Graham v Queensland Nursing Council - [2009] QDC 121

DISTRICT COURT OF QUEENSLAND

CITATION:

Graham v Queensland Nursing Council [2009] QDC 121

PARTIES:

JUANITA GLORIA GRAHAM

Appellant

v

QUEENSLAND NURSING COUNCIL

Respondent

FILE NO/S:

1967/2008

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Queensland Nursing Tribunal

DELIVERED ON:

1 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2009

JUDGE:

TUTT DCJ

ORDER:

The Appeal is allowed;1.

The orders of the Tribunal of 24 June 2008 are set aside and in lieu thereof the order of the court is that the charge of “discreditable conduct” against the appellant has not been made out. 2.

I shall hear the parties on costs.

CATCHWORDS:

APPEAL – Queensland Nursing Tribunal – where conduct of a registered nurse is in issue – whether “unsatisfactory professional conduct” – whether charge of “discreditable conduct” under s 31(1)(e) of the Nursing Act 1976 made out – whether Tribunal’s findings of “discreditable conduct” amounted to an error of law – whether Tribunal gave sufficient weight to appellant’s prior knowledge of patient’s history in the particular circumstances – whether Tribunal misdirected itself in relying too much on “hindsight” in determining appellant’s attitude towards the welfare of her patients

Nursing Act 1976 (Qld) s 31
Nursing Act 1992 ss 104, 104A, 116, 137

Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498
Brigginshaw v Brigginshaw (1938) 60 CLR 336
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] 203 CLR 194
House v The King (1936) 55 CLR 499 at 505
Qidwai v Brown 1984 1 NSWLR 100
Stevenson v Yasso (2006) 2 Qd R 150
Walker v Durham & Anor [2003] QCA 531
Warren v Coombes (1979) 142 CLR 531
Whisprun Pty Limited v Dixon [2003] HCA 48

COUNSEL:

Mr B Farr SC for the Appellant
Mr D Tait SC for the Respondent

INSTRUCTORS:

Queensland Nurses Union for the Appellant
Rogers Barnes and Green for the Respondent

Introduction

This is an appeal pursuant to s 137(3)(c) of the Nursing Act 1992 (“the Act”) from the decision of the Queensland Nursing Tribunal (“the Tribunal”) delivered on 24 June 2008 whereby the Tribunal found the appellant guilty of “unsatisfactory professional conduct” contrary to s 104A(1) of the Act in that it was conduct discreditable to a registered nurse within the meaning of s 31(1)(e) of the Nursing Act 1976 arising out of an incident which occurred over 6 years earlier on 3 January 2002[1].
[1]Nursing Tribunal’s Reasons delivered 24 June 2008 (“Tribunal’s Reasons”) at paragraph [21].

The charge against the appellant in this appeal was prosecuted by the Queensland Nursing Council the respondent to this appeal, pursuant to its powers under the Act.[2]
[2]Section 104 of the Act.

Particulars of Charge

The particulars of the alleged discreditable conduct against the appellant are as follows:

“On 3 January 2002 at or about 5:10am, whilst on duty as a registered nurse at the Arthur Gorrie Correctional Centre at 3068 Ipswich Road, Wacol in the State of Queensland, you failed to conduct any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QDC 121
Decision Date: 1 May 2009

CaseChat Overview and Summary

The appeal in Graham v Queensland Nursing Council concerns the conduct of a registered nurse, Ms Graham, who was found by the Queensland Nursing Tribunal to have engaged in discreditable conduct. The Tribunal's decision was based on Ms Graham's actions and attitude towards the welfare of her patients, particularly in light of her prior knowledge of one patient's history. The Court of Appeal was tasked with determining whether the Tribunal's findings were legally sound and whether it had given appropriate weight to Ms Graham's knowledge of the patient's history. The court was also required to assess whether the Tribunal's decision was influenced unduly by hindsight.

The central legal issue in this case was whether the Tribunal had correctly applied the law in finding that Ms Graham's conduct constituted "discreditable conduct" under section 31(1)(e) of the Nursing Act 1976. The Court of Appeal considered whether the Tribunal erred in its assessment of Ms Graham's conduct and whether it adequately took into account her prior knowledge of the patient's history. The court also examined if the Tribunal's decision was overly influenced by hindsight, which might have skewed its evaluation of Ms Graham's actions. Ultimately, the court had to decide whether the Tribunal's findings of discreditable conduct amounted to an error of law.

The Court of Appeal found that the Tribunal had erred in its assessment of Ms Graham's conduct. The court held that the Tribunal had not given sufficient weight to Ms Graham's prior knowledge of the patient's history, which was a crucial factor in evaluating her actions. Furthermore, the court determined that the Tribunal's decision was unduly influenced by hindsight, leading to an incorrect conclusion that Ms Graham's conduct was discreditable. Consequently, the Appeal was allowed, and the Tribunal's orders were set aside. The court ruled that the charge of "discreditable conduct" against Ms Graham had not been made out, thereby acquitting her of the charge.

The final orders of the Court of Appeal were that the Tribunal's orders of 24 June 2008 were set aside, and in their place, the court ordered that the charge of "discreditable conduct" against Ms Graham had not been made out. The court also announced that it would hear the parties on the issue of costs.

Orders

Orders of the court

The Appeal is allowed;1.

The orders of the Tribunal of 24 June 2008 are set aside and in lieu thereof the order of the court is that the charge of “discreditable conduct” against the appellant has not been made out. 2.

I shall hear the parties on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Graham v Queensland Nursing Council [2009] QDC 121
PARTIES:	JUANITA GLORIA GRAHAM Appellant v QUEENSLAND NURSING COUNCIL Respondent
FILE NO/S:	1967/2008
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Queensland Nursing Tribunal
DELIVERED ON:	1 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2009
JUDGE:	TUTT DCJ
ORDER:	The Appeal is allowed;1. The orders of the Tribunal of 24 June 2008 are set aside and in lieu thereof the order of the court is that the charge of “discreditable conduct” against the appellant has not been made out. 2. I shall hear the parties on costs.
CATCHWORDS:	APPEAL – Queensland Nursing Tribunal – where conduct of a registered nurse is in issue – whether “unsatisfactory professional conduct” – whether charge of “discreditable conduct” under s 31(1)(e) of the Nursing Act 1976 made out – whether Tribunal’s findings of “discreditable conduct” amounted to an error of law – whether Tribunal gave sufficient weight to appellant’s prior knowledge of patient’s history in the particular circumstances – whether Tribunal misdirected itself in relying too much on “hindsight” in determining appellant’s attitude towards the welfare of her patients Nursing Act 1976 (Qld) s 31 Nursing Act 1992 ss 104, 104A, 116, 137 Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 Brigginshaw v Brigginshaw (1938) 60 CLR 336 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] 203 CLR 194 House v The King (1936) 55 CLR 499 at 505 Qidwai v Brown 1984 1 NSWLR 100 Stevenson v Yasso (2006) 2 Qd R 150 Walker v Durham & Anor [2003] QCA 531 Warren v Coombes (1979) 142 CLR 531 Whisprun Pty Limited v Dixon [2003] HCA 48
COUNSEL:	Mr B Farr SC for the Appellant Mr D Tait SC for the Respondent
INSTRUCTORS:	Queensland Nurses Union for the Appellant Rogers Barnes and Green for the Respondent