Belacho v Nurses Board of South Australia

[2007] SASC 252

SUPREME COURT OF SOUTH AUSTRALIA

(Miscellaneous Appeal: Civil)

BELACHO v NURSES BOARD OF SOUTH AUSTRALIA

[2007] SASC 252

Judgment of The Honourable Justice Kelly

6 July 2007

PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - OTHER FIELDS OF PRACTICE - NURSES

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW

Appeal against decision of Nurses Board to refuse appellant’s application for reinstatement as a registered nurse – the Board was not satisfied that the appellant was a fit and proper person to be registered under the Nurses Act 1999 (SA) – whether decision of Nurses Board to refuse appellant’s application for reinstatement was harsh, unreasonable and unjustified. Board delegated its powers to hear the reinstatement application to a committee – appeal on the ground that the Board which determined the application for reinstatement was not properly constituted. Decision of the Board was made in circumstances where one or more members of the Board had presided in earlier hearings at which appellant had appeared – whether decision of Nurses Board to refuse appellant’s application for reinstatement should be set aside for apprehended bias – consideration of what constitutes apprehended bias.

Held: Board complied with the appropriate procedures set out in the Act for the determination of the application for reinstatement – all matters considered by the Board were relevant in determining whether or not the appellant was a fit and proper person. Delegation of the Board’s functions to the committee was authorised by the Act – the constitution of the quorum was valid. Past decisions of the Board concerning the appellant were relevant considerations on the application – no indication in either the Board’s reasons or in the manner in which the proceedings were conducted to give rise to an apprehension of bias. Appeal dismissed.

Nurses Act 1999 (SA) ss 10, 13, 16, 26, 44, 46, 49, 52, referred to.
Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321; Sobey v Commercial & Private Agents Board (1979) 22 SASR 70; Grljusich v Andrews (2003) WASCA 206 ; Gabrielsen v Nurses Board of South Australia [2006] SASC 1999; Craig v Medical Board of South Australia (2001) 79 SASR 545; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, applied.
Belacho v Nurses Board of South Australia [2002] SASC 69; Belacho v Tolstoshev [2002] SASC224, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED

"Fit and proper person"

BELACHO v NURSES BOARD OF SOUTH AUSTRALIA
[2007] SASC 252

1. Kelly J:     Ms Belacho (the appellant) appeals the decision of the Nurses Board of South Australia (“the Board”) which refused the appellant’s application for reinstatement to the Register of Nurses on 11 January 2007.

   Background

2. Some aspects of the history of the appellant’s dealings with the Board are relevant to an understanding of the appellant’s grounds of appeal.

3. The appellant first registered as a nurse on 13 January 1989.  She completed her training at the Royal Adelaide Hospital.

4. In 1993 there was a complaint against the appellant alleging unprofessional conduct arising out of her employment at the Royal Adelaide Hospital.  That complaint was withdrawn as a result of negotiations between the appellant’s then legal adviser and the Crown Solicitor.  No allegation of unprofessional conduct was ever proved in relation to this complaint.

5. As a result of the agreement reached during negotiations, the appellant’s registration as a nurse was cancelled upon her own request.  Her name was subsequently reinstated to the Register subject to a number of limitations and conditions applying to her right to work as a nurse.  For some years following her reinstatement she was unable to find employment as a nurse.

6. On 31 August 1998 the appellant’s registration as a nurse was cancelled, again at her request, as she had not practised for 5 years and wished to undertake a re-entry program.  On 18 June 1999 the appellant undertook a Registered Nurse re-entry program at the University of South Australia, following which she applied for reinstatement to the Register.  The Board granted that application on 12 November 1999 subject to certain conditions, including that she work under supervision.

7. Again unable to find work, the appellant commenced studying for a Graduate Diploma in Mental Health Nursing at Flinders University in January 2000.  She undertook the clinical component of that course at Helen Mayo House, Glenside Hospital.  That facility is a statewide inpatient service, treating women with severe mental illness primarily in the post partum period.  The appellant was to observe procedures but not to administer any treatment.

8. In February 2000, having worked for two days at Helen Mayo House, the appellant’s placement was terminated. Nursing staff complained that she was going beyond her role as an observer, particularly in relation to her behaviour towards two specific patients. It was alleged that she failed to understand the role of a nurse and the professional boundaries of appropriate behaviour between a nurse and a patient; that she failed to consider case notes or discuss patient management with the ward treating team; that she failed to practise within the parameters of her knowledge base and skill and generally demonstrated a lack of insight into her conduct. On 14 September 2000 the Registrar of the Board lodged a formal complaint against her under the provisions of s44 of the Nurses Act 1999 (“the Act”).  On 1 March 2001 the appellant made an application to the Board to lift the restrictions on her practice as a registered nurse.

9. Following this application and the complaint lodged by the Registrar under s44 of the Act, the Board made orders on 9 April 2001 requiring the appellant to be examined by a psychiatrist. The psychiatrist, Dr. Baigent, submitted a report on 24 April 2001. He subsequently gave evidence at the hearing of the Registrar’s complaint that was before the Board in September 2001.

10. On 21 September 2001, the Board upheld the Registrar’s complaint of unprofessional conduct.  The restrictions on the appellant’s right to practise were to remain in place.  The Board found that the appellant had overstepped her level of skill; had demonstrated a lack of insight; had failed to establish professional boundaries and had failed to understand the role of a nurse.  Limitations were placed on her ability to practise, similar to those in place before the hearing.  However, they were extended to prohibit her from working in the mental health area. The appellant was required to provide the Board with a medical report within six months.

11. Section 49 provides a right of appeal to the Supreme Court against orders made by the Board as follows:

    (1)     Subject to this section, a right of appeal to the Supreme Court lies against—

    (a)     —

    (i)a refusal by the Board to register or enrol, or to reinstate the registration or enrolment of, a person under this Act;

    (ii)the imposition by the Board of conditions in respect of registration or enrolment;

    (iii)the refusal by the Board to give its approval to a nurse to practise nursing after an absence of five years or more or the imposition by the Board of conditions in relation to such an approval; or

    (b) a reprimand, order or requirement administered or made by the Board in proceedings under Part 5; or

    (c)     a decision by the Board to vary a condition imposed by the Board under this Act.

    (2)An appeal must be instituted within two months of the date of the decision appealed against, but the Supreme Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal should be instituted within that time.

12. Pursuant to s49 of the Act the appellant appealed to a single judge of the Supreme Court. Justice Perry dismissed her appeal on 8 March 2002.[1]  On 27 August 2002 her appeal to the Full Court of the Supreme Court was also dismissed.[2]  The appellant then applied to vary the conditions imposed by the Board on 21 September 2001.  This application was refused by the Board on 10 August 2004.

    [1]    Belacho v Nurses Board of South Australia[2002] SASC 69.

    [2]    Belacho v Tolstoshev [2002] SASC 224.

13. A further complaint of unprofessional conduct came before the Board on 1 June 2005.  On 19 August 2005 the Board found the allegations of unprofessional conduct proved in relation to this complaint and cancelled the appellant’s registration, effective from 1 June 2005.

14. On 1 June 2006 the appellant applied for reinstatement to the Register. A hearing before the Board took place on 31 October 2006. On 11 January 2007 the Board delivered a ruling in which it found the appellant not to be a fit and proper person to be registered under the Act. The Board found that the appellant had continued to provide nursing services after the cancellation of her registration. It was not satisfied on the evidence provided to it that the appellant had a full appreciation of her obligations as a registered nurse. It is that decision which is the subject of this appeal.

    Competency

15. A preliminary question arises as to the competency of the appellant’s appeal insofar as she purports to challenge decisions of the courts and the Board that were made prior to 11 January 2007.

16. In argument the appellant stated that she was only challenging the Board’s decision on 11 January 2007.  However, in her written submissions and later oral submissions, it appears that the appellant seeks to re-open decisions made at earlier times by various judges of this Court and by the Board.

17. In order to shed light on the subject decision and to place in context some of the appellant’s arguments I permitted the tender of material which provided an historical background to the appellant’s various proceedings before the Board and this Court prior to 11 January 2007.  It can be seen from this material that both the Board and the appellant between 21 September 2001 and 11 January 2007 acted on the assumption that the orders made by the Board on 21 September 2001, 10 August 2004 and 1 June 2005 are valid and enforceable.

18. The appellant did not seek an extension of time within which to institute an appeal against any of the earlier decisions of the Board.  Even if she had done so I am of the opinion that, in all of the circumstances, it would not be just or reasonable to allow the appellant to now appeal any decision made by the Board after 21 September 2001.

19. To the extent that the appellant does seek to appeal any decision made prior to 11 January 2007 I would dismiss her appeal as incompetent.

    Appellant’s complaints

20. The appellant’s main complaints are broadly summarised as:

    A complaint that the Board which determined the appellant’s application on 11 January 2007 was not properly constituted;[3]

    A complaint that the members of the Board, in particular Dr Margaret Moody, should have been disqualified;

    That the decision of the Board in any event is harsh, unreasonable and unjustified.

    [3]    Para 1 of the appellant’s Outline of Argument.

21. The appellant directed most of her arguments to the third complaint that the decision of the Board was unjustified.  For this reason I have dealt with that issue first.

    Was the Board’s decision justified?

22. The application by the appellant for reinstatement was made under the provisions of s26 of the Act. That section provides:

    26—Reinstatement of person on register or roll

    (1)     A person whose name has been removed from the register or roll—

    (a)     at his or her request; or

    (b)on account of a failure to renew the registration or enrolment or to pay the practice fee,

    may apply to the Board at any time for the reinstatement of the person's name on the register or roll (as appropriate).

    (2)A person whose registration or enrolment has been suspended may apply to the Board for the reinstatement of the person's name on the register or roll (as appropriate) after the period of suspension has expired.

    (3)A person whose registration or enrolment has been cancelled for unprofessional conduct may not apply to the Board for reinstatement of the person's name on the register or roll before the expiration of 12 months after the cancellation.

    (4)     An application for reinstatement must—

    (a)     be made to the Board in the manner and form approved by the Board; and

    (b)     be accompanied by the fee fixed by regulation.

    (5)     The Board may require an applicant under this section—

    (a)to provide the Board with any information required by the Board for the purposes of determining the application;

    (b)to submit a medical report or other evidence acceptable to the Board to ensure that the applicant can practise effectively as a nurse;

    (c)to obtain additional qualifications or experience specified by the Board before the Board determines the application.

    (6)The Board should, subject to the operation of subsection (5), reinstate the name of a person who applies under this section if satisfied that the person—

    (a)has sufficient competence and capacity to practise in the field of nursing to the standards required by the Board for the purposes of this Act; and

    (b)     is a fit and proper person to be registered or enrolled under this Act.

23. The onus is upon the applicant under that section to satisfy the Board of the criteria for reinstatement articulated in s26(6).

24. I am mindful of the fact that the appellant was unrepresented, both at the hearing before the Board and on the hearing of this appeal.  For this reason I have considered the Board’s reasons as a whole and the whole of the evidence before the Board and before me in reaching a conclusion as to whether the evidence before the Board justified its decision to refuse the appellant’s application for reinstatement.

25. The Board refused the appellant’s application for reinstatement on the ground that it was not satisfied that the appellant was a fit and proper person to be registered under the Act within the meaning of s26(6)(b). The evidence before the Board consisted of a number of documents tendered by the appellant. Material was tendered relating to contractual arrangements she entered into with a quadriplegic man, Mr X, apparently from July 2005 to July 2006; a letter was tendered from Nursebank Australia confirming that the appellant had worked on a casual basis as a registered nurse with that organisation between August 2003 and May 2005 and a number of court documents were tendered concerning a summons apparently issued by the appellant against Mr X. From the contents of that document it appears that the appellant was suing Mr X for breach of contract and defamation on the basis that he had dismissed her for alleged incompetence. In addition to this material there were extensive notes in the appellant’s own handwriting concerning her services to Mr X during the period of the contract. This material was supplemented by oral evidence from the appellant. The Board was also appraised of earlier decisions of the Board concerning the appellant’s registration and/or the restrictions on her right to practise.

26. In her oral evidence before the Board the appellant explained some of her notes regarding the treatment of Mr X.  She plainly acknowledged that she had provided nursing services to him after the Board had cancelled her registration on 1 June 2005.

27. It is apparent from the appellant’s evidence that she did not accept the decision of the Board on 1 June 2005 to cancel her registration.  Her responses when questioned about earlier incidents when she was found to have embarked on cognitive therapy with a seriously mentally ill woman demonstrate that she has little insight into her behaviour.

28. Importantly, the appellant did not put any evidence before the Board which might have shown that she had a greater awareness of the need to comply with restrictions placed on her right to practise and to comply with orders made by the Board.  Taken as a whole, the appellant’s evidence revealed that she has no insight as to what has caused her problems with the Board in the past.  She continues to exhibit a total disregard for the authority of the Nurses Board and the orders made in relation to her.

29. The Board’s findings were that the appellant regarded herself as entitled to practise nursing notwithstanding the fact that the Board had cancelled her registration previously; that she performed nursing tasks in relation to Mr X and that these tasks were performed for remuneration; that the appellant regarded the cancellation of her registration as having no practical or legal effect on her ability to provide nursing care, other than requiring her to describe herself as a carer rather than a registered nurse and that the appellant considered that her right to practise and duty of care towards her patients override any obligation she might have to comply with orders made by the Board.

30. On the basis of these findings, the Board concluded that the appellant had not, on the balance of probabilities, demonstrated that she was at that time a fit and proper person to enable her to be reinstated to the Register of Nurses. It is implicit in the Board’s reasons that the Board relied on the criteria in s26(6)(b) of the Act.

31. The phrase “fit and proper person” is not defined in the Act. The statutory context is relevant. As I have already observed, the Board is required to exercise its functions under the Act with a view to ensuring that the community is adequately provided with nursing care of the highest standard and achieving and maintaining the highest professional standards both of competence and conduct in nursing.

32. The expression “fit and proper person” has been considered in a number of cases.  In Australian Broadcasting Tribunal v Bond & Ors[4]  Toohey and Gaudron JJ stated:

    The expression “fit and proper person” standing alone carries no precise meaning.  It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.  The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities.  However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.  The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

    [4] (1990) 170 CLR 321 at 380.

33. In Sobey v Commercial & Private Agents Board[5] Walters J said:

    The issue whether an appellant has shown himself to be ‘a fit and proper person’ within the meaning of s16(1) of the [Commercial and Private Agents Act] is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit to be safely accredited to the public, without further enquiry, as a person to be entrusted with the sort of work which the licence entails…(cf Ex Parte Meaher (1919) 19 SR (NSW) 433, at 442

    [5] (1979) 22 SASR 70 at 76.

1. In Grljusich v Andrews,[6] the Western Australian Full Court cited Kennedy J’s approval in The Registrar Real Estate and Business Agents Supervisory Board v Barnett[7] of what was said by Hale J in Maxwell v Dixon (1965) WAR 167 at 169 that:

   It is true that ‘fit and proper’ must be interpreted in the light of the subject matter of the Act in which the expression appears. It, and the equivalent ‘suitable’ appears in a wide variety of licensing Acts and it normally comprises the three characteristics of honesty, knowledge and ability. Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-157. Clearly different qualifications are needed by e.g. lawyers, transport operators, hotel keepers and land agents, but as is shown by the cases cited in the judgment referred to, it is not necessary to confine oneself to the special provisions of the Act in question in deciding whether a man is fit provided one gives weight only to matters which can fairly be seen to be relevant to the vocation in issue.

   [6] (2003) WASCA 206

   [7]    Unreported, Supreme Court Full Court Western Australia; Library No 970426, 26 August 1997.

2. It is a fundamental legal requirement that a person wishing to practise as a nurse complies with the legal obligations under the Act.  One of the obligations is that the person be registered.  In a profession where the health and safety of the public might otherwise be placed at unacceptable risk, the obligation to register takes on added significance.

3. One of the Board’s findings was that the appellant does not appreciate this fundamental legal requirement. I am of the opinion that this finding was fully justified on the evidence before the Board. Therefore its conclusion that the appellant was not at that time a fit and proper person to be registered under the Act was justified. The continued unwillingness of the appellant to comply with orders made by the Board in the past significantly undermines the ability of the Board to properly discharge its functions in the public interest.

4. For these reasons, I consider that the Board has complied with the appropriate procedures set out in the Act for the determination of the application for reinstatement. The Board was entitled to consider the circumstances which led to the previous disciplinary hearings and the imposition of restrictions and ultimate cancellation of the appellant’s registration. These were all relevant to the Board’s consideration of whether or not the appellant was a fit and proper person.

5. It is true that the effect of the Board’s finding precludes the appellant from being gainfully employed as a nurse in this State.  However, there was no evidence before the Board to suggest that the appellant had learned from her past behaviour or changed her attitude in any way since the date that the previous Board had determined to cancel her registration.  These were all matters relevant to the finding that she was not at the present time a fit and proper person.

6. I turn now to the first two complaints made by the appellant.  These complaints surfaced only faintly on this appeal and were not developed at all by the appellant.  However, they remain on foot.  For this reason and in light of the fact that the appellant was unrepresented, it is prudent for me to address these complaints as well.

   The constitution of the Board

7. The appellant’s first complaint that the Board was not properly constituted was expressed in the following terms:

   At all material times in all of the Board’s proceedings, on three occasions were subject to the Act, s10.1; six members constituted as a quorum, was breached for reasons of decision(s) were unlawful.

   …the Board’s refusal to reinstate my name to the Register of General Nurse Practitioner and reasons for decision(s) were unlawful on the following grounds:

   3(i) That the Board’s refusal was consequential and ordered without the quorum breached of s10.1, 10.2, 32 and 26 of the Act;

8. The appellant’s application for reinstatement to the Register was made under the provisions of s26 of the Act. The Board is vested with the function of considering applications under that section.

9. Section 10 of the Act provides as follows:

   (1)     Subject to this Act, six members constitute a quorum of the Board.

   (2)At least three of the members of the Board appointed under section 5(1)(b) must be present at any meeting of the Board (other than under Part 5).

   (3)If the presiding member of the Board is absent from a meeting of the Board, the following provisions apply:

   (a)     if a deputy presiding member has been appointed and is present at the meeting—he or she will preside;

   (b)     in any other case—a member chosen by the members present at the meeting will preside.

   (4)A decision carried by a majority of the votes cast by members of the Board at a meeting is a decision of the Board.

   (5)Each member present at a meeting of the Board has one vote on any question arising for decision and, if the votes are equal, the member presiding at the meeting may exercise a casting vote.

   (6)A conference by telephone or other electronic means between the members of the Board will, for the purposes of this section, be taken to be a meeting of the Board at which the participating members are present if—

   (a)     notice of the conference is given to all members in the manner determined by the Board for the purpose; and

   (b)     each participating member is capable of communicating with every other participating member during the conference.

   (7)A proposed resolution of the Board becomes a valid decision of the Board despite the fact that it is not voted on at a meeting of the Board if—

   (a)     notice of the proposed resolution is given to all members of the Board in accordance with procedures determined by the Board; and

   (b)     a majority of the members express concurrence in the proposed resolution by letter, telegram, telex, facsimile transmission or other written communication setting out the terms of the resolution.

   (8)     The Board must have accurate minutes kept of its meetings.

   (9)     Subject to this Act, the Board may determine its own procedures.

10. An affidavit of Alyson Smith, the Registrar of the Board, sworn on 9 March 2007 was tendered at the hearing. The contents of her affidavit reveal that the Board delegated its powers to hear the reinstatement application to a committee appointed by it pursuant to s13 and s52 of the Act. The Board determined that the quorum for such a committee was to be three members, as it is in Part 5 proceedings. For the purpose of proceedings under Part 5 of the Act, s46(2) provides that three members constitute a quorum.

11. In my view the procedures set out in the Act have been followed by the Board. The delegation of the Board’s functions to the committee was authorised by s13 and s52 of the Act. By virtue of the instruments of delegation, three members validly constitute a quorum of the committee. For the purpose of these proceedings therefore, the decision of the committee is the decision of the Board. There is therefore no substance in the appellant’s complaint that six members were needed to constitute a quorum.

    Bias

12. The last complaint is that the decision of the Board was made in circumstances where one or more members of the Board had presided in earlier hearings at which she had appeared.[8]  In effect the appellant submitted that the Board’s decision should be set aside because of the perception of bias.  This arises from the fact that at least one committee member was involved in a previous hearing where the Board determined that the appellant was guilty of unprofessional conduct.

    [8]    Paras 1, 19 and 21 of the appellant’s Outline of Argument.

13. The Board that determined the appellant’s application on 11 January 2007 was constituted by Mr F Camatta, Ms B Walter and Dr M Moody. Neither Mr Camatta nor Ms Walter had presided at any hearing concerning the appellant prior to the application for reinstatement on 31 October 2006. Dr Moody was a member of the Board which decided an earlier complaint under the terms of s44 of the Act, alleging the appellant was guilty of unprofessional conduct. On 19 August 2005 the Board delivered its reasons for that decision in which the appellant’s registration was cancelled effective from 1 June 2005.

14. In Gabrielsen v Nurses Board of South Australia[9] this Court held that a Board member who participates in a decision that a nurse is guilty of unprofessional conduct is not, for that reason alone, precluded from deciding a subsequent application by the nurse for reinstatement.  In that case the Court considered an objection by a nurse that a Board decision was made in circumstances of apprehended bias in that the Board determining his reinstatement application was constituted of the same three members who upheld a previous complaint of unprofessional conduct against him.

    [9] [2006] SASC 199

15. In considering the objection, Duggan J noted that, as well as finding the nurse guilty of unprofessional conduct, the Board members determining the disciplinary proceedings had expressed a further finding that the nurse was not a fit and proper person to be registered within the meaning of s26 of the Act. It made that additional finding for the purpose of aiding the Board’s consideration of any application for reinstatement the nurse may have made in the near future. It was not a finding that the Board was required to make in the original proceedings brought pursuant to s44 of the Act.

16. The Board apparently took that course because it appeared to the Board that the nurse had requested that his name be removed from the Register in order to escape the imposition of the severe penalty that would otherwise have been imposed as a consequence of his serious misconduct in that case.

17. In Gabrielsen the Court concluded that the question of whether the nurse was a fit and proper person to be registered was the exact issue that came before the same Board members for determination at the time of the nurse’s subsequent application for reinstatement made less then 3 months later.  It was this particular circumstance that gave rise to an apprehension of bias in Gabrielsen.

18. Importantly, Duggan J expressly restricted the findings to the unusual circumstance of the case before him.  He stated:[10]

    If the findings of the Board at the disciplinary hearing had not included the finding that the appellant was not a fit and proper person to practise as a nurse, there would have been no reason why they should not have sat as members of the committee on the application for reinstatement.

    Furthermore, the members of a Board who have considered and decided an application for reinstatement would not be prevented, under any circumstances, from being members of a subsequent Board for the purpose of deciding whether the same person is a fit and proper person to practise as a nurse at the time a subsequent application is made.

    I restrict my decision to the particular circumstances of this case where the members of the disciplinary Board expressed a firm opinion on what should be the outcome of an application which had not yet been made, but which they anticipated could be made in the near future.

    [10]   Gabrielsen v Nurses Board of South Australia [2006] SASC 199 at [52] – [54]

19. In the present case I consider that there is nothing in the Board’s reasons of 19 August 2005 to indicate that it made any finding that the appellant was not a fit and proper person to practise as a nurse.  The cancellation or suspension of a practitioner upon a finding that the practitioner is guilty of unprofessional conduct does not in itself carry with it a finding that the practitioner is not a fit and proper person.  The cancellation may be imposed for reasons quite unrelated to the fitness or propriety of the individual practitioner.[11]

    [11]   Craig v Medical Board of South Australia (2001) 79 SASR 545.

20. The Board’s reference to the appellant’s long history of involvement with the Board does not in itself give rise to a reasonable apprehension of bias. As described in s16 of the Act the Board is to approach its functions under the Act with the objective of protecting the public interest and ensuring that the community is adequately provided with nursing care of the highest standard.

21. In my view where the Board specifies reasons for the cancellation of a nurse’s registration, it is entitled to examine those reasons to satisfy itself that the applicant has gained significant insight into the reasons for cancellation in the first place.  In doing so, the Board protects the public from recurrence of past conduct proven against the applicant.  As such I consider that past decisions of the Board concerning the appellant were relevant considerations on the application.

22. The test for reasonable apprehension of bias is not satisfied merely because a decision-maker approaches a task with a tendency of mind or predisposition towards an applicant or towards the evidence before it.  The test is whether a reasonable person would apprehend that the decision-maker would not address the questions before him with a mind open to persuasion.[12]

    [12]   Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531(Gleeson CJ and Gummow J).

23. However, there is no indication either in the Board’s reasons or in the manner in which the proceedings were conducted, that the members of the Board on this occasion did not determine the application with their minds open to persuasion.

24. Furthermore, the affidavit of Ms Smith sworn on 9 March 2007 refers to the fact that there was a pre-trial conference at the Nurses Board on 31 August 2006.  On that date the appellant was shown a photographic profile of all of the Board members and was asked whether she objected to any of those members sitting on the committee to determine her application for reinstatement.  In that photographic profile were photographs of Dr Moody, Mr Camatta and Ms Walter.  The appellant did not have any objections at that stage.  In my view this constitutes another reason why her complaint about the constitution of the Board should not be allowed.

25. Although there was some ambiguity in the appellant’s submissions in this Court about that topic, I am satisfied that Ms Smith provided an accurate account of the events at the pre-trial conference on 31 August 2006.  In reaching this conclusion I have considered the following exchange which occurred between the Chair and the appellant during the proceedings on 31 October 2006:[13]

    QIs there anything you need to tell me so – I feel I understand your situation much better now.  So is there anything you need to tell me from what we’ve discussed then or are you happy to leave it.

    AI have to say that the panel – except Dr Moody, maybe she’s got something in part about the history to have an informed decision about my matter, whether it is in my favour or not – you really need what had happened in the past to be able to see me through in a more objective way, professional way, because I think if you just heard or read in part, I don’t think you really have to have a full, informed decision to be able to decide.  You really need something and go back to how I am at the time up to now, how the process reached this far, the changes, the challenges, the experience…

    [13] Transcript of proceedings, Nurses Board of South Australia Inquiry pursuant to section 26 re: Luz Belacho, 31 October 2006 page 54.

26. At the hearing of this appeal the appellant agreed that she had not objected to any of the members Camatta, Moody or Walter sitting to determine her application.  In these circumstances, the appellant might be thought to have waived any objection to the constitution of the panel in any event.

27. After reading the whole of the transcript and the material before the Board, I do not see any appearance of injustice or unfairness in the constitution of the Board.  I accept the respondent’s submission that in the circumstances of the present case there was no danger of the appearance of injustice or unfairness.  Nor is there any indication that the proceedings before the Board were actually unfair or unjust.

28. For these reasons I would dismiss the appeal and I so order.