Barry v Queensland Nursing Council [2001] QDC 146

DISTRICT COURT OF QUEENSLAND CITATION: Barry v. Queensland Nursing Council [2001] QDC 146 PARTIES: STEPHEN BARRY v. QUEENSLAND NURSING COUNCIL FILE NO/S: D3724 OF 2000 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: District Court Brisbane DELIVERED ON: 25 June 2001 DELIVERED AT: Brisbane HEARING DATE: 19 June 2001 JUDGE: McGill DCJ ORDER: Appeal allowed with costs, decision of the respondent of 31 August 2000 set aside, registration of the appellant as a registered nurse reinstated. CATCHWORDS: MEDICINE – Nurses – registration – referral to Health Assessment Advisory Panel – imposition of limited registration – whether justified – whether procedural fairness accorded – nature of appeal - Nursing Act 1992 ss 65, 66, 137. Aldrich v. Boulton [2000] QCA 501 – considered Carrier v. Bonham [2000] QDC 226 – cited FAI Insurances Ltd v Winneke (1982) 151 CLR 342 – cited South Australia v O’Shea (1987) 163 CLR 378 – cited State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 – cited COUNSEL: J. J. Allen for the appellant M. D. Hinson SC for the respondent SOLICITORS: Roberts & Kane for the appellant O’Shea Corser & Wadley for the respondent [1] This is an appeal pursuant to s.137 of the Nursing Act 1992 (“the Act”) from a decision of the respondent on 31 August 2000 that the appellant be referred for assessment by the Health Assessment Advisory Panel, and that the appellant’s registration be cancelled and that he be issued with limited registration subject to certain conditions. He was also to be advised that the respondent would review the -- 1 of 19 -- 2 limited registration and whether any investigation should be initiated on receipt of the Health Assessment report. The appellant is entitled to appeal against the decision to cancel the appellant’s registration under s.137(1)(a)(vii) and to appeal against the decision to grant limited registration under s.137(1)(a)(ii), and to appeal against the other aspects of the decision under s.137(1)(b). There was no dispute as to the jurisdiction in this court to deal with the appeal instituted by the appellant. Nature of the appeal [2] There was initially some dispute between the parties as to the nature of the appeal. Section 137(3)(c) provides: “The appeal is by way of rehearing on the material before the council ... or if the judge hearing the appeal so orders, on material submitted on the appeal, or on both.” The section also contains provisions permitting a judge who considers that the appeal involves a question of special knowledge and skill to appoint one or more assessors to assist in the determination, and provides that: “On the appeal the judge may make such order as the judge considers just.”: s.137(8). Counsel for the appellant initially submitted that the effect of this provision was that there was to be a rehearing de novo before this court, so that the onus was on the respondent to establish that some decision adverse to the appellant ought to be taken. He referred to the decision of the Court of Appeal in Aldrich v. Boulton [2000] QCA 501, where there was some consideration by Thomas JA (with whom the other members of the court agreed) of the nature of an appeal to the Misconduct Tribunal from a decision of a prescribed officer under the Police Service Administration Act 1990. [3] In that case the legislation provided that the appeal was to be by way of rehearing, but His Honour regarded use of that expression as not resolving the matter, and after a consideration of various other features of the legislation and factors to be inferred from it, concluded that it was an appeal where the appellate tribunal was entrusted with making its own determination on the evidence before it, whether or not new evidence was received. The position was not one where the decision under appeal was to be disregarded, and the proceedings conducted as if there had not already been any decision, but the Misconduct Tribunal was required to make up its own mind on the matter, although being entitled to have regard to the views expressed on a relevant point by the original decision maker. The position seems to me to be analogous to the approach of an appeal court conducting an appeal by way of rehearing dealing with a challenge to a finding of fact made within jurisdiction by the primary court: State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 327. -- 2 of 19 -- 3 [4] Where there is an appeal to a court from an administrative decision that certain facts exist, where the consequence of the existence of those facts is that there is jurisdiction to take a particular step under a statute, which step may or may not involve some exercise of discretion, the determination whether the factual background exists, which enlivens the statutory power to take that step, involves a determination of jurisdictional fact, and on appeal the court makes up its own mind about the existence of the jurisdictional facts. In those circumstances therefore an appeal by way of rehearing will closely approximate a rehearing de novo. When a matter comes before a court on appeal from an administrative body, in circumstances where there has not been something in the nature of a hearing before the administrative body, the statute may well overall indicate that the appeal is to be by rehearing de novo, rather than by rehearing in the sense in which an appellate court reviews the decision of a trial court. [5] Hearing a right of appeal by way of rehearing has other significance, in contrast to a situation where the appeal is one in the strict sense. In the former case, the law as at the date of the appeal is applied, whereas in the latter the question is whether the decision under appeal was correct in law at the time it was made. The latter also necessarily only involves the material that was before the decision maker, whereas an appeal by way of rehearing will commonly provide for some limited power to receive fresh evidence. The reception of such evidence is commonly discretionary, and this can be a pointer to the existence of a rehearing in the more conventional sense, rather than a rehearing de novo, where one would ordinarily expect the parties would have a right to present whatever evidence they chose. [6] Perhaps the most important points that emerge from the decision in Aldrich are that the question of the nature of the appeal can be a fairly complicated one, and that it depends on the particular terms of the relevant statute, and the way in which the appeal structure operates. Legislative provisions [7] One of the features of the appeal provision under s.137 is that it can cover a wide range of decisions. Under s.137(1)(c) there is a right to appeal against an order of the Professional Conduct Committee, that is an order which is made under s.116(1)(d), (e), (f), (g) or (h). This section appears in Division 4 of Part 5, which contains detailed provisions for that committee to hear a complaint of a charge against a nurse (following an investigation by the council), involving a hearing in accordance with the principles of natural justice, and in a way which allows legal representation. The committee is bound to give written reasons for findings and orders made by it: s.118(1). In these circumstances, there would be no difficulty in an appeal from an order of the committee being an appeal by way of rehearing in the conventional sense. [8] The decisions of the council, however, are not the subject of the same sort of detailed provisions, and there is not always a requirement under the Act for there to be written reasons provided for such decisions. There is such a requirement in the -- 3 of 19 -- 4 case of some of the more important decisions, for example in the case of refusal of registration of enrolment (s.59(b)) or if provisional registration of enrolment is cancelled (s.63(9)(b)) or if temporary registration is cancelled (s.64(6)(b)) or if limited registration is cancelled: s.65(7)(b).1 In the case of some decisions where the council is subject to appeal there will be written reasons, but there is no express provision in the Act requiring such written reasons in the case of the other decisions. It may be however that reasons for those other decisions can be obtained under Part 4 of the Judicial Review Act 1991. In most cases there is no express provision for the council to conduct any sort of hearing before making any of the decisions which could be the subject of appeal, and the statute appears to contemplate an administrative decision rather than something which was the product of some adversarial proceeding. [9] The Queensland Nursing Council is established by s.6 of the Act. It consists of 13 members, 10 of whom must be nurses: s.11. Its functions are set out in s.7, and include: “(f) determine a code of conduct for nurses, midwives and other persons authorised to practice nursing; and (g) undertake investigations into matters and complaints as prescribed by this act; and (h) determine examinations, qualifications, experience and other requirements to be fulfilled by persons applying for and maintaining registration, enrolment or authority to practice under this Act, and monitor standards of student assessment in schools of nursing ...” Under s.142(1) of the Act it is an offence for a person who is not a nurse, that is a registered nurse or an enrolled nurse, or a person authorised to practice nursing, to practice as a nurse or perform a nursing service. By s.54, the qualifications for registration are successful completion of an appropriate accredited nursing course, and being competent and fit to practice nursing: s.54(2), (2A). Fitness to practice nursing includes that the person’s state of health is such that the person is capable of carrying out the person’s duties as a registered nurse without endangering any patient the person may attend: s.54(3)(a). [10] There are then various powers conferred on the council after registration has been completed. Powers that the council purported to exercise in the present case are those conferred by s.65 and s.66. Those sections provide relevantly as follows: “65(1) If ... … .. (d) the council is satisfied, on reasonable grounds, that limited registration or enrolment should be imposed on a person; then – 1 Curiously, there is no requirement to give reasons when ordinary registration is cancelled under s.65(1)(f). -- 4 of 19 -- 5 ... (f) if the person is a registered nurse – the council may ... cancel the nurse’s current registration .. and grant limited registration ... to the person. (2) The council must – (a) in a case to which the (1) … (d) applies – (i) determine the extent to which the person’s registration ... is to be limited; and (ii) impose such conditions on the practice of nursing by the person as will ensure, in the council’s opinion, that the person is capable of carrying out in a professional way such functions as the limited registration ... allows the person to carry out; … . (3) The conditions that the council may impose include conditions relating to one or more of the following – (a) the times and places at which the person may provide nursing care; (b) the fields of nursing in which the person may provide nursing care; (c) the supervision of the person by an appropriately qualified registered nurse, or an otherwise appropriately qualified person, when providing nursing care. (4) Limited registration ... may be granted or renewed for such period (not longer than two years) as the council determines. (5) The council may cancel limited registration … .... (8) At intervals of not more than two years, the council … must review each limited registration ... and determine whether it should continue. (9) A person with limited registration ... is, subject to the conditions of the registration ... taken to be registered under this Act as a registered nurse … . 66(1) This section applies to a person who is – ... (b) a registered ... nurse (whether or not the registration ... is suspended or limited) … (2) If the council is concerned that the condition of a person to whom this section applies may interfere with the person’s ability to carry out the functions of a registered ... nurse, the council may ... refer the person to a Health Assessment Advisory panel for assessment. .… (4) The panel must, by written report – (a) advise the council on the condition of the person; and (b) indicate – -- 5 of 19 -- 6 (i) whether the persons condition may interfere with the person’s alibility to carry out the functions of a registered .. nurse; and (ii) the extent of the possible interference. (5) The panel may recommend the imposition of conditions (including limited registration ...) under which the person should ... (b) continue to be registered ... ; or (c) be permitted to practice as a registered ... nurse. (6) The council must give a copy of the report to the person or, if the council considers it appropriate, the person’s medical practitioner.” [11] The Health Assessment Advisory Panel was established by s.119, and it consists of such number of persons as are appointed from time to time by the council: s.120(1). Members of the panel “must be persons who, in the council’s opinion, are appropriately qualified to assess the condition of the persons” (s.120(2)). In a particular case the panel is constituted by one or more members selected by the Executive Officer who may require the person being assessed to submit to such tests and examinations as are in the panel’s opinion necessary to determine the person’s condition: s.121. The panel must report on the condition of the person examined, or the fact that the person has refused to undergo the examination or obstructs the examination, within seven days after the examination: s.121(4). [12] It was submitted on behalf of the respondent that these provisions are concerned with matters of professional standards rather than disciplinary proceedings, so that their function is to provide protection to the public and they should be approached and construed with that objective in mind. I accept this. One may also refer to s.3 of the Act which provides that: “The objective of this Act is to make provision for ensuring safe and competent nursing practice.” A construction of the legislation which promotes that objective is to be preferred: Acts Interpretation Act 1954 s.14A. In my opinion, the appeal provision on its true construction provides for an appeal by way of rehearing in the usual sense. When the appeal is from a decision which has been preceded by a formal hearing, as in the case of an appeal from an order of the Professional Conduct Committee, it will be like an appeal to the Court of Appeal from a judgment after a trial in the District Court. Where it is an appeal from an administrative decision without a formal hearing, it will be more like a rehearing de novo, but regard will still be had to the decision under appeal, and the onus will be on the appellant to show that that decision was wrong. It will be like an appeal to the Court of Appeal from a decision of a District Court judge on an application without an oral hearing under Part 6 of Chapter 13 of the UCPR.2 2 Assuming that leave has already been given under s.118(3) of the District Court Act 1967. -- 6 of 19 -- 7 Issues on the appeal [13] The appellant submitted that there had been a failure to accord procedural fairness before the respondent made the decision under appeal. It was also submitted that there was no basis for concern that the condition of the appellant may interfere with the appellant’s ability to carry out the functions of a registered nurse so as to justify the council’s acting under s.66(2), nor were there reasonable grounds for satisfaction on the part of the council that limited registration should be imposed on the appellant. It was also submitted that the conditions imposed by that limited registration were not ones which were necessary to ensure the appellant was capable of carrying out in a professional way such functions as the limited registration allowed him to carry out. Limited registration [14] With regard to the question of the limited registration, it seems to me that the position is reasonably straightforward. In my opinion there has not been any valid imposition of limited registration, and the council has never demonstrated satisfaction that limited registration should be imposed, so there was no basis for the council to cancel the registration of the appellant. The Act does not identify what is meant by the concept of limited registration, apparently because s.65(2)(a)(1) provides that the council must determine the extent to which registration is limited. Limited registration is therefore one which has been limited by determination of the council. [15] It was submitted on behalf of the respondent that the registration in this case was limited by the imposition of the conditions. The wording of subsection (2)(a)(ii) suggests to me that the conditions are something separate from the limitation, since the test for whether conditions are appropriate to be imposed depends upon the determination of the functions associated with the limited registration. In such a situation, unless the extent of the limitation is known, it is difficult to determine what conditions may be appropriate. On the other hand, the wording of s.66(5) and s.116(1)(d), which refer to limited registration as a form of condition which may be imposed upon a person’s practice as a registered nurse, do support the argument of the respondent. In addition, the specific conditions identified in s.65(3)(a) and (b) can readily be identified as a means by which registration would be limited. [16] In those circumstances I am prepared to accept that in principle the limitation may be effected by the imposition of conditions, but that would have to be achieved, in my opinion, by the imposition of one or more conditions which had the effect of limiting the extent to which a person might practice as a registered nurse. That follows from the use of the word “extent” in s.65(2)(a)(i). In the present case, however, the conditions imposed made no provision about the extent to which the appellant’s registration was to be limited. The conditions were: -- 7 of 19 -- 8 “You are required to: (1) notify Council of all nursing employers and / or any change in nursing employer within 24 hours of gaining that employment; and (2) authorise your nursing employer to notify Council immediately of any concerns about your fitness or competence to practice as a registered nurse.” Neither of these contains any limitation on the extent to which he might practice as a registered nurse. For that matter, they also do not appear to be relevant to ensuring that he is capable of carrying out such functions as his registration allows him to carry out, that is, any nursing function which may be performed by a registered nurse. I am quite unable to see how either condition imposed was capable of ensuring that, nor are they even directed to that issue. The conditions appear to be designed to facilitate the gathering of evidence against the appellant, for the purposes of further proceedings against him. [17] There is the further consideration that the decision of the council did not identify the period for which the limited registration was granted. In my opinion s.65(4) properly understood means that limited registration may only be granted for a period of not longer than two years, and therefore it must be granted for a specific period which may be such period as the council determines, so long as that period is not in excess of two years. In the present case, the council has not identified a period. It has foreshadowed an intention to review the limited registration, something it is required to do anyway under subsection (8). In my opinion one feature in respect of which a limited registration must be limited is in terms of time. It must be limited to a specific period not exceeding two years, being such period as the council determines. That was not done in the present case. [18] In circumstances where, in my opinion, the respondent has not validly determined any extent to which the appellant’s registration was to be limited, and has not determined to impose any condition which would be a valid condition on such limited registration for the purposes of s.65(2), it follows that it could not have been satisfied (whether or not on reasonable grounds) that limited registration should be imposed on the appellant. If it had been satisfied that the registration should be limited, it would have actually limited it. In my opinion therefore it follows that the pre-condition for the cancellation of his current registration was not established, and that cancellation is not valid. Regardless therefore of the existence or otherwise of reasonable grounds, I would set aside the purported decision under s.65. Indeed, I suspect that there may not even be a valid decision under s.65 for me to set aside, but assuming there is, I set it aside. Reasonable grounds [19] In case it may be determined elsewhere that I am in error in that conclusion, I will proceed to the question of whether there existed reasonable grounds for a decision that limited registration should be imposed on the appellant. This approach was -- 8 of 19 -- 9 supported on behalf of the respondent by the submission that there were reasonable grounds in the fact that the council had decided to refer the appellant to assessment under s.66(2), and that it was appropriate to limit the appellant’s registration pending the receipt of the report from the Health Assessment Advisory panel. In my opinion that cannot in this case amount to reasonable grounds for satisfaction that limited registration should be imposed. [20] The test for determining whether a person is to be referred for assessment to the Health Assessment Advisory panel is merely that the council: “...is concerned that the condition of [that] person ... may interfere with the person’s ability to carry out the functions of a registered nurse.” (emphasis added) The wording of s.65 does not suggest that it is to be used in this way, as a sort of interlocutory relief, but it may be seen as appropriate in certain circumstances, where the safety of the public would be at risk, for some sort of limitation to be imposed on the basis of the existence of a risk rather than waiting until there was some established basis for criticism of a nurse.3 But that would still require at least some preliminary assessment of the nature of the allegations against the nurse, and some balancing of the risks to the public if those allegations were justified against the disadvantages to the nurse if those allegations proved to be unjustified. There should be some analogy with the basis upon which courts grant interlocutory injunctions, or Mareva orders. Facts [21] Accordingly, it is necessary for me to say something about the factual background to this order. On 17 September 1999, the Executive Director of Nursing at the Townsville General Hospital wrote to the respondent advising that a number of issues had been raised concerning the performance of the appellant while working in that service during “the last several years”. The appellant had apparently been working previously with that service, and was said to have had a long history of performance related issues before his employment was terminated at some time, although he was re-employed in April 1997. Although the letter is rather coy about saying so directly, it appears that he has been working as a psychiatric nurse. A number of issues were identified in very general terms in the letter, although a summary of the files was attached. This was also very vague and general, but does refer to a couple of particular incidents. It disclosed that there were other particular incidents, but does not contain any sort of serious discussion of them as specific incidents; it sought merely to draw generalised conclusions from them. [22] One incident which is dealt with in some detail in this summary is an incident on 26 June 1999 when the appellant restrained a patient who was attempting to commit suicide. Two days earlier the same patient had left the premises and gone to a busy 3 In more serious cases, where the risk is greater and more immediate, the respondent could act under s.67. In the worst cases, the executive officer can act under s.68. -- 9 of 19 -- 10 road where she was walking in front of traffic which had to swerve around her. She was escorted back to the unit by police, but the following day, when she was being transferred to a different unit, she ran away from the vehicle and again went onto a road, from which she was finally escorted. Then on 26 June she went missing again, and ran onto a busy road with the intention of committing suicide. The appellant intervened, placed her in a left shoulder lock with right arm restrained and removed her from the road and out of the path of oncoming traffic. It seems that she subsequently complained about the level of force used and this was apparently the subject of some criticism of the appellant by his employer. [23] The summary also records some concern because of the appellant’s reluctance to accept that his behaviour in this incident was wrong. He is not the only one. It seems to me obvious that if a patient was on a busy road attempting to commit suicide it was highly desirable in the public interest for the appellant (or someone) to remove her from that position as promptly as possible, using whatever force was necessary to achieve that objective. That was essential not only for the patient’s safety but also for his own, and (importantly) for the safety of the general public who happen to be using the road at about that time. I have expressed the opinion elsewhere that there is a duty on the operator of a facility for the mentally ill to take reasonable care to prevent persons at that facility, who might by leaving constitute a danger to members of the public in the facility, from leaving and causing such danger: Carrier v. Bonham [2000] QDC 226. Although in that case I considered that it was appropriate to bear in mind the need to provide suitable forms of treatment to such persons when deciding what was reasonable care in such a situation, once a person is actually or imminently on a road attempting to commit suicide by throwing herself under a motor vehicle, it seems to me that reasonable care owed to the rest of the community required prompt and effective removal of the patient from the road, even if that might be somewhat unsettling to the patient and require force to be used. That is not a factor which appears to have been given any, let alone proper, consideration by those critical of the appellant. In such a situation what is important is that enough force is used to be effective, and someone in the appellant’s position should not be criticised for failing to make a nice assessment of the precise level of force which was appropriate. [24] I accept that I have not had the opportunity to investigate all the relevant facts associated with that incident as would normally be the case if it had been the subject of a trial. But I do know as much about it as the respondent did. There is nothing in the material I have seen which would give me any cause for concern about the fitness of the appellant to perform the function of a psychiatric nurse arising out of that incident. Senior counsel for the respondent submitted that that incident had not been a factor taken into account when the decision was taken. I think there is no force in that submission, as will appear later. I mention this incident in particular however because it is one of the few occasions when the material before the respondent did deal with a specific identifiable instance of conduct on the part of the appellant in a way which identified the relevant conduct, so that I (and the respondent) was in a position to make an assessment of the situation, without just accepting blindly generalised allegations adverse to the appellant. It was also a situation where, had the information been provided to the appellant, he would have been able to respond in a meaningful way in his own -- 10 of 19 -- 11 defence. Most of the material in this summary of the file consists of very general conclusions adverse to the appellant based on incidents which are either unidentified or mentioned only briefly, and in a way which is unhelpful. For all I know, the other incidents were as lacking in substance as this one. [25] Apparently the Director of Nursing sent a similar letter to the Health Rights Commission, and there was some correspondence between the respondent and the Commission in relation to the matter, although ultimately the Commission decided (sensibly) that it had no jurisdiction. On 4 November 1999, there was a telephone call from the nursing director, Division of Psychiatry at Townsville raising some other complaints about the appellant, some general and some specific. There was also reference to there being a period of intensive supervision of the appellant in place, which was to be the subject of a further report. The nursing director in that conversation expressed some concern about the appellant’s psychological processing, and that he apparently had no insight into the issues which arose in respect of a particular incident identified in the conversation. [26] By a letter dated 5 June 2000, the Executive Director of Nursing, Townsville Health District Service forwarded to the respondent the final report by that nursing director of the diminished performance process concerning the appellant, and expressed some concern as to his ability to continue to practice as a registered nurse. The report indicates that the performance process was undertaken from 21 September 1999 to 8 December 1999, and notes that at its conclusion a grievance was lodged by the appellant which was subsequently investigated. The report is only directed to his performance during the period the subject of that process. Final report of the diminished performance process [27] The report is a fairly lengthy document, and I do not want to quote from it at length. It notes some positive aspects, and a number of matters where the appellant’s performance might be described as adequate, but there were said to be problems with issues of communication, ability to function optimally in a team, and reluctance to accept guidance and direction from superiors. The report says that the appellant has his own ideas about clinical practice, which, although directed towards a positive outcome for consumers, were seen as a rigid and inflexible approach which involved an apparent inability or unwillingness to “adapt to reasonable and legitimate views and consensually validated practices which differ from his own. His frame of reference for formulating and exercising clinical judgment appears to be disproportionately internal and neither amenable to challenge nor influenced by changing situations, environments, clinical culture or circumstances.” Suspicion that this is not really saying anything very much more than that he is different from his colleagues, and perhaps rather old fashioned, in his approach to his job is supported somewhat by the next sentence in the report: “While Mr. Barry’s views and some of his practices are not congruent with the changing culture of Kirwin Rehabilitation Unit, -- 11 of 19 -- 12 that in itself does not prohibit him [from] practising as a registered nurse.” It does not seem to me that the significance of that sentence has really come home to the respondent. [28] It is also worth nothing an earlier comment on p.2: “The CNC and CNs have not uniformly expressed satisfaction with Mr. Barry’s participation in team processes affecting planning, provision and evaluation of care.” I read that as indicating that some of them are happy with him and some of them are not. That may suggest that he has a style that is not suitable to all his superiors, but is a very fragile basis for a suspicion that there may be something wrong with his mental condition. One other matter that emerges from the report is that the appellant is seen as someone who promotes his own relationship with the patients as a means of contributing to their clinical care, and that he does this in his own way rather than fitting in with a co-ordinated team approach. There is also a statement: “Mr Barry at no time appeared to recognise the existence of a problem with his practice, despite a weight of descriptive evidence and informed professional opinion. ... No significant attempts were made by him to solve problems such as they were perceived by his colleagues”. That rather sounds as though the problem is that he is not changing to fit in with the requirements which are being imposed upon him by the other people he works with, or perhaps some of them. That may be because he considers that he is right and they are wrong. The question of how patients should be treated may be an issue on which minds may legitimately differ. Disagreements between professionals about how matters should be handled are not all that uncommon, and I find somewhat startling the suggestion that the fact that a person happens to be in the minority within a particular group where there is such disagreement is enough to give rise to concern about his mental condition.4 Even if he is objectively wrong (if this is the sort of thing about which one can be objectively right or wrong) the mere fact that he disagrees is not a matter giving rise to concern about his mental condition. [29] Some of these matters may involve disciplinary issues within an organisation, because in such a situation obviously someone has to be able to make a decision as to what is to be done, and that decision once arrived at has to be implemented by everybody. I note however that the report of 22 May 2000 acknowledges that the appellant “accepts explicit directions5 from senior staff.” In any case, that does not 4 For example, Justice Kirby is from time to time in disagreement with other members of the High Court as to how an appeal should be resolved. 5 “Implicit directions … were less uniformly accepted”, possibly because he did not always identify them as directions. -- 12 of 19 -- 13 necessarily reflect adversely on his professional judgment, much less on his mental condition. This report does not actually criticise the clinical activities of the appellant, except in so far as they do not fit in with the team approach. It does not say that he is doing the wrong thing; it just criticises him for doing something which is different from what the other people with whom he is working want him to do. It also implies that his approach is rather out of date, and suggests that the real basis for criticism is that he has not been adopting the changes, which have apparently been implemented in the unit in question, with a degree of enthusiasm that some people would have preferred. [30] There is reference in other parts of the material to at least one specific issue where the allegation was that the appellant was instructed to do something in a particular way but then did it in a different way. That may be a disciplinary issue, but it does not, without much more, give rise to any concern about his mental condition. There are many causes for disobedience other than mental instability. Besides, all that appears in this material is one side of the story; for all the respondent knew, the true situation may be that this incident just did not happen in the way described. It is even more different to say that mere adherence to a different clinical approach is a matter which gives rise to concern about his mental condition, so as to affect his fitness to be a registered nurse. Professional Standards Committee [31] This material was referred by the respondent to the Professional Standards Committee, a committee of six appointed by the respondent pursuant to s.8(3)(c) of the Act to assist in the performance of its functions. The committee prepared a report which summarised the material, including the report of the diminished performance process which was summarised in the following terms: “(a) At no time did Mr. Barry appear to recognise the existence of a problem with his practice, despite a weight of descriptive evidence and informed professional opinion; (b) He demonstrated that his practice is driven by his own somewhat rigid view of the clinical domain; (c) His apparent inflexible approach influences his practice to the extent that he appears unable or unwilling to adapt to reasonable and legitimate views and consensually validated practices which differ from his own; (d) His inability or disinclination to work well within a team is problematical in that he appears unlikely to consult with colleagues on practice decisions affecting patient outcomes; (e) During the period of diminished performance there was no evidence of change in Mr. Barry’s particular mindset or the non-reflective practice which substantially contributed to the initial concerns; (f) While a further period of supervised practice might be considered an option, there is little evidence available from the diminished performance exercise that the intensive -- 13 of 19 -- 14 supervision, which would be required in such a situation, would produce the changes in approach to practice that are necessary; and (g) [The] nursing director has been unable to recommend an unconditional return to practice.” This is a remarkably one sided summary of this report. It omits any reference to any of the positive features identified and does not mention any of the weaknesses in the reasoning that I have referred to earlier. There is no critical analysis. [32] The committee then made recommendations which were subsequently adopted by the council. The reasons given were limited to the following: “A health assessment report will provide Council with an independent assessment of Mr. Barry’s cognitive function and whether there is potential for him to develop insight into his present behaviour. Imposition of limited registration under s.65 is consistent with the Council’s role to protect the public given the evidence before it in relation to Mr. Barry’s substandard practice.” It is apparent from these reasons that the committee has, on the basis of the material, characterised the appellant’s practice as substandard, characterised his present behaviour as inappropriate, and accepted the nursing director’s opinion that he lacks insight into that behaviour, and that that raises the question of whether this might be because of the appellant’s cognitive function. The committee has simply accepted unquestioningly the nursing director’s assessment as being accurate, and summarised as established facts his expressions of opinion. This is a model of the disadvantages in making a decision after hearing only one side of the story. [33] There was no consideration of whether these are issues which reflect on the appellant’s practice as a registered nurse, as distinct from willingness to fit in with what is apparently the dominant clinical approach currently in place at this particular centre. Not only did the committee accept the report of the nursing director at face value, it did so without giving the appellant the opportunity to be heard. It does not appear even to have displayed any curiosity as to the nature and outcome of the grievance on the part of the appellant referred to on the first page of the report, notwithstanding the obvious inference that this involved some expression of dissatisfaction on the part of the appellant with the situation. It simply made its recommendation. “Notice” to the appellant [34] What happened next was that the respondent wrote to the appellant on 18 August 2000 advising that the Professional Standards Committee had considered the correspondence received from the Executive Director of Nursing enclosing the final report of the diminished performance process and noting the first, third, fourth, fifth and seventh of the points in the summary by the committee of that report under the -- 14 of 19 -- 15 heading “A concern has been raised about your health”. (It is true that the nursing director had expressed some concern about the appellant’s health, but not in that report, and there is no mention in the summary of that report of any such concern. No mention was made in the letter of the consideration given to the other material before the committee.) There was then a further heading “Council’s intention to refer you for a health assessment and limit your registration” under which there is a statement “The committee is concerned that your ability to carry out the functions of a registered nurse may be impaired”. (I can find no statement to that effect in the report of the committee.) It then goes on to paraphrase the recommendation and the reasons that I have quoted earlier, including the proposed conditions. [35] The letter invited the appellant to provide a submission by 29 August 2000 (that is, by 11 days after the letter was written) relating to: “1. The concern raised about your health; 2. Council’s intention to require you to attend the health assessment; and 3. Council’s intention to limit your registration.” The way in which that was expressed suggests that the appellant was facing a fait accompli. A copy of the Professional Standards policy and information sheets were enclosed with the letter; these are bulky documents and I was not referred to anything in them in the course of the argument. [36] On 28 August 2000, the appellant’s solicitors wrote pointing out some aspects of the operation of s.66, and saying that it was impossible given the details provided in the letter for the appellant to give a written submission relating to the matters referred to and seeking various particulars. They also adverted to some of the more positive aspects of the performance review not referred to by the committee. It was then submitted that there was nothing in the report which gave rise to any concern about the health of the appellant, and that “unsubstantiated and unparticularised expressions of concern about a registrant’s conduct should not be dressed up as health concerns”. I think there is considerable force in that proposition. It also noted that the disciplinary process had been invoked by the employer on the basis of that report to which the appellant had responded, but at no stage had it been suggested by the employer that the appellant had been suffering from any health condition. Decision under appeal [37] Notwithstanding the submission, the next step was the decision of the respondent on 31 August 2000. The minute which is exhibited suggests that the respondent merely rubber stamped the committee’s recommendation, as foreshadowed in the letter of 18 August 2000. -- 15 of 19 -- 16 Analysis [38] I am surprised by the way in which the committee appears to have accepted this material so uncritically, and to have put virtually the worst possible interpretation on the allegations in it. The possibility that this is nothing more than a personality clash with the Clinical Nurse Consultant (who has the support of the nursing director) has apparently not been considered by the committee. On this material, I would not exclude that possible explanation, or even the possibility (although I do not affirmatively suggest that it is the case) that the appellant is just an outsider to some clique at the unit, and is the victim of workplace bullying. The more closely I look at the report of 22 May 2000, the less it says of substance relevant to the appellant’s mental condition. I think that it is most unfortunate that the respondent allowed itself to be drawn into this dispute. [39] Essentially, the argument that there is some basis for concern about the appellant’s condition (which must be his mental health,6 or at least his psychological state) is based on the proposition that he was unable to recognise that there were problems with his practice. That assumes that there were real problems with his practice, and that the failure to respond to criticism of it was based on an inability to respond rather than an unwillingness to respond. There is nothing in the report from the nursing director which suggests that to me; what I draw from that report is that, insofar as there are difficulties between the appellant and the other members of the staff, they arise from a difference of approach and an unwillingness on the part of the appellant to fit in with the expectations of him on the part of the other members of the staff in relation to clinical procedures. His attitude appears to be based on his belief that his approach is the right one, and that does not suggest to me an inability to recognise problems with the practice, but rather an unwillingness to do so, which at worst would not suggest any psychological state more sinister than stubbornness. I do not regard that as a relevant condition for the purposes of s.66. [40] In my opinion there was no justification for concern in this material about possible impairment of the cognitive function and lack of insight into current behaviour. In my opinion the material before the council provided no basis for arriving at the decision which was taken. I have given some consideration to the question of whether the material might be capable, subject to considerations of procedural fairness, of giving rise to a legitimate concern about whether the appellant is psychologically suited to working as a registered nurse, or perhaps working specifically as a psychiatric nurse, if the clinical requirements of that aspect of the profession require a willingness to engage in a co-operative approach in a way which, because of the nature of the personality of the appellant, he is incapable of developing. It may be possible for it to be said that a particular individual is psychologically unfit to practice as a registered nurse, or practice as a registered nurse in an unrestricted way, not because of any identifiable mental illness, but simply because of aspects of that person’s personality. In an appropriate case, that may well be possible, although I would think it would need to be a fairly clear example before it could be said to give rise to some legitimate concern for the safe 6 The term “condition” in s.66(2) is defined in s.4 as including “physical or mental condition”. -- 16 of 19 -- 17 care of patients. I think it is sufficient for me to say that in the present case the material presently available, even at face value, does not in my opinion contain anything like adequate justification for concern on that basis. [41] This is not an appeal where I am on appeal confined to determining whether the decision of the respondent under s.66 was one which was open to the respondent. It is not a question of whether on this material it was open for the council to be concerned, it is a question of whether it is right to be concerned. On this material, in my opinion, it is not, and, even apart from any question of failure to accord natural justice to the appellant, I would allow the appeal and set aside the decision under s.66. It necessarily follows that even the basis contemplated by the respondent for the decision under s.65 disappears, although it will also be apparent from my reasoning earlier that in my opinion the mere existence of a legitimate concern about the mental condition of the appellant did not justify the imposition of limited registration on this “interlocutory” basis. There was nothing in the material to suggest that there was any particular imminent risk of harm to the patients, and nothing which indicated that there was a need to impose some limitation on the registration of the appellant prior to the report in to his condition becoming available. The mere fact that the condition was to be investigated did not in itself provide justification for the imposition of some limitation, a point which the respondent does not appear to have appreciated. In my opinion, in this case, even if, contrary to my previous finding, there was legitimate basis for concern about the condition of the appellant, that did not provide reasonable grounds for the respondent to be satisfied that limited registration should be imposed on him. Procedural fairness [42] In these circumstances, it is hardly necessary for me to say very much about questions of procedural fairness, but given the manifest deficiencies in the process adopted by the respondent I think it is appropriate that I say something. In order to be able to give a person in the position of the appellant reasonable notice of the allegation to which he has to respond with some precision, it is necessary to identify that allegation properly. The allegation was not that “X is of the opinion that you have certain things wrong with you.” That in itself may be indisputable, if X really does hold that opinion. But that is not a proper basis for the exercise of these statutory powers. The question is whether that opinion is justified. In circumstances where the relevant issue is whether there is some concern about the mental condition of someone, because of an apparent inability to appreciate that there are deficiencies in that person’s performance and to modify behaviour in order to overcome those deficiencies, there is a substantial factual background which needs to be established. [43] It is first necessary to establish that there are objectively deficiencies in performance. It is then necessary to establish that there have been events as a result of which the existence of these deficiencies and the dissatisfaction of others with them were or ought to have been brought to the attention of the person, and then there has to be some indication that his reaction has been indicative of some -- 17 of 19 -- 18 inability to respond as distinct from an unwillingness to respond. All of these matters may well be quite complicated factually. It is unhelpful when dealing with the factual basis of the allegation of deficient performance merely to make sweeping allegations so generalised that it is impossible for the person against whom the allegation is made to say anything in response other than a bare denial. It is impossible for a decision maker to make a rational choice between a sweeping generalisation and a general denial (other than on the basis of the location of the onus). It is necessary for particulars to be provided in the form of allegations which are contestable; that is to say, it is necessary to provide sufficient detail to enable a reasoned and specific response to be offered. A good practical method of determining whether an allegation is properly particularised is to consider whether, if the allegation is in fact false, it has been provided in sufficient detail to enable the person against whom it is made to provide a reasoned denial. [44] The problem for the respondent of course was that the material which was provided to it was strikingly deficient in proper particularity. It consisted of little more than general conclusions, without any indication of the basis upon which these conclusions have been reached. It is unhelpful to say that these represent a pattern of behaviour or a course of conduct. It is not difficult to describe properly a deficiency in a course of conduct. For example, it may7 be expected of a registered nurse in this situation, on a change of shift, to provide information in categories A, B and C about each patient to the registered nurse in the next shift. If a particular registered nurse failed to do this, but merely said that there was nothing unusual about the patient, that is a matter which can be identified specifically, in a way which is contestable, rather than being disguised as an allegation of failure to communicate appropriately with colleagues, which could be anything. If the failure occurred regularly, one could in this way particularise a regular course of conduct. Allegations about the appellant’s failure to give credence to suggested changes to his practice are unhelpful, because they do not identify the suggestions which were made, and how it was said that he failed to give credence to them. It is impossible for him to answer such an allegation unless that information is provided, and indeed it is impossible for a decision maker properly to evaluate the significance of such an allegation unless that information is provided. [45] It is therefore no answer to the complaint, that the appellant was not given the proper opportunity to respond to the matter which was raised against him, to submit that he was in effect referred to the report of the diminished performance process, since that report did not properly identify the relevant deficiencies in a meaningful way. Whether or not all of the particulars sought ought to have been provided, there was certainly a serious deficiency in the particularity with which the appellant was notified of the matters which the respondent was considering in relation to his conduct. In addition, I do not accept the submission that matters other than the report of 22 May were not considered because the letter of 18 August referred only to part of the summary of that report. It is clear from the minutes of the meeting of the committee on 15 August that it considered more than this report, and notice ought to have been given of everything in fact considered by the committee, in the absence of any indication that the committee disregarded it as irrelevant (which is 7 This is purely hypothetical; I have no knowledge of the relevant practice. -- 18 of 19 -- 19 absent). The inadequacy of the notice does not provide some sort of retrospective limitation of the scope of the consideration of the committee. [46] Apart from that, it does not seem to me that natural justice was accorded at the appropriate time. It appears that the real decision was made by the Professional Standards Committee, not the respondent. It is important that the opportunity to be heard be provided at the correct level. That does not mean that where a decision making process extends over various levels of authority a hearing has to be accorded at each level, but a hearing has to be accorded at a level which is the substantive decision maker8, or at some prior level so that by the time the matter reaches the substantive decision maker both sides of the story are exposed to that person.9 It is no use having the substantive decision taken after hearing one side only, and affording no more than a nominal opportunity to be heard before that decision is rubber stamped at a higher level. [47] The situation is different if what is delegated is a process of investigation, expected to lead to a substantive hearing before the real decision maker. That is the situation under Part 5 for complaints investigated by the respondent prior to a hearing before the Professional Conduct Committee. In circumstances where the person against whom charges are brought is given a proper opportunity to be heard at the hearing by that committee, it is not necessary also to provide a hearing in relation to the investigation. [48] What happened here, however, was not an investigation by the Professional Standards Committee prior to a “hearing” by the respondent. What seems to have happened here in practice was virtually the delegation of the decision to the committee. In that situation, in my opinion, it would have been better if the appellant had been heard by the committee, so that the committee’s recommendation was formulated after it had had the benefit of submissions from the appellant. In that situation the committee and thus the respondent would have available to it anyway both sides of the story. Even apart from the other matters, in my opinion there was a serious deficiency in procedural fairness in the way this matter was handled. [49] For the reasons given earlier, therefore, the appeal is allowed, the decision of the 31 August set aside, and the registration of the appellant as a registered nurse is reinstated. I order the respondent to pay the appellant’s costs of the appeal to be assessed. 8 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 350 per Gibbs CJ, 356 per Stephen J and 417-8 per Brennan J. 9 South Australia v O’Shea (1987) 163 CLR 378 (so long as the ultimate decision maker does not take into accou nt any additional matter not raised with the person concerned.) -- 19 of 19 --