Dendle v Nursing and Midwifery Board of Australia [2010] QCAT 424

CITATION: Dendle v Nursing and Midwifery Board of Australia [2010] QCAT 424 PARTIES: Matthew Dendle (Applicant) v Nursing and Midwifery Board of Australia (Respondent) APPLICATION NUMBER: OCR117-10 MATTER TYPE: Occupational Regulation HEARING DATE: 25 August 2010 HEARD AT: Brisbane DECISION OF: Judge Kingham (Deputy President ) (Assessors) Ms Jennifer Goodwin; Dr Trevor Jordan; Ms Barbara Soong DELIVERED ON: 31 August 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The name of the respondent is amended to the Nursing and Midwifery Board of Australia. 2. Upon Mr Dendle filing in the Tribunal and delivering to the Respondent signed undertakings (in the form set out in schedule 1 to these reasons), the decision made by the Queensland Nursing Council on 7 May 2010 is set aside and Mr Dendle’s full enrolment as a nurse is restored. 3. The parties may file written submissions on costs within 21 days. 4. The question of costs will be determined on the papers -- 1 of 13 -- 2 CATCHWORDS : ENROLMENT – LIMITATION IMPOSED – where urine test results reported positive for cannabinoids – where nurse refused to give undertakings to abstain from using illicit substances and to submit to urine testing – where nurse offered undertakings to undergo counselling and health assessment and to authorise reports from employer, counsellor and general practitioner - whether reasonable grounds to impose limitation on enrolment – whether conditions necessary to ensure the nurse is capable of carrying out his functions in a professional way. Health Practitioners (Professional Standards) Act 1999 s405P Nursing Act 1992 ss3, 65,137 Queensland Civil and Administrative Tribunal Act 2009 s20 Barry v Queensland Nursing Council [2001] QDC 146 at [20] followed Shaftson NursingPty Ltd v Queensland Nursing Council [2008] QSC 40 per McMurdo J at [25] followed APPEARANCES and REPRESENTATION (if any): Applicant Mr Warren Friend of Counsel, instructed by Hall Payne Lawyers Respondent Mr Gareth Beacham of Counsel, instructed by Rodgers Barnes & Green Lawyers REASONS FOR DECISION [1] Mr Dendle is an endorsed enrolled nurse. On 7 May 2010, the Queensland Nursing Council decided to cancel Mr Dendle’s full enrolment and to impose limitations and conditions on his enrolment. -- 2 of 13 -- 3 [2] After that decision was made, a national system commenced for the regulation of health professions, including nursing. The Queensland Nursing Council no longer exists. The effect of transitional provisions is that the Nursing and Midwifery Board of Australia is taken to be the decision maker. 1 In these reasons, the decision maker will be referred to as the Board. [3] Mr Dendle applied to the Tribunal to review the Board’s decision. He objects to any limitations and conditions being placed on his enrolment. [4] This proceeding is a review under the Queensland Civil and Administrative Tribunal Act 2009. It is a rehearing on the merits and the Tribunal has the functions and powers of the original decision maker. 2 [5] The Board’s decision was made under the Nursing Act 1992 s65(1)(d). To act under that provision, the Board has to be satisfied, on reasonable grounds, that limited enrolment should be imposed. If satisfied, the Board must impose such conditions on the practice of nursing by the person as will ensure...that the person is capable of carrying out in a professional way such functions as the limited enrolment allows the person to carry out. 3 [6] Since 6 July 2008, Mr Dendle has voluntarily complied with undertakings he gave to the Board. He is willing to renew and to continue to abide by them. He is also willing to abide by revised undertakings proposed by the Tribunal in making its decision. [7] Both forms of the undertakings offered by Mr Dendle are, in large part, to the same effect as the conditions since imposed by the Board. Neither includes the further requirements to which Mr Dendle objects: (a) that Mr Dendle only provide nursing under the supervision of a registered nurse nominated by his employer; and (b) that he abstain from using illicit substances and undertake random urine testing. [8] No evidence was led to suggest Mr Dendle is not competent or fit to practice as a nurse. The board made its decision on a positive result for cannabis in a urine test offered voluntarily, and Mr Dendle’s unwillingness to give undertakings in the terms of the conditions objected to. [9] Counsel for the Board argued there were reasonable grounds for it to act and that it had imposed conditions which are necessary to ensure safe and competent nursing practice. 4 1 Health Practitioners (Professional Standards) Act 1999 ss 405P(1); s405P (5) definitions of existing QCAT proceeding; registration proceeding and relevant Act; s405L definitions of amending Act and repealed health practitioner registration Act 2 Queensland Civil and Administrative Act 2009 ss 19(c), 20(2), 24 3 Nursing Act 1992 s65(2)(a)(ii) 4 Nursing Act 1992 s3 -- 3 of 13 -- 4 [10] Counsel for Mr Dendle denied there were reasonable grounds. He argued the Tribunal would not be satisfied that limited enrolment should be imposed. Further, he submitted the disputed conditions are not required to ensure Mr Dendle is capable of carrying out his functions in a professional way. [11] The issues are: (a) Are there reasonable grounds to satisfy the Tribunal that limited enrolment should be imposed? (b) If so, are the conditions objected to necessary to ensure Mr Dendle is capable of carrying out his functions in a professional way? Background to the decision [12] Mr Dendle has been subject to active Board interest over a period of some years. Much of the material filed in these proceedings relates to matters not relied on by the Board in making the decision under review. [13] That material is relevant for a number of reasons. It was considered by the Board in making its decision. It serves to explain the context in which the decision was made. It explains why Mr Dendle is willing to give undertakings in the terms offered. The Tribunal has considered the material in determining whether there are reasonable grounds to satisfy the Tribunal that Mr Dendle’s enrolment should be limited. [14] Mr Dendle came to the attention of the Board in February 2008. His employer was concerned about his mental health after Mr Dendle overdosed on prescription medicine in circumstances of personal stress. In March 2008, the Board cancelled his full enrolment and granted limited enrolment subject to conditions to which he did not object. These included that he continue counselling with a social worker, Mr Fraser, who was authorised to report regularly to the Board about Mr Dendle’s progress. [15] In April 2008, at the Board’s direction, Mr Dendle underwent a health assessment by Dr Basil James, consultant psychiatrist. He found no psychiatric disorder. Dr James concluded there was no reason, in terms of Mr Dendle’s mental health, why he should not return to work and continue to handle and administer drugs as he was qualified to do. [16] In June 2008, upon Mr Dendle indicating his willingness to give requested undertakings, the Board restored his full enrolment. He gave those undertakings in early July. Evidently he has complied with them. [17] In December 2009, Mr Dendle’s employer suspended him on full pay. He was suspected of being responsible for unauthorised removal of the drug Midazolam from a ward drug cabinet, on a number of occasions. Disciplinary action was taken against him. He was demoted one classification increment and given a temporary placement in another unit. -- 4 of 13 -- 5 [18] Mr Dendle vigorously denied responsibility. He successfully appealed against the disciplinary action. The decision to demote him was set aside. [19] No further action was taken with respect to that allegation. The Board advised the Tribunal it played no part in its decision. [20] Shortly after the disciplinary sanction was imposed, the Board requested Dr James to do another health assessment of Mr Dendle. That occurred in December 2009. During the examination, Mr Dendle agreed to have a urinary drug screen. Notwithstanding that he had denied taking any illicit substances, he expressed concern that his urine might show the effect of passive absorption, as an acquaintance had, he said, blown smoke from a marijuana joint in his face a couple of days before. Cannabinoids were subsequently found in his urine. [21] In January and February 2010, the Board sought from Mr Dendle his undertakings to abstain from using illicit substances and to undertake random urine testing. Both requests were made, and were declined by Mr Dendle, before his appeal against the disciplinary sanction was determined. [22] That appeal was upheld on 9 March 2010. The next day, the Board asked Dr James to provide a supplementary report with respect to the possibility of substance abuse by Mr Dendle. He had, earlier, reported there was no evidence of it. In his supplementary report, he did not recommend monitoring of Mr Dendle’s use of cannabis. The Board then made the decision objected to. Are there reasonable grounds that would satisfy the Tribunal that limited enrolment should be imposed? [23] The Board argued the following factors established reasonable grounds to impose limitations and conditions on Mr Dendle’s enrolment: (a) The positive test result; and (b) Mr Dendle’s refusal to give undertakings to abstain from using illicit substances or to submit himself for urine testing. [24] The Board also asked the Tribunal to take into account that Mr Dendle had not provided a sworn explanation for the positive result. It invited the Tribunal to consider the possibility that Mr Dendle was not entirely truthful in his pre- emptive explanation. [25] That possibility does arise but acting on it does not take the Board very far. Assuming the Tribunal did draw the inference that Mr Dendle had smoked cannabis in the days preceding the urine test, the Board still has no evidence that calls into question his competence and fitness to practise. -- 5 of 13 -- 6 [26] Counsel for Mr Dendle conceded, properly in my view, that if there was evidence that a nurse’s use of substances, licit or illicit, presented a risk of unsafe or incompetent practice, conditions such as those objected to could be imposed. The flaw in the Board’s case, on his submission, is that the risk is not evident in Mr Dendle’s case. [27] The Board relied on the statutory objective of the Nursing Act: 5 ensuring safe and competent nursing practice. This, its counsel argued, justified a proactive approach. He submitted the Board did not need to be satisfied that Mr Dendle is incompetent. It was sufficient if, on reasonable grounds, the Board was not satisfied of Mr Dendle’s competence to be enrolled unconditionally. 6 [28] Counsel for Mr Dendle did not seem to contest that interpretation. Rather, he disputed there was any basis for the Board not to be satisfied of Mr Dendle’s competence to be enrolled unconditionally. Dr James reported there was no basis for concern about his fitness to practise from a mental health perspective. No other evidence led by the Board questioned Mr Dendle’s competence. [29] It is evident that the fact that cannabis is illicit had some bearing on the Board’s decision. In its letter to Mr Dendle, the Board gave the following reasons for its decision: “Council considered the above information and noted the expert opinion of Professor James and Council’s rehabilitative processes for managing health matters. However, as you have voiced objections to undergoing random urine testing and you have declined to commit to abstaining from consuming illicit substances, Council remain concerned about your ability to provide safe nursing care. Therefore, in order to more closely monitor your practice, Council determined that..” [30] Counsel for Mr Dendle submitted that, had Mr Dendle been observed to be affected by alcohol during non-working hours, the Board could not impose a limitation on his enrolment unless there was some indication that his level or pattern of consumption indicated a risk to practice. He argued the test was not different because the substance is illicit, the section still requires there to be a link to safe and competent practice. It is not the role of the Board to enforce the criminal law. [31] Counsel for the Board argued the fact the substance is illicit does alter the risk profile. He argued Mr Dendle’s unwillingness to commit to abiding by the law and being monitored in his compliance established a potential risk of future malpractice. 5 1992, s3 6 Shaftson NursingPty Ltd v Queensland Nursing Council [2008] QSC 40 per McMurdo J at [25] -- 6 of 13 -- 7 [32] There seems to me to be some confusion between the concepts of the risk that use of a substance might pose for safe practice and the reliability of a person who refuses to undertake to abide by the law. The Board purported to proceed on the former, yet counsel for the Board invited the Tribunal to also act on the latter. [33] The Tribunal is not minded to do so in this case. Enforcement of the criminal law is not the realm of a professional regulatory body. It is not a requirement of all nurses that they undertake to abide by the law on illicit substances and submit to random testing to confirm their compliance. There are some industries and occupations in which access to a workplace is prohibited unless they are first tested and found to be clear of substances. Nursing is not one of these. Mr Dendle’s refusal to give the requested undertakings must be assessed in that light. [34] It should also be assessed in the context of his dealings with the Board over a lengthy period. That history suggests Mr Dendle is generally willing to co- operate with the Board. He has accepted the Board’s requirement for him to participate in its health assessment program. He has given and complied with undertakings which addressed the Board’s concern about his health and which were recommended by Dr James. [35] Given that, and in the absence of other evidence suggestive of risk, the Tribunal is not persuaded that his refusal to undertake to abstain from illicit substances is sufficient. [36] Dr James was investigating Mr Dendle’s mental health status. Counsel for the Board argued that this limited the use that might be made of his opinion. However, Dr Jones’ observations do bear on the question of what risk there might be to patients if Mr Dendle’s enrolment is not limited, and are of assistance to the Tribunal in deciding whether reasonable grounds exist. [37] In his first consultation with Dr James, Mr Dendle disclosed that he had tried marijuana as a teenager, but said he had not done so since. Dr James considered whether there was evidence of abuse of psychotropic substances, either in the form of bingeing or of dependence. He concluded there was not. [38] In December 2009, Mr Dendle was again examined by Dr James, at the Board’s request. Dr James’ report records that the purpose of the examination was “to conduct an examination of Mr Dendle’s current mental health status and its history, and to record observations and opinion which may be of assistance to the Nursing Council in its assessment of Mr Dendle’s fitness to practice nursing...”. -- 7 of 13 -- 8 [39] Dr James said: “ With respect to the possibility of Substance Abuse, I note the presence of cannabinoids in his urine. The finding of cannabis in the urine is not uncommon in persons of Mr Dendle’s age, and it is not infrequently accompanied by denial of consumption, paradoxically, to avoid adverse judgment. Whatever the reason, however, the possibility has to be considered that Mr Dendle was not entirely truthful with respect to his claim not to have smoked cannabis in the few days prior to my examination. In my opinion, however, the presence in Mr Dendle’s urine of cannabis does not per se contribute to the diagnosis of a psychiatric disorder, and is not necessarily associated with the point at issue in respect of his professional behaviour – i.e. the misappropriation of Midazolam.” [40] The day after Mr Dendle succeeded in his appeal against the disciplinary decision, Dr James was provided with a copy of the decision, along with other material, and was asked, in light of Mr Dendle’s reluctance to enter into a further undertaking for further monitoring, to provide a supplementary report. In particular, Dr James was asked to “address whether Mr Dendle’s use of cannabis is problematic and whether it needs monitoring by Council via random urine testing.” [41] Dr James reiterated his expertise was that of mental health and advised: “1. ...it is my view that no conclusion can be drawn from the presence of cannabinoids in his urine on the quoted date. There is no evidence, in my opinion, that Mr Dendle has a diagnosable psychiatric disorder in respect of which cannabis may be suspected of being a causal factor; and I have no evidence of cannabis having produced a state of intoxication of a degree or at a time when it may have posed a hazard in terms of its effect on his professional competence. 2. It is my opinion that, in the absence of what I consider to be the critical evidence described above, I am unable to recommend that Mr Dendle’s use of cannabis needs monitoring by your Council via random urine testing.” [42] Dr James’ assessment was made from the perspective of mental health issues. He was unable to recommend, from a mental health perspective, that Mr Dendle’s use of cannabis needs monitoring. [43] Nevertheless, he does accurately record the status of the evidence then before the Board and now before the Tribunal. That is, there is no evidence of Mr Dendle having been intoxicated to a degree or a time when it may have posed a hazard in terms of its effect on his professional competence. If Mr Dendle’s mental health is not the basis for monitoring his use of cannabis some other basis for monitoring needs be established. -- 8 of 13 -- 9 [44] In an appropriate case, a limitation could be imposed because of the existence of a risk rather than waiting until there was some established basis for criticism of a nurse.7 However, to qualify as a reasonable ground for being satisfied a nurse is not competent to be enrolled unconditionally, the risk must be more than merely speculative. It must be a real and present risk and must relate to the nurse’s competence and fitness to practise. [45] In effect, the Board has asked the Tribunal to act on the possibility that Mr Dendle uses cannabis to such an extent that it presents a risk to his patients. Yet the only evidence offered is the positive test result and the refusal to give the requested undertakings. This raises the possibility of a risk but does not take it beyond speculation. [46] In reaching that conclusion, the Tribunal has assessed the matters relied upon by the Board in the context of the following factors: (a) Dr James’s assessments and, in particular, his statements: (i) that there is no evidence of abuse of psychotropic substances, either in the form of bingeing or of dependence (the first report); (ii) that the presence in Mr Dendle’s urine of cannabis does not per se contribute to the diagnosis of a psychiatric disorder (the second report); and (iii) that he had no evidence of cannabis having produced a state of intoxication of a degree or at a time when it may have posed a hazard in terms of its effect on Mr Dendle’s professional competence; and (b) The absence of evidence of complaints or concerns expressed about Mr Dendle’s competence as a nurse; and (c) Mr Dendle’s apparent compliance with his undertakings since July 2008, including the following: (i) To provide a report on completing the approved return to work program from his employer addressing his fitness and competence to practise; (ii) To continue counselling with Mr Fraser at his expense; (iii) To authorise Mr Fraser to report to the Board after 6 months and whenever he held a concern about Mr Dendle’s competence and fitness to practise or was requested by the Board to report; 7 Barry v Queensland Nursing Council [2001] QDC 146 at [20] -- 9 of 13 -- 10 (iv) To authorise the Board to advise his employer of any concerns raised by Mr Fraser about his competence and fitness to practise; (v) To keep the Board informed of the details of his employment; and (d) Mr Dendle’s willingness to give revised undertakings which add the further requirements: (i) To authorise his employer to report to the Board about his competence and fitness to practise: within three, six and twelve months from gaining or changing employment as an enrolled or registered nurse; or whenever the employer holds a concern about that or is requested by the Board to report; (ii) To authorise Mr Fraser to provide a report within three, six and twelve months from the date the undertaking takes effect; (iii) To nominate a general practitioner to provide reports to the Board whenever they hold a concern about his competence and fitness to practice or when requested by the Board to report; (iv) To attend a further health assessment within six months. [47] Viewed in that context, the positive test result and Mr Dendle’s attitude to the undertakings do not raise reasonable grounds sufficient to satisfy the Tribunal that Mr Dendle is not competent to be enrolled unconditionally. Are the conditions necessary to ensure Mr Dendle is capable of carrying out his functions in a professional way? [48] Given the Tribunal’s conclusion on the first question, it is not necessary to consider the second. Had the Tribunal’s answer on the first been different, the Tribunal would, nevertheless, not have imposed the conditions objected to. Mr Dendle is willing to give undertakings which are adequate to ensure he is capable of carrying out his functions in a professional way. If grounds for limiting his enrolment had been established, the Tribunal would have imposed those undertakings as conditions. [49] They require reports by Mr Dendle’s employer and counsellor in three, six and twelve months; and reports by each of them, and by Mr Dendle’s general practitioner, whenever they hold a concern about his competence and fitness to practise or when requested to report by the Board. They also require ongoing counselling by Mr Fraser and a further health assessment by Dr James. That provides a high level of monitoring and reporting and a comprehensive basis for assessing Mr Dendle’s competence and fitness to practise. [50] On the state of the evidence before the Tribunal, no more would have been necessary. Neither the constant supervision of Mr Dendle by a registered nurse nor urine testing to ensure his abstention from illicit substances would -- 10 of 13 -- 11 appear to be necessary to ensure Mr Dendle is capable of carrying out his duties in a professional way. Conclusion [51] The Tribunal is not satisfied there are reasonable grounds to impose a limitation on Mr Dendle’s enrolment. Upon Mr Dendle signing the undertakings which appear as schedule 1 to these reasons, the decision made by the Queensland Nursing Council on 7 May 2010 is set aside and Mr Dendle’s full enrolment as a nurse is restored. [52] The Board has requested the opportunity to make submissions on costs once the decision is made. The parties may file written submissions on costs within 21 days. The question of costs will be determined on the papers. -- 11 of 13 -- 12 Schedule 1 The Applicant is prepared to voluntarily enter into an undertaking with the Respondent in the following terms: I hereby undertake to the Nursing and Midwifery Board of Australia (NMBA) and the Tribunal, for a period of two years from the date of the Tribunal’s order in proceedings OCR117-10, that I will: (1) Within two business days of gaining or changing employment as an Enrolled or Registered Nurse, notify the NMBA in writing of: (a) the name and address of the employer, and if listed with a nursing agency, the name and address of that agency; (b) the address of my place of employment as an Enrolled or Registered Nurse; (c) my position description at the place of employment; (d) the name and contact telephone number of my supervisors at the place of employment, and if listed with a nursing agency, the name and contact telephone number of the person with whom I liaise at that agency; (2) Notify the NMBA within two business days of any change in any of the circumstances referred to in (1) above; (3) Within seven days of gaining or changing employment as an Enrolled or Registered Nurse, nominate my nursing employer to report to the NMBA in writing, about my competence and fitness to practise as an Enrolled or Registered Nurse at the following times: (a) within three, six and twelve months from commencing or changing employment; (b) whenever the employer holds a concern about my competence and fitness to practise as an Enrolled or Registered Nurse; (c) on receipt of a request, whether written or verbal from the NMBA; (4) Within seven days of changing address, advise the NMBA, in writing, of that change; -- 12 of 13 -- 13 (5) Undergo counselling, the frequency to be determined by my current treating practitioner, Mr Russ Fraser, Social Worker, or another counsellor, to be nominated by me and approved of in writing by the NMBA; (6) Nominate Mr Fraser (or another approved counsellor) to provide reports to the NMBA in writing, at the following times: (a) within three, six and twelve months from the date this undertaking takes effect; (b) whenever Mr Fraser (or another approved counsellor) holds a concern about my competence and fitness to practise as an Enrolled or Registered Nurse (c) On receipt of a request, whether written or verbal, from the NMBA; (7) Authorise Mr Fraser (or another approved counsellor) to discuss my case management with the NMBA, in accordance with this undertaking; (8) Nominate a general practitioner to provide satisfactory reports to the NMBA in writing, addressing my competence and fitness to practise as an Enrolled or Registered Nurse at the following times: (a) whenever the general practitioner holds a concern about my competence and fitness to practise as an Enrolled or Registered Nurse; (b) on receipt of a request, whether written or verbal, from the NMBA; and (9) Within six months, I will attend a further independent assessment with a member of the NMBA’s Health Assessment Advisory Panel, as recommended in the report by Professor Basil James, dated 10 December 2009. -- 13 of 13 --