Belacho v Nursing and Midwifery Board of Australia
[2019] SADC 44
•5 April 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
BELACHO v NURSING AND MIDWIFERY BOARD OF AUSTRALIA
[2019] SADC 44
Judgment of His Honour Judge Barrett
5 April 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The appellant appeals against the dismissal by the South Australian Health Practitioners Tribunal of a refusal by the Nursing and Midwifery Board of Australia to lift conditions it had imposed on her ability to complete a re-entry to nursing course.
Held: Appeal dismissed.
Health Practitioner Regulation National Law (South Australia) Act 2010 ss 9, 10 & 15; District Court Act 1991 (SA) s 42E(3), referred to.
Belacho v Nurses Board of South Australia [2002] SASC 69; Belacho v Tolstoshev [2002] SASC 224; Belacho v Nurses Board of South Australia [2007] SASC 252; Liz Belacho v Nursing and Midwifery Board of Australia [2017] SAHPT 12, discussed.
BELACHO v NURSING AND MIDWIFERY BOARD OF AUSTRALIA
[2019] SADC 44
On the 20th of April 2018 I dismissed the appellant’s appeal. I now provide my reasons for so doing. This is an appeal from a decision of the South Australian Health Practitioners Tribunal (the Tribunal) of the 23rd of August 2017 in which the Tribunal dismissed an appeal from a decision of the Nursing and Midwifery Board of Australia (the Board) of the 2nd of December 2016. The Board had refused an application by the appellant to remove conditions it had imposed on her which prevented her from participating in any clinical training requiring registration with the Australian Health Practitioner Regulatory Agency (the Agency). The conditions were imposed on the 20th of November 2015 following a health assessment of the appellant conducted by a psychiatrist, Dr Michael Clarke. The assessment was conducted by Dr Clarke on the 11th of June 2015. Dr Clarke prepared a report for the agency dated the 24th of June 2015.[1] At the time of the assessment the appellant was aged 60. She is now 64. Dr Clarke concluded that the appellant suffered from a narcissistic personality disorder, that her pattern of behaviour had been persistent over many years and that that pattern was likely to continue into the future. The appellant had told Dr Clarke that she believed she was mentally stable and had not suffered from any significant psychological problems. She believed she was safe to practice as a mental health nurse. She has always maintained that position. She maintained it before the Board, the Tribunal and before me.
[1] Appeal Book, page 263.
I will deal with the grounds of appeal shortly. Prominent in the appellant’s complaints is a claim that the Board and Tribunal members were biased and that their bias is part of a wider conspiracy among nursing authorities. The appellant has a history of litigation involving earlier nursing authorities.
In 2002 the appellant appealed unsuccessfully, first to a single judge at the Supreme Court[2] and then to the Full Court[3] against a finding by the South Australian Nurses Board that she was guilty of unprofessional conduct. The significance of those proceedings was that the Nurses Board imposed conditions limiting the appellant’s ability to work as a nurse and prohibiting her from working in the mental health area. There were further unprofessional conduct proceedings in 2005 and a later unsuccessful appeal to the Supreme Court in 2007.[4]
[2] Per Perry J – Belacho v Nurses Board of South Australia [2002] SASC 69.
[3] Belacho v Tolstoshev [2002] SASC 224.
[4] Per Kelly J – Belacho v Nurses Board of South Australia [2007] SASC 252.
The principal conditions imposed by the Board, effective from the 20th of November 2015, were as follows:-
1. “The student will not participate in any clinical training requiring registration as a student with AHPRA.
2. Within 14 days of the notice of the imposition of these conditions the student is to provide the following to AHPRA:
(a)written acknowledgement that AHPRA will notify the relevant tertiary institutes of these conditions;
(b)the details of any current enrolment in any approved course at a tertiary institution that could lead to registration as a health practitioner under the Health Practitioner Regulation Act (the National Law).
3. Within 21 days of any and each application for entry into any approved course that could lead to registration as a registered health practitioner under the National Law the student must notify AHPRA in writing of each application and provide evidence to AHPRA that the student informed the institute, at the time of application, of the existence of this condition.
4. The Board and its delegate many communicate with the student’s current education provider and any future education provider about her studies and these conditions.
5. The review period for these conditions is 12 months.
6. All costs of these conditions are the responsibility of the student.
7. In the event that the student changes her principal place of practice to New South Wales, then the appropriate review body for the conditions on registration is the Nursing and Midwifery Council of New South Wales.”
Background to Board’s conditions
The background is set out in the admitted facts tendered before the Tribunal.[5] I will not canvass the details but will provide a brief summary. Between 2012 and 2015 the appellant was studying a Bachelor of Nursing degree at Flinders University. It was a re-entry program made necessary by a decision of the Board in 2011. In February of 2015 the Associate Dean of the School of Nursing served on the appellant a notification of complaint.[6] The complainant was critical of the appellant’s performance during the course. The appellant was excluded from the re-entry program.
[5] Appeal Book, pages 316-318.
[6] Appeal Book, pages 319-325.
An independent health examination of the appellant was undertaken by Dr Clarke in June of 2015. In August of 2015 the Board conducted a meeting attended by the appellant and other relevant agencies and personnel. On the 20th of November 2015 the Board published a determination in these terms:-[7]
…that the Appellant suffered an Impairment and that same detrimentally affects or is likely to detrimentally her capacity to undertake clinical training as part of an approved program of study in which she was enrolled or as arranged by an education provider.
[7] Appeal Book, page 317.
As a result of that determination the Board imposed the conditions which are the subject of this appeal.
The appellant did not appeal against the determination of the Board or the conditions, but 12 months later, in November 2016, she applied to the Board seeking removal of the conditions. On the 3rd of December 2016 the Board refused the application because the appellant had not provided it with relevant grounds or information in support of the application. The appellant appealed to the Tribunal.
The Tribunal hearing
The Tribunal heard the appeal between the 21st and 23rd of August 2017. It delivered its findings on the 23rd of August dismissing the appeal. Its written judgment was published on the 1st of November 2017.[8] The Tribunal was chaired by Deputy President Clark and Panel Members, Ms L Whiteway, Dr C Holliday and Ms J Pappin. Although the composition in the Tribunal is not challenged in the appellant’s grounds of appeal she submitted that the Tribunal should have included a psychiatrist. There is no such a requirement in the Health Practitioner Regulation National Law (South Australia) Act 2010 (The Act).[9] There is no basis for finding the Tribunal was not properly constituted.
[8] Liz (sic) Belacho v Nursing and Midwifery Board of Australia [2017] SAHPT 12 (Appeal Book, pages 231-241).
[9] See ss 9, 10 & 15.
The Tribunal conducted its hearing de novo, that is, it put itself in the position of the Board, from which the appeal was taken, and it heard evidence afresh. The following witnesses appeared before the Tribunal:-
1Dr Michael Clarke, the independent psychiatrist who examined the appellant in June 2015 and provided the report which was considered by the Board.
2Dr Stephen Parker, the Associate Dean, School of Nursing and Midwifery at Flinders University.
3Three nurses who had contact with the appellant during her student placements:-
a.Ms Maria Caperman;
b.Ms Karin Pearce;
c.Ms Gemma Murakami
4A written report from a further nurse, Ms Katherine Mazeika who had contact with the appellant during a student placement.
The evidence of the nurses was particularly critical of the appellant’s behaviour while on student placement. It is unnecessary to detail the criticisms but they were very serious. The Tribunal concluded that:-
the appellant has by her conduct before this Tribunal made it crystal clear that she should not be placed in the clinical setting to cause harm to patients and staff.[10]
[10] Appeal Book, page 240.
The appellant gave evidence herself. She called no witnesses. She acknowledged that she was unable to find a psychiatrist who disagreed with the report of Dr Clarke.
Before the Tribunal the appellant was obliged to demonstrate that there was a material change in her circumstances such that it was appropriate that the conditions imposed by the Board should be lifted. It was not the function of the Tribunal to determine the correctness of the Board’s conditions. The appellant had never appealed against the imposition of the conditions. The function of the Tribunal was to determine the correctness of the Board’s decision not to lift the conditions when the appellant applied 12 months after their imposition to have them lifted.
Before the Board the appellant had to demonstrate that she had undergone such a change that the conditions should be lifted. She presented the Board with no evidence of change.
The appellant’s failure to appreciate the nature of her application before the Board adversely affected her appearance before the Tribunal. She was effectively challenging the correctness of the Board’s conditions. She did so on the general bases that:-
·Contrary to Dr Clarke’s diagnosis she was mentally stable and fit to work as a mental health nurse.
·There was unprofessionalism on the part of witnesses who had testified to her unfitness and individuals and the members of bodies who had made decisions adverse to her.
I turn to the appellant’s grounds of appeal before me. I appreciate it is difficult for a non-lawyer to draft such documents and I allow some latitude in the inadequacies of the grounds. I now turn to the individual grounds of appeal.[11]
[11] Page 8, para 3.1.
Nature of appeal
I must give weight to the decision of the Tribunal and its reasons and not depart from the Tribunal’s decision except for cogent reasons (s 42E(3), District Court Act 1991 (SA)).
Submissions and findings
Ground 1 (paragraphs 3.1(a) to (d))
3.1 The conditions imposed are not equitable, unfair, harsh and unreasonable because
(a)The principal issue is the dx of mental illness based-on-assumptions, inference, false and misleading mental health assessment written and advised given to the Board by Dr. Clarke, breached of s 65 of the HPRNL(SA)A2010.
(b)Dr. Clarke as an Assessor breached the legislative requirements under sss 171.3, 173(a&b) & 174.1(a,b,c) & 174(2) of the HPRNL(SA)A2010 by not seeking assistance from colleague(s), not requiring more information from me and not inspecting the documents in my possession. Also, conducted and failed to consider and apply the legal doctrine of facts, inform consent and have departed from the legislative and standards required and expected as his professional duty within the legal and moral boundaries in accordance to the AHPRA and RANZCP codes of conduct;
(c)Moreover, as I mentioned earlier under sss 171.3, 173.a and 174 of the HPRNL(SA)A2010 Dr. Clarke failed to ask another Psychiatrist to assist in carrying out the mental health assessment hence, relied on Dr. Parker’s report. Dr. Parker is a Doctor of Education p176. Moreover, again failed to require me for relevant informations and make inspection of the documents in my possession prior to conducting and writing his reports on two occasions. The worst incident was him writing the second report without seeing me. Also, declared to be registered as opposed to be accredited under s 3 of the National law page 85-Approvals in relation to specialist registration, page 202 paragraph 5 of the Transcript of Proceedings, 22/8/2017 File 6809/16 SAHPT.
(d)Dr. Clarke has committed professional misconduct and negligent act under civil law as set out below namely
d.1 Professional Misconduct:
(a)Health history taking/Assessment based-on-assumption and inference per paragraphs 3.1(a,b,c) above;
(b)Directed, incited and provided the Board with false and misleading advise/report, pp 456-466 BD breached of s 136 National Law; or pp 369-379.
(c)No mental/ behavioural test(s) carried out to confirm diagnosis of Narcissistic Personality Disorder DSM4-5;
(d)No test, means nothing measure against his findings/ diagnosis. Dr. Clarke plucked the dx from the air;
(e)Dr. Clarke acted as a thief because he stole the air that I needed to ventilate my nursing practice/career. Not therapeutic!
d.2 Dr. Clarke was negligent and I am confident that I can prove within the balance of probabilities all four elements of negligent namely:
(i)Failed duty of care
(ii)Breached of standard of care
(iii)Causation
(iv)Damages
Ground 1 is misconceived. It challenges the correctness of the Board’s conditions. The appeal lies against the ruling of the Tribunal that the conditions not be lifted. The appeal does not lie against the Board’s conditions. That said, the evidence before the Tribunal all pointed in the same direction. While the appellant cross-examined the witnesses called by the respondent and gave evidence herself, there was no reason why the Tribunal should have rejected the evidence of the respondent’s witnesses and the other materials put before it.
As the appellant’s first ground of appeal makes clear, her principal challenge is to the diagnosis made by Dr Clarke that she suffers from a narcissistic personality disorder which is entrenched and unlikely to change. While the first ground is difficult to follow the main points of the appellant’s submissions before me in relation to that ground are that Dr Clarke’s diagnosis should not have been accepted by the Tribunal because:-
·He did not obtain from the appellant her informed consent for the examination and he did not keep their communications confidential.
·He conducted his assessment without the assistance of another practitioner.
These criticisms misconceive the role of Dr Clarke. He was not the appellant’s treating psychiatrist. At the beginning of his assessment he explained the assessment and that he would be reporting to the Board. Dr Clarke was carrying out an assessment within the terms provided for in Division 9 of the Act (ss 168-177). I ruled during the hearing that I dismissed the first ground of the appellant’s appeal.[12] I pause to say that it was unfortunate that the appellant wrote and spoke intemperately about Dr Clarke. There appears no basis in any of the materials to make allegations of the sort she made.
Ground 2 (paragraph 3.2)
3.2The point of law in question is AHPRA’s definition of mental illness and the validity/ credibility of an expert opinion by Dr. Clarke as set out in paragraphs 3.1 to 3.2 above given that the matter is under delegated legislation and is fundamentally distinct from all previous cases mentioned during the 3 days hearing at the SAHPT. It is a matter of first impression therefore, I am seeking that this Honourable Court having the authority and duty to make law by creating precedent that binds future Courts.
[12] T52.
This paragraph is extremely difficult to follow. I attempted to articulate to the appellant what I understood it to mean. It is not clear whether she accepted my articulation but I took her to be submitting that Dr Clarke had not diagnosed her as suffering from a mental illness but rather had expressed the opinion she suffered from a (narcissistic) personality disorder. Insofar as that was a ground I dismissed it. Dr Clarke’s report is to the effect that, whereas in earlier times, psychiatric opinion was that there was a clear diagnostic line between mental illnesses on the one hand and personality disorders on the other, more recent psychiatric opinion is that there is no such clear line. Nowadays it is recognised that personality disorders may cause impairments in mental functioning in the same way as mental illnesses and they may be susceptible to therapeutic intervention in the same way as mental illnesses. A narcissistic personality disorder is recognised by the diagnostic manual DSM-5 as a psychiatric disorder.[13]
Ground 3 (paragraph 3.3)
3.3I am seeking for this Honorable Court to give Judgement or opinion or direction of the Full Court of the Supreme Court for appropriate determinations to the circumstances of the case under s 15 (8 and 9) of the National Law.
[13] Dr Clarke’s report of the 26th of April 2017, pages 2-4 (Appeal Book pages 532-534).
This ground is completely misconceived. I have no power to give a judgment opinion or direction of the type sought.
Ground 4 (paragraph 3.4)
3.4Another question of law is the Principle of Apprehended Bias displayed by the Board Members namely Starr, Hampel and Medway pp 452-453, 511, 513 of the BD or pp VI-XIV. The Board owed me non-delegable duty responsibility because
3.4 (i) Dr. Clarke is an independent contractor.
(ii) Breached of ssss 181.1(a & b), 181.2(a,b,c), 181.3 and 181.6 of the HPRNL(SA)A2010 which states that ‘establishment of health panel must consist of the following members referred to in s 183 one member is a medical practitioner… member(s) cannot hear the same matter twice of the same person the same principal issue;
(iii)Also the Board must choose a member from the jurisdiction in which the matter the subject of the hearing occurred.
This ground alleges apprehended bias on the part of members of the Board. It is no part of my function to entertain such an allegation. As I had pointed out many times during the hearing the appeal is from the Tribunal’s ruling not the imposition of the original conditions. However I indicate that in the materials before me, including the appellant’s evidence before the Tribunal and her submissions before me, there appears no credible support for the allegations.
Ground 5 (paragraph 3.5)
3.5The time has now come for the acknowledgment and acceptance of our concept of developed integration of skilled nursing professionalism to be expressed to the members of the profession-The Nurses.
This is an imprecise assertion rather than a ground of appeal.
I dismissed the appellant’s appeal. I order the appellant to pay the respondents’ costs to be taxed or agreed.
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