Beatrix Versteegh v the Nurses Board of South Australia No. SCGRG 91/2952 Judgment No. 3740 Number of Pages 18 Nurses Professional Conduct

[1992] SASC 3740

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Nurses - professional conduct - inquiry and finding of unprofessional conduct by Nurses Board - appeal against findings - quorum present at all hearings - inquiry not a nullity - standard of proof to be applied is proof on the balance of probability - Board well suited to decide what amounts to unprofessional conduct in relation to nursing - findings on two counts not justified by the evidence but all other findings justified - appeal dismissed.
T v. The Medical Board of South Australia (1992) 164 LSJS 430, Briqinshaw v. Briqinshaw (1938) 60 CLR 336, In re Ward (1953) SASR 308, Basser v. Medical Board of Victoria (1981) VR 953, Hoile v. The Medical Board of South Australia
(1960) 104 CLR 157, Re Frederick (1957) SASR 149, Gillen v. Laffer (1924) SASR
170, Gardiner and Ors. v. Land Agents Board (1976) 12 SASR 458, Chan v. Medical Board of South Australia (1986) 41 SASR 434, Re R a practitioner
(1927) SASR 58, In re Aidinis (1975) 12 SASR 158, In re a Practitioner (1975) 12 SASR 166 - referred to.
Nurses Act 1984ss.5, 6, 8(1), 41, 45.

HRNG ADELAIDE, 24 March, 2 April, 30 November 1992 #DATE 4:12:1992
Counsel for plaintiff:     Mr P Scragg
Solicitors for plaintiff:    Peter Scragg
Counsel for defendant:     Ms M Guy And Ms J Olsson
Solicitors for defendant:    Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 MULLIGHAN J This is an appeal pursuant to s.45 of the Nurses Act 1984 against the decision of the Nurses Board which found the appellant guilty of unprofessional conduct in various respects and ordered that she be reprimanded and that certain conditions be imposed upon her right to provide nursing care. 2. The appellant has been employed as a clinical nurse by a nursing home from 1985 until 13th March 1990 when she resigned. On 16th October 1990 the Registrar of the Board laid a complaint before the Board against the appellant pursuant to s.41 of the Act alleging that she had been guilty of unprofessional conduct. The complaint particularized 18 allegations of such conduct which I shall call counts. Pursuant to its obligation under s.41(2) of the Act the Board conducted an inquiry. A considerable body of evidence was placed before the Board. The Registrar and the appellant were represented by counsel. Four witnesses were called by the Registrar. The appellant gave evidence and called three witnesses. Many exhibits were tendered. The hearing commenced on 16th November 1990 and resumed on various days until it was completed on 27th September 1991. The Board reserved its decision which it gave later and published its reasons in writing. It found that the appellant was guilty of unprofessional conduct with respect to nine of the counts but not with respect to the others. At a further hearing on 20th November 1991 the Board reprimanded the appellant and imposed the conditions. The first ground of appeal is that the Board wrongly proceeded with the inquiry on the last day of the hearing, it being alleged that there was no quorum present. The Board is established by s.5 of the Act. S.6 provides that it is comprised of eleven members appointed by the Governor. S.8(1) provides that six members shall constitute a quorum. The transcript of the hearing on this day records that only five members of the Board were present. Upon the hearing of the appeal, affidavits sworn by the appellant, Mr Abols and Ms Fletcher were admitted. The appellant deposed that only the five members of the Board mentioned in the transcript were present. Mr Abols attended all of the days of the hearing as an adviser to the apellant. He deposed that only five members of the Board were present on this last day. Ms Fletcher is employed by the Board. She also attended the hearings. She deposed that six members of the Board were present. As this issue could not be resolved upon the affidavits, I permitted each of these witnesses to be called to give oral testimony. Both the appellant and Mr Abols maintained in their evidence that only five members of the Board were present. I found the evidence of both Mr Abols and the appellant to be unconvincing. Although both claimed to have noticed that only five members of the Board were present, neither raised any objection and did not even bring the matter to the attention of Mr Scragg who appeared for the appellant before the Board. Although the inquiry occupied nine days over a very long period and the member of the Board alleged to be absent on the day in question, Mrs Jones, attended all of the hearings on the other days, both Mr Abols and the appellant said they could not describe her and did not know who she was. Furthermore the manner in which each of them gave evidence caused me to doubt their reliability and truthfulness about certain matters. 3. Among Ms Fletcher's duties was the setting up of the room in which the inquiry was conducted and the keeping of appropriate records for administrative purposes. She knew Mrs Jones. She saw her at the hearing on the day in question. She filled out the appropriate form on that day which is required for payment to members of the Board the fees to which they are entitled. That form was admitted into evidence and records that Mrs Jones was present. She was well aware of the need for a quorum. Some members of the Board who had participated in earlier stages of the hearing had not been able to continue and the chairman had made it clear to the remaining members that a quorum must be present. Consequently Ms Fletcher was alive to the need for a quorum at all subsequent times. Mrs Jones also gave evidence. She said that she attended all of the days of hearing and was present on the day in question. She recorded her attendances in her diary, which she produced and which contains a record of her having to attend. She described, in brief terms, what occurred during the hearing on the day in question and where the various members of the Board sat. Ms White was also called. She is employed by the Nurses Board and is responsible for arranging the hearings. She was present at the hearings and recorded the proceedings on a tape recorder. Also she made some handwritten notes. She typed the transcript. According to her, Mrs Jones was present on all occasions. The absence of her name in the transcript for 27th September 1991 was an error. She too described where each of the members of the Board sat. 4. I have no hesitation in accepting the evidence of these three witnesses. Each of them gave their evidence in a straight-forward manner. I have no hesitation in finding that Mrs Jones was present on the day in question and that a quorum was present. This ground of the appeal fails. 5. The next ground of appeal is that the Board failed to observe the principles of natural justice in that it permitted the composition of the Board to change during the course of hearing the complaint. 6. Nine members of the Board were present when the hearing commenced. Three members ceased to attend the hearings at different times. One went overseas and the others became ill. The remaining members of the Board attended all of the hearings and participated in the decisions. None of the members who ceased to participate in the hearings ever returned or participated in the decisions. Once they left they returned their papers and played no further part in the inquiry. Mr Scragg contended that it was unjust and unfair to the appellant for the Board to have permitted the hearings to continue and to make decisions in the absence of members who had initially taken part in the hearings. The absent members may have held views different from those of the remaining members. Such views may have been sympathetic to the appellant. I expect Mr Scragg would argue that the absent members may have persuaded the other members to adopt views favourable to the appellant if the Board had suspended the hearings until they were able to resume. No authority was cited in support of these contentions. 7. There is no merit in this ground. The Legislature obviously had in mind that not all members of the Board would be able to be present at all times. Hence the provision for a quorum. If sufficient members to constitute a quorum heard all of the evidence and submissions, participated in the decisions of the Board and were not influenced by absent members, then there is no reason to apprehend that the appellant was not accorded natural justice or that the proceedings were invalid or a nullity. 8. The third ground of appeal which was argued is that the Board erred in holding that the standard of proof to be applied was proof on the balance of probability. Mr Scragg contended that the standard required is proof beyond reasonable doubt. The Board made findings of fact with respect to each of the counts which it found to have been proved. Having done so, it then concluded that the conduct of the appellant amounted to unprofessional conduct. Whilst with respect to all of the counts, the Board did not say that it had applied the balance of probability standard, it did say that it adopted that standard with respect to some of the counts. It is safe to assume that the Board adopted that standard with respect to all of the findings of fact. 9. The nature of the allegations of unprofessional conduct made against the appellant which were found to be proved may be briefly described as failure to administer medication to a resident of the nursing home (count 4), failure to ensure medication prescribed for a resident was taken (counts 9, 10, and 12), failure to sight and count all drugs of dependence and make an appropriate record (count 11), failure to adhere to "Guidelines for Drug Store and Administration" (count 13), failure to adhere to the policy of the nursing home with respect to signing records at the time of administering drugs (count 14), breach of patient confidentiality (count 16) and failure to ensure a "resident-centered" approach to a resident thereby causing undue pain, suffering and acute embarrassment (count 18). Each of these allegations are with respect to acts or omissions of the appellant in the discharge of nursing duties and do not involve allegations of criminal conduct or moral turpitude, except in relation to count 11 where the proven conduct also constituted a breach of Reg 12 of the regulations made under the Controlled Substances Act1984. 10. Recently in T v The Medical Board of South Australia (1992) 164 LSJS 430 the Full Court had occasion to consider the degree of proof to be applied by the Medical Practitioners Professional Conduct Tribunal when exercizing its functions in disciplinary proceedings pursuant to the Medical PractitionersAct 1983. There it was alleged that a medical practitioner was guilty of unprofessional conduct in his practice of medicine in that he entered into a sexual relationship with a patient whilst he was her treating doctor. Matheson J concluded that the degree of proof required was proof beyond reasonable doubt. He said at p.440:-
    "A charge against a medical practitioner of sexual
    misconduct with a patient is a very serious charge, and the
    consequences flowing from a finding of guilt are inevitably very
    grave. It was assumed sub silentio in Re Frederick (1957) SASR
    149 that such a charge must be proved beyond reasonable doubt,
    but there does not appear to be any clear authority on the
    appropriate degree of proof. We are not, of course, concerned
    here with the proof of a crime in civil proceedings or with the
    proof of adultery under old and repealed divorce laws. I do not
regard cases such as Briginshaw v Briginshaw (1938) 60 CLR 336
    as very helpful in this context. I can find no authority that
    prevents me from holding, which I do, that the charges here
    must be proved beyond reasonable doubt. As it happens, that
    was ultimately the approach taken by the Tribunal, and,
    needless to say, the appellant does not complain about that.
    I leave open for further consideration whether proof so strict
    is required when the charge does not involve moral turpitude
(compare Basser v Medical Board of Victoria (1981) VR 953)." 11. Debelle J said that he agreed with the orders proposed by Matheson J Olsson J, at p.454, took the view that the ordinary standard of proof in civil proceedings must be applied subject to the observations in Briginshaw v Briginshaw (supra) at p.347. The function of the Nurses Board pursuant to s.41 of the Act is similar to that of the Medical Practitioners Professional Conduct Tribunal. If it is satisfied that a nurse is guilty of unprofessional conduct, it may reprimand the nurse, impose a fine, impose conditions restricting the right of the nurse to provide nursing care, suspend or cancel registration of the nurse, s.41(3) (cf. s.58(3)(a) of the MedicalPractitioners Act). The function and disciplinary powers of the Medical Practitioners Professional Conduct Tribunal and the Nurses Board, in the context of discipline, are similar in this context. The definition of unprofessional conduct in the Medical Practitioners Act and the Nurses Act is identical except for the language employed which is appropriate to the two professions. Both Acts provide that the respective tribunals must be satisfied that unprofessional conduct has occurred. 12. It is unnecessary to discuss the reasoning of Matheson J in T.'s case (supra). I do not think that I am bound by his decision as to the standard of proof to be applied even though the relevant provisions of the MedicalPractitioners Act and the Nurses Act are to the same effect. Olsson J took a different view and Debelle J did not express a view. It can be seen that Matheson J applied the standard of proof beyond reasonable doubt to the very serious charges with which the court was there concerned. He left open whether that standard should be applied when the charge does not involve moral turpitude. 13. I have some difficulty in accepting that there may be different standards of proof depending upon the nature of the alleged unprofessional conduct. The standard must be the criminal or the civil standard. It would appear that the Court in T.'s case (supra) was not referred to the decision of the Full Court in In re Ward (1953) SASR 308. There the court was concerned with a finding by the Physiotherapists Board of unprofessional conduct by a member of that profession. Napier CJ, with whom Ligertwood J agreed, said at p.313:-
    "It follows, in my opinion, that counsel (appearing before
    the board) erred in assuming that, in relation to the incidents
    of pleading and proof, the board was bound to act as a court of
    law would act when trying the charges of a criminal offence.
    The charge of unprofessional conduct is a serious matter. It
    involves serious consequences and the accused must have an
    opportunity of making his defence. For that purpose he must have
    notice of the charge, with reasonable particulars of the conduct
    which is charged as 'unprofessional' (Leeson v General Council of
Medical Education and Registration (1889) 43 Ch.D. 366, at
    p.385), and it is not to be supposed that the board would find
    against the respondent, unless they were fully convinced of the
    fact, but I think that it is wrong to say that the charge requires
    the same strictness of proof - secundum allegata et
    probata - as in the case of a criminal charge (see In re Kennely
(1912) 12 SR (NSW), at pp 326-327)." 14. Abbott J expressed the same view at p.321. That approach was taken by O'Bryan J in Basser v Medical Board of Victoria (1981) VR 953 at p.969. Whilst it is true that the Medical Board adopted the criminal standard in Re Frederick (1957) SASR 149 and in Hoile v The Medical Board of South Australia
(1960) 104 CLR 157 the courts were not required to consider whether that approach was correct. Furthermore, in each case the court was concerned with the consequences of findings that a medical practitioner was guilty of "infamous conduct in a professional respect" which, I think, is conduct of a different nature than unprofessional conduct in the course of routine professional work as is the case here. So, I do not think either of those cases is helpful. I have not found it necessary to mention the detail of Mr Scragg's argument on this ground. He sought to equate the unprofessional conduct alleged with criminal conduct because of the disciplinary powers of the Board which he contended was in the nature of punishment. I do not accept that argument. In my view, the Board did adopt the correct standard of proof on the balance of probabilities. However, it would not have mattered what standard of proof the Board applied. With respect to all of the counts, the issue was not whether the appellant had done, or not done, what was alleged against her but whether her acts or omissions constituted unprofessional conduct. The Board had to consider the allegations against her in two stages. It had to make findings as to whether the acts or omissions alleged had been proved. Then it had to consider whether what had been proved amounted to unprofessional conduct. The standard of proof to be applied is of significance only to the first stage. There is no reason to suppose that in making its findings of fact that the Board did not have regard to the seriousness of the matter and bring that to account when deciding whether it was satisfied that the allegations had been proved. 15. It is convenient to next consider the challenge of the appellant to the findings of the Board adverse to the appellant upon which the finding of unprofessional conduct is based. The first is count 4. It alleges that on 18th April 1989 the appellant failed to administer to a patient (I shall call W) his prescribed medication for pain relief, namely 2.5 mg of Methadone. He was an elderly man and terminally ill. He had been suffering from dementia and cancer of the colon and liver. The object of the professional care for him was to alleviate his pain and make him as comfortable as possible. The nursing home had a policy, expressed in writing, requiring drugs to be administered by a registered nurse and to be signed for on the resident's medication form when administered. The reason for the policy is obvious. Those responsible for the care of a resident must be able to ascertain at any time what drugs have been administered to the patient. The appellant acknowledged that she did not administer the drug in accordance with the direction of W's medical practitioner. Her reason for not doing so is that when she went to him to give the drug he was asleep and she thought it inappropriate to wake him. She said that she observed him throughout the night each 20 minutes or so and noticed that he remained asleep. In the morning she told the nurse who relieved her what she had done and made a written note of what she had done in the appropriate record. The undisputed evidence was that the medical practitioner had prescribed the drug to be given twice daily, at 7.00 a.m. and 7.00 p.m. A few days before this incident the medical practitioner had increased the medication from once a day to twice a day and he accepted that the increase was due to some irritability or restlessness on the part of W, although he had no recollection. He accepted that there could be no other reason. There was no evidence to contradict the appellant that W had spent a peaceful night even though the drug had not been administered. However, he did show signs of distress during the next morning. The drug was administered one hour late during that morning. The Director of Nursing of the nursing home, in her evidence, said that if a nurse was considering not giving medication in accordance with the direction of the medical practitioner of a resident, the nurse should contact the doctor and obtain approval. In his evidence the medical practitioner said that a nurse should awaken a resident to take the drug but he would not be critical of the medication being withheld if there were no subsequent signs of distress. However, if the resident was distressed he would be critical because the purpose of regular medication of this nature for a person in the position of W is to prevent pain rather than treat it when it occurred. The Board found that the appellant had failed to administer the drug in accordance with the direction of the medical practitioner and the policy of the nursing home to which I have referred. That finding was in accordance with the appellant's evidence. The only issue with respect to this court is whether the conduct of the appellant could be categorized as unprofessional conduct. The Board said:-

    "We consider Mrs Versteegh's actions to be negligent and of
    a sufficiently serious nature to constitute unprofessional
    conduct. Mrs Versteegh failed to ensure an environment which
    provided for the comfort needs of the individual in accordance
    with the ANRAC Competencies and she failed to adhere to the
    International Council of Nursing Code of Ethics which states that
    the fundamental responsibility of the nurses is to alleviate
    suffering. Further, Mrs Versteegh failed to follow doctor's
    orders. We find that Mrs Versteegh is with respect to this
count, guilty of both unprofessional and unethical conduct." The challenge to the findings with respect to counts 9 and 10 may be considered together. Count 9 alleged that on 6th February 1990 the appellant failed to ensure that a resident had been given her prescribed medication at midday contrary to the stated policy of the nursing home and the Board's "Guidelines for Drug Storage and Administration". 16. Count 10 alleged that on 14th February 1990 the appellant failed to ensure that another resident was given her prescribed medication at midday contrary to the same policy and guidelines. In both instances there was no evidence to establish that the appellant had not given the drugs. She maintained that she did. The nurse who followed the appellant's shift on 14th February discovered that the appellant had not signed the appropriate drug records for these two patients which was required each time drugs were administered. She brought the matter to the attention of the appellant who assured her that she had given the drugs as prescribed. She accepted that assurance and permitted the appellant to sign the drug sheets some days later when she returned to duty. The records required to be signed enable those responsible for the residents to ascertain at any time if prescribed drugs have been given. At this time about 300 drugs in tablet form had to be given each day by nursing staff. Apparently there had been a number of occasions when the drug records were not signed because the minutes of the meeting of the clinical nurses of the nursing home on 22nd February 1990 record that the Director of Nursing pointed out that an unacceptable level of medications had not been signed for on drug sheets and a protocol was adopted to resolve that problem. However, evidence before the Board, which was not contradicted, revealed that during the period from 22nd January 1989 to 8th March 1990 there had been reports of 13 occasions when drugs had not been signed for, nine of which involved the appellant. 17. The Board found both of these counts proved on the balance of probability and based its finding on the evidence that the appellant had not signed the drug sheets to verify that the drugs were given. Whilst the Board may not have accepted the evidence of the appellant that she had administered the drugs, the other evidence could establish no more than that she had not signed the drugs sheets, presumably an omission which was not uncommon with some other staff at that time. In my view, the evidence did not justify a finding that the appellant failed to administer the drugs on either occasion. It did establish that the appellant was in breach of her obligation to sign essential drug records which is a serious matter and could have justified a finding of unprofessional conduct. However, that was not the charge in the complaint which the appellant had to meet. In Gillen v Laffer (1924) SASR 170 Poole J, at p.182, observed:- "It is a fundamental principle of the administration of justice by tribunals that the party who may be adversely affected by the decision should be informed of the charge or claim against him, and given an opportunity of defending himself, but this principle is not limited in application to cases where the person who has to decide is deciding as a Court of law." See also Gardiner and Ors. v Land Agents Board (1976) 12 SASR 458 per Walters J at pp.470-471 and the observations of Cox J in Chan v Medical Board of South Australia (1986) 41 SASR 434. If these counts had alleged that the appellant failed to sign for drugs, then the Board would have been justified in finding them proved. However, that was not the case and the challenge to the findings with respect to these counts must succeed. 18. Count 11 alleges that on 17th February 1990 the appellant failed to adhere to the "Delivery of Drugs Policy Statement No.2" at the nursing home and the Board's "Guidelines for Drug Storage and Administration" by refusing to sight and count all drugs of dependence and make an appropriate entry in the specific Drug Administration Record. The policy statement and the guidelines require that the nurse in charge of drugs of dependence at the end of her shift and in the presence of the nurse in charge of the next shift, shall sight and count all drugs stored, presumably in her ward or area, and if an incorrect amount of drugs is stored, make a handwritten explanation in the record and notify senior staff immediately. Also regulations made under the Controlled Substances Act 1984 provide:-
    "Reg.12(1) The registered nurse for the time being in
    charge of a ward shall, at the end of his shift, count all of the
    drugs stored in the ward, including but without limiting the
    generality of the foregoing, all drugs in the imprest stocks.
    ...
    (5) Subject to subregulation (6) an entry made by a registered
    nurse in a Drug Administration Record pursuant to subregulation
    (2) or a Special Record Book pursuant to subregulation (3) shall
    be witnessed by the registered nurse commencing the shift next
    following the shift of the registered nurse who makes such
    entry." 19. It is hardly necessary to explain the reason for these requirements. The records of the nursing home proved in evidence establish that the appellant wrote an entry "Drugs not counted" which she signed at the conclusion of the shift. 20. It was not disputed that the appellant did not count the drugs or make the appropriate entries and records. However, Mr Scragg contended that the policy, the guidelines and the regulations were not routinely observed during week days only on weekends. On weekdays there was an overlap of half an hour upon the change of shifts with the consequence that the outgoing nurse was not required to count the drugs. On weekends the position was different and the outgoing nurse was required to discharge these obligations. The allegation in this count relates to a weekend. Nevertheless, Mr Scragg contended that the appellant did not have established work practices which mitigates the seriousness of her obligations. Furthermore, he submitted that the evidence disclosed that the appellant was very busy on the occasion in question and indeed worked an extra hour which also is a matter of explanation or mitigation. She asserted that she simply forgot to count the drugs. However, the evidence of the nurse who relieved the appellant on this occasion does not support these contentions. She said that the nursing staff were always busy at these times and there was nothing unusual on that day. She acknowledged that she had not counted the drugs with the appellant. According to her, she requested the appellant to check the drugs but the appellant said she was too busy. Later she made the same request again but the appellant did not check them. This evidence does not support Mr Scragg's contentions as to the reason why the appellant did not discharge this very important obligation and I am unable to see how any difference in working arrangements between weekends and weekdays has any bearing upon the matter. 21. The Board found the allegation proved on the admission of the appellant, the evidence of the nurse I have mentioned and the drug record. That finding was inevitable. The Board also found, correctly in my view, that the appellant's conduct was in contravention of its guidelines on drug administration and Reg.12. It concluded that such conduct was unprofessional conduct. 22. Count 12 alleges that on 6th March 1990 the appellant failed to ensure that a resident was given her prescribed medication at midday contrary to the policy and the guidelines previously mentioned. The appellant conceded that she did not give the medication. This omission was discovered four hours later and was then given by another nurse. The appellant claimed that she had overlooked giving the medication because she was distracted during her drug round by the Director of Nursing who spoke to her. The Director of Nursing could not recall that she did speak to her at that time but she did not deny that she may have done so. The medication was an antibiotic which was necessary for the treatment of a condition from which the resident was suffering. 23. The Board found, on the balance of probabilities, that the appellant did not give the medication as required. That finding was inevitable. The Board considered this conduct to be negligent in relation to nursing and to amount to unprofessional conduct. It went on to say:- "We note that this incident occurred after a number of other incidents in relation to drug administration where Mrs Versteegh had been counselled about her failures to adhere to guidelines." 24. Count 13 alleges that on or about 31st January 1990 the appellant failed to adhere to the guidelines previously mentioned in that she failed to ensure that the bottle containing a drug of dependence, namely methadone, was empty before throwing it away and that the quantity of drugs remaining in stock was accurate. The appellant opened a new bottle of methadone tablets. She removed cotton wool from the bottle and threw it into a disposal bin. A tablet was attached to, or within, the cotton wool unbeknown to the appellant. Consequently, when the appellant finished her shift the stock was short by one tablet. Subsequently the tablet was found by another nurse and returned to stock. The Board found that the tablet was contained in the empty bottle when it was thrown away which accords with the particulars alleged in the count. However, the evidence was that the tablet was thrown away with the cotton wool. Mr Scragg contended that the evidence did not support the charge as alleged. However, the allegation contained in this count is that the appellant failed to adhere to the guidelines. In the context of count 11, I have mentioned the relevant provisions of the guidelines. As the tablet was placed into the disposal bin the appellant did not adhere to the guidelines. She did not sight and count all drugs and ascertain that one tablet was missing and then make a handwritten explanation. It was not fatal to the Registrar's case that the manner of not adhering to the guidelines as particularized was not proved. The appellant admitted that she must have discarded the tablet and consequently the allegation was proved. The Board found that the appellant "failed to act in accordance with Legislation and Common Law affecting nursing practice and failed to fulfil the duty of care in the course of her practice" and found her conduct to be unprofessional conduct. The reference to legislation is presumably to Reg.12. I am uncertain as to what is meant by the reference to common law, but it is clear that the Board found here conduct to amount to negligence in relation to nursing. 25. Count 14 alleges that on or about 31st January 1990 the appellant failed to adhere to the policy of the nursing home and to the guidelines which I have mentioned in that she failed to follow the standard procedure of signing for drugs to be administered to four residents on their medication charts at the time of administering the drugs to them. It appears that the day upon which these incidents occurred was 30th January 1990 but that is a matter of no consequence as the occasion when they occurred was made plain during the course of the inquiry. The policy and the guidelines require the nurse who administers a drug to sign the resident's medication chart when the drug is administered. 26. The appellant admitted that she did not comply with these requirements. Her practice was to sign the appropriate charts at the end of each shift and the Director of Nursing instructed her to the contrary. The appellant maintained that she did give the drugs to the four residents and was permitted to sign their charts subsequently. 27. The Board correctly found that the appellant had not followed the required procedures as alleged and that her conducted amounted to negligence in relation to nursing and that it amounted to unprofessional conduct. 28. Count 16 alleges that on 7th January 1990 the appellant breached resident confidentiality by showing, and requesting, a medical practitioner to review an ulcer on the leg of a resident without first gaining permission and authority to do so from the resident or her own medical practitioner. The resident had an ulcer on her leg. She was being treated by her own medical practitioner. The appellant admitted that she asked another medical practitioner who happened to be at the nursing home at the time, to see the resident and to advise if anything could be done to resolve the problem. The evidence discloses that the ulcer had been present for some time and was not improving. According to one of the nurses who gave evidence, the resident was suffering from dementia and at times was confused but at other times was not. The appellant said that she was concerned that the ulcer was not improving and she expressed her concern to others. She saw a doctor who was a relative of another resident and she discussed various matters with this doctor from time to time. On the occasion in question she was talking to this doctor and she mentioned the resident's ulcer. The doctor went to see the resident and later expressed concern about the ulcer to another nurse. The appellant maintained that the resident had pleaded with her on occasions to do something about the ulcer. The appellant did not expressly concede that she did not obtain the resident's permission for the non-treating doctor to see her. She was pressed about this matter in cross-examination and her answers were somewhat vague. She conceded that she did not seek permission from the treating doctor. The appellant maintained that at all times she was acting in the best interests of the resident and due to her concern that the ulcer was deteriorating. 29. The nursing home had a policy with respect to confidentiality, which was in writing. That policy applied to all persons employed at the nursing home and included that all employees refrain from discussing "a resident's diagnosis, prognosis or treatment, with anyone except the other members of the care team in the course of the resident management" and no information about such matters could be given to members of the resident's family without his or her consent. 30. The Board found the allegations in this count proved. In its reasons it says that the appellant admitted the allegations. That is not entirely correct as she did not admit that she had not obtained permission from the resident. However, the circumstances revealed in her own evidence suggest that it is very likely that she said nothing to the resident about the non-treating doctor seeing her until she took that doctor to the resident. Even at that stage her evidence was that she would have simply introduced the doctor and told the resident why the doctor was there. So, before that stage she was in breach of the confidentiality of the resident. The evidence clearly justified the Board finding the allegations proved. The Board concluded that the conduct of the appellant was in breach of the policy and "the expected behaviour of a Registered Nurse". It went on to say that the conduct was also in contravention of the ANRAC Competencies for Registration as a Nurse and the International Council of Nursing Code of Ethics. It found that the conduct was unethical, negligent and of sufficient seriousness to constitute unprofessional conduct. 31. Count 18 alleges that on 27th April 1989 the appellant failed to ensure a "resident-centered" approach to providing nursing care to a resident and by her pattern of nursing care delivery caused the resident undue pain, suffering and acute embarrassment and further that as the registered general nurse on duty did, by her actions, fail to provide untrained members of the nursing staff with effective leadership or role modelling. 32. What occurred during the incident which gives rise to the allegations was not in dispute. The resident is a woman in her mid-sixties who suffered severely from multiple sclerosis. On occasions she would go into spasm without warning. During the day she usually sits in a wheelchair. She uses a commode. According to the nurse assistant, Ms Peddy, who assisted the appellant in this procedure on the occasion which is the subject of the allegation, the usual procedure is for this resident to be placed on the commode and after she had used her bowels, to be assisted to her feet and then placed on the bed where she would be washed. However, on this occasion as soon as the resident was standing after being on the commode, the appellant insisted upon Ms Peddy washing her whilst she was standing and before she was put on the bed. The nurse assistant said she did not agree with this procedure but the appellant insisted. According to Ms Peddy, the resident could only stand on her toes, due to her condition, and it was very difficult to wash her between her legs. By the time she had finished washing her, the resident was doubled over and appeared to be having difficulty in breathing. When the resident was eventually placed on the bed, she was distressed. After the appellant left the room, Ms Peddy apologized to the resident for the way in which the procedure had been carried out and the resident became tearful and was bent over. 33. Ms Peddy had never seen this procedure adopted with this resident on any previous occasion. She was so concerned about what had happened that she reported the incident to the Director of Nursing the next day. On that day the Director of Nursing held a meeting which was attended by Ms Peddy, the appellant and another nurse as an observer. It appears from the record of that meeting made by the Director of Nursing the appellant said that she was the registered nurse on duty and that she had not observed the resident distressed or breathless. On 1st May 1989 the resident was asked by the Director of Nursing to give her version of what happened in the presence of the nurse assistant and the appellant. She said she had not been consulted as to whether lying on the bed or standing when she was washed was more comfortable for her. It was the usual practice to wash her when she was lying on the bed. The appellant said that on all her shifts the resident was washed whilst standing. The resident also said that standing made her breathless and the procedure was painful to her due to her arm having been broken previously. During the occasion in question, she feared that her arm would be painful which had caused her distress. In her evidence to the Board the appellant disputed the accuracy of this record. 34. In her evidence to the Board the appellant said that she frequently washed this resident in this way. She went on to say that the resident suffers distress whatever position she is in because she has no "pain cover". 35. The appellant called two witnesses in relation to this count. Ms von Steinenberg was an enrolled nurse at the nursing home. She frequently assisted with the resident. According to her, the resident was often washed whilst standing after using the commode in the morning but was usually washed on the bed at night. During cross-examination she said that if the resident used her bowels she would be washed on the bed so that she could be cleaned properly. Ms Plowright was a nurse assistant at the nursing home and had considerable contact with the resident. In her evidence-in-chief she described the procedure for washing the resident after she had used the commode in the same way as described by the appellant. However, in cross-examination she said that she did not wash her very often at night, but when she did, after the resident had used the commode, she would wash her after she had been placed on the bed. 36. The Board found the allegations in this count proved "on the evidence of Mrs Peddy and Mrs von Steinenberg". It seems clear that the Board found them to be reliable and truthful witnesses and preferred their evidence to that of the appellant. Indeed, at the end of its reasons, the Board made the following observation:- "Finally, the Board wishes to make particular reference to the sometimes evasive, aggressive and defensive responses from Mrs Versteegh and her apparent lack of insight and recognition of her deficiencies in nursing practice." 37. My perusal of the transcript of her evidence reveals that this observation was justified and it indicates that the Board did not take a favourable view of her credibility. 38. The findings of the Board were fully justified by the evidence. The Board concluded that this conduct was negligence in relation to nursing and went on to say:-

    "It is a contravention of the International Council of
    Nursing Code of Ethics which state that the fundamental
    responsibility of the nurse is to conserve life, alleviate
    suffering and to promote health and the ANRAC Competencies for
    registration as a nurse were not met in that she failed to
    maintain a physical and psycho-social environment which promotes
    safety, security and optimal health. She failed to act to
    prevent or minimise risk to an individual. She failed to provide
    for the comfort needs of the individual. She failed to
    establish, maintain and terminate a caring therapeutic and
    effective inter-personal relationship with the individual. She
    failed to carry out a comprehensive and accurate nursing
    assessment and she failed to formulate and implement her plan or
    care in consultation with the individual and she failed to act to
    enhance the dignity of the individual. We consider this to be
    unethical and unprofessional conduct within the meaning of the
    Act." 39. The appellant challenges the conclusion of the Board that the proven conduct referred to in the various counts amounted to unprofessional conduct. S.4(1) of the Act provides:-
    "4(1) In this Act, unless the contrary intention appears,
    'unprofessional conduct' includes -
    (a) improper or unethical conduct in relation to nursing;
    (b) incompetence or negligence in relation to nursing; and
    (c) ... (inapplicable)." 40. Mr Scragg contended that not all acts or omissions which amount to negligence in the common law sense may amount to unprofessional conduct and that the Board appears to have fallen into error in equating negligence with unprofessional conduct. Clearly that is not the case. With respect to counts 1, 2, 5 and 6, the Board found the allegations proved and concluded that the conduct of the appellant amounted to negligence in relation to nursing, but not to unprofessional conduct "within the meaning of the Act". With respect to counts 5 and 6, the Board said that the proven conduct amounted to negligence "but they are of insufficient seriousness to constitute unprofessional conduct". The Board did not equate negligence in relation to nursing with unprofessional conduct in relation to nursing. 41. Next, Mr Scragg argued that the Board was in error in concluding that the proven conduct amounted to unprofessional conduct in relation to nursing. In order to resolve this issue it is necessary to refer to the provisions of the Act as to the composition and relevant functions of the Board. I have mentioned the Board is comprised of eleven members. Pursuant to s.6 of the Act, seven members must be nurses, another two must be medical practitioners, another is nominated by the South Australian Hospitals Association and the remaining member by the Minister and who is neither a nurse nor a medical practitioner. Of the nurses, there must be a general nurse, a psychiatric nurse and a mental deficiency nurse. It may be seen that nearly all of the members bring to the Board expertise in areas of work calculated to enable the Board to discharge its functions in an informed manner. These functions include ensuring that the community is provided with nursing care of the highest standard and the achievement and maintenance of the highest standards of competence and conduct in nursing. Part of its functions involves discipline of nurses. 42. Mr Scragg argued that the test which should be applied to judge whether the conduct of the appellant amounted to unprofessional conduct in relation to nursing should be the well known test applied in Re R a practitioner (1927) SASR 58 at pp 60-61:-
    "In our view 'unprofessional conduct' is not necessarily
    limited to conduct which is 'disgraceful or dishonourable', in
    the ordinary sense of those terms. It includes, we think,
    conduct which may reasonably be held to violate, or to fall short
    of, to a substantial degree, the standard of professional conduct
    observed and approved by members of the profession of good repute
    and competency." 43. I accept that this approach is suitable for the nursing profession. It was adopted by the Full Court in relation to physiotherapists: In re Ward (supra). It is clear from the reasons given by the Board that the members of the Board judge the conduct of the appellant against that standard even though they did not express themselves in those terms. Mr Scragg argued that the conduct of the appellant could not be said to have fallen short of that standard. In some instances all the appellant had done was to make a simple mistake. In others she had been very busy and had not made the required entries in the records at appropriate times. The breach of confidentiality was due to her judgment that she was acting in the best interests of the resident. Her method of washing the resident was due to her judgment as to the most suitable way of performing that task in all of the circumstances. The question is: what are the standards of conduct which are observed by nurses of good repute and competency and did the conduct of the appellant fall short of those standards to a substantial degree. 44. This is an appeal by way of rehearing. As to the function of the court hearing on appeal of this nature, Napier CJ in In re Ward (supra) said at pp 312-313:-
    "Adapting the language of Lord Reading CJ (in Stock v
Central Midwives Board (1915) 3 KB 756, at p.763):- 'The object
    of the Legislature was to enable the board to administer the
    affairs regulating the practice of physiotherapists, and to give
    them an unrestricted right to administer those affairs subject to
    this one right of appeal; and in my view, when a case of this
    kind is brought to this Court, it is the duty of the Court to see
    that justice is done'. For that purpose we are entitled and
    bound to review the finding of the board and the 'sentence'; but,
    on the other hand, when we are called upon to say what is or is
    not 'unprofessional conduct', I think that we must recognise that
    'no persons can be more fitted to determine a matter of this kind
    than a board constituted as this board must, under the statute,
    be constituted' (see ibid. at p 764: cf. In re a Solicitor; Ex
parte Law Society (1912) 1 KB 302; In re Kennely (1912) 12 SR
    (NSW) 319." 45. Abbott J took the view that such a Board does not take evidence on the matter. He said, at p.318:-
    "As I have stated, the true criterion of professional
    conduct is that agreed upon by 'members of the profession of good
    repute and competency', and as the professional members of the
    board are presumably of good repute and competency, the board's
    opinion of what is, what is not, unprofessional conduct is
    decisive. Therefore, if the profession is truly a profession,
    evidence from any person or association directed to expounding
    his or its view as to what constitutes unprofessional conduct is
    not only unnecessary, but is, in strictness, entirely
irrelevant." 46. In In re Aidinis (1975) 12 SASR 158 at p 165, Bright J expressed the following view:-
    "I have raised the question of how the Board becomes aware
    of what is acceptable or unacceptable behaviour. A Board like
    the Statutory Committee of the Law Society or the General Medical
    Council is composed of members of the profession in question: it
    applies its own knowledge of right behaviour. As Abbott J said
in Ward's case (supra) it does not take evidence on the matter." 47. However, these cases do not establish that the Court is bound by the conclusion of the Board that the proven conduct does amount to unprofessional conduct. Bray CJ in In re a Practitioner (1975) 12 SASR 166, with the concurrence of the other members of the Court, said, at p 170:-
    "When the Court has to consider the application of a
    standard like this which does not involve the consideration of
    any principle of law, criminal or civil, or of equity, but
    depends on the standard of professional conduct, it must, of
    course, place great weight on the views of the experienced
    members of the Statutory Committee. In England apparently the
    Court will accept the ruling of the Disciplinary Committee of the
    Law Society as to the contemporary professional standard and not
    attempt to substitute its own views on the subject (Re a
Solicitor (1974) 3 All E.R. 853, per Lord Widgery CJ at p.859).
    It is not necessary to decide whether we would feel ourselves
    bound to go as far as that and there is some reason to think that
we would not; see In re R (1927) SASR 58 at p 60 and the cases
    there cited. For the purpose of the present case I am prepared
    to examine the matter for myself, though leaving open the
    question of whether the opinion of the Statutory Committee on the
    proper standard of professional conduct may not after all be
    conclusive." 48. Of course, that case was concerned with professional standards of legal practitioners with which the courts have some familiarity. The court has no familiarity with many aspects of the work of the nursing profession and, generally speaking, should accept the views of the Board as it is comprised of persons who are undoubtedly of good repute and competency and who, in the main, have appropriate experience and expertise to judge such a matter in relation to nursing, unless the judgment of the Board is not supported by the evidence or is for some other reason untenable. These observations are made in the context of the type of conduct which the Board found proved against the appellant. It is a different matter if the conduct constitutes serious criminal conduct or grave personal impropriety. In such cases the court is well able to form a view as to whether the circumstances justify a finding of unprofessional conduct. 49. The judgment must be made in the context in which the conduct occurred. The appellant was providing nursing services at a nursing home to elderly people suffering from a variety of disabling conditions including dementia. Obivously there is a need for accurate recording of the administration of drugs to the residents. It may be expected that many of them would be unable to say whether or not they have been given their drugs. Those responsible for their care must know what drugs have been administered and when. The failure to give drugs as and when prescribed and to make accurate records is very likely to compromise the care of the residents in a significant way and prevent the efficient and effective provision of appropriate care by the nursing home. 50. The need to check drugs of dependence as required, so as to ensure that none are missing, is obviously of great importance in any institution where large quantities of such drugs are stored. Indeed, the regulations made under the Controlled Substances Act impose strict obligations upon nurses. Whilst the discarding of one tablet when the cotton wool was thrown away may be explained by mischance, the fact remains that the appellant did not discover what had occurred and would easily have done so if she had carried out her obligation of checking. The breach of confidentiality cannot be excused on the ground that the appellant believed that she was acting in the best interests of the resident. Special care must be taken to protect the rights of residents in nursing homes. Many of them are unable to adequately protect themselves and their privacy by reason of their condition. They live in close proximity with others. Discussion about their condition must be confined to those who are actually caring for them otherwise they may be exposed to ridicule or comment by others which may be embarrassing or distressing to them. Hence, the policy which has been laid down by the nursing home. If the appellant was genuinely concerned about the resident, she should have discussed the matter with the medical practitioner who was treating the resident. If her concerns were not then allayed, she should have brought the matter to the attention of the Director of Nursing. She was clearly in breach of the policy and sound nursing practice by taking the matter into her own hands and involving another medical practitioner. Her conduct towards the resident when she insisted upon her being washed whilst standing cannot be excused on the basis of her exercizing her own judgment. 51. It may be seen that the Board, in reaching its conclusion that the apellant was guilty of unprofessional conduct in relation to nursing, had regard to the various standards of nursing practice which had been laid down by its own guidelines, the policy of the Nursing Home, regulations, the International Council of Nursing Code of Ethics and what it described as the ANRAC Competencies. It may be accepted that those standards are well recognized and accepted in the nursing profession. The members of the Board were well suited to make the judgment that this proven conduct did amount to unprofessional conduct in relation to nursing and there is no reason to suppose that they applied an incorrect test or standard. It is appropriate to say that, in my view, the Board was correct in concluding that the conduct was unprofessional conduct in relation to nursing. 52. Mr Scragg contended that the Board was in error in proceeding to the conclusion that the appellant was guilty of unprofessional conduct for two reasons. The first is that the appellant had been counselled with respect to certain conduct and consequently the Board should have considered the complaint frivolous or vexatious. The second reason is that the Board should have conducted the inquiry pursuant to s.37 and not s.41. This submission is misconceived. It appears that the appellant was counselled on occasions by senior staff of the nursing home but that activity could not be a bar to proceedings or inquiry by the Board. Whilst there is no procedure established by the Act for the resolution of complaints by conciliation or counselling, it would appear that the Board does resolve some complaints in that way where the nature of the allegations and the circumstances permit. In the reasons for decision the Board said:- "It is unfortunate that Mrs Versteegh did not interact with the Board officers and Complaints Advisory Committee which ultimately led to the Board conducting an Inquiry into this matter." 53. It would appear that the appellant rejected the notion of resolving the complaint in an informal way. If that is so, she cannot be heard to complain about the procedure which the Board then adopted which was in accordance with the Act. Even if she did not reject an informal procedure, the Board was obliged to conduct the inquiry once the Registrar laid the complaint pursuant to s.41. The Registrar laid the complaint pursuant to s.41 alleging unprofessional conduct. By virtue of s.41(2), the Board was obliged to conduct the inquiry. It had no discretion as to whether to conduct an inquiry. 54. S.37 deals not with a complaint alleging unprofessional conduct but a complaint alleging that within the previous twelve months a nurse has provided nursing care without exercizing adequate or sufficient knowledge, experience or skill. That was not the allegation against the appellant and the Board could not have treated the complaint as having been made pursuant to s.37. This ground of appeal must also fail. 55. It follows that although the appellant has succeeded in her challenge to the findings of the Board with respect to counts 9 and 10, the challenge to the other findings and the conclusion of the Board that the appellant was guilty of unprofessional conduct in relation to nursing must fail. 56. The appeal is dismissed.