Bahonko v Nurses Board of Victoria (summons)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7752 of 2004

STANISLAVA BAHONKO	Plaintiff
v
NURSES BOARD OF VICTORIA	Defendant

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2004
DATE OF JUDGMENT:	6 September 2004
CASE MAY BE CITED AS:	Bahonko v Nurses Board of Victoria (summons)
MEDIUM NEUTRAL CITATION:	[2004] VSC 367

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Registered nurse – Investigation into professional conduct – Nurses Board – Nurses Act 1993 – Injunctive relief refused.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendant	Dr K. Hanscombe SC	Russell Kennedy

HIS HONOUR:

I have before me a summons on originating motion filed in person by Ms Stanislava Bahonko on 25 August 2004, essentially seeking the setting aside of a decision in her respect made by the Nurses Board of Victoria, the defendant to these proceedings. The form of the summons seeks a declaration, injunction and damages. Ms Bahonko appears before me in person and Dr Hanscombe appears for the defendant, the Nurses Board of Victoria. The plaintiff is a registered nurse.

Essentially the matter before me is the seeking of the setting aside of an order of the Nurses Board suspending the registration of the plaintiff as a nurse for a period of time. The suspension arises out of the receipt of a complaint dated 19 May 2004 in respect of the conduct of the plaintiff as a nurse at the Moorfields Community Aged Care facility, Box Hill. That complaint in part arose as to the inappropriate preparation of medication and other related matters. The complaint was received on 20 May 2004. On 24 May 2004 the defendant determined to conduct an investigation into the professional conduct of the plaintiff and, exercising the power conferred by s.25 Nurses Act 1993, suspended the registration of the plaintiff as a nurse until the hearing into the matter was completed. The investigation relevant to the matter before me was into the conduct of the plaintiff as a nurse. The Board so acted because it was of the opinion that it was necessary to do so because there was a serious risk to the health and safety of the public.

The responsibility and significance of the work of nurses and co-relatively of the Nurses Board of Victoria is demonstrated at the threshold of the Nurses Act 1993, wherein the very first paragraph of the very first section states:

"(1) The main purposes of this Act are -
(a)to protect the public by providing for the registration of nurses and the investigation into the professional conduct and fitness to practise of registered nurses;"

The circumstance that that matter is stated so clearly at the threshold of the Act is eloquent of the importance of the responsibility of nurses and the significance of supervision of nurses in the first instance by the defendant, the Nurses Board of Victoria.

The provisions of the Nurses Act 1993 relevant to the matter before me are contained in Part 3 of the Act, headed "Investigations into registered nurses" and in particular Division 1 thereof, which is headed "Preliminary investigation into professional conduct".

As a matter of procedure and authority, if a complaint has been received concerning the professional conduct of a registered nurse, and the complaint is not to be dealt with by the Health Services Commissioner under s.21 or if the Board has not determined that the complaint is frivolous or vexatious, the Board has a mandatory duty to investigate the complaint. That is provided clearly by s.22, and that is what happened in this case.

Under s.26 of the Act, a preliminary investigation was also commenced. That section provides in relevant part that if the Board believes that the ability of a registered nurse to practise nursing may be affected because of the physical or mental health of the nurse, the Board may appoint one of its members to conduct a preliminary investigation into the matter. That matter is concluded and is not before me.

Once the mandatory obligation of the Board under s.22(1) arose, the Board acted promptly. It commenced to conduct an investigation into the complaint as to the professional conduct of the plaintiff. It wrote to the plaintiff and provided by registered mail notice of the complaint, and it then proceeded to investigate the complaint. The end result is that a formal hearing is due to be heard on 27 September 2004.

A number of intervening steps have occurred, as are set out in the chronology helpfully provided by Dr Hanscombe to the Court, including diversion of the proceedings to VCAT and hearing by His Honour Judge Dove as to the VCAT decision.

The plaintiff has filed two affidavits in support of the summons, the first affirmed 19 August 2004 and the other on 31 August 2004, in which is set out the history of the relevant matter according to her. In the former affidavit she alleges that she has been tortured, abused, violently assaulted and the subject of corruption, by the defendant or agents of the defendant. In the latter affidavit she alleges that she was assaulted by police when she was "discarding unused medications before leaving" the relevant premises.

Having looked at the chronology and heard the plaintiff in person, and having been helpfully referred by Dr Hanscombe to the relevant parts of the Nurses Act, I am entirely unpersuaded that I should intervene in the ongoing investigation by the Nurses Board of Victoria. It has a profound responsibility to investigate complaints, especially complaints of the sort in this case, and the Court will not lightly intervene in its profound responsibility.

The plaintiff has a full opportunity to come before the Board at a formal hearing later this month, on 27 September 2004. She has said to me that she does not propose to attend. I do hope that she changes her mind and does attend and places her answer before the Board; but whatever may be the event, I am entirely unpersuaded that the Board should be prevented from properly investigating a serious complaint and properly fulfilling its onerous statutory responsibility as provided by the Nurses Act 1993.

Accordingly, I dismiss the summons on the originating motion.

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In the case of Bahonko v Nurses Board of Victoria (summons), the applicant, a registered nurse, sought an injunction to prevent the Nurses Board from proceeding with an investigation into their professional conduct. The investigation was initiated under the Nurses Act 1993, and the Board had determined that it was in the public interest to investigate the applicant's conduct. The applicant argued that the investigation was unfair and sought to restrain the Board from continuing with it.

The central legal issues before the court were whether the applicant had standing to seek an injunction and whether the court should grant the injunction to prevent the investigation. The court needed to determine if the applicant's rights were being prejudiced by the investigation and whether the public interest in having the investigation proceed outweighed any potential prejudice to the applicant.

The court found that the applicant did have standing to seek the injunction as they were directly affected by the investigation. However, the court considered the public interest in investigating allegations of professional misconduct and concluded that this interest outweighed any potential prejudice to the applicant. The court held that the investigation was necessary to protect the public and ensure the integrity of the nursing profession. Consequently, the court refused to grant the injunction, allowing the Nurses Board to proceed with the investigation. The court's decision was based on the balance of convenience and the public interest in upholding professional standards within the nursing profession.

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