Health Care Complaints Commission v Nurses Tribunal and Joan Barbara Stewart

[2003] NSWSC 299

CITATION:	Health Care Complaints Commission v Nurses Tribunal and Joan Barbara Stewart [2003] NSWSC 299
HEARING DATE(S):	9 April 2003
JUDGMENT DATE:	14 April 2003
JUDGMENT OF:	Burchett AJ at 1
DECISION:	Plaintiff's proceeding dismissed with costs
CATCHWORDS:	ADMINISTRATIVE LAW APPEAL from Nurses Tribunal - definition of "unsatisfactory professional conduct" in Nurses Act 1991 - case where primary facts raised questions of degree a decision upon which was itself an unappealable question of fact - whether the contract of employment affected the nature of the conduct required of the nurse by the statute - whether the Tribunal's reasons disclosed error of law - Adequacy of reasons
LEGISLATION CITED:	Nurses Act 1991
CASES CITED:	Kirumba v Walton (1990) BC 9001926 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Yelds v Nurses Tribunal (2000) 49 NSWLR 491
PARTIES :	Health Care Complaints Commission (Plaintiff) Nurses Tribunal and Joan Barbara Stewart (Defendants)
FILE NUMBER(S):	SC 30080/02
COUNSEL:	Mr S A Beckett (Plaintiff) Ms Healey (2nd Defendant)
SOLICITORS:	Ms S Connors Health Care Complaints Commission (Plaintiff) Ms L Alexander NSW Nurses Association (2nd Defendant)

IN THE SUPREME COURT )
OF NEW SOUTH WALES )
COMMON LAW DIVISION )
ADMINISTRATIVE LAW LIST ) No. 30080/2002

BURCHETT AJ

14 April 2003

Plaintiff

and NURSES TRIBUNAL and
JOAN BARBARA STEWART
Defendants

JUDGMENT

1 This is an appeal by the Health Care Complaints Commission from a decision of the Nurses Tribunal constituted under Section 59 of the Nurses Act 1991. From “a decision of the Tribunal with respect to a point of law”, a relevant right of appeal is conferred by Section 67(1)(a). The Tribunal having filed a submitting appearance, the matter has proceeded against the second defendant, whom I shall call “the defendant”.

2 Understanding of the issues requires a brief recital of the circumstances. Between March 1996 and November 1997 the defendant was employed “as a clinical nurse consultant in diabetes education” at the Blacktown Diabetes Education Centre, which was a part of the Blacktown Hospital complex. She was the nurse in charge of the Centre, under the supervision of the Director of the Division of Medicine. The Tribunal expressly accepted that the defendant “was highly motivated and active in the area of diabetes education”, so that “the direction that she was taking [the hospital’s] service [was] at the cutting edge of diabetes education”.

The Tribunal also considered she was “well regarded professionally”, and that her supervisor had formed a “highly complimentary professional assessment” of her.

3 But the defendant engaged in an activity, in the course of her duties, which led to complaints of professional misconduct, or alternatively unsatisfactory professional conduct, that were dealt with by the Tribunal. Both of these complaints were dismissed, and the proceeding before me concerns only the complaint of unsatisfactory professional conduct, the dismissal of which is said by the plaintiff to involve errors of law.

4 The actions of the defendant in question concern the sale to clients of the Centre of items called “glucose monitors” or “glucose meters”, of devices for the injection of insulin known as insulin “pens” and of blood sugar level record books, all of which were of importance for the monitoring and treatment of diabetes. The complaints alleged that the monitors were purchased by the defendant with her own money and resold at a profit; that official receipting procedures were not followed, nor were accounting records kept; that the proceeds of sales were banked “into her personal bank account”; and that there was a failure to seek approval from the defendant’s supervisor or her employer, or to advise them, in respect of the practice that was occurring. There were similar allegations about the insulin pens and record books, save that these involved much smaller sums of money and had been obtained by the Centre free of charge. In fact, over the period of 20 months, the Tribunal found that 191 glucose meters were sold for a total amount of $16,253.00, yielding a profit on those sales of $4,996.00. An amount, which “could well have been considerably lower” than $2,920.00, was produced by the sales of the insulin pens and, although there is no precise finding of the amount obtained by sales of record books, the Tribunal’s reasons suggest it could not have exceeded $660.00. All the proceeds of these various sales were placed in a tin kept in a filing cabinet to which the defendant had a key.

5 Having made the findings to which I have referred, the Tribunal made a number of further findings of central importance to its disposition of the complaints. It found:

“The purchase of glucose meters and their sale to patients or clients of the [Blacktown Diabetes Education Centre] had been an initiative of [the defendant]. She did not inform her superiors of the sales until questioned by [her supervisor] in November 1997. On the evidence there is no doubt that the sale[s] of these items to the patients were ultimately for the clinical benefit of the patients… Initially [the defendant] made an outlay of her own money to purchase glucose meters. As time progressed she used the proceeds or profits from individual sales to purchase more meters for sale to her patients…. [T]his was, in reality, a non-profit operation.”

The Tribunal rejected the allegation that any part of the money received from sales was deposited in the defendant’s personal bank account. It held the money was placed in a tin, but some of it was then used, not for the purchase of further equipment, but “to promote educational activities through the Centre”, including “regular programs which she conducted for members of the Aboriginal community and the Maltese community”, those programs being regarded as significant activities in the area of diabetes education.

6 Although the Tribunal found that “the sale of the items by [the defendant] or other staff members at the Centre was done openly and was not concealed by [her] or the other staff members involved”, and it considered the lack of “hands-on” management by the defendant’s supervisor was a factor in the matter not coming to light earlier in the story at his level in the administration of the hospital, it made the findings, adverse to the defendant, that she “did not inform her supervisors of her activities selling diabetes equipment and failed to seek approval for such activities”, and that the sales lacked appropriate approval as well as the observance of “basic financial procedures to record transactions, in particular the receipt of money”. The Tribunal also found that, although this occurred rather late in the twenty months and in connection with a quite separate matter, the defendant was told that the receipt of monies for the Centre would require the setting up of a specific trust fund. But, in the defendant’s favour, the Tribunal expressed its positive satisfaction “that she did not at any stage derive any profit or benefit for herself from these activities.” Again, the Tribunal expressed the finding “that the activities conducted by [the defendant] were not for her personal benefit and that she did not financially benefit from them. [They] cannot be characterized as a private or a personal business. …. It is clear that there were no fraudulent activities, financial or otherwise on the part of [the defendant], nor did she derive personal financial profit from the sales. Our finding is that she conducted sales of items she considered useful in diabetes education. The sales generated income which was put back into her activities in a non-profit sense.” Finally, on this issue, the Tribunal expressed its satisfaction ”that the proceeds were kept on the premises of the [Centre] and spent either on the purchase of further items of diabetes equipment, such as glucose monitors, or on diabetes education activities.”

7 It was having regard to these findings that the Tribunal, at the end of its reasons, came to its ultimate conclusion. That conclusion was stated as follows:

“Overall where does the evidence take us in relation to the complaints? The evidence speaks of a person, the respondent nurse, strongly focused on her activities in diabetes education to the extent that she allowed her strong professional and clinical motivation as a nurse to interfere with her judgment in terms of accountability and disclosure to her employer.
There is no suggestion on the evidence before us that she benefited in a personal financial sense from these activities, let alone in a way alleged in the particulars. …
In our view these complaints involve issues between [the defendant] and her employer. Those were dealt with by the employer in 1998 [when the defendant was dismissed]. In the absence of any demonstrated dishonesty on the part of [the defendant] and any demonstrated personal benefit to her, the Tribunal is not comfortably satisfied that the definition of unsatisfactory professional conduct as set out in Section 4(2) of the Act is met.”

The Tribunal accordingly rejected the complaints and made a costs order in favour of the defendant.

8 Section 4(2) of the Nurses Act 1991, to which the Tribunal referred, specifies (possibly exhaustively: Yelds v Nurses Tribunal (2000) 49 NSW LR 491 at 494) certain forms of conduct that may constitute “unsatisfactory professional conduct” for the purposes of the Act, as follows:

“(a) any conduct that demonstrates a lack of adequate:
(i) knowledge,
(ii) experience,

(iii) skill,

(iv) judgment, or

(v) care,
by the nurse in the practice of nursing,
…
(e) any other improper or unethical conduct relating to the practice of nursing.”

9 The fundamental question raised by this proceeding is whether any error of law was revealed by the Tribunal in the reaching of the conclusion I have set out.

10 In order to find unsatisfactory professional conduct, it was necessary for the Tribunal to reach the conclusion that the conduct it had held to have occurred was conduct that “demonstrates” a lack of adequate knowledge, experience, skill, judgment or care “by the [defendant] in the practice of nursing”, or that the conduct was “other improper or unethical conduct relating to the practice of nursing”. It considered the conduct had actually arisen out of a strong focus on the defendant’s activities “in diabetes education” and “her strong professional and clinical motivation as a nurse”. Her failure had been “in terms of accountability and disclosure to her employer” which were “issues between [her] and her employer”.

11 If it was open at all for the Tribunal to regard that conduct as demonstrating a relevant lack in the practice of nursing, or as being improper or unethical conduct relating to the practice of nursing, it could only have done so after considering questions of degree upon which different minds might take different views. For in the extension of the responsibilities imposed by a particular employment to matters outside the core concept of “the practice of nursing”, there must come a point at which some conduct falling within that employment, though conduct of the nurse, is not conduct “in” or “relating to” the practice of nursing within the contemplation of the Act. Otherwise, the contract of employment, rather than the statute, would govern the nature of professional conduct. The legislature has “specified qualities of a kind necessary for the practice of nursing” (Yelds v Nurses Tribunal at 500), not the qualities necessary for a particular (and possibly special) employment, and the contract cannot effectively amend the Act although it may set a scene in which the Act will operate.

12 In Williams -v- Bill Williams Pty. Ltd. [1971] 1 NSWLR 547 at 557, Mason JA, as he then was, said in a passage cited as authoritative by Mahoney JA in Soulemezis -v- Dudley (Holdings) Pty. Ltd. (1987) 10 NSWLR 247 at 265:

“So also it may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.”

Similarly, in their joint judgment in the unreported case Kirumba v Walton (1990) BC 9001926, Kirby P, Mahoney and Handley JJ.A., after referring to the “stringency of the requirement” to “demonstrate an error of law”, said:

“Questions of weight or of the relative significance to be accorded to particular facts, once it has been determined that different conclusions are reasonably open are themselves questions of fact. They do not raise a basis for a challenge on a point of law.”

13 Accordingly, the ultimate conclusion of the Tribunal, upon the facts found by it, that unsatisfactory professional conduct was not shown reveals no error of law. The plaintiff, for whom counsel urged everything that could have been said, sought nevertheless to argue that the statement of the Tribunal’s reasons was inadequate, that it failed to take account of relevant considerations and that it took account of irrelevant matters. I can see no basis for these complaints. It is true that the conclusion was expressed with what I would respectfully regard as commendable brevity, but it was not therefore devoid of adequate reasoning. While every essential finding sufficiently appears, as I read the reasons of the Tribunal, it would not follow that there was shown an error of law merely because some finding had to be inferred (although, in that case, the precise scope and effect of s.66(4)(a) of the Nurses Act would have to be considered). In Williams v Bill Williams Pty. Ltd. at 557, Mason JA said:

“But it sometimes happens that a tribunal at first instance states a number of facts, without making findings on all the issues of fact relevant to the final decision in the case. The decision may then depend on an unexpressed finding of fact, with the consequence that where an appeal lies from the decision on a question of law only, it is not possible to conclude that the error asserted by the appellant is one of law.”

14 The plaintiff’s proceeding is dismissed with costs.

**********


I certify that this and 6 preceding pages are a
true copy of the reasons for judgment herein
of the Hon. Acting Justice Burchett, and of the
Court.

Date: Associate

Last Modified: 04/15/2003