Belacho v Nurses Board of South Australia No. Scciv-01-1353

BELACHO v NURSES BOARD OF SOUTH AUSTRALIA
[2002] SASC 69
Miscellaneous Appeal

PERRY J. This is an appeal pursuant to s 49 of the Nurses Act 1999 (“the Act”) against a finding by the Nurses Board of South Australia that the appellant, a registered nurse, was guilty of unprofessional conduct.
In consequence of the finding of unprofessional conduct, the Board revoked earlier limitations which had been imposed upon the ability of the appellant to practise as a nurse. After ordering that she be reprimanded, the Board ordered that further limitations be imposed as follows:
“3.1that the respondent work as a nurse under the direct supervision of another registered nurse who is more experienced in years of nursing;
3.2that she is to notify of the limitation on her right to practise to the course co-ordinator and any clinical placement site of any course undertaken by her in relation to nursing and to any employer or prospective employer;
3.3that she is prohibited from working in the mental health area;
3.4that she provide to the Board a medical report by a psychiatrist following two-three monthly monitoring no later than six months from today’s date at her own expense and that she provide to that psychiatrist the report of Dr Baigent dated 24 April 2001.”
The report of Dr Baigent referred to in 3.4 was one of the exhibits before the Board, and I will deal with it in due course.
The appellant was first registered as a nurse on 13 January 1989. She trained at the Royal Adelaide Hospital.
In 1993, a complaint against the appellant alleging unprofessional conduct arising out of her employment at the Royal Adelaide Hospital was put before the Board. That complaint became the subject of negotiations between the appellant’s legal adviser and the Crown Solicitor, as a result of which it was withdrawn on an agreed basis.
In pursuance of that agreement, Ms Belacho’s registration was cancelled on her own request, following which her name was reinstated to the register subject to a number of limitations and conditions applying to her right to work as a nurse. It is unnecessary to set out here all of those restrictions, but amongst other things, she could only work as a nurse under the supervision of another, more experienced, registered nurse, and her “practice and conduct” as a nurse was to be monitored by a body described as the Professional Conduct Committee.
Whether because of the limitations and conditions which were then imposed or for other reasons, the appellant was unable to find work as a registered nurse.
In August of 1998 she again requested that her registration be cancelled.
In 1999, the appellant undertook a re-entry training program at the School of Nursing, which was a course available for nurses who had not practised for five years.
Following her completion of the re-entry program, the appellant applied for reinstatement to the register. That application was granted by the Board on 12 November 1999, but again subject to conditions, one of which repeated the requirement which had been imposed earlier that she be confined to working under the direct supervision of another, more experienced registered nurse.
Once again, the appellant was unable to obtain employment, and in February 2000 she commenced studying for a graduate diploma in mental health nursing at Flinders University. This involved some practical experience, described as a “clinical component” of the course, which in her case was to be served at Helen Mayo House, Glenside Hospital.
After two days work at Helen Mayo House her placement at that institution was terminated and subsequently, on 14 September 2000 a formal complaint against the appellant was lodged by the Registrar of the Board pursuant to s 44 of the Act.
It is from the decision of the Board following its hearing of that complaint that the present appeal is brought.
The complaint contained a statement of the grounds upon which it was made. The grounds are as follows:
“1.At all material times the respondent was a registered nurse studying for her Graduate Diploma in Mental Health Nursing at the Flinders University (“her course”).
2.On 12 November 1999 the Nurses Board granted the respondent’s application for reinstatement as a nurse, but pursuant to section 27 of the Act, ordered that the respondent was to work as a nurse under the direct supervision of another Registered Nurse who is more experienced in years of nursing and who is not employed through an agency.
3.In February 2000 the respondent was asked by Bill Costain, a lecturer in the School of Nursing, Flinders University, the reason for the restriction on her ability to practise as a nurse. The respondent informed him the restriction was as a result of an incident in which she plagiarised Royal Adelaide Hospital documents for a student paper she was doing. Such information was false. In providing this false information the respondent has behaved unprofessionally.
4.On 2 March 2000 the respondent commenced the clinical component of her course at Helen Mayo House, Glenside Hospital (“the ward”). The ward is an acute state-wide inpatient service for treating women with severe mental illness, primarily in the post partum period. The respondent spent 2 March and 3 March 2000 in the ward in her placement, and attended the ward on Sunday 5^th March 2000 as a visitor.
5.At all material times Fiona was a patient in the ward (“the patient”). The patient was suffering a major depression. She had strong suicide ideation complicated by a borderline personality disorder. She had a very ambivalent relationship with her partner and her mother, who was caring for her six year old child at the time. The respondent:
(a)     Offered her friendship to the patient;
(b)    Promised the patient she would bring in a present, a cake, candles and a card for the patient’s son. The respondent then returned to the hospital on Sunday 5 March 2000 to deliver these items. The respondent also brought her camera and a film and arranged for photographs of the patient and her son to be taken;
(c)    Offered to collect the patient’s child from his grandmother’s house and to bring him to the hospital;
(d)    Attempted to counsel the patient in cognitive behavioural therapy, and then offered to provide cognitive behavioural therapy to the patient on an ongoing basis, when she does not have expertise or training in this area, nor did she discuss this with the ward treating team;
(e)    Stated that she was going to contact the patient’s mother despite the community mental health nurse Elizabeth Brady instructing her that this was inappropriate.
6.At all material times Helen was a patient at the hospital (“the patient”). The patient was suffering from psychosis. When visiting the hospital on Sunday 5 March 2000 the respondent attempted to counsel the patient in the dining room at lunch time. Clinical nurse Mary Farrington asked the respondent to cease this behaviour, however, the respondent continued.
7.The respondent was negligent and incompetent in relation to the above in that she:
(a)     failed to understand the role of a nurse and the professional boundaries of appropriate behaviour between a nurse and a patient,
(b)    failed to consider case notes or discuss patient management with the ward treating team,
(c)    failed to practise within the parameters of her knowledge base and skill,
(d)    demonstrated a lack of insight into her conduct,
(e)    failed to follow the instructions and directions of those responsible for supervising her practise,
(f)     failed to appreciate the emotional vulnerability of patients in a mental health ward.”
The Board did not commence its hearing of the complaint until 9 August 2001.
In the meantime, by letter of 1 March 2001 addressed to the Registrar of the Board, the appellant applied for the restrictions on her practice as a registered nurse to be lifted. She enclosed a number of documents which she asserted supported her application.
At the hearing conducted by the Board, the Registrar, who was effectively the complainant, was represented by Ms Guy. The appellant appeared on her own behalf.
The chairperson, Ms A. King, indicated that the Board was considering both the complaint of unprofessional conduct and the appellant’s application for removal of the conditions imposed on her registration. Ms Guy raised a technical difficulty, which she thought stood in the path of the particular quorum, which comprised Ms King and two others, dealing with the appellant’s application.
The Board then proceeded with the hearing.
The Board received in evidence a statement of agreed facts, most of which I have already referred to. As well, they received a number of statements by witnesses who, I think without exception, were called to give evidence on behalf of the complainant.
The evidence of one witness, a psychiatrist, Dr Baigent, was taken by teleconference.
The appellant gave evidence on her own behalf but did not call any other witnesses.
Ms Guy then made short submissions. Although the appellant was then invited to address further, she did not put any further submissions.
Following a short adjournment, the Board reconvened on the same day, that is, 10 August 2001 when Ms King as chair delivered on its behalf what she described as a “preliminary decision”. In the course of doing so, she gave brief reasons for the order which she then pronounced in the terms to which I have referred.
Subsequently, on 21 September 2001 more detailed written reasons were given.
Although the Board did not deal expressly with the appellant’s application for the lifting of the restrictions upon her right to practise, it is implicit in the Board’s order that it dismissed her application, given that they reimposed more stringent conditions. In those circumstances, it is unnecessary for me to deal with any supposed difficulty attaching to the ability of the Board, as constituted, to deal with the appellant’s application. Having revoked the earlier limitations and replaced them with somewhat more stringent limitations, a fresh application by the respondent would be necessary if she sought to vary or remove them.
The Evidence
The evidence established that the appellant commenced the clinical component of her course at Helen Mayo House (“the ward”), Glenside Hospital, on 2 March 2000. As stated in the grounds of complaint, the ward is a state-wide in-patient service treating women with severe mental illness, primarily in the post-partum period. The appellant attended as a supernumerary, that is, to perform unpaid work as a nurse on 2 and 3 March 2000, and attended again on Sunday 5 March 2000 as a visitor.
While she was at the ward, observations were made of the appellant by several senior members of the nursing staff who subsequently furnished statements in writing detailing their concerns arising from their observations of the appellant. Their statements were tendered at the hearing before the Board, at which they also gave oral evidence.
One of the witnesses from the ward was Ms Sue Elleshaw, who is the nursing unit head at Helen Mayo House. She was present when the appellant presented herself to commence work on the first of the two days of her placement. The appellant proceeded to attend a ward round, following which Ms Elleshaw received complaints from two of the nurses who were participating in the round as to the appellant’s behaviour. The nature of these complaints was generally to the effect that the appellant was unwilling to accept a role only to observe.
The next morning Ms Elleshaw noticed another nurse, Elizabeth Brady, explaining very firmly to the appellant what the appellant’s role was. Ms Elleshaw continued to receive expressions of concern from staff members, and in the afternoon she spent about one and a half hours interviewing the appellant in an endeavour to counsel her as to the various complaints which by then she had received.
After this, on the Sunday of the weekend following, the appellant attended the ward, ostensibly as a visitor.
Mr Bill Costain, who is a lecturer in the School of Nursing at the Flinders University, and who was in charge of the placements for the clinical component of the course, then terminated the placement. He did so as a result of his understanding of the nature of the concerns which had been raised as to her behaviour during the course of the placement, including her attendance at the ward on the Sunday.
It will have been seen from the grounds set out in the complaint that there were particular concerns with respect to the appellant’s dealings with two patients: Fiona and Helen.
Evidence was given as to the appellant’s dealings with Fiona by a community mental health nurse, who is also a registered psychiatric nurse, Elizabeth Brady. She was one of those who had accompanied the appellant on the ward round on her first morning’s work on Thursday 2 March 2000, during the course of which she had difficulty in persuading the appellant to accept that she could not take over the nursing of a patient who had attempted to hang herself in her unit. Separately, she had to curb the appellant from volunteering to do a “nursing admission”, which was a procedure she was only entitled to observe.
In the afternoon of the same day, Ms Brady observed the appellant with the patient Fiona, and Fiona’s mother. Fiona’s mental condition, which is explained in the evidence, meant that she needed highly skilled nursing care. On that occasion, the appellant told Ms Brady that she was “going to get in touch with this woman’s mother. I’ve got a really good relationship with her”. Ms Brady was concerned at this suggestion, and immediately took the appellant to her office to discuss the matter. To quote from Ms Brady’s statement, in the interview in her office:
“I .... explained to her that this was a very difficult, complex relationship and something that the whole team had been agonising over. I explained to her that she must not become involved therapeutically with this patient. I explained to her that the team had worked out a management plan and that she was not to engage in any therapy. I told her explicitly not to intervene in the relationship between the mother and the daughter. What concerned me was that she seemed to believe she was going to heal a rift between the mother and the daughter or get them together again. I said to her the plan was that the doctor would be the person who would contact the mother because this had been decided at the ward round.”
Notwithstanding this discussion, the next morning, that is the Friday morning, the appellant again told Ms Brady that she was going to get in touch with Fiona’s mother. Ms Brady again interviewed the appellant in her office and told her that she was not to contact Fiona’s mother. According to her statement:
“[The appellant] wasn’t listening and kept speaking over the top of me and interrupting me. At one point I put my hand up and said, ‘Will you listen’, and went through it again. .... I stated to Luz [the appellant] that Val Caddy was the nurse in charge of the shift. .... I stated that she was there as a student, was there to observe. I told her that she was to work under the direction of Val Caddy. I felt that Luz simply wasn’t listening to what was being said to her and didn’t seem to comprehend my instructions. I tried to emphasise how important I thought it was but she just didn’t seem to understand the gravity of the situation or what damage she could do.”
Despite the clear warnings given to her, the appellant came to Helen Mayo House on the following Sunday, 5 March, where she was observed by at least two other nurses, Diane Becker and Mary Farrington.
Ms Becker saw her with Fiona, Fiona’s baby son, who was celebrating his birthday, and Fiona’s mother. Ms Becker warned the appellant to check on Fiona’s mental state before talking to her. She reported to another nurse, Mary Farrington, that the appellant appeared to be behaving inappropriately with Fiona and her family.
Part of Ms Farrington’s statement is apposite. She said:
“I was aware that we had a student nurse on a placement who was working two days a week on a Thursday and Friday. I first met Luz Belacho on Sunday 5 March when she came into the office where I was working. I introduced myself and asked her why she was there. For about the next 45 to 50 minutes she gave me a very confused, rambling, tangential explanation of how she had clicked with these patients and felt that she was their friend and had arranged to come and visit, Fiona in particular .... I told Luz that I wasn’t particularly happy about her coming to see the patient Fiona. I spent a lot of time discussing professional boundaries and appropriate behaviour. Four or five of the six patients we had in the unit at the time were under detention orders. They were women with many problems and in their case histories were quite involved.
I was aware that Luz had brought in a Spiderman action figure, a large decorated sponge birthday cake from David Jones, as well as her camera with a fresh roll of film for Fiona’s son’s birthday. Luz was obviously very excited about being there and spending time with the patients. I talked to her about over-involvement and how that could be damaging for her as well as the patients. I stressed the need to be careful with these patients (especially Fiona, given her history) and how it was necessary to read the case notes and be guided by the doctors and primary therapists involved. Her reply was that she didn’t need to read case notes, she just looked into the patient’s eyes and bonded with them. I was flabbergasted. ... Luz told me that she had been giving Fiona cognitive behaviour therapy and I told her not to offer any further therapy.” (emphasis added)
Later, in an interview with Ms Elleshaw, the appellant admitted that she had read only one article on cognitive behavioural therapy and had never had any training in it, but despite that she believed that she had the skills to administer cognitive behaviour therapy.
Ms Farrington also gave evidence also as to the appellant’s dealing with the other patient in question, that is, the patient known as Helen.
According to Ms Farrington, after the discussion which had taken place between her and the appellant on the Sunday concerning the patient Fiona and her family, Ms Farrington was in the kitchen, which overlooks the dining room, when she saw the appellant approach the patient Helen. In her statement, Ms Farrington describes the situation as follows:
“Helen had been admitted only a couple of days before in an acute psychotic state. Helen was standing with her husband and I saw Luz push her way between the two and start talking to Helen. As I walked towards her I could hear what she was saying to Helen. In my view, she was counselling Helen about the way she was feeling and what she should be doing. She was asking questions like, ‘How are you going?’, ‘What’s going on for you today?’, and “Can we talk about this?’. In my view, Luz was standing too close to Helen, invading her personal space, and being confrontative. She was clearly talking to Helen and not Helen’s husband Colin. She was turned slightly away from Colin and facing Helen.
I asked Luz to ‘stop’ twice and she completely ignored me. I then raised my voice and said, ‘This is not appropriate. Please stop now’. I said this in a firm voice. .... I was simply trying to get Luz away from Helen as quickly as possible without disturbing the other patients, who were all coming into the dining room for lunch. Helen was a detained patient. She was in an acute psychotic state and was paranoid. Luz had not read Helen’s notes on the Sunday and certainly didn’t consult me about Helen’s condition. My observations of Helen when Luz was talking to her was that she was not answering. She was looking quite blank and not responding. Despite this there was potential for harm in approaching Helen this way without any proper training or experience.
After I told Luz the third time to stop talking to Helen, I took her into the office with me. I spent about ten minutes explaining that Helen was psychotic, that she was very unwell, and that Luz wasn’t in the unit in a professional capacity and that it wasn’t appropriate at all for her to speak to the patients, especially without consulting with either Diane or myself. Luz just sort of smiled very fatuously and said, ‘Oh, are you cross with me?’ I told her that I wasn’t cross, but the conversation wasn’t appropriate. I suggested that she leave the unit.”
Ms Farrington concludes her statement with a series of further observations:
“Based on my extensive experience as a psychiatric nurse I have concerns regarding Luz’s mental health. When she was talking she had continued pressured speech. She did not appear to understand what she was being told. The fact that she believes she can look into a patient’s eyes and bond with them is almost delusional. There were elements of grandiose thinking, in that she believed she could cure these patients and believed she had an ability to practise beyond her experience. She said that she had read an article on cognitive behavioural therapy and promised Fiona that she would see her and use this skill on her weekly for about ten weeks. I explained to her that she couldn’t offer a ten week course, given that the average length of stay in the unit is about two to three weeks, and that she wasn’t able to promise to do any sort of therapy on a patient without proper training and without discussing it with the doctor involved. She didn’t seem to have any idea that she couldn’t or didn’t have the ability to do this. She told me that she was so excited to be working in the unit that she hadn’t slept for a couple of nights because she couldn’t wait to get back there. I didn’t feel safe leaving her with a patient without myself or Diane within hearing distance.”

It is clear from the evidence that the appellant’s behaviour left a deep and unfavourable impression upon the experienced nursing staff who had dealings with her at the time.
I have not so far paused to refer to the long letter written to the Nurses Board by Ms Pat Barkway, the co-ordinator of the course which the appellant was pursuing at the time. In the letter, dated 24 March 2000, Ms Barkway gave a graphic account of the appellant’s conduct and attitude, not only based upon the reports she had received, but also on her interviews with the appellant during the week following the appellant’s placement.
During the course of one of those interviews, the appellant justified her actions as an expression of “compassion and caring” for the patients. She described herself as a “Godsend to the patient” and said that “patients and people queued up” to talk to her.
Ms Barkway was left with the impression that the appellant had an “inflated view of her responsibility to clients in her role as a nurse”. She noticed signs of paranoia, or at least elements of “persecution” in the appellant’s perception of the attitude to her of other nurses, whom she saw as prone to “block her attempts to care for patients in the way that she wants to”. She thought that the appellant did not accept “feedback” concerning her clinical performance, and would not accept that “her behaviour was outside of the parameters of a therapeutic nursing relationship”.
Dr Baigent examined the appellant on 23 April 2001. In his report consequent upon his examination, he expresses the view that the appellant exhibited a number of behavioural problems and difficulties in her relationships with others. In his summary he said in part:
“She described a history of repeated conflict in work situations which seems to have arisen out of her believe of the importance of expressing her opinion and her view that because of her education she is more knowledgeable than the people with whom she works. This seemed to have a slightly grandiose flavour.”
He thought that she had “trouble” recognising the problems which this had given rise to. The written material which he had been given, which included a long letter from Ms Barkway and a letter from Ms Elleshaw detailing their dealings with the appellant, were “suggestive of mental illness”, but he did not find positive evidence of that in his interview with the appellant. He concluded that her behaviour problems were based on personality rather than mental illness. He said:
“I did not have the evidence to go as far as concluding that she had a personality disorder on my assessment of her today, although I suspect this may well be the case. The type of personality disorders that she shows traits of include narcissistic personality disorder and to a lesser degree paranoid personality disorder.”
He thought also that it was possible that she had a “bipolar affective disorder”, but he could not confidently say that that was the case.
Ms Belacho gave evidence and was cross-examined at length. Much of her evidence was strictly irrelevant. She did not disagree with much of the case against her, but justified some of her conduct on the footing that it was appropriate and in the patient’s interest.
In their reasons for decision, the Board preferred the evidence of Mr Costain and the nurses who had given evidence where it conflicted with the evidence of the appellant.
In the result, the Board concluded that the allegations in the complaint had been made out. In particular, the Board held that the appellant had given false information to Mr Costain as to the reason for the restriction on her ability to practise as a nurse. The Board further held that she had been “negligent and incompetent”, in particular in her dealings with the two patients, Fiona and Helen, in the six respects alleged in paragraph 7 of the complaint, which I set out again:
“(a)   failed to understand the role of a nurse and the professional boundaries of appropriate behaviour between a nurse and a patient,
(b)    failed to consider case notes or discuss patient management with the ward treating team,
(c)    failed to practise within the parameters of her knowledge base and skill,
(d)    demonstrated a lack of insight into her conduct,
(e)    failed to follow the instructions and directions of those responsible for supervising her practise,
(f)     failed to appreciate the emotional vulnerability of patients in a mental health ward.”
The Grounds of Appeal
In her amended notice of appeal, the appellant advances the following grounds:
“1.That the Board’s decision was made out without the proper numbers of the quorum that constituted the members of the Board for the decision to be valid. Copies of the document dated 21^st September 2001 and sec 10 of the Nurses Act 1999.
2.That the Board has no jurisdiction to clarify the sec 42 of the Act and this point of law must be heard in the Supreme Court in its entirety to prevent miscarriage of justice.
3.That the Board applied the principle governing hearings under section 19(1) of the Nurses Act 1999 which states that that is not bound by the rules of evidence and may inform itself on any matter as it thinks fit resulting to unfit and invalid decision on 10^th August 2001.
4.That on the 10^th August 2001, the hearing of proceedings, the Board did not act according to equity, good conscience and the substantial merits of the case, furthermore, the processes/procedures of the proceedings were discriminatory, bias/subjective, unfair and unreasonable. Acute injustice(s) was profoundly and grossly demonstrated in particular breached in sec 10 of the Nurses Act 1999.”
Ground 1 may be shortly disposed of.
Section 10(1) of the Act provides:
“Subject to this Act, six members constitute quorum of the Board.” (emphasis added)
Part 5 of the Act encompasses s 41 to s 48 (inclusive). Section 46(2) provides”
“Three members (including any member appointed under subsection (1)) constitute a quorum of the Board for the purposes of proceedings under this Part.”
The complaint by the Registrar of the Board was made under s 44 of the Act. As for the appellant’s application, this was made pursuant to s 47, under which the Board “may, at any time, vary or revoke a condition imposed under this Part”. As both s 44 and s 47 fall within Part 5 of the Act, the Board was properly constituted by three members.
As for ground 2, s 42 provides that the Registrar may lay before the Board a complaint alleging that a nurse’s ability to provide nursing care is unreasonably impaired by either physical incapacity or mental incapacity, or both. The Board did not make any findings with respect to s 42, which was not relevant to the complaint, the complaint being based on alleged unprofessional conduct rather than on physical or mental incapacity.
At the hearing, the Board did consider the report of Dr Baigent, but I accept the contention of Ms Guy for the respondent that the Board was entitled to have as much information as possible about the applicant and her circumstances, particularly given the comments by a number of witnesses as to her mental state.
Furthermore, the Board was also considering the appellant’s application to have the conditions which had been imposed upon her right to practise as a nurse removed. Dr Baigent’s report was relevant to that aspect of the matter.
As to ground 3, this appears to be directed at the manner in which the Board went about is hearing of the complaint and of the appellant’s application. Section 19 of the Act provides as follows:
“(1)The Board is not bound by the rules of evidence and may inform itself on any matter as it thinks fit.
(2)Subject to this Act, the procedure of the Board in any proceedings under this Act will be as determined by the Board.
(3)On the hearing of proceedings, the Board will act according to equity, good conscience and the substantial merits of the case.”
In fact the proceedings of the Board were conducted with a good deal of formality. Although statements made before the hearing by the various witnesses were received in evidence, all of the witnesses were called to give sworn evidence and were made available for cross-examination by the appellant.
The proceedings were not tainted by any procedural irregularity, whether induced by reason of the application of s 19 or otherwise. The Board’s decision was not “unfit and invalid” by reference to s 19(1), or for any other reason.
As for ground 4, it is not clear to me just how it is suggested by the appellant that there was a breach of s 10. That section provides generally for the procedures to be followed by the Board. It deals with purely formal matters, and I am not able to discern that there was any breach of the section in the Board’s conduct of the hearing on 10 August 2001.
The Board determined that the appellant was guilty of unprofessional conduct in the respects alleged in the complaint. It reached this view after considering the evidence. Throughout the proceedings the Board seemed to be at pains to ensure that the appellant was given every opportunity to cross-examine the witnesses, to give evidence and to present her case in answer to the complaint.
The proceedings were not tainted by any irregularity of the kind asserted in ground 4.
Given that the appellant was unrepresented both before the Board and on the hearing of the appeal to this Court, I have reviewed the Board’s decision broadly, independently of the four grounds asserted in the notice of appeal. In particular, I have scrutinised the whole of the reasons for decision, and considered whether or not the evidence justified the findings which were made.
Before expressing their conclusions, the Board referred to the dictum of this Court in Re: R, a Practitioner:[1]
“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 or approved of by members of the profession of good repute and competency’.”
[1] [1927] SASR 58 at 61.
But as the Board goes on to point out, “unprofessional conduct” is defined in the Act as follows:
“3(1)In this Act, unless the contrary intention appears-
.............
‘unprofessional conduct’ includes-
(a)improper or unethical conduct in relation to nursing; and
(b)incompetence or negligence in relation to nursing; and
(c)a contravention of or failure to comply with-
(i)   a provision of this Act; or
(ii)     a code of conduct or professional standard endorsed by the Board under this Act; or
(iii)    a condition imposed under this Act in relation to the registration or enrolment of a nurse or in relation to the provision of nursing care by a nurse.”
Although that definition is expressed in terms which are inclusive rather than exclusive, its content is of direct application to the circumstances disclosed in the evidence, rather than the more general prescription to be found in Re R. In particular, the reference to “incompetence” is apposite.
In its reasons, the Board went on to make the following express findings:
“The Board finds that the respondent overstepped her level of skill. She demonstrated a lack of insight and failed to understand the role of a nurse and failed to establish professional boundaries. Therefore she acted in an incompetent manner.
Incompetent conduct is conduct which may reasonably be held to violate or fall short of to a substantial degree the standard of professional conduct observed and approved of by members of the profession of good repute and competence. The Nurses Act 1999 (SA) in Section 3 defines unprofessional conduct as including incompetent conduct.
The respondent appears to have an elevated perception of her nursing ability. This is consistent with the view of Dr Baigent who formed the view that the respondent is more likely to suffer from personality traits that affect her ability to nurse. Dr Baigent only had one opportunity to assess the respondent, but the history before him and this Board led him to recommend that she be monitored, as her problems at this time are impossible to predict.”
In my opinion, not only was the Board justified in reaching its findings, but my own independent assessment of the evidence would lead me to the same conclusion.
I should say that in reaching that view, I have entertained a degree of concern at the fact that the appellant’s conduct relevant to the complaint occurred during a short period of three days, the first two of which were in unpaid employment, if that is the right expression, while the appellant was on a placement associated with the course which she was studying.
However, at the end of the day, it seems to me that the evidence of the appellant’s shortcomings during the admittedly brief period she was on placement at Helen Mayo House, justified the order which was made.
It was incumbent upon the Board to act in the interests of the public, more particularly pursuant to s 16(2) it was obliged to:
“... exercise its functions under [the] Act with a view to-
(a)ensuring that the community is adequately provided with nursing care of the highest standard; and
(b)achieving and maintaining the highest professional standards both of competence and conduct in nursing.”
The Board did not cancel the appellant’s registration as a nurse. After reprimanding her, they simply reimposed the limitations which had previously applied to her right to practise as such, with an additional prohibition against working in the mental health area, and an additional requirement that she provide an updated psychiatric report in six months time.
In view of the lapse of time necessarily associated with the hearing and determination of the appeal, I would extent the time within which the report is to be provided to the Board to twelve months.
Save for that variation in the orders under appeal, I would dismiss the appeal.
I so order.

[2002] SASC 69

8 March 2002