in the Matter of Disciplinary Proceedings against a Nurse for Professional Misconduct

[1988] TASSC 44

Serial No 36/1988
List “A”

COURT:  SUPREME COURT OF TASMANIA

CITATION:In re S; In the matter of disciplinary proceedings against a nurse for professional misconduct [1988] TASSC 44; A36/1988

FILE NO/S:  M312/1988
DELIVERED ON:  2 September 1988
JUDGMENT OF:  Neasey J

Judgment Number:  A36/1988
Number of paragraphs:  14

Serial No 36/1988

List "A"

File No M312/1988

IN RE S; IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST A NURSE FOR PROFESSIONAL MISCONDUCT

REASONS FOR JUDGMENT  NEASEY J

2 September 1988

1. This matter purports to be a special case referred by the Nurses' Registration Board ("the Board") for the decision of the court pursuant to s.22 of the Evidence Act 1910. The Board was set up by s.4 of the Nurses' Registration Act 1952 (Act No 10 of 1952; hereinafter, "the old Act") for the purpose of carrying out a broad range of functions delineated by s6 of that Act, including disciplinary functions in respect of registered nurses. The old Act, and various subsequent Acts amending it, were repealed by s50 of the Nursing Act 1987 (Act No 65 of 1987; hereinafter "the new Act"), the evident purpose of which was to substitute a comprehensive new statute for regulation and control of the nursing profession. The new Act contained in Schedule 2 thereof a detailed set of "Transitional and Savings Provisions", to which further reference will be made shortly.

1. Section 14(1) of the old Act provided that the Board might require a registered nurse to appear before it to enable an inquiry to be held with respect to any complaint made to the Board concerning the conduct of that nurse in a professional respect. If on that inquiry the Board was satisfied in respect of any matter that the nurse had failed to carry out her professional duties adequately, or properly to accept her professional responsibilities, it might censure or reprimand her. On 3 March 1988 the Board held an inquiry pursuant to that subsection in respect of a complaint made to it concerning conduct of Mrs S, a registered nurse, which allegedly occurred on 7 January 1988. Section 14(2) of the old Act provided that where in the course of an inquiry under s14 the Board was of opinion that proceedings should be taken against the nurse under any other provision of Part IV of that Act, it should discontinue the inquiry and institute those proceedings. On the same day, 3 March 1988, the Board informed Mrs S that it intended to take proceedings against her, and it accordingly discontinued the hearing of the inquiry.

1. The repeal of the old Act by the new Act became effective by proclamation on 9 March 1988. The new Act set up a Nursing Board. On 6 June 1988 Mrs S was charged by the (former) Board, pursuant to s.14A of the old Act:

"with behaviour which constitutes professional misconduct in that:

(i)at Hobart in Tasmania on or about the 7th day of January 1988 whilst employed as a State Registered Nurse at St. Helen's Hospital you administered a narcotic substance, namely an ampoule of Omnopon 20mg to a patient at St. Helen's Hospital, ........................., without following any or some of the prescribed procedures relating to the administration of Schedule 8 drugs."

1. On 20 July 1988 the Board held a meeting to hear and determine this charge of professional misconduct. At the commencement of the hearing, counsel for Mrs S submitted that the Board had no jurisdiction to hear and determine the charge, because of the repeal of the old Act and matters consequential thereon. Thereupon, the Board purported to state this special case for the decision of the Court, pursuant to s22 of the Evidence Act 1910.

1. Section 22 of the Evidence Act 1910 provides that any Royal Commission or board of inquiry issued by the Governor by letters patent under the seal of the State, or by Order–in–Council or under statutory authority, may refer any disputed point of law arising in the course of an inquiry to the Supreme Court for decision, and for this purpose may either conclude the inquiry, subject to such decision, or may at any stage of the inquiry adjourn it until after the decision is given. Section 22 also provides that the question shall be referred in the form of a special case, and that the decision of the Supreme Court shall be final and binding. Section 15F of the old Act provided that where the Board held an inquiry or heard a charge or exercised any of its other powers under Part IV of the old Act, Division II of Part II of the Evidence Act 1910, which includes s22, should apply to the inquiry, hearing or matter as if the Board were a board of inquiry such as is referred to in Division II of Part II. It was under that section that the Board purported to refer this special case.

1. The question stated in the special case for the decision of the court is: "Whether the Nurses' Registration Board has jurisdiction to hear and determine a charge against a registered nurse of professional misconduct pursuant to the provisions of the Nurses' Registration Act 1952 in the above stated circumstances." The basic argument submitted on behalf of the respondent is that the Board has no jurisdiction to hear and determine (nor, it would follow, to institute) the charge against Mrs S. because of the repeal of the old Act, and because its jurisdiction was not saved by the transitional and savings provisions in the new Act, nor by s16 of the Acts Interpretation Act 1931. If that argument succeeds, it would follow that the Board had no jurisdiction to refer this special case to the court either. The first question for me to determine, therefore, is whether I have jurisdiction to hear and determine this special case. The issues which will decide that question are the same as those involved in the special case; so the parties will have their answer, but whether in a form legally binding upon them is another matter. A court has inherent jurisdiction to decide whether it has jurisdiction in a particular case – see, eg, Wilkinson v BarkingCorporation [1948] 1 KB 721 (CA), at p725.

1. The primary submission made by counsel for the Board is that it has jurisdiction to hear and determine the charge of professional misconduct against Mrs S by virtue of s16(1) of the Acts Interpretation Act 1931, and/or the common law presumption that an enactment is not intended to affect rights which have already been acquired, or liabilities which have already been occurred, before the enactment came into operation. Section 16(1) provides, in familiar language:

"(1)     Where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not –

(a)revive anything not in force or existing at the time such repeal took, or shall take, effect;

(b)affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed;

(c)affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed;

(d)affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e)affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid,

and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been passed."

1. Counsel for the Board submits that as a result of her conduct on the occasion in question, which allegedly occurred on 7 January 1988, Mrs S became subject to a "liability acquired, accrued, or incurred" while the old Act was still in force.

1. Both sides in the present dispute agree that the "Transitional and Savings Provisions" in Schedule 2 of the new Act do not answer the questions which the special case purports to raise, but I indicated to the parties that I did not necessarily accept that proposition, and that they might if they wished to do so make any further submissions about it. They have not done so; but in my opinion the transitional and savings provisions do answer the questions raised. These provisions in Schedule 2 are quite detailed, and show that the legislature gave close attention to the question of transition from the operation of the old Act to the new. S.3 of these transitional provisions provides as follows:

"3–(1)  Where an application for registration or enrolment has been made under the repealed Act or for registration under the repealed Auxiliary Nursing Act but has not been determined by the former Board before the commencement of this Act, the former Board shall determine that application as if this Act had not been enacted.

(2)       Where an inquiry under section 14, or a hearing of a charge under section 15B, of the repealed Act has been commenced but has not been completed before the commencement of this Act, the former Board shall continue that inquiry or hearing, as the case may be, and exercise its powers under the repealed Act with respect to that inquiry or hearing as if this Act had not been enacted.

(3)       Where an appeal under section 15D of the repealed Act has been instituted but has not been determined before the commencement of this Act, that appeal shall be continued and determined as if this Act has not been enacted."

(The "repealed Act" in these transitional provisions is the old Act. The "former Board" is the Board.)

1. It seems to me that by enacting the detailed provisions in s3, which provides in particular for continuation by the Board of an inquiry under s.14 where such inquiry has been commenced but not completed before the commencement of the new Act, and for continuation by the Board of the hearing of a charge under s15B of the old Act where such hearing has been commenced but not completed, the legislature has indicated a clear intention that no new inquiry under s14 of the old Act, and no institution of a charge under s15B of the old Act, shall be commenced after the enactment of the new Act. This is a case, in my opinion, for application of the maxim of interpretation of statutes, expressio unius est exclusio alterius. It is a case where the legislature, obviously giving close attention to the difficulties which may be occasioned by transition from the old Act to the new, has made detailed provision therefor. It seems to me that a clear intention has been evinced that the former Board should not, after repeal of the old Act, have any standing to institute a charge under s14A, or put into operation the procedural provisions of s15B, as the Board here seeks to do.

1. The application of the maxim in a case similar to the present, where a negative inference can properly be drawn from the use of affirmative language in the statute, is dealt with by Craies on Statute Law, 7th ed, at pp264 – 266. The case Municipal Building Society v Kent (1884) 9 App Cas 260 illustrates the principle usefully for the present purpose; and see also Trott v Hughes (1850) 16 LT (os) 260. Caution is called for in the application of the maxim, in case the subject not mentioned by the relevant affirmative language of the statute has been overlooked by inadvertence, or the like – see Craies, op cit, p260; Maxwell on Interpretation of Statutes, 12th ed, p296; Halsbury's Statutes of England, 2nd ed, vol 24, p138. But in the present situation I see no likelihood that other aspects of hearing and determination of inquiries under s14, and hearing of charges under ss14A and 15B of the old Act have been overlooked. The contrary is indicated. Nor is the effect produced by interpreting the transitional provisions in this way irrational or unworkable. The new Act provides for a simplified and more effective procedure where disciplinary proceedings are to be undertaken against a registered nurse, compared with the old Act, and I would have thought that it was sensible to restrict the powers of the Board under the repealed Act to those inquiries and hearings only which had begun and were unresolved at the time of repeal.

1. The effect would have been in the present case, if the inquiry commenced by the Board not been discontinued, that it would have been required to take the inquiry to a conclusion, but would have had no further powers. Any further proceedings in respect of the same matter would have to be instituted and conducted by the Nursing Board under the new Act. It would seem to follow that the only powers exercisable by the Nursing Board under the new Act would be those which the new Act confers, but I see no difficulty about that because at the time of the commencement of the new Act there were no proceedings extant in respect of Mrs S. Any proceedings instituted against her by the Nursing Board under the new Act relating to the same matter would be pursuant to a new complaint. In any event, the disciplinary powers exercisable by the Nursing Board, though a little more extensive, appear to be much of the same scope as those exercisable by the former Board.

1. The view which I have expressed as to the interpretation and application of the transitional and savings provisions of the new Act relieves me of any necessity to consider whether after the repeal of the old Act there remained in Mrs S in respect of her alleged conduct a "liability" for the purpose of s16(1) of the Acts Interpretation Act. Although that section contains the expression, "unless the contrary is expressly provided", which may be more restrictive than the expression, "unless the contrary appears", which is for example used in the Interpretation Act 1978, s16, of the United Kingdom (see Halsbury's Statutes of England, 3rd ed, vol 48, p1305), and s7(2) of the Acts Interpretation Acts 1958 of Victoria (see Byrne v Garisson [1965] VR 523 at p527), it is not necessary in order that a matter should be "expressly provided" that it should be enacted in so many words. It is sufficient to come within that expression if the meaning appears by necessary implication from the words used and the context in which they appear – see Chorlton v Lings [1868] LR 4 CP 374; In re England (1893) 13 NSWLR (L) 121. I have made it clear that in my view, if there is a "liability" here to which s16(1) would otherwise apply, then by necessary implication it is excluded by s3 of Schedule 2 of the new Act; which therefore does "otherwise expressly provide".

1. It follows from the above reasons that the Board had no standing to institute the charge in question, or to refer the special case to this Court.