Chan v the Nurses Board of Western Australia

[2005] WASAT 115

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: NURSES ACT 1992

CITATION:   CHAN and THE NURSES BOARD OF WESTERN AUSTRALIA [2005] WASAT 115

MEMBER:   JUSTICE M L BARKER (PRESIDENT)

MS M CONNOR (MEMBER)
DR B JONES (SESSIONAL MEMBER)

HEARD:   24 MARCH 2005

DELIVERED          :   21 JUNE 2005

FILE NO/S:   VR 127 of 2005

BETWEEN:   FRANCES MARY CHAN

Applicant

AND

THE NURSES BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Nurses Act 1992 (WA) - Application for registration as a nurse refused - Review of Nurses Board's decision - Recent convictions for stealing and fraud - Meaning of "offence the nature of which refers the person unfit to practise as a nurse" in s 22(2)(a) - Relevant considerations - "Fit and proper" - Application dismissed

Legislation:

Nurses Act 1992 (WA), s 3(a), s 22(1), s 22(2), s 22(2)(a), s 31, s 37, s 41, s42, s 77(1), s 77(2)

Result:

Application dismissed.

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr L Buchbinder

Solicitors:

Applicant:     Self-represented

Respondent:     Bowen BuchbinderVilensky

Case(s) referred to in decision(s):

Domburg v Nurses Board of Victoria [2000] VSC 369

Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357

MacMillan v Pharmaceutical Council of Western Australia [1983] WAR 16

Maxwell v Dixon [1965] WAR 167

McGoldrick v Medical Practitioners Board of Victoria [2004] VCAT 2433

New South Wales Bar Association v Evatt (1968) 117 CLR 177

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Tavelli v Johnson, unreported; SCt of WA (Wheeler J); Library No 960693; 25 November 1996

The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported; SCt of WA (Full Court); Library No 970426A; 26 August 1997

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

Case(s) also cited:

Edelston v MPBV [2001] VCAT 906

Khoosal v Medical Practitioners Board, Administrative Appeals Tribunal of Victoria, No 1996/29947

Smith v Director-General of Transport [2004] WASCA 64

REASONS FOR DECISION: 

Summary of Tribunal's decision

1. In these proceedings, Ms Frances Mary Chan (the applicant) sought review of the decision of the Nurses Board of Western Australia (the respondent) refusing her application for registration as a nurse under the Nurses Act 1992 (WA).

2. The Tribunal refused Ms Chan's application.

3. The Tribunal noted the applicant's convictions in December 2000 on charges of stealing and fraud, for which she was sentenced by a Judge of the District Court of Western Australia to a 9‑year term of imprisonment. She is currently on parole in the community in relation to this sentence.

4. The Tribunal was cognisant of Ms Chan's efforts at rebuilding her standing within the community.  However, the Tribunal considered that the applicant's relatively recent convictions undermined her claims to be a trustworthy and honest person, character traits important to the practise of nursing, and rendered her unfit to practise as a nurse.

The decision under review

1. Ms Chan applied to the Nurses Board of Western Australia to be registered as a nurse under the Nurses Act 1992 (WA) ("the Act") by application dated 2 August 2004. She applied using a form issued by the Board and headed "Application for restoration of name to the register". This form of application seems to have been used because Ms Chan had previously been registered as a nurse under the Act, although her earlier registration had elapsed some years ago. She was first registered in November 1970.

2. Strictly speaking, Ms Chan's application was for registration as a nurse, not for "restoration" of her name to the register. "Restoration" is a special procedure utilised where a person's name has been removed from the register under s 37 or s 41(2) or (3), as provided for by s 42(1) of the Act. Ms Chan's name had not previously been removed under of any of these sections. However, nothing turns on this observation as at all material times before the Board and in the Tribunal the parties proceeded on the understanding that Ms Chan was seeking in effect to renew her registration as a nurse.

3. On or about 20 October 2004 the Board resolved to refuse Ms Chan's application for renewal of her registration as a nurse.  By letter dated 20 October 2004, Ms K Caddy, Manager, Professional Standards, advised Ms Chan of the Board's decision.  The letter simply advised Ms Chan that her application had been refused.

4. Section 77(1) of the Act expressly requires the Board to record its decision, and reasons, and to notify an affected person, in the following way:

   "Where the Board or a committee makes any decision to which this subsection applies, it shall record the grounds on which the decision was based, and its reasons, and shall as soon as is practicable, but in any case not later than 30 days after making the decision, notify its decision to the person affected together with those grounds and reasons."

   Section 77(1) applies, amongst other decisions, to the refusal of an application to the Board for registration: see s 77(2)(b) of the Act.

5. Notwithstanding the clear requirements of s 77, the Board seems neither to have recorded the grounds on which the decision to refuse registration was based, or its reasons, at least at the time it made the decision and advised Ms Chan of it, as no contemporaneous record of the grounds or the reasons were produced to the Tribunal.  Nor were reasons provided to Ms Chan with the letter dated 20 October 2004. 

6. However, by letter dated 18 November 2004 Ms Chan was advised by the Manager, Professional Standards, of the reasons for the Board's decision.

The Board's reason for decision

1. By the letter dated 18 November 2004 to Ms Chan the Board noted that:

   "… in February 2001 you were convicted in the District Court of Western Australia of 4 charges of stealing and 2 charges of fraud for which you were sentenced to a total term of imprisonment of 9 years.  The Board notes further that in approximately June 2004 you were released on Parole into the community."

2. The letter then went on to note that in order for a person to be registered as a nurse under the Act it is necessary for them to satisfy the requirements of s 22(2) of the Act, and that one such requirement is that "you have not been convicted of an offence the nature of which renders you unfit to practise as a nurse".

3. The letter then went on to note the following matters:

   "1.You have been convicted of 4 charges of stealing and 2 charges of fraud which are serious offences of dishonesty and which warranted the imposition of a total term of imprisonment of 9 years;

   2.You have been released on Parole but you still have 6 years of your sentence to serve;

   3.The documentation provided by you to the Board reveals that you do not acknowledge that you have committed the offences for which you have been convicted and there is no evidence of remorse for the same; and

   4.It is highly unlikely that you would obtain a police clearance which is a pre-requisite to gaining employment in the Public Health Sector."

4. The letter finally concluded that:

   "… due to the nature and seriousness of the offences of which you stand convicted in the District Court of Western Australia and the obligation of the Board to protect the safety of the community of Western Australia, it is not appropriate that your Application for Registration be approved"

The Board's case before the Tribunal

1. At the commencement of final hearing of Ms Chan's application in the Tribunal, the Tribunal invited counsel for the Board to present the Board's case first and Ms Chan to reply to the Board's case upon its completion.  The parties were content to proceed in this way.  From the Tribunal's point of view, in review proceedings it will often prove most helpful to the Tribunal for the party whose decision is under review to present its case first, and then for the Tribunal to hear from the applicant as to why the decision should be reviewed.

2. Also at the commencement of the final hearing, the Tribunal noted that, in accordance with earlier directions made to facilitate the final hearing of the application before it, both the Board and Ms Chan had filed bundles of documents upon which they wished to rely in the course of the hearing.  As none of the documents were challenged by the parties as to their authenticity or their relevance, they were received into evidence by the Tribunal, subject to the right of the parties to make submissions concerning the cogency and weight they should be given in the proceedings.

3. The case put on behalf of the Board in opening reflected the reasons earlier given to Ms Chan for the Board's decision. Counsel for the Board submitted that in light of the applicant's conviction in December 2000, on four charges of stealing and two charges of fraud, for which she had been sentenced to a total term of imprisonment of nine years, the applicant could not satisfy the requirement specified in s 22(2)(a) of the Act, that she "has not been convicted of an offence the nature of which renders the person unfit to practise as a nurse".

4. Counsel for the Board said that in the Board's view a person should neither be registered as a nurse nor permitted to continue practising as a nurse where they have brought their fundamental trustworthiness, honesty and integrity into question.  Counsel submitted that this was so because the relationship between a nurse and her employer, often a hospital, and between a nurse and a medical practitioner, with whom a nurse will often work, and between a nurse and a patient, for whom a nurse cares, depends in each case on a strict adherence to these fundamental attributes of character.  Counsel for the Board then called a number of witnesses to emphasise and explain the reasons why trustworthiness, honesty and integrity are critical to the character of a nurse.

5. Professor Robin Jennifer Watts, Professor of Nursing, Curtin University of Technology, Western Australia first gave evidence.  She is currently Professor of Nursing and the Executive Director, University Planning at Curtin University of Technology.  She has held these positions since 1995 and 2004 respectively.  She is also director of the Western Australia Centre for Evidence Based Nursing and Midwifery.  She has held this position since 1997.  She also holds several qualifications, including a General Nursing Certificate, a Certificate in Midwifery, Diploma of Nursing Education, Bachelor of Arts (Social Science with Distinction), Master of Health Science and Doctor of Philosophy.  Professor Watts has won a number of academic awards and also has a significant professional nursing experience.  Professor Watts has also served on the Nurses Board of Western Australia, during two periods between 1982 ‑ 1986 and again between 1992 ‑ 1996.  Professor Watts has been a member of a number of committees relevant to nursing education training and practise in Western Australia and elsewhere.  The Tribunal accepts Professor Watts is well qualified to address the matters she was called on by the Board to address.

6. Professor Watts emphasised that:

   "Trustworthiness is fundamental to nursing practise both with respect to the clinical care of patients and also the profession's reputation and integrity.

   In my professional opinion, given the vulnerability of people when they are in need of nursing care, in general and necessary component of the relationship between patient and nurse is trust and honesty.  This is the basis of public confidence in nurses."

7. Professor Watts' opinion concerning the importance of trustworthiness and honesty was buttressed by her reference to international, national and state standards considered by the nursing profession to govern the conduct of all nurses.  She referred to the ICN (International Council of Nurses) Code of Ethics for Nurses first published in 1953 and most recently in 2000.  The ICN Code provides amongst other things that:

   "The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance public confidence."

8. Professor Watts explained that the ICN Code is applied in the Australian nursing context through national and state level codes published respectively by the Australian Nursing Council and, in Western Australia, by the Nurses Board of Western Australia.  The Code of Professional Code for Nurses in Australia as published by the Council in 2003, identifies the minimum requirements of conduct in the nursing profession.  Professor Watts explained that the purpose of the Code is to:

   (1)set an expected national standard of conduct for the nursing profession;

   (2)inform the community of the standards for professional conduct of nurses in Australia; and

   (3)provide consumer, regulatory, employing and professional bodies with a basis those decisions regarding standards of professional conduct.

9. Professor Watts emphasised two elements of this code that she considered relevant to the issue before the Tribunal, namely:

   "A nurse must not bring discredit upon the reputation of the nursing profession.

   ‑ The actions of a nurse in their personal life may have an adverse impact on their reputation, and on the profession, and may have adverse therapeutic outcomes.

   ‑ The conduct of a nurse must at all times maintain and build public trust and confidence in the profession.

   A nurse must promote and preserve the trust that is inherent in the privileged relationship between a nurse and an individual and respect both the person and property of that individual.

   ‑ Within a professional relationship between an individual and a nurse, there exists a power imbalance which makes the individual vulnerable and open to exploitation.

   ‑ The individual trust that a nurse will cause no physical or psychological harm and will care for the possession and property of that individual."

10. The Nurses Board of Western Australia also maintains a Nurses Code of Practise, last published in 2003, which includes a section headed "Conduct Generally", to this effect:

    "A nurse should conduct herself or himself –

    (a) in a way which will maintain public trust and confidence in the nursing profession

    (b) so as to show respect and care for people and property

    (c) so as not to discredit the reputation of the nursing profession, and

    (d) in a way that is in the best interest of the client's health and welfare."

11. Professor Watts said that ethical issues relating to nursing are taught, emphasised and re-emphasised during the process of pre-registration education and in the course of nursing practise.

12. Ms Roslyn Elmes, Co-Director of Nursing at St Charles Gairdner Hospital Western Australia was also called by the Board.  Ms Elmes has held this position for the past 9 years and has been a registered nurse since 1981.  She is widely experienced in nursing practise.  The Tribunal considered that Ms Elmes was also well equipped to express her opinion on the issues she was called to address.

13. Ms Elmes explained to the Tribunal that registered nurses provide;

    (a)clinical care to patients within the scope of "Nursing Practise Decision Making Framework";

    (b)emotional support to patients and significant others using appropriate resources;

    (c)effective communication when interacting with patients, significant others and other health professionals;

    (d)active participation in multi-disciplinary ward teams; and

    (e)a contribution to nursing team functioning and decision‑making.

14. Ms Elmes said that the duties undertaken by the registered nurse include the assessment of patients' physical and mental health state, clinical care for the patient including drug administration, emotional support for patients and significant other related persons, liaising with other health care providers in respect of particular patients and providing support and care for patients who are in a vulnerable position due to their physical and/or mental health status.

15. Ms Elmes expressed the opinion that, in her experience in the clinical nursing area, trust, integrity and honesty formed the basis of a working health care team and that the nurse is a key co-ordinator of patient care.

16. Ms Elmes emphasised that the nurse is not only in a position of authority when they co-ordinate and deliver nursing care to and for a patient, but is also in a position of influence as the patient's advocate.  She said that this patient advocacy role is "not limited to the nursing professional", although it is more likely to be undertaken by the nurse because of the "nature of the relationship between nurses and patients".  Ms Elmes further explained this observation by saying that, in her experience, when a health care team is caring for a patient, the nurse will spend the most time with the patient.  She said for example, that in major tertiary hospitals, medical physiotherapy and other health care team staff come and go from the ward areas; nurses, however, are "always present and central to patient care" and so are more likely to advocate for the patient.

17. Ms Elmes further observed that in her experience the patient is often in a vulnerable position and must rely on the nurse to support, coach or advise them regarding issues relevant to their health.

18. Ms Elmes also emphasised that nurses are responsible for administering medications to patients.  This includes holding the keys for, and assessing Schedule 8 drugs (as they are referred to under the relevant legislation), being drugs of addiction.  Ms Elmes said that, as a nurse, "having trust that your colleague is administering the required medication to the right patient and is holding with integrity the keys that access the medications" is an essential element of the relationship between nursing colleagues.

19. Ms Elmes also explained that patients will talk to nurses regarding their finances, their home life and details about family members.  She said that when a patient is confronted with information that they have been diagnosed with a terminal disease, they will initially require emotional support and often seek direction regarding wanting to put "their life in order".  This includes issues of finances and wills.  She said that having the confidence that the nurse you are sharing this information with is professional, and will direct you to the appropriate resources to work through these issues, is essential to ensure that you can disclose your concerns and affairs and seek the appropriate guidance to deal with such issues.

20. Ms Elmes further observed that nurses are privy to many details regarding a patient's lifestyle and health.  This may be information regarding finances and/or it may be related to an awareness of jewellery, documents or other valuables that patients either bring with them in the hospital or talk to the nurse about owning.  She expressed the opinion that it is imperative that nurses understand and act in an ethical manner when dealing with patients and their families when sensitive and private information regarding the patient is disclosed.

21. Ms Elmes finally emphasised that the nurse's assessment of a patient's physical condition is also important to the decision made by a health care team, in particular the medical staff, to determine a plan of care for each patient.  In Ms Elmes' opinion a nurse's dishonesty "cannot only undermine the care given to a patient and effect the outcome in respect of that patient but also it erodes public trust and confidence in the nursing profession as a whole".

22. Counsel for the Board highlighted the significance of the acts of dishonesty and fraud that resulted in Ms Chan's convictions and sentence of imprisonment in the District Court in 2000/2001.  The Tribunal received into evidence the sentencing remarks of the District Court Judge who sentenced Ms Chan.  His Honour recited the factual circumstances in which Ms Chan, who was at material times a real estate agent, dealt with a number of persons, including elderly persons with whom she had been friendly for some years, before noting that the jury had not accepted Ms Chan's account of events consistent with her innocence.  His Honour finally observed:

    "In fact, on your evidence Mrs Chan, one would be left to believe that where there was such conflict of evidence, all the other witnesses were lying, none of them were telling the truth, that in fact you were the only one who was telling the truth.  Clearly the jury have rejected that, as they were entitled to do.  The amount of money involved is, of necessity, an important factor in the question of determining the degree of criminality, for that provides an indication as to the extent to which you were prepared to be dishonest and to flout the law and advance whatever were your own purposes."

1. The sentencing judge had received a pre‑sentence report and referred to it in his sentencing remarks to this effect:

   "I have received and make reference to the pre‑sentence report which has been provided to the court and that indicates to me that there does not seem to be an acceptance on your part of the wrongdoing which has taken place insofar as these offences are concerned.  It's indicated to the community corrections officer you felt 'regret for causing the hurt among all the parties involved'.  It is said also that these offences had manifested a lot of shame as the result of the predicament which you presently find yourself in."

2. In sentencing Ms Chan, His Honour went on to say that he had considered the character evidence and testimonials he had received emphasising that Ms Chan was "a hardworking person, reliable and trustworthy".  He noted that Ms Chan had been an active member of the Reconciliation WA movement and had also been a representative of the Coalition of People's Organisations.

3. However, the sentencing judge also referred to a letter that Ms Chan had herself written, in which she had written:

   "One of the things that saddens me immensely is the fact that the people who are now so against me are the very people I trusted and cared for.  It was these very people that came to me for help as they believed I could help them build an empire."

   Of those words, his Honour said:

   "Those words are almost as though you consider still that it is those people who have caused you to be in the position which you find yourself today.  Seemingly, you don't understand or let alone accept that it is you, by your dishonest conduct, who has wronged them.  It was they who reposed their trust in you and sadly that trust has been breached.  That statement is not indicative to me of any remorse or contrition on your part."

4. Counsel for the Board submitted that, while the applicant had now been released from custody on parole, the nature and magnitude of the matters upon which she had been convicted as well as her inability to accept the criminal conduct of which she had been found guilty, was such that neither the Board nor the Tribunal on review could be satisfied that Ms Chan possessed the attributes of trustworthiness and honesty that are fundamental to the practise of nursing.

5. Counsel for the Board also referred to the evidence of Ms Chan following his cross examination of her in the Tribunal, during which Ms Chan appeared reluctant to accept she had been rightly convicted and maintained the lack of "contrition" of which the sentencing judge had remarked at the time he sentenced her in the District Court.

The applicant's case before the Tribunal

1. Ms Chan raised a number of grounds upon which she relied in her application for review of the Board's decision. First, she said that the Board had erred in failing to set out what it was in the nature of the offences of which she had been convicted that rendered her unfit to practise as a nurse, to which s 22(2)(a) of the Act relates.

2. Secondly, Ms Chan complained that the Board had failed to comply with s 77(1) of the Act in that it did not record the grounds of its decision not to approve her application for registration when it advised her of its decision by letter dated 20 October 2004, and again in the letter dated 18 November 2004.

3. Thirdly, Ms Chan relied on the ground that the Board erred in concerning themselves with her employment prospects as a nurse, in deciding not to register her, rather than in the addressing the standard of knowledge and clinical skills that she would possess as a nurse.

4. Finally, in a ground related to the first, Ms Chan contended that the Board had erred in taking upon itself the task "to protect the safety of the community of Western Australia" rather than in noting that one of the objects of the Act set out in s 3(a) is "to promote suitable standards of knowledge and clinical skills among nurses for the purpose of protecting the health of the people of Western Australia".

5. The Tribunal made it clear to Ms Chan at the outset of the presentation of her case that the failure of the Board initially to provide grounds and state reasons for refusing her application would not take the matter very far in light of the Board's letter of 18 November 2004, in which the grounds and reasons for the decision refusing her registration as a nurse were laid out.

6. However, the Tribunal should observe that the Board should be vigilant in the future in ensuring that the terms of s 77(1) of the Act are meticulously complied with in each case.

7. Ms Chan, in the course of opening her case, made it clear to the Tribunal that her convictions, upon which the Board had relied in refusing to register her as a nurse under the Act, should be considered events of the past not relevant to her present entitlement to be registered as a nurse. Ms Chan confirmed to the Tribunal that the essence of her case was that the Board in the past, and now the Tribunal, should not place any great weight on those convictions, and should consider she had sufficiently recovered her reputation, so that she could now be permitted to undertake her old occupation of nursing. In support of this primary contention Ms Chan gave evidence and also called a number of witnesses to illustrate the recovery of her reputation.

8. Ms Chan also gave evidence in support of her application and referred to the bundle of documents she had filed in support of her application. These documents confirmed that Ms Chan, by her maiden name of Frances Mary Chew, was first registered as a general nurse by the Nurse's Registration Board of Western Australia on 24 November 1970. Her Nurse's Record of Service Western Australia dated 28 February 1971 was produced in evidence. Prior to 1998, Ms Chan's registration as a nurse under the Act had lapsed, through non‑renewal.

9. In or about 1998 Ms Chan had applied to the Nurse's Board of Western Australia for registration as a nurse and was advised by the Board by letter dated 28 January 1998, that she was eligible to have her name restored to the register "subject to successful completion of a Renewal General Nursing Registration Course".  That letter made it clear that if registration was not effected within 12 months of that date it would be necessary for her to further consult with the office of the Board.  Ms Chan did not undertake the course referred to and so that conditional registration, if it may be called that, did not take effect.  This was of course prior to Ms Chan's conviction of the matters referred to earlier.  Ms Chan emphasised that the Board was at least in 1998 prepared to register her again as a nurse at that time.

10. Ms Chan also produced a number of letters in the form of character references, including a letter from Pastor Clarita Sawyer who had come to know Ms Chan in Ms Sawyer's role as a Prison Fellowship team leader during Ms Chan's incarceration at Nyandi Women's Pre‑release Centre.  Another character reference given by Ms Rosalind Lewis, who had also met Ms Chan whilst working at Nyandi Women's Pre‑release Centre and teaching tai chi and meditation each week was produced by Ms Chan.  A number of other character references were also included in the applicant's exhibit bundle.

11. Ms Chan also produced a number of documents she had authored in order to emphasis her commitment to personal improvement. One of these, authored in August 2001, was headed "When all else fails, turn to your 'Care Bear'".

12. Ms Chan called the two referees just referred to, to give evidence, and also called two officers of the Department of Corrections with whom she had had dealings while in prison, to assist her in establishing that during her time in incarceration she had behaved well.

13. Ms Dorothy Lynn Ralph, a prison based Senior Corrections Officer, was called and gave evidence by telephone.  She gave evidence without the benefit of notes as she was at her home on vacation at the time of the telephone call.  Ms Ralph emphasised that she generally supervised Ms Chan while she was in prison.  She said that whilst she was at Nyandi she had seen Ms Chan once or twice a week.  Ms Ralph said that she didn't recall Ms Chan being in any trouble although she was saying that without the benefit of any notes in front of her.

14. Ms Ralph agreed she had recommended Ms Chan for parole.  She explained that, of course, the decision for release on parole was not in her hands, but in the hands of various other people, and ultimately the Parole Board.  She confirmed however that her recollection was that Ms Chan fitted the criteria to be released on parole or she would not have made the recommendation she made.

15. The applicant then called Ms Jeanette Margaret Allen, acting in the position of Superintendent of the Boronia Pre‑release Centre for Women.  Ms Allen gave her evidence to the Tribunal by telephone from that institution.  Ms Allen had dealings with the applicant during the time she was incarcerated at Nyandi.  Ms Allen said that the applicant was rated as a minimum security risk and deemed as a low risk to the public for escape.  She said that when she arrived at Nyandi and during the time she managed Ms Chan, she had no cause to take any disciplinary action against her and that Ms Chan had participated in all of the activities undertaken at Nyandi.  In particular, Ms Chan regularly attended education classes and set out to improve her education level and was always helpful with the new women who arrived at Nyandi.  She was a personable person.  Ms Allen said she really did not have any concerns about Ms Chan when she was there in regard to the level of trust expected of her in the minimum-security situation.

16. Ms Allen confirmed that while Ms Chan was at Nyandi she was given permission to go out into the community and was placed at the University of Notre Dame.  She said there was no real concern by the authorities that Ms Chan would abscond and the authorities had enough confidence to know that they could safely place Ms Chan at the University on trust and that she would return to prison at the end of the placement.

17. Ms Allen said she could comment that while Ms Chan was at Nyandi she was actively engaged in the education side to improve herself and that she had many discussions with Ms Chan about education pathways and the documents Ms Chan had written while in prison.  Ms Allen could not recall any particular conversation with Ms Chan about remorse, when asked about this by Ms Chan, but could certainly say that she and Ms Chan had many conversations about "your eagerness to learn from your prison placement and increase your knowledge.  I can't say that I directly recall the issue of discussing remorse directly".

18. Ms Chan then called one of her referees, Ms Rosalind Sharon Lewis, to give evidence.  Ms Lewis was the author of one of the letters of reference contained in the applicant's bundle already referred to.  She met Ms Chan while teaching meditation and tai chi at Nyandi Prison on a voluntary basis.  Ms Lewis stated that Ms Chan had always struck her as a very warm, compassionate person and that she had many qualities that would make her suitable in a career as a nurse.  Ms Lewis said she liked Ms Chan as a person and that she considered Ms Chan has a lot that she could give back to the community and would like to see her given the opportunity.

19. Ms Lewis confirmed that Ms Chan had not visited her at her home since Ms Chan's release from prison on parole although there has never been a question about Ms Chan having her address; and that she and Ms Chan have maintained "a very trusting, friendly relationship and I would trust you in any circumstances".

20. Clarita Agatha Sawyer, another of Ms Chan's referees, was then called by the applicant.  Ms Sawyer is a Pastor, or Chaplain with the Assemblies of God.  She too met Ms Chan while she was at Nyandi Prison in the context of Prison Fellowship.  Ms Sawyer was the author of one of the letters of reference contained in the bundle of documents presented by Ms Chan to Tribunal and referred to earlier.  Ms Sawyer has had dealings with Ms Chan not only at Nyandi but also since her release on parole.

21. Ms Sawyer observed Ms Chan while she was at Nyandi.  She said that Ms Chan seemed to be very kind, caring for other inmates, and also very diligent in her studies.  Ms Sawyer said she saw Ms Chan as "a very honest person, trustworthy and with high integrity".

22. Ms Sawyer also confirmed that since Ms Chan had been released from prison on parole she had allowed Ms Chan to have her personal address and that she had no reason to regret providing that personal information to Ms Chan.  Ms Sawyer said that she absolutely did not give out her phone number and address to prisoners unless, in her mind, they were trustworthy.  Ms Sawyer said in all her dealings with Ms Chan, Ms Chan had not breached her trust and she considered Ms Chan had "absolutely high integrity".  She said she totally trusts Ms Chan.

23. Ms Chan was cross‑examined by counsel for the Board after she gave her evidence.  During cross‑examination Ms Chan accepted that, as a registered nurse, she would be required to work independently and on a non-supervised basis.  She also accepted in cross‑examination that, in performing the duties of a registered nurse, a nurse must possess a high degree of honesty and integrity.  She accepted that it is necessary for a nurse to have the full confidence of patients and working colleagues.  Ms Chan also accepted that in order to create good patient‑nurse relationship and nurse-professional relationship there needs to be openness and the building of confidence between both parties.

24. Counsel for the Board cross-examined Ms Chan at some length about the convictions of fraud and stealing in the District Court.  Counsel, on more than one occasion, asked Ms Chan whether she accepted that the degree of dishonesty involved in the offences in which she had been convicted, was "significant dishonesty".  Ms Chan eventually responded by saying;

    "I'm not sure how you are in actual fact asking me this question, because you are - - am I right to say that you're asking me that dishonesty was a significant factor in my case? Is that what - -"

    Counsel said to Ms Chan;

    "I'm asking you whether the dishonesty which you displayed in relation to your conduct for which you were convicted was significant dishonesty"

    Ms Chan answered;

    "Well I can only reply in what I am saying now, that all through my case unmitigated - -"

    Counsel shortly after again put the question to Ms Chan;

    "Could you please - - do you agree that it was significant dishonesty? Yes or no?"

    Ms Chan responded;

    "It's very difficult to answer that, because I'm currently pursuing the issue of my case, but I am not making it a big - -"

    When questioned further about whether she was saying the convictions were "unsound", Ms Chan responded;

    "There has been gross obstacles, paperwork … very shoddy investigations in some areas."

    Ultimately, when pressed again as to whether she considered there was any dishonesty in her conduct for which she was charged, Ms Chan stated;

    "I cannot truthfully say to you that I believe that my conduct was dishonest."

25. Counsel for the Board also asked Ms Chan about a letter she had written to the Parole Board dated 15 March 2004.  Ms Chan agreed that in it she had stated that she was a full time education student currently studying for double degrees in Arts and Law at the University of New England in New South Wales in preparation for her re‑entry release to the community.  She agreed that she had not at that time mentioned any plans to re‑enter the nursing profession.

26. In response to an invitation from the President at the end of her cross examination by counsel for the Board as to whether there was anything else she would like to add in relation to the questions she had been asked, Ms Chan stated:

    "I gave enormous significance to my parole letter … to the Court and my 4 years demonstrated to the board, to earn those privileges that allowed me to study, to work in an education area of trust.  I was dealing with a quite substantial amount of other prisoners, you know, their roles, as a mentor and I am qualified in areas of drug abuse. I have done quite substantial volunteer work with drug rehab, volunteer work, with Aboriginal reconciliation, Alcoholics anonymous and have - -you know, as … helping quite substantial areas, you know, prior to my convictions. And even whilst in prison, I can show through my testimonies that I have continued to do that.  Not for one moment did I not accept Groves J decision to give me 9 years.  I accepted it because it was my only way to identify with something that was -- that I'd experienced, gone through, and I believed that the struggle would be good for me."

27. At the end of the presentation of Ms Chan's case it remained clear, as it had at the outset, that Ms Chan contended that, despite her convictions in the District Court on charges of fraud and stealing, neither the Board in dealing with her application for registration under the Act, nor the Tribunal on review, should consider the nature of the matters of which she has been convicted rendered her "unfit to practise as a nurse," or that, at the least, she had now recovered her good reputation and these convictions should not be a bar to her registration.

The s 22 requirements

1. By s 22(1) of the Act, a natural person who applies to the Board and satisfies it that he or she complies with the requirements of s 22(2) shall, subject to the Act and of payment of the fee prescribed under s 31, be registered under the section as a nurse, and the Board shall cause the name of that person to be entered in the register.

2. Section 22(2) specifies the requirements referred to in s 22(1), in these terms, namely, that the person –

   (a)has not been convicted of an offence the nature of which renders the person unfit to practise as a nurse;

   (b)has a sound knowledge of the English language both written and oral;

   (c)has –

   (i)practised as a nurse; or

   (ii)completed a refresher course in nursing approved by the Board,

   within the 5 years preceding his or her application under this section; and

   (d)holds an approved educational qualification.

3. In this case, the Board did not dispute, either at the time it initially considered the applicant's application for registration or on the hearing of the applicant's application for review in the Tribunal, that Ms Chan could satisfy the requirements set out in s 22(2)(b), s 22(c) or s 22(d). The sole issue was and remained, whether Ms Chan could satisfy the requirements of s 22(1)(a).

4. In some ways the s 22(2)(a) requirement is unusual. It suggests that, if a person has ever been convicted of an offence the nature of which renders the person unfit to practise as a nurse, it is not possible to satisfy the requirement, regardless of how much time may have elapsed since that conviction. However, it may be arguable that, if a person can establish that he or she has restored his or her reputation, this may be relevant to a consideration of the issue whether the "nature" of the offence is presently such as to render the person unfit to practise as a nurse.

5. Many vocational Acts have provisions similar in effect to s 22 of the Act. However not all are expressed in the same form. Many vocational Acts require that a person be "fit and proper". Under those vocational Acts where a person must be "fit and proper" and later is convicted of an offence against the criminal law, it is usually said that the real issue is not whether the person has been convicted of an offence against the criminal law, but whether his or her conduct has been such as to show that he or she should not remain as a member of his or her professions: see Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; MacMillan v Pharmaceutical Council of Western Australia [1983] WAR 166 per Kennedy J at 173.

6. Consequently, the power to discipline given to regulatory boards such as the Nurses Board of Western Australia under the Act, is to be exercised for the protection of persons with whom registered nurses may deal, and not in order to punish the person for their misconduct: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183.

1. The question of the meaning of the expression "fit and proper", as it appears in s 47(1)(b) of the Real Estate and Business Agents Act 1978 (WA), was also considered by the Full Court of this Court in The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported; SCt of WA (Full Court); Library No 970426A; 26 August 1997.  Kennedy J (with whom Parker J agreed) noted what Hale J had said of this expression in Maxwell v Dixon [1965] WAR 167 at 169:

   "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 NSW (No 2) (1955) 93 CLR 127, at 156 ‑ 157. Clearly different qualifications are needed by eg 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."

2. Kennedy J also referred to what Walters J said in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76:

   "The issue whether an appellant has shown himself to be 'a fit and proper person', within the meaning of s 16(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 him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR (NSW) 433, at 442)."

3. In Barnett (supra), the respondent was found to have committed eight breaches of trust account rules under the Real Estate and Business Agents Act 1978 (WA) as a result of which his licence and triennial certificate as an agent under the Act were cancelled by the Board. Almost immediately afterwards, the respondent applied to the Board for a certificate of registration as a sales representative. The Board rejected the application on the ground that the respondent was not a person of good character and repute. On an appeal under that Act to the District Court, the learned Commissioner upheld the appeal. However, in the Full Court, the Court unanimously allowed the appeal against the Commissioner's decision.

4. While the Commissioner found that the evidence of the respondent and of his witnesses enabled him to conclude that, upon the balance of probabilities, it was unlikely that the respondent would commit further breaches of the Act, Kennedy J considered the Commissioner failed to make any sufficient analysis of the respondent's conduct which had led to the cancellation of his agent's licence and that he had placed too much weight upon the references and evidence of a number of close friends, some of whose attitudes towards the many breaches of the Act committed by the respondent, his Honour found "surprising". His Honour noted, at page 8 ‑ 9 of his unreported reasons:

   "This was not a case of some isolated instance or instances. The respondent committed some 150 breaches of the Act over a significant period of time … He knew at the time he withdrew the amounts in question, which totalled $30,344, that he was not entitled to do so, and the fact that he repaid the monies into his trust account after an audit had detected the breach provides little by way of mitigation for his actions. The 13 instances of delay in banking moneys received by the respondent, ranging from 31 to 104 days in length, quite apart from constituting breaches of the Act, would also suggest that the respondent was not a fit and proper person to hold a certificate of registration as a representative for, as such, he would no doubt be required to accept and to pass on cheques for banking in a trust account. The respondent has demonstrated scant regard for the statutory provisions of the Act designed for the protection of the public, and to promote the provision of an efficient service to the public - see Boyd v Carah Coaches Pty Ltd (1979) 145 CLR 78 at 98 - 99 per Mason J."

5. Kennedy J also considered it to be a matter of particular concern that the conduct complained of occurred such a brief time before the making of the respondent's application for registration as a sales representative.  He noted what was said by Walters JA in Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 at 366, albeit in a somewhat different circumstance:

   "One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred.  If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man."

6. In the circumstances, Kennedy J could find no sufficient ground for the Commissioner's opinion that the respondent was unlikely to offend. 

7. Kennedy J then added that it appeared that the Commissioner in arriving at his decision had regard to his view that the respondent had paid the penalty appropriate to the breaches of the Act by the previous cancellation of his real estate agent's licence. However, his Honour considered this to be an irrelevant consideration in determining whether he was satisfied that the respondent was a person who was fit and proper. His Honour stated, at page 9, that:

   "The fact that the respondent would be prevented from earning an income in the calling which he knows is also irrelevant if he is unable to attain the personal standards which the Act requires."

8. As a result, some relevant relationship between the conduct complained of, on the one hand, and the decision to de‑register or refuse to register a personal under a vocational Act, on the other hand, needs to be shown before a lack of fitness relevant to registration can be found. 

9. Generally speaking, in determining whether a person is "of good character and is a fit and proper person to hold a licence", a number of factors may become relevant.  For example, in Tavelli v Johnson, unreported; SCt of WA (Wheeler J); Library No 960693; 25 November 1996, Wheeler J, at pages 7 - 9, provided guidance concerning the way in which prior convictions should be assessed under the Security and Related Activities (Control) Act 1996 (WA), in the following terms:

   "In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156, Dixon CJ and McTiernan and Webb JJ said: 'The expression "fit and proper person" is, of course, familiar enough as traditional words when used with reference to offices and perhaps vocations but their very purpose is to give the widest scope for judgment and indeed for rejection ...'

   It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.

   With that caution borne firmly in mind, some factors relevant to prior convictions can be listed.  Convictions will, in my view, generally be regarded as more serious in the statutory context if:

   (1)they occur in the course of or relate to the carrying out of the occupation of inquiry agent.  See Re New Broadcasting Ltd and Australian Broadcasting Tribunal (1987) 73 ALR 420;

   (2)they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;

   (3)they occur while the person is the holder of a licence under the Act; and

   (4)they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.

   Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:

   (1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes.  See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited.  The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;

   (2)if the offences were committed a substantial time ago.  We would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors we list and, in appropriate cases, on others;

   (3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;

   (4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references.  As to character references, I would caution that they will often be of more value if it appears from their terms that  they were made in full knowledge of the fact of the commission of the offences."

10. In the present context, it is relevant also to note the decision of the Supreme Court of Victoria in Domburg v Nurses Board of Victoria [2000] VSC 369. That case involved an appeal to the Supreme Court by a nurse from a decision of the Victorian Civil and Administrative Appeals Tribunal (VCAT). Ashley J, at [33] upheld the finding of the VCAT that the nature and circumstances of the offences, which in that case involved a prolonged and repeated course of dishonesty, were pertinent to the public interest. Such a finding did not depend on the nurse herself being held to be a threat to the public. His Honour also noted, at [42], that the public interest extends to ensuring both the reality and the perception that the nursing profession is comprised of persons who are honest and trustworthy, and in whom the public may therefore have confidence.

11. This same approach was applied in McGoldrick v Medical Practitioners Board of Victoria [2004] VCAT 2433, at [64].

12. These authorities aid an understanding of s 22(2)(a) of the Act. No doubt they underpin Parliament's view that a person should not be registered as a nurse if he or she has been convicted of an offence "the nature of which renders the person unfit to practise as a nurse".

13. Although the Tribunal earlier in these reasons has raised the issue whether the length of time since conviction may be considered material to the question whether the s 22(2)(a) requirement is satisfied in a given case, in this case the convictions of Ms Chan in the District Court of Western Australia are relatively recent and she remains on parole in the community in relation to them. In those circumstances, it cannot be said that Ms Chan's sentence upon her convictions for various offences of stealing and fraud is, in any practical sense, spent. If Ms Chan were to be registered as a nurse under the Act, she would be entitled (subject to successfully undertaking any relevant refresher courses) to practise the profession of nursing during her release from prison on parole.

14. This latter consideration aside, the offences of which Ms Chan was convicted in 2000/2001 are extremely serious.  They were considered by the sentencing judge in the District Court to be of such seriousness as to attract a sentence of 9 years, albeit with an entitlement of parole.  Each conviction fundamentally undermines the applicant's entitlement to claim that she is possessed of a trustworthy and honest character or that she is a person of integrity.  While there may be a time after which a person who has been convicted of such offences may be entitled to claim that their integrity has been restored and they may now be considered trustworthy and honest, the Tribunal does not believe that time has yet arrived in the case of Ms Chan.

15. A nurse registered under the Act, in the course of her or his profession, must be capable of establishing relationships of trust with patients, with other colleagues in the nursing profession, with employers operating hospitals and other institutions in which nurses work, and with a range of other professionals in the health and allied industries with whom a nurse necessarily must relate on a daily basis. It cannot be said with any degree of confidence that Ms Chan could presently enjoy the trust and confidence of any of these people falling in these classes in the light of her convictions in 2000.

16. In these circumstances, it is not currently appropriate for Ms Chan to be registered to practise as a nurse under the Act.

Conclusion and order

1. For these reasons Ms Chan's application for review of the decision of the Nurses Board refusing her application for registration as a nurse under the Act must be refused.

2. The Tribunal accordingly would affirm the Nurses Board's decision and order the applicant's application be dismissed.

   I certify that this and the preceding 92 paragraphs comprise the reasons for judgment of the State Administrative Tribunal.

   Hon Justice M L Barker, President