Belacho v Tolstoshev No. Scciv-01-1353

BELACHO v TOLSTOSHEV
[2002] SASC 224
Full Court: Duggan, Nyland and Gray JJ

DUGGAN J. The appellant, a registered nurse, has appealed against the decision of a single judge of this court dismissing her appeal against a finding by the Nurses Board of South Australia (the Board) that the appellant was guilty of unprofessional conduct. The appellant was unrepresented before the single judge and at the hearing of this appeal.
The complaint laid before the Board by its Registrar alleged that the appellant had acted in an incompetent and unprofessional manner in relation to certain patients at Glenside Hospital while the appellant was working there as part of the clinical component of a course of study for a Graduate Diploma in Mental Health Nursing. After finding that the allegations had been proved and that they amounted to unprofessional conduct, the Board reprimanded the appellant and imposed conditions upon her registration which restrict the appellant’s right to provide nursing care. The appellant challenges the findings and orders of the Board.
It is necessary to refer to some matters of background. The appellant was first registered as a nurse on 13 January 1989 after completing her training at the Royal Adelaide Hospital. A complaint of unprofessional conduct was laid against her in 1993 arising out of her employment at the Royal Adelaide Hospital. However, the complaint was withdrawn when the appellant requested that her registration be cancelled so that she could apply immediately for reinstatement on the basis that certain conditions would attach to her registration. This was achieved through agreement between the appellant and the Board. The allegations in the complaint were not at any stage proved before the Board.
In August 1998 the appellant again requested cancellation of her registration. She had been unable to find employment as a registered nurse and she desired to undertake a re-entry programme at the School of Nursing as she had not practised for five years.
The Board reinstated the appellant on the Nurses’ Register on 12 November 1999, after she had completed the re-entry programme, but imposed restrictions on her right to practise nursing. The conditions were imposed pursuant to the Nurses Act 1999 (“the Act”) s 27.
In January 2000 the appellant embarked upon a course of study for the Graduate Diploma in Mental Health Nursing and in March 2000 she commenced the clinical component of her course at Glenside Hospital. Her placement was terminated after two days and the complaint alleging unprofessional conduct was laid before the Board on 14 September 2000. The grounds of complaint were 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.”
In the course of the hearing of the complaint before it the Board received a number of statements of witnesses and witnesses were also called by Ms Guy who appeared as counsel assisting the Board. The appellant also gave evidence.
A brief summary of the evidence before the Board will suffice for present purposes. The appellant was given a work placement in one of the Glenside Wards in which women with severe mental illness are treated. The patients were in need of highly skilled nursing care and the appellant’s function was to observe procedures, but not to administer treatment. After only a short time in the ward, complaints were received from the nursing staff to the effect that the appellant was going beyond her role as an observer. According to the evidence, the staff experienced difficulty in convincing the appellant that she was not to go beyond her confined role in the ward.
Despite these warnings, the appellant told staff that she was going to get in touch with the mother of Fiona, one of the patients, in an attempt to heal a rift between the patient and her mother. The appellant was told not to become involved in the patient’s therapy and not to intervene in the relationship between the patient and her mother. However, the appellant returned to the ward on the following Sunday as a visitor and brought gifts for the patient and her son whilst, at the same time, joining in a birthday celebration with them. When cautioned about this, the appellant said she had been giving the patient cognitive behaviour therapy, a treatment in which she has no training.
In another incident the appellant appeared to be counselling a patient, Helen, who had been admitted in an acute psychotic state. One of the nursing staff had considerable difficulty in attempting to convince the appellant to desist from this activity. The staff members said there were elements of grandiose thinking in the appellant’s apparent insistence that she could cure patients in a way which was beyond her experience. The same tendency was noted by the appellant’s course co-ordinator who provided a report to the Board.
I have said that the appellant gave evidence before the Board. In the course of her evidence she disputed some of the evidence given by the nursing staff at Glenside Hospital, particularly some parts of the conversations which they allege they had with her. At first, she denied attempting to counsel any patient in cognitive behavioural therapy. However, in the course of cross-examination it became apparent that she had offered that therapy to one of the patients. There was ample evidence to support the Board’s finding that the appellant had provided or attempted to provide therapy of this nature.
The grounds of appeal advanced by the appellant are not clearly formulated, but her principal complaint relates to the finding by the learned judge that it was appropriate for the Board to have regard to a psychiatric report prepared by Dr Baigent, a psychiatrist.
The preparation of the report by Dr Baigent came about in the following way. On 1 March 2001, when the hearing by the Board of the complaint in this matter was pending, the appellant made an application for the removal of the restrictions which had been placed on her right to practise. As I have mentioned previously, the restrictions had been imposed when the appellant’s registration was renewed on 12 November 1999. The Board’s power to vary conditions imposed as part of the registration process is provided by s 30 of the Act.
On 13 November 2000, the Registrar of the Board applied to the Board pursuant to s 53 of the Act for an order requiring the appellant to submit to an examination by a psychiatrist. This application was not dealt with until 9 April 2001 when both the complaint and the appellant’s application for the removal of conditions attached to her registration came before the Board for mention. On that occasion the Board made an order under s 53 of the Act requiring the appellant to be examined by Dr Baigent. He provided his report to the Board on 24 April 2001. He also gave evidence at the hearing of the complaint.
It would appear that the Registrar made application for the report to be ordered after receiving the witness statements filed in connection with the complaint. Section 53(1) provides as follows:
“The Board may, on the application of the Registrar, for any purpose associated with the administration or operation of this Act, require a nurse, or a person who is applying for registration or enrolment, or reinstatement of registration or enrolment, as a nurse, to –
(a)submit to an examination by a health professional, or by a health professional of a class, specified by the Board;
(b)provide a medical report from a health professional, or from a health professional of a class, specified by the Board,
(including an examination or report that will require the nurse to undergo some form of medically invasive procedure).”
It is relevant to note that the report may be ordered for any purpose associated with the administration or operation of the Act. Hearings in relation to complaints come within this description. “Nurse” is defined in s 3 of the Act as “a person who is registered or enrolled under this Act” and so the appellant was within the categories of persons required to submit to medical examinations directed by the Board.
In upholding the right of the Board to take the report of Dr Baigent into account on the hearing of the complaint the learned judge said:
“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.”
The comment that the Board was also considering the appellant’s application to have the conditions removed was incorrect. At the commencement of the hearing the Board made it clear that it did not intend to embark upon a hearing of that application. It would seem that the Board, as then constituted, had no power to do so. There were three Board members sitting at the time. Section 10 of the Act provides that, subject to the Act, six members constitute a quorum of the Board. The Act provides an exception in Part 5 (ss 41-48) which deals with applications in relation to competence, incapacity and unprofessional conduct. Section 46(2) states:
“Three members (including any member appointed under subsection (1)) constitute a quorum of the Board for the purposes of proceedings under this Part.”
The hearing of the complaint was a proceeding under the relevant Part of the Act, but an application to revoke conditions attached to registration is made under s 30 of the Act which is in Part 4 and is not exempted from the general requirement that six members are to constitute a quorum of the Board.
However that may be, the learned judge was correct in accepting the argument that the Board was entitled to have Dr Baigent’s report before it. As I have pointed out, s 53 empowers the Board to direct an examination of the appellant for the purposes of the hearing of a complaint. Furthermore, s 19 provides that the Board is not bound by the rules of evidence and may inform itself on any matter as it thinks fit.
In my view Dr Baigent’s report and his evidence were relevant to both the evaluation of the evidence of the Glenside Hospital staff concerning the appellant’s behaviour and to the type of limitation which might be imposed upon the appellant’s right to practise in the event of a finding of unprofessional conduct. When referring to Dr Baigent’s evidence in its reasons the Board stated:
“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 most 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.”
It is clear that Dr Baigent’s assessment was relevant to the issues before the Board and the Board was entitled to have regard to the report and the evidence of this witness in considering the complaint before it.
I should add that the appellant was given the opportunity, which she accepted, of cross-examining Dr Baigent. Furthermore, the appellant tendered to this court, with the consent of the respondent, a report prepared by Dr Raeside. As the appellant pointed out in the course of argument, Dr Raeside agrees with Dr Baigent’s diagnosis and assessment of the appellant. Both reports are instructive in so far as they provide an explanation for the conduct deposed to by the Glenside Hospital Staff.
There is a suggestion in the grounds of appeal and the appellant’s outline of submissions that the Board made an unwarranted finding under s 42 of the Act. This section empowers the Board to enquire into a complaint by the Registrar that a nurse’s ability to provide nursing care is unreasonably impaired by physical incapacity or mental incapacity or both. As the learned judge pointed out in his reasons, there was no complaint of such a nature before the Board and it made no findings pertaining to the matters dealt with in s 42.
Another ground of appeal identifies some passages in the transcript of argument in which it is suggested that the learned judge made remarks which he contradicted in his judgment. In the passages cited the judge was doing no more than testing the argument of counsel. In the light of his Honour’s reasons, the comments made in the course of argument are irrelevant.
In her argument before this court, the appellant claimed that the Board made their decision on the basis of her personality traits which were referred to in the evidence. The Board’s reasons for decision discuss in detail the evidence given by the Glenside nursing staff in relation to the events which occurred during the appellant’s placement at the hospital. There is a careful evaluation of the evidence and the process of reasoning indicates that the Board focused on whether the particulars of the complaint were established and whether those particulars which were proved supported the claim that the appellant had engaged in unprofessional conduct as defined in the Act. After considering the evidence of the witnesses the Board made the following assessment:
“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 and therefore acted in an incompetent manner.”
The Board referred to the appellant’s personality traits in the passage already noted in which the evidence of Dr Baigent was considered. Dr Baigent’s assessment did not loom large in the Board’s reasoning, but the Board did note that the appellant’s elevated perception of her nursing ability fits in with Dr Baigent’s views as to her personalty traits. It is apparent that the Board did not give undue weight to the evidence of the appellant’s personality. Rather, this evidence was viewed as helping to explain aspects of her conduct which were deposed to by other witnesses.
In my view the procedure set out in the Act for the hearing of complaints was followed by the members of the Board. The submission that the Board took into account irrelevant considerations must be rejected. Furthermore, there was ample evidence to support the Board’s findings and the orders made in consequence of those findings.
In my view the appeal must be dismissed.
NYLAND J. I agree that the appeal should be dismissed for the reasons given by Duggan J.
GRAY J. I agree that this appeal should be dismissed for the reasons given by Duggan J.

[2002] SASC 224

27 August 2002