or kindness. Conversely, people are most impressed and touched by nurses who are able to demonstrate simple acts of kindness and consideration.”
- [22]It is unsurprising that the Director of Nursing identified the whole affair as involving “boundary issues”. It seems to me that there was no clear definition of where the boundaries Mrs Fletcher (or others in similar situations) ought to have respected lie. I am concerned at the injustice of destroying a person professionally on the basis of a retrospective determination that some ill-defined boundary has been crossed.
- [23]So far as the Code of Ethics is concerned, I think it untenable to regard Mrs Fletcher as within the purview of the provisions set out at relevant times. What power did she have “to ration or withhold as well as provide comfort, pain relief, personal care and nurturance”, except to the extent that she could have ceased or curtailed her visits, especially to the hospice and withdrawn from further acts of kindness such as feeding the cat (presumably this is the “dog” referred to in paragraph 5.1 of the respondent’s outline of argument in the appeal)? She made frequent visits to her former patient in institutions where he found himself, which were necessarily limited in their duration and sporadic; she was not in a position to control or influence his medication or pain management. His exposure to her must have been miniscule when compared with his exposure to staff of the institutions. There is no basis for thinking he could not distinguish between them. I find it rather absurd to look for something sinister in a friend who happens to be a trained nurse doing things like adjusting the late Mr Paidley’s pillows and the like during her visits, even bringing with her incontinence pads – the necessity for which suggests that no one else was doing it.
- [24]I have attempted to locate the Guidelines referred to in Footnote 7 in paragraph [18] above, quoting Dr Forrester’s written submissions. Those were presumably before the Tribunal but have not been located in material provided to this court. My Associate has downloaded the document from the Queensland Nursing Council’s website; it is one the Council endorses, although it was prepared by the University of Newcastle. I recall some mention during the hearing of the appeal that what is currently available may not represent what applied at relevant times so far as Mrs Fletcher is concerned. Nonetheless, it is of some interest to note what appears on the page Dr Forrester referred to:
“ … it is the responsibility of the Registered or Enrolled Nurse to maintain his/her professional and personal boundaries as well as to assist colleagues and clients in maintaining theirs.
One frame of reference which can be used to illustrate the range of professional behaviour is the Continuum of Professional Behaviour (National Council of State Boards of Nursing, 1996). It depicts a Zone of Helpfulness in the centre which is delimited by flexible boundaries.
![Fletcher v Queensland Nursing Council [2009] QDC 129](/judgmentview/image?name=317408.001.png&id=317408)
Figure 1: Continuum of Professional Behaviour
On the left is the zone of under-involvement which refers to those nursing activities and behaviours that lead to and include neglect and assault. On the right of the zone of helpfulness is the zone of over-involvement that refers to ‘caring about’ rather than ‘caring for’. It may lead to a situation where the relationship between nurse and client takes priority over the client’s care needs.
What purpose do boundaries serve?
Boundaries assist in maintaining practice within the Zone of Helpfulness where safe and effective care will result. Nurses can err on either end of the continuum – on the one hand being too cold, distant or formal so as to not be caring enough to be helpful, and on the other end to be overly involved, too ‘touchy-feely’, or invasive (Schoener, 1999). Brief excursions across boundaries are known as boundary crossings. They may be inadvertent, thoughtless or even purposeful if done to meet a special therapeutic need. A boundary violation however, refers to the misuse of power or the betrayal of trust, respect or intimacy between a nurse and a client. Violations can cause physical, emotional and/or economic harm to the client.”
- [25]The Guidelines seek to enlighten those who refer to them by offering comments on “stories” in various categories. Under Category One: Therapeutic Relationships is:
“Story E… A clinical nurse consultant providing home based clinical services to paediatric oncology clients and families is found to be over involved with some clients and under involved with others. By giving out her home phone number and being available 24 hours. She also will not refer to other health professionals or services when appropriate. Her visits are often not therapeutic and outside the role of a nurse, ie. Attending to client’s banking, shopping, taking siblings to school and driving long distances to bring clients into hospital for treatment.
Application of the Guidelines to Story E
This story clearly demonstrates Boundary Crossing/Violation in that there is evidence of favouritism, minimal care and neglect. There is a breach of principles one and two.”
Under Category Two: Dual Relationships is:
“Story H … Working as a community midwife in a small town, I have had boundary problems with friendship or clients wanting to develop friendships with me after the client/nurse relationship has expired. Also boundary problems in the same role where community members feel able to seek ‘advice’ or service in a casual way when I am not actually working, eg. Stopped while shopping to answer breast feeding problems/questions.
Application of the Guidelines to Story H
It is important in this situation to meet the immediate need and advise the client about the appropriate time and venue for further consultation.”[8]
There are a couple of pertinent entries under Category Four: Gifts/Services & Financial Relations:
“ Story O … A casual EN [Enrolled Nurse] at nursing home befriends elderly gentleman who subsequently purchases new car so the EN is the only valid driver for this vehicle – with the object of taking him on outings – subsequently attends auction sale to purchase boat with motor for fishing (gentleman 92 – dependent on O2 therapy).
Application of the Guidelines to Story O
The EN in this story has crossed the boundary, and needs to be aware of the potential for violation of principle fifteen.
Story R … A client gave me a necklace, it was worthless from a monetary point of view but meant a lot to her. It was given to me because she wanted to be remembered by me not as the sick person I knew, but as a young person purchasing it on her travels (we had both travelled extensively and had often discussed this). The issues that worried me were:
- She had two daughters and many grandchildren they might have wanted this necklace and felt it should be kept in the family.
- I believed it not to be of any monetary value but was it?
- I knew it was her wish for me to have it but did not feel comfortable keeping it.
- The outcome was that I returned it to the family after she died with an explanation.
Application of Guidelines to Story R
This story indicates appropriate application of principles fifteen and sixteen.”
For completeness, the principles of safe practice referred to (the first two and the last two) are:
“1.The priority of nurses is to plan care around meeting the therapeutic needs of the client.
- Nurses need to be aware of their own needs, values and attitudes in a professional relationship.
…
- Nurses should recognise that the giving and receiving of gifts and involvement in financial transactions within the nurse client relationship has the potential to compromise the professional relationship.
- The giving of a gift to a nurse by a client may have an impact on the client’s significant others.”
The complicating factors here are two: one, that the therapeutic relationship had ended, which may be treated as representing the fact once Mr Paidley went to the hospice (Mrs Fletcher was correct in reaching a view to that effect and I think the Tribunal reached the same view, albeit condemning of Mrs Fletcher for failing to bring Mr Paidley to the same realisation; I am totally unpersuaded that she did so fail); two, Mr Paidley’s gift was not inter vivos but by will.
- [26]For better for or worse, community standards as expounded in the law, and judicial decisions in particular, are rather different as regards inter vivos transactions and dispositions on the one hand and testamentary ones on the other. Any presumption of undue influence that may rise from a particular kind of relationship such as doctor-patient, which I am prepared to assume extends to nurse-client/patient, does not apply in the case of testamentary dispositions: Halsbury’s Laws of England (4th) Vol 18: 333. The Australian Commentary notes a dictum in Re Nickson [1916] VLR 274 at 281 that the equitable presumption may apply to a gift by will where the donee is the solicitor who drew the will and that in Re Barnett [1940] VLR 389, 392 that situation was held to be a special ground of objection distinct from undue influence. Unavailability of the presumption does not preclude a challenge to a testamentary disposition; see, more recently Winter v Crichton (1991) 23 NSWLR 116, 121 ff. Unavailability of the presumption means that someone challenging a testamentary gift must affirmatively prove undue influence. The difference between testamentary and inter vivos dispositions is illustrated by the outcome of the situation considered by the High Court in Bridgewater v Leahy (1998) 194 CLR 457. A nephew benefited at the expense of the benefactor-testator’s own children. He retained what the will gave him, but it was held to be unconscionable that he retain the benefit of a deed of forgiveness. The majority noted at 475 that:
"No party submitted that equity might apply or extend its principles respecting undue influence and dispositions inter vivos not to attack a grant of probate itself, but to subject property passing under a will to a trust in favour of the residuary beneficiaries or the next of kin.”
In a most interesting article, Equitable Undue Influence and Wills (2004) 120 LQR 617, Pauline Ridge seizes on this passage as a sign that equitable undue influence may come to extend to testamentary gifts, a development she inclined to favour, attributing the “traditional exclusion” to 19th century views such as “the social acceptability of importuning testators and an individualistic approach to property rights” (page 639). As the learned author says (625), “it is possible for a testator to have known and approved of the will’s contents and yet be under the undue influence of another in the equitable sense.” In addition to British case law indicating “that it is perfectly natural to expect a testator to leave property to those in whom he had trust and confidence”, she quotes the statement in Re Teddy [1940] SASR 354 at 358 that ‘the mere fact that we leave our possessions to someone in whom we have trust and confidence calls for no explanation” (page 628).[9] Accepting the observation on the following page that “nowadays a large testamentary gift to a solicitor who assisted in a preparation of a will is not regarded as readily explicable according to ordinary motives”, whereas in the 19th century such a testamentary gift was “socially acceptable and not unnatural”, when it comes to Mrs Fletcher’s situation, which is nowhere near as troubling as the “hypothetical”, I think it significant that, assuming that the law in some way indicates what “might reasonably be expected … by the public” for purposes of s 104A(3), Mrs Fletcher does not run into problems because she retained her entitlement under the will.
- [27]Whatever might have been accepted in the 19th century, I think there is no doubt that in modern conditions it is unacceptable from every point of view (including for purposes of the Nursing Act) for a nurse in a therapeutic relationship to importune or seek in any way to influence a patient-client to make a testamentary gift in his or her favour. This case is far from one of the categories troubling Ms Ridge and others in which the will is made by a vulnerable person shortly before passing away.
- [28]Only Mrs Fletcher now knows what occurred when she was alone with Mr Paidley. Suspicions may be harboured that she was wickedly influencing him, even making threats to him. Logically, especially if Mrs Fletcher’s evidence is considered unreliable, unpardonable things might have happened. The Council’s problem is that there is no evidence of them. One cannot get from even the severest of reservations about Mrs Fletcher’s evidence that the opposite of what she says (or any other scenario) represents the truth. As Mr Tait told the Tribunal, the case of “abuse” depends on inferences being drawn. It would be totally wrong and unfair, applying the civil standard of proof, let alone the somewhat stricter Briginshaw standard, to draw the inference of a plan or anything intentional here.
- [29]As I read the Council’s case before it and the Tribunal’s reasons, Mrs Fletcher’s failure to relinquish the benefit under the will is the real basis of the findings against her. If you didn’t expect or want such a benefit, she is asked, why didn’t you give it up? There may be cases where failure to relinquish a benefit is sufficient to establish retrospectively that some kind of undue influence or abuse of position was the reason for the donor’s creating the benefit, but this is not such a case.
- [30]The Tribunal expressed concern that the late Mr Paidley had at relevant times (and perhaps throughout) regarded Mrs Fletcher as his nurse. The Tribunal set some store by Mrs Fletcher’s in May 2004 soon after Mr Paidley was taken to hospital referring to him as “client” when recording in Blue Care’s notes a phone call made to her by the hospital social worker, Monique Raven, and a note of her own subsequent visit to Mr Paidley on 27 May 2004. It might have been premature at that stage to assume there would no longer be home visits. As to Mr Paidley’s references to Mrs Fletcher on occasions as the “nurse” (which strike me as unsurprising in the circumstances), there are other references of which the Tribunal was aware in which Mr Paidley referred to Mrs Fletcher as his “friend” (for example, see the Tribunal Transcript at page 157 – the previous reference is to page 136). In my opinion, having regard to the medical evidence available and that which the solicitors gave or might have given, however distressed Mr Paidley might have been about his circumstances, he knew what was going on, and once he went to the hospice rather than back to his home, did not regard his relationship with Mrs Fletcher as that of patient and nurse. For what it is worth, Mrs Fletcher’s involvement after Mr Paidley’s hospitalisation was encouraged by, and may well have been instigated by the social worker, Monique Raven, who was brought in by a hospital nurse, to be given the clear impression that Mr Paidley wanted contact with Mrs Fletcher rather than his nephew, Wayne Paidley, with whom Ms Raven had some telephone contact.
- [31]It may be accepted that the professional responsibilities of nurses may continue, even though the therapeutic relationship comes to an end (Healthcare Complaints Commission v Horwood [2009] NSW NMT 6) and in particular in respect of the inappropriateness of accepting substantial gifts (ibid). It seems that “the application of the boundaries of the therapeutic and professional relationship following discharge is a grey area” (ibid, paragraph 126). In Horwood, although the elderly patient had been discharged from hospital prior to making gifts aggregating in excess of $30,000 to a nurse, the 84 year old lady’s health was said to be such that a re-admission to hospital was likely. In my opinion, an inter vivos gift is in a different category from a gift by will which a testator while he or she lives is free to change; a nurse’s obligation to decline the former is clear; she may well be unaware of the latter until the client or former client has died when, in my opinion, different considerations arise. One of those considerations may well be the protagonists’ relationship at the time when the will was made. In the absence of express professional codes or guidelines having some currency within the profession, it is a strong thing for any Tribunal or court to proclaim some rule or guideline with retrospective effect to the considerable detriment of the nurse – although I accept that the point of regulation of professions and imposition of condign sanctions against those practitioners who fall short is to be approached as a matter of protecting the public rather than as a matter of meting out punishment.
- [32]Pertinent to those aspects of discerning with some confidence what are applicable professional standards to insist upon, in a particular fact situation, may be publications regarding “ethics, professional responsibility and accountability, and nursing and the law” regarding which the Tribunal ordered Mrs Fletcher to receive instruction should she wish to re-apply for registration. I have been able to consult in the Supreme Court library Staunton and Whyburn, Nursing and the Law (2nd), O'Sullivan, Law for Nurses (3rd) and Kennedy, Allied Health Professionals and the Law. The observation that there is precious little in such works that might have saved a reader from the trouble Mrs Fletcher found herself in is not intended to be a criticism of the authors. It may be an indication that even the most enquiring among nurses may not be alerted to the potential pitfalls. The first work mentioned at 111 – 112 identifies duress and undue influence as factors which will affect the validity of a contract and its ability to be enforced, continuing:
“ The presence or otherwise of any of the above factors, and any effect they may have on the ability to enforce a contract, will depend on the facts and circumstances of each matter, together with the principles involved. Such considerations go beyond the ambit of this text and do not, as a general rule, have any application to nursing staff in the performance of their duties.”
- [33]O'Sullivan deals with duress and undue influence at page 260; of the latter he says:
“Undue Influence
Common law is not concerned with moral coercion but Equity bridges the gap with the remedy of “undue influence” which applies where one party has attained some form of moral authority over another and uses it to gain an unfair advantage. This doctrine applies in two distinct ways.
First, the law will presume undue influence in the case of certain relationships. These are: doctor and patient; lawyer and client; religious adviser and devotee; and parent and child. If persons in the dominant positions wish to retain significant advantages obtained from the other party to the relationship they would want to be able to produce an independent witness who can swear to the genuineness of the agreement and the absence of improper moral persuasion.
In cases outside these relationships there is no presumption of undue influence but it may be proved to exist. In both cases the injured party is entitled to avoid the contract. However, as in all instances where there is a right to avoid a contract, the person with that right may elect to hold the other party to the contract. If a person wishes to avoid a contract on the ground of undue influence he must do so within a reasonable time or he will lose the right to do so.”
- [34]There is little doubt that the view that Mr Paidley’s last will could not be challenged was correct. The third source mentioned at 151 takes a different approach, relying upon the Fair Trading Acts of States and advising:
“It is fundamental to a professional approach that a health professional should not take advantage of a vulnerable client. This is reflected in the FTA provision ‘a supplier shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person (‘the customer’), engage in conduct that is, in all the circumstances, unconscionable’.
Unconscionable conduct might arise when a practitioner reasonably (sic) uses a position of unequal bargaining power; undue influence or unfair tactics relative to the provision of professional services or the supply of goods.” See also pages 166 – 167.
- [35]In my respectful opinion, a registered or enrolled nurse in Mrs Fletcher’s situation would find little of assistance in such texts or in the Guidelines or Code of Ethics discussed above. There is a problem when the location of “boundaries” not to be crossed cannot be identified. It would have been a useful indication of what standards members of the nursing profession expected of someone like Mrs Fletcher if there had been a statement that a nurse must not retain a gift of substantial value from a current or former client whether coming from the donor directly or under a will. It will be interesting to see whether this proceeding leads to an amendment. In my view, no abuse of position or exercise of undue influence was shown against Mrs Fletcher; in particular, her refusal to relinquish the generous gift the testator made in his will does not in the circumstances establish such abuse, etc, or (given the way the charge was brought) unsatisfactory professional conduct within the meaning of the Nursing Act. It appears to follow that the appeal should be allowed and the charge against the appellant dismissed.
- [36]The court was told that the $10,000 costs awarded against Mrs Fletcher (by an order which must be set aside) represents the maximum that the Tribunal could order; her seeking an order for costs of the proceeding there in her favour in the amount of $10,000 is not a matter of “tit-for-tat”; rather, a recognition that $10,000 represents the cap on what she can recover: it would be astounding if her assessable costs were not well in excess of that amount. The Council might want her to establish that. In my view, this whole disciplinary proceeding, as formulated, was of an unprecedented, speculative kind, and the Council should pay the costs it gave rise to. Other things being equal, she ought to have the costs of this appeal. No orders will be made, however, until the parties have had an opportunity to consider these reasons and to make submissions about appropriate orders, should they be so advised.
- [37]In the circumstances, there is no occasion for deciding whether the Tribunal lacked jurisdiction to make order 4(b), thus precluding those responsible for re-registration from making the relevant determination. Mr Tait argued that the Tribunal was in a better situation to make the determination. I am inclined to think he had the better of this argument relating to what he called sentence upon conviction as regards the Tribunal’s jurisdiction,[10] but had occasion arisen for “sentence”, I would have considered that controlling the conditions of re-registration after two years was excessive.
Footnotes
[1] 116 Action by tribunal
- (1)If, on the hearing of a charge against a person, the tribunal decides ground for disciplinary action against the person is established, it may do any 1 or more of the following –
…
- (d)order the imposition of conditions (including limited registration or enrolment) under which the person may continue to practise as a registered nurse, enrolled nurse, midwife or another person authorised to practise nursing for a period (not longer than 2 years) determined by the tribunal;
- (e)order that the person’s registration or enrolment, or the person’s authorisation to practise midwifery or nursing, be suspended for such period (not longer than 2 years) as the tribunal considers appropriate;
- (f)order the cancellation of the person’s registration or enrolment, or the revocation of the person’s authority to practise midwifery or nursing, and set conditions under which the person may re-apply for registration or enrolment or to be authorised;
…
- (h)order the imposition of such other conditions as the tribunal considers appropriate, including, for example, conditions under which a person may reapply for registration or enrolment as a nurse or authorisation to practise midwifery or nursing.
- (2)If conditions are imposed for a period, or a suspension is ordered for a period –
- (a)the matter must be again reviewed by the tribunal at the end of the period to determine whether further action should be taken; and
- (b)the tribunal is taken to have entered all necessary adjournments for the purpose of any further hearing in relation to the review; and
- (c)the review may be undertaken by the tribunal constituted by the same or different members; and
- (d)the tribunal may, on reviewing the order made under subsection (1)(d) or (e), continue the order for a period (not longer than 2 years) on each review or do any 1 or more of the things mentioned in subsection (1).
[2]The contending arguments are worth recording –
Mr Allen submitted:
“19.Section 116(1)(d) should be construed as dealing with the Tribunal’s powers if it chooses not to suspend or cancel a nurse’s registration but instead permit the nurse to continue practice subject to conditions. It should not be construed as granting the Tribunal power to impose conditions attaching to the re-registration of a person at some later time. Conditions cannot be imposed pursuant to s. 116(1)(d) for a period of longer than two years from the date of the Order. The terms of s. 116(1)(d) do not provide the Tribunal with power to impose the conditions in paragraph 4 of the Tribunal’s Order.
- Paragraph 4 of the Tribunal’s Order in this case purports to impose a condition prohibiting Ms Fletcher from undertaking employment in certain fields of nursing indefinitely. Such an Order would not come within the terms of s. 116(1)(f) in that it is not a condition as to when Ms Fletcher might re-apply for registration. Given the terms of the rest of s 116(1) and (2), the conditions imposed in paragraph 4 of the Order do not come within the terms of s. 116(1)(h). The terms of paragraph 4 of the Order are ultra vires and should be set aside.”
Mr Tait’s response was:
“7.2The argument that paragraph 4 of the Tribunal’s Order does not come within the terms of section 116(1)(f) and is thus ultra vires misapprehends the purpose and scope of section 116(1). The Order is not ultra vires and is appropriate. The head of power available to the Tribunal to make that order is found in section 116(1)(h).”
[3]Ex. 14, para 32.
[4]Transcript pp 154/45 – 155/5.
[5]Briginshaw v Briginshaw (1938) 60 CLR 336.
[6]Queensland Nursing Council Investigation Report dated 30 April 2007, Part 6: Conclusion.
[7]Guidelines for Registered Nurses and Enrolled Nurses Regarding the Boundaries of Professional Practice 1999 page 5.
[8]In ordinary circumstances, the frequency of contacts with a former client (at times most days of the week) would lead to concern; here, there is the explanation that no one else was willing, welcome and available.
[9]Circumstances alter cases. An explanation might be called for if the testator had disinherited a spouse or his own children or dependants, particularly if doing so constituted a breach of his moral duty.
[10] The written arguments are set out in footnote 2 above.