NURSES AND MIDWIVES BOARD OF WESTERN AUSTRALIA and A NURSE
[2007] WASAT 289
•2 NOVEMBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : VOCATIONAL REGULATION | ||
| ACT |
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| CITATION |
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| MEMBER |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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AND
A NURSE
Respondent
Catchwords:
Professions - Nurses and midwives - Application to extend interim suspension issued by Board - Nurses and Midwives Act 2006 (WA) s 57 - Risk of imminent injury or harm to the physical or mental health of any person - Allegations of stealing drugs - Interim injunction - State Administrative Tribunal Act 2004 (WA) s 90
[2007] WASAT 289
Legislation:
Chiropractors Act 2005 (WA), s 55
Dental Act 1939 (WA)
Dental Prosthetists Act 1985 (WA)
Legal Practice Act 2003 (WA), s 182(1)
Medical Act 1894 (WA), s 12BA
Nurses Act 1992 (WA), s 59B(1), s 59B(2)
Nurses and Midwives Act 2006 (WA), s 5, s 10, s 49, s 57, s 57(1), s 57(2), s 58,
s 58(1), s 58(2), s 60, s 81, Pt 5
Occupational Therapists Act 2005 (WA), s 55
Osteopaths Act 2005 (WA), s 54
Pharmacy Act 1964 (WA), s 32A(1)
Physiotherapists Act 2005 (WA), s 55
Podiatrists Act 2005 (WA), s 55
Psychologists Act 2005 (WA), s 54
State Administrative Tribunal Act 2004 (WA), s 11, s 90(1), s 90(2), s 90(3)
Result:
Application for extension of interim suspension order dismissed
Interim injunction restraining nurse from practising granted
Category: A
Representation:
Counsel:
| Applicant | : | Mr P Gaughwin |
| Respondent | : | Mr M Lourey |
Solicitors:
| Applicant | : | Nurses and Midwives Board of Western |
Australia
| Respondent | : | Chapmans Barristers & Solicitors |
Case(s) referred to in decision(s):
[2007] WASAT 289
Annetts v McCann (1990) 170 CLR 596
Briginshaw v Briginshaw (1938) 60 CLR 336
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Chan and The Nurses Board of Western Australia [2005] WASAT 115
Madden and Shire of Broome [2007] WASAT 117
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
[2007] WASAT 289
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 On 2 October 2007, the Nurses and Midwives Board of Western
Australia issued the respondent, a registered nurse, with an interim suspension order under s 57(1) of the Nurses and Midwives Act 2006 (WA).
2 On 11 October 2007, the Board applied to the Tribunal for an
extension of the interim suspension order pending the determination of disciplinary proceedings also commenced by the Board in the Tribunal on 11 October 2007.
3 The Tribunal considered the efficacy of the notice of interim
suspension given to the nurse and determined that the notice met the
requirements of s 57(2).4 The Tribunal examined the requirement that the Board be "of the
opinion that an activity of a nurse … involves or will involve a risk of imminent injury or harm" before imposing an interim suspension. The Tribunal determined that, in the circumstances, it was not reasonable to conclude that there was a risk of imminent injury or harm.
5 The President then considered whether an interim injunction should
be made under s 90 of the State Administrative Tribunal Act 2004 (WA). The President determined that the circumstances indicated there was a serious question to be tried and the public interest would be at risk if the nurse was not restrained from practising in her profession.
6 The Tribunal therefore refused the application for an extension of the
interim suspension order but the President made an interim injunction restraining the nurse from practising as a nurse pending the determination of the disciplinary proceedings.
7 By reason of pending criminal proceedings against the nurse, the
Tribunal ordered that the name of the nurse not be published pending the finalisation of those other proceedings.
| Issues |
The issues in this proceeding are:
• whether an interim order made by the Nurses and Midwives Board of Western Australia (Board) on 2 [2007] WASAT 289
October 2007 under s 57 of the Nurses and Midwives Act 2006 (WA) (NM Act), suspending the nurse's registration to practise as a nurse for a period of 30 days, should be extended by the Tribunal pursuant to s 58(2) of the NM Act; and
• in the event the Tribunal decides not to extend such interim order, whether the Tribunal could and, if so, should grant an interim injunction under s 90(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) preventing the nurse from practising pending the determination of disciplinary proceedings instituted by the Board against the nurse.
Power to order interim suspension under NM Act
The NM Act came into operation on 19 September 2007. It repealed the Nurses Act 1992 (WA).
10 Section 5 of the NM Act establishes the Board. The Board has the
functions set out in s 10 of the NM Act which include the function to administer the scheme of registration under Pt 4 in respect of nurses and midwives.
11 Part 5 of the NM Act deals with disciplinary and impairment matters.
Division 2 of Pt 5 establishes a complaints assessment committee and an impairment review committee. Both disciplinary and impairment matters may ultimately be the subject of allegations made by the Board to the State Administrative Tribunal (the Tribunal). However, some disciplinary and impairment matters may be dealt with by the Board.
The Board also has the power to make interim orders. Section 57 of the NM Act provides:
"(1) If the Board is of the opinion that an activity of a nurse or midwife involves or will involve a risk of imminent injury or harm to the physical or mental health of any person, the Board may, without further inquiry, do any or all of the following -
(a) give to the nurse or midwife who is carrying on that activity an order prohibiting the carrying on of the activity for a period of not more than 30 days; [2007] WASAT 289
(b)
give to the nurse or midwife an order to comply, for a period of not more than 30 days, with such conditions as the Board thinks fit in relation to the practice of nursing or midwifery, as the case may be, by that person;
(c)
give to the nurse or midwife an order suspending the person's registration in relation to a type of registration specified in the order, either generally or in relation to any specified circumstances or service, for a period of not more than 30 days.
(2) An order made under subsection (1) must -
(a)
state that the Board is of the opinion that the activity of the nurse or midwife involves or will involve a risk of imminent injury or harm to the physical or mental health of any person;
(b)
specify the activity that in the Board's opinion involves or will involve the risk and the matters that give or will give rise to the risk; and
(c)
advise that, within 14 days of the making of the order, the Board will revoke the order or make an allegation about the matter to the State Administrative Tribunal.
(3)
The Board may, by subsequent order given to the person to whom the order made under subsection (1) was given, revoke or vary the original order at any time before making an allegation about the matter to the State Administrative Tribunal under section 58.
(4) The Board may deal under this section with a complaint
even if:
(a)
the Board, the impairment review committee or the complaints assessment committee is already dealing with the complaint, or a complaint including elements of the first mentioned complaint, under this Act; or
[2007] WASAT 289
(b) the same complaint, or a complaint including elements of the complaint before the Board, has been made under the Health Services (Conciliation and Review) Act 1995 or is being treated as a complaint that was made under that Act."
Section 58 further provides that a complaint dealt with summarily under s 57 must be referred to the Tribunal. Section 58 states:
"(1) Within 14 days of making an order under section 57, if that order is not revoked under section 57(3), the Board is to -
(a) make an allegation about the matter in respect of which the order was made to the State Administrative Tribunal; and (b) order that any other proceedings under this Part in respect of the matter commenced before the making of the order be discontinued. (2) Upon an allegation made under subsection (1) the State Administrative Tribunal may, in addition to any other order it may make, affirm or revoke an order under section 57(1) or vary the order by extending the period for which it applies or in any other respect."
Facts
14 In relation to the nurse concerned here, the Board issued a notice of
interim suspension on practice dated 2 October 2007 to the nurse. The
notice was purportedly issued under s 57.
Relevantly, the notice stated as follows:
"TAKE NOTICE that the Nurses & Midwives Board of Western Australia ("the Board") is of the opinion that your practice of nursing involves or will involve a risk of imminent injury or harm to the physical or mental health of any person and/or may lead to a contravention of a provision of the Nurses & Midwives Act 2006.
The matter or matters giving rise to the risk or contravention is that you admitted to police you had stolen medications from …
[2007] WASAT 289
Hospital … You have subsequently been charged with one count of stealing as a servant.
AND FURTHER TAKE NOTICE that the Nurses & Midwives Board of Western Australia has ordered that an interim suspension be placed on your registration to practise as a nurse. This suspension is effective from the date and time of service of this Notice on you for a period of 30 days unless such time is extended by the State Administrative Tribunal."
16 In conformity with s 58 of the NM Act, the Board, within 14 days of
issuing the notice, on 11 October 2007, filed an application seeking orders pursuant to s 81 of the NM Act (which section sets out the disciplinary powers of the Tribunal) on the ground:
"That on or about 11 September 2007, whilst employed as a Registered Nurse at … Hospital, [the nurse] did remove from … Hospital stock, one 10mg ampoule of liquid Diazepam, which may amount to carelessness, and/or incompetence, and/or improper conduct as a nurse pursuant to Section 49(b)(i), and/or Section 49(b)(ii), and/or Section 49(b)(iii) of the Nurses and Midwives Act 2006."
17 In an interim application also filed on 11 October 2007, the Board
sought an order that the interim suspension on practice imposed by the Board on the nursing practice of the nurse on 2 October 2007 be extended until further order of the Tribunal.
18 The applications initially came on for a first directions hearing before
the President of the Tribunal on Tuesday, 23 October 2007. The Board was then represented by an officer of the Board and the nurse was represented by counsel. Counsel for the nurse opposed the application for an order extending the interim suspension on practice.
19 In light of the submissions then made, the President gave the parties
the opportunity to file further written submissions and ordered that the Tribunal, constituted in the manner required by s 11 of the SAT Act, would determine the question of extension of the interim suspension on the practice of the nurse on the documents, including the application and other materials filed in the Tribunal, as well as the written submissions and other information soon thereafter to be provided by the parties.
20 On 1 November 2007 the President gave the parties the further
opportunity to make written submissions on the issue of whether the
[2007] WASAT 289
Tribunal should, as an alternative, consider granting an interim injunction under s 90(1) of SAT Act preventing the nurse from practising as a nurse pending the determination of the disciplinary proceedings commenced by the Board against the nurse.
The Board's contentions
21 The Board says the notice of interim suspension on practice issued
on 2 October 2007 was made under s 57(1)(c) of the NM Act. That is to say, the Board is of the opinion that an "activity" of the nurse "involves or will involve a risk of imminent injury or harm to the physical or mental health of any person", as a result of which she should be suspended generally from practising as a Registered Nurse.
22 In the Board's application and in written submissions made by the
Board's lawyer to support the application to extend the interim suspension on practice the Board alleges facts to support the primary allegation of stealing drugs in the course of employment as a nurse.
23 The Board says that on 26 September 2007 it received advice from
the Corruption and Crime Commission (CCC) in relation to the conduct of
the nurse.24 The CCC supplied information that the nurse on or about
13 September 2007 had been charged by police with stealing as a public servant after the police had discovered, during the search of premises (not the nurse's), that the nurse had "dropped" an ampoule of liquid Diazepam.
25 The Board was further informed by the CCC that this incident led to
a search of the nurse's home where further ampoules of Diazepam and Midolazam were discovered, as well as numerous patient notes, which led to the nurse admitting to police that she had stolen the ampoules from her place of work, namely the hospital at which she was engaged as a Registered Nurse.
26 The Board was advised by the CCC that whilst the taking of the
notes was unlikely to result in police charges, the CCC considered the
action a breach of confidentiality and the hospital's internal policy.27 The Board has provided the Tribunal with a copy of the prosecution
notice in respect of the charge referred to above and a copy of the letter from the CCC dated 26 September 2007, advising of the matters referred to above.
[2007] WASAT 289
28 The Board has further advised the Tribunal that as a consequence of
the stealing charge, the nurse has been suspended from duty at the hospital on full pay. A copy of the letter from the hospital to the nurse to that effect has been provided by the Board to the Tribunal.
29 The Board has further advised the Tribunal that at a special meeting
on 28 September 2007, the Board discussed the complaint against the nurse and resolved that she should be served with an interim order suspending her from the practice of nursing, that an investigator be appointed under the NM Act, and that pursuant to s 58(1) of the NM Act an application be lodged with the Tribunal for disciplinary orders.
The notice of interim suspension dated 2 October 2007 was then served on the nurse.
31 The Board says that it has the responsibility to regulate the practice
of nursing and midwifery in Western Australia and to receive and investigate complaints made pursuant to Pt 5 of the NM Act against nurses and midwives.
32 The Board says its mission is to ensure to the best of its ability the
safety of the public by ensuring that the standard of care provided by nurses and midwives is not in any way compromised by improper behaviour or mental or physical impairment.
33 The Board says that as part of their nursing and midwifery work,
nurses and midwives have access to drugs of various kinds, the majority of which can only be supplied on the prescription of a medical practitioner. Liquid Diazepam is a drug that can only be supplied on prescription by a medical practitioner.
34 The Board says that there has been no evidence produced to date
which would allow a conclusion that the drugs alleged by the police to have been found in the nurse's possession were lawfully in her possession.
35 The Board says this is the information currently to hand, although the
police are continuing their investigations in relation to the charge against the nurse, and that there is a "possibility" further charges may be laid at the conclusion of the investigation.
36 The Board says the nurse remains on bail until she is called to
answer the charge in the Perth Magistrates Court. Police have informed the Board that the nurse is likely to receive a fresh summons to appear in the Court on 31 October 2007.
[2007] WASAT 289
37 The Board advises it has concluded, given the charge against the
nurse, that there is a prima facie argument that she may be unfit to practise
as a nurse.38 The Board says that given that the nurse appears to have unlawfully
taken a drug only available on the prescription of a medical practitioner (prescribed drug) from the hospital at which she has been employed, she should not be allowed to remain in an environment where the potential to unlawfully take such drugs is high.
39 The Board says it has considered whether any action short of
suspension could be taken against the nurse, but its ultimate conclusion was that, given the serious nature of this matter and the potential threat to patients' safety, particularly if it is the case that the nurse has a substance abuse problem, there was no other option but to impose the interim suspension.
40 The Board also contended that, if the Tribunal were to find that the
interim suspension should not be extended, the Tribunal should grant an interim injunction restraining the nurse from practising in order to protect the public interest.
Contentions made on behalf of the nurse
41 Counsel for the nurse draws attention to the power of the Board
under s 57 of the Act to summarily issue an order suspending a nurse's
registration in whole or in part for a period of up to 30 days.42 Counsel particularly draws attention to the power of the Board, if it
is of the opinion that an "activity" of a nurse "involves or will involve a risk of imminent injury or harm to the physical or mental health of any person", to make an order, for example, under s 57(1)(c). Counsel particularly emphasises that the risk of injury or harm likely to arise from the activity referred to must be "imminent".
43 Counsel for the nurse further submits that the exercise of the Board's
powers under s 57 is "not unconstrained". Counsel says that the Board must act with due process and provide procedural fairness to a respondent; and refers to Annetts v McCann (1990) 170 CLR 596 at 598, to this end.
44 Counsel recognises, however, that under s 57 of the NM Act the
Board may exercise the power to suspend before the person affected has a right to be heard on the matter. However, counsel submits that a respondent must in terms of due process know precisely what is said
[2007] WASAT 289
against him or her that provides a sound footing upon which the Board may exercise the right to suspend, and so that, particularly, a respondent knows precisely what case he or she has to meet to exercise his or her own rights in respect of an interim suspension, including seeking to have those orders revoked.
45 Counsel also submits that the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J, to the effect that any serious allegation should be established to the "reasonable satisfaction" of a decision-maker and not by "inexact proofs, indefinite testimony, or indirect inferences".
46 Counsel for the nurse also draws attention to the particular
requirements of NM Act, s 57(2), which is set out in full above. These include that the interim suspension issued must state that the Board is of the opinion that the activity of the nurse involves or will involve a risk of imminent injury or harm to the physical or mental health of any person, and also specify the activity that in the Board's opinion involves or will involve the risk and the matters that give or will give rise to that risk.
47 Counsel submits that to have the requisite opinion the Board must be
'reasonably satisfied' as to the existence of an activity of a nurse that is relevant to s 57(2). This submission is intended to draw support from what was said in Briginshaw v Briginshaw.
48 Counsel for the nurse says that the intent of s 57(2) is that the nurse
the subject of interim suspension should have sufficient information to know precisely what is said against him or her that is the basis for him or her to immediately and without a right first to be heard on the matter lose his or her right to engage in his or her profession.
49 Counsel draws attention to that part of the interim suspension order
issued on 2 October 2007 which also states that it is the Board's opinion that the nurse's practice of nursing "may lead to a contravention of a provision of" the Act. Attention is drawn to the fact that these words or words like them do not appear in the NM Act, although they did formerly appear in s 59B(1)(b) and (2) of the Nurses Act 1992, before its repeal by the NM Act. Counsel for the nurse submits that the effect of replacement of the repealed s 59B with s 57 of the NM Act has effectively narrowed the basis upon which the Board may exercise its summary powers.
50 Counsel emphasises that the Board in the notice of suspension has
merely stated that the nurse's alleged admission to police, that she had
[2007] WASAT 289
"stolen medications" from the hospital, is a matter giving rise to the risk
posed by the nurse's "practice of nursing".51 Consequently, counsel for the nurse contends that the interim
suspension order does not, adequately or at all, particularise the elements the Board is required to state in the notice of interim suspension, sufficient to discharge the obligations on the Board set out in s 57(2), NM Act. As a result, counsel submits, the interim suspension order is a "nullity" as, irrespective of whether the Board's concerns have substance (which is denied), the order does not meet the requirements of the Act.
52 In any event, counsel for the nurse submits that the Board in its
documents provided to the Tribunal provides no information to support its opinion as to why any injury or harm that might be posed to any person is "imminent".
53 As to other matters raised in the factual background provided by the
Board, counsel for the nurse says that neither the nurse nor her solicitors have any knowledge of "further inquiries by police".
54 Further, counsel says that no drugs were located by police at the
nurse's residence on or about 13 September 2007, although the Board's
submissions of 25 October 2007 claim that they were.55 Counsel for the nurse also points out the confusion that seems to
have surrounded the initial summons issued to the nurse by the police. Counsel says that the nurse was earlier issued with a summons and attended the Magistrates Court on 8 October 2007 to answer it, only to find that the Court had no knowledge of her or the charge against her. As a result she has again been summonsed to appear in respect of an allegation that she, while employed in the Western Australian public service, stole one 10mg ampoule of liquid Diazepam.
56 Counsel for the nurse also draws attention to the Board's submission
that the CCC supplied information to it on or about 26 September 2007, to the effect that the nurse on or about 13 September 2007 had been charged by police. Counsel says that this cannot be correct as the copy of the summons provided by the Board to the Tribunal was issued on 2 October 2007.
57 As to the Board's reference to "numerous patient notes" being found
in the nurse's house, counsel points out that this does not appear relevant at all to the interim suspension made or the allegations made in the Tribunal.
[2007] WASAT 289
58 Counsel also advises that while the hospital has suspended the nurse
on full pay as a result of the charge by the police, she has now been
suspended without pay as a result of the Board's interim suspension.59 Counsel also makes submissions about the Board's power to appoint
an investigator under s 60 of the NM Act. However, this is not an issue directly related to the issues currently before the Tribunal and can be left to one side.
As for the Board's other submissions, counsel for the nurse says she makes no admissions or concessions but states:
• she is not on bail; and • she was unaware prior to the Board's submissions to the Tribunal of any suggestion that she has or had a "substance abuse problem", or that such speculation "might have been implicated in the Board's issuance of summary orders".
61 Counsel for the nurse also contends that it is insufficient for the
Board's submissions to refer generally to "supplied information", or the respondent's failure to produce evidence, or "information currently to hand" in support of its application for a continuation of orders, and that procedural fairness requires the Board to set out what it states against the nurse.
62 In summary, counsel for the nurse says that the Board's interim
suspension order is incorrectly constructed having regard to the NM Act and in any event lacks the requisite substance to ground the suspension of the nurse from engaging in her livelihood of nursing.
63 As to the proposal that the Tribunal could or should grant an interim
injunction as an alternative to extending the interim suspension, counsel for the nurse submitted that the Tribunal should find that s 90, SAT Act, is not available for such an end in light of the availability of s 57, NM Act. Further, that if the Tribunal considered it had the power to grant such an injunction, and should do so, that the Board be required to give an undertaking as to damages.
The Tribunal's findings on extension of interim suspension order
64 There is no doubt about the power of the Board under s 57(1) of the
NM Act to make an interim order suspending a nurse's or midwife's registration generally, as the Board has purported to do in this case.
[2007] WASAT 289
65 However, the power of the Board is not unqualified and may only be
exercised, as stated in s 57(1), if the Board "is of the opinion that an activity of a nurse … involves or will involve a risk of imminent injury or harm to the physical or mental health of any person".
In this, s 57(1) is in similar terms to s 59B(1)(a) of the now repealed
Nurses Act 1992.
67 The Board must think hard about whether or not the relevant
circumstances exist in any case before it makes an interim order under
s 57(1).
This obligation is emphasised by the requirements of s 57(2) NM Act which provides that the interim order must:
"(a) state that the Board is of the opinion that the activity of the nurse … involves or will involve a risk of imminent injury or harm to the physical or mental health of any person; (b) specify the activity that in the Board's opinion involves or will involve the risk and the matters that give or will give rise to the risk; and (c) advise that, within 14 days of the making of the order, the Board will revoke the order or make an allegation about the matter to the State Administrative Tribunal."
69 In this case, the notice of interim suspension on practice issued by
the Board on 2 October 2007 meets the requirement specified in s 57(2)(a), in that in the first quoted "Take Notice" paragraph, set out in full above, the notice states that it is the opinion of the Board that the nurse's "practice of nursing involves or will involve a risk of imminent injury or harm to the physical or mental health of any person".
70 That portion of the notice also goes on to state that the nurse's
practice of nursing "may lead to a contravention of a provision of the
Nurses and Midwives Act 2006".71 This additional statement in the notice seems quite otiose. It is not
required by s 57(2). Nothing in s 49 of the NM Act, which sets out what are "disciplinary matters", includes conduct that "may lead to a contravention" of a provision of the NM Act. If the Act is "breached"
[2007] WASAT 289
then that is a disciplinary matter: see s 49(b)(iv); but not the possibility of
or potential for some conduct leading to a contravention of the Act.72 It may be, however, that what the Board intended in adding these
words to the notice, was that there are aspects of the conduct complained of that suggest the nurse is not currently a person fit to practise as a nurse. We will return to that issue.
73 The most likely explanation, however, for the inclusion of these
additional words is that the former s 59B(1)(b) of the repealed Nurses Act 1992 empowered the Board to order interim suspension for an activity that involves or will involve "a contravention or likely contravention of the Act" and they have been carried over into this notice under the new Act.
The former s 59B(1)(b) does not find expression in the new NM Act, in s 57 or elsewhere as far as the Tribunal can see.
75 However, the fact that these additional words have been added to the
notice, does not in our opinion invalidate the notice or make it ineffectual
so far as compliance with s 57(2)(a) is concerned.76 The next question is whether the notice meets the requirements in
s 57(2)(b), that the order specify "the activity" that in the Board's opinion involves or will involve the risk, and the matters that give or will give rise to the risk.
77 While the notice does not expressly define the relevant activity that
is of concern to the Board, the Tribunal considers that the notice, properly construed, does specify the activity that in the Board's opinion involves or will involve the risk, namely, stealing a prescribed drug in the course of practising as a nurse.
78 There may well be some circumstances where a particular activity
raises a risk and a notice issued under s 57 is intended to restrict a nurse from carrying out that particular activity. In such a case, the Board would most likely exercise its power to issue an interim order under s 57(1)(b) and impose a condition in relation to the activity of concern.
79 Where, however, the Board forms the opinion that any person - for
example, patients generally - may be at risk from the nurse engaging in the activity in the ordinary course of carrying on the practice of nursing, then it may be considered necessary to suspend the nurse from the practice of nursing generally under s 57(1)(c). In our opinion that is what the Board has decided and indicated in the notice here.
[2007] WASAT 289
80 The next requirement, which is part of s 57(2)(b), is that the order
not only specify the activity that involves or will involve the risk, but also "the matters that give or will give rise to the risk". The Board has attempted to specify the matter or matters in the second paragraph of the first quoted "Take Notice" provision of the notice set out above, by stating:
"The matter or matters giving rise to the risk or contravention is that you admitted to police that you had stolen medications from … Hospital … You have subsequently been charged with one count of stealing as a servant."
81 While the Tribunal considers the matter or matters that give or will
give rise to the risk might have been specified more clearly and with greater particularity than this portion of the notice does, we think it reasonably clear that the Board has conveyed to the nurse that, because it understands she had admitted to stealing medications from the hospital in which she has been employed, and indeed had been charged with one count of stealing a prescribed drug as a servant, there is a risk that she might steal medications again. It hardly needs to be stated that a nurse working within a hospital fully understands the protocols under which certain prescribed drugs and medicines are to be dispensed and used. For example, liquid Diazepam can only be administered on prescription. If a nurse takes liquid Diazepam from a safe place in a hospital without authorisation then she or he breaches a fundamental professional standard.
82 The Tribunal considers it tolerably clear from the terms of the notice
that the Board is concerned that a nurse who is said to have admitted to stealing medications from a hospital, and has been charged with a count of stealing as a servant, may present a risk to patients in the hospital for whom she has to care. In some cases the concern may be that the nurse has a personal health problem and may not be able to administer to patients properly. In other cases the concern may be that the nurse's actions may deprive a patient of the patient's prescribed medication. However, there may also be a basic concern that a nurse, who is alleged to have stolen a prescribed drug for whatever reason, is not fit to be a nurse because his or her judgment is impaired and he or she cannot be trusted in his or her dealings with patients.
83 The Tribunal is satisfied that, although the notice could have been
better drafted, it substantially meets the requirements of s 57(2) when properly construed. In any event, having regard to the Board's obligation to refer the interim suspension to the Tribunal within 14 days to enable the
[2007] WASAT 289
Tribunal to review the matter, we do not think Parliament intended that a notice that fails adequately to state and specify the s 57(2) matters should be considered a nullity: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
84 Of course an order cannot be made under s 57(1) at all unless the
Board is of the opinion that the activity of the nurse that concerns the Board involves or will involve a risk of "imminent injury or harm to the physical or mental health of any person". It goes without saying that the Board must have a reasonable basis for forming such an opinion before making an interim suspension under s 57. This is the issue of substance to which we now turn.
In this case the submissions made on behalf of the nurse in substance reduce to two propositions:
• The conduct complained of by the Board, by reference only to the alleged stealing offence, is incapable of supporting the view that there is a risk of imminent injury or harm to the physical or mental health of any person. • There is no basis for the suggestion or inference that the nurse has a "substance abuse problem", and the interim suspension cannot be justified on this basis.
86 The Tribunal agrees that, to the extent that the Board may be taken to
have formed an opinion that the nurse has a substance abuse problem, and if she is allowed to carry on the activity of a nurse, may present a risk of imminent injury or harm to the physical health of any person, such as a patient in the hospital, the opinion would essentially involve speculation and would have no proper foundation.
87 In the Tribunal's view there is nothing in the allegations currently
made, or the information currently supplied to the Tribunal, upon which a view can reasonably be taken, assuming the matters alleged are proved, to support the inference that the reason the nurse took the liquid Diazepam was because she has a substance abuse problem. Nor is there any other evidence to support the view that the nurse's conduct directly deprived a patient of his or her medicine. We simply have been given no information from which we can draw any inferences in this regard. Accordingly, we are not satisfied that the facts are sufficient to support the interim order suspending the nurse from practice on that basis.
[2007] WASAT 289
88 However, we do not think that the Board's reference to a substance
abuse problem was the primary reason for the Board forming the view that it did. The final submission made on behalf of the Board in the written submissions filed 25 October 2007, and referred to above, is that the Board concluded that, given that the nurse has appeared to have unlawfully taken prescribed drugs from the hospital at which she was working, she should not be in an environment where the potential to again unlawfully take drugs is high. For this reason, the Board considered whether any action short of suspension could be taken against the nurse, and concluded that, given the serious nature of the matter and a potential threat to public safety, "particularly if it is the case that she has a substance abuse problem", there was no other option but to impose an interim suspension.
89 Accordingly, the Board was and is concerned that the activity alleged
of unlawfully taking prescribed drugs from the hospital where the nurse works is a serious matter that itself constitutes a potential threat to patient safety. The question of patient safety is merely heightened, in the Board's view, as we understand it, if the nurse also has a substance abuse problem.
90 If one takes the view, as the Tribunal does, that absent the proper
foundation for the concern that the nurse has a substance abuse problem or has deprived patients of prescribed medication, the concern of the Board remains that the conduct alleged against the nurse in unlawfully taking prescribed drugs from the hospital is an activity of a serious nature carrying a potential threat to patients' safety.
91 While the Board has not fully developed this point, the Board has in
its submissions emphasised that its mission is to ensure to the best of its ability the safety of the public through ensuring that the standard of care provided by nurses and midwives is not in any way compromised by improper behaviour or mental or physical impairment.
92 If a nurse is charged with stealing from a hospital, whether it be
prescribed drugs or anything else, a question is immediately raised as to their fitness to be working as a nurse. This is because, as explained by the Tribunal in Chan and The Nurses Board of Western Australia [2005] WASAT 115, the relationship between a nurse and a patient must necessarily be built on trust and confidence. If it is alleged that a nurse has stolen prescribed drugs, as explained earlier, there may be a variety of reasons why the nurse did so, if it be the case. But whatever the reason - absent an innocent explanation - that activity is fundamentally inconsistent with the nurse's responsibilities as a nurse and reveals the risk
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that the nurse's general capacity to make good judgments is impaired. It is not the type of activity that can simply be controlled by imposing a condition on her right to practise as a nurse.
93 We consider that, when the Board made the interim order suspending
the nurse, because of the allegations made against her of unlawfully taking prescribed drugs from the hospital at which she was working, the Board simply took the view that the nurse's conduct revealed a real risk that she was unfit to continue practising as a nurse caring for patients and, pending the resolution of disciplinary proceedings, should not be permitted to keep working as a nurse.
94 The question posed by s 57(1) of the NM Act is, however, whether
the activity of concern "involves or will involve a risk of imminent injury or harm to the physical or mental health of any person". While a patient might be extremely alarmed to learn that a nurse who is caring for him or her has been charged, in the circumstances that this nurse has been charged, it would seem difficult to characterise this concern as crystallising a risk of imminent "injury" or "harm" to the "physical or mental health" of the patient. The expressions "injury", "harm" and "physical or mental health" are not defined for the purposes of the NM Act. Accordingly, the ordinary meaning of these words or expressions should be applied.
95 In the end, we consider that the intent of s 57(1) is that the Board
should be able to suspend on an interim basis a nurse or a midwife who actually presents a real risk to the physical or mental health of any person - not necessarily just a patient, and possibly the nurse himself or herself - which risk may be considered "imminent". The word "imminent" is defined in the Shorter Oxford English Dictionary (5th Edition, 2002) to mean, relevantly, "of an event, especially danger or disaster; impending, soon to happen".
96 Unless there is a reasonable foundation, in a case like this, to support
an inference that the nurse is herself unlawfully using drugs, including the prescribed drug she is alleged to have taken from the hospital at which she works, or by her activities has deprived a patient of his or her medication, we do not think that the interim order suspending her from practising as a nurse can be sustained under s 57, NM Act.
97 We note that there are a number of other enabling Acts in which a
power to issue an interim suspending order has been given to a vocational
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regulatory body such as the Board in this case. The provisions in each
Act are, if not identical to s 57, very nearly the same. See for example:
• Chiropractors Act 2005 (WA), s 55; • Medical Act 1894 (WA), s 12BA; • Occupational Therapists Act 2005 (WA), s 55; • Osteopaths Act 2005 (WA), s 54; • Physiotherapists Act 2005 (WA), s 55; • Podiatrists Act 2005 (WA), s 55; and • Psychologists Act 2005 (WA), s 54.
98 These health related enabling Acts therefore provide vocational
regulatory bodies with common powers to suspend practitioners on an interim basis. As noted above, there was a power of interim suspension in the Nurses Board under the repealed Nurses Act 1992. However, not all of these health related vocational regulatory bodies had such a power prior to the passage of the 2005 Acts.
99 One does not find a power of interim suspension in all health related
legislation however. For example, there are no equivalent provisions in
the Dental Act 1939 (WA) or the Dental Prosthetists Act 1985 (WA).100 The Pharmacy Act 1964 (WA), however, does contain an interim suspension power. Under that Act the vocational regulatory body may suspend a pharmacist for a period of up to 21 days where there are "extraordinary circumstances" which make it in the public interest to do so: s 32A(1).
101 As a matter of statutory interpretation, one can see that the
Parliament intended that vocational regulatory bodies in most health related areas should have the power of interim suspension, but not a more open-ended power. Rather, the power should be limited to circumstances where there is "a risk of imminent injury or harm to the physical or mental health of any person". The Parliament has taken some care to delineate the circumstances in which the interim suspension power can be exercised, and has deliberately not created a more open-ended power. In this respect, the interim suspension power created by NM Act, s 57 may be contrasted with the power in the Pharmacy Act 1964 (WA), s 32A(1) referred to above, and the Tribunal's power to order the interim
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suspension of a legal practitioner found in the Legal Practice Act 2003
(WA), s 182(1).102 The fact that in introducing the new s 57, NM Act, the Parliament
saw fit to delete the power of the vocational regulatory body to issue an interim suspension order in the circumstances previously provided for in the Nurses Act 1992 s 59B(1)(b), where there was "a contravention or likely contravention of this Act", is also of significance. It supports the view that the Parliament intended that the Board, under the new Act, should not have a more open-ended power to suspend on an interim basis.
103 While the Tribunal has formed the view that, in the circumstances of
this case, it is not appropriate to extend the order providing for the interim suspension of the nurse under s 57 of the NM Act, the question remains whether the Tribunal should grant an interim injunction preventing the nurse from practising as a nurse pending the determination of the disciplinary proceedings commenced by the Board.
Tribunal's findings on grant of interim injunction
104 Under s 90(1) of the SAT Act, the Tribunal may by order grant an
interim injunction in any proceeding "if it is just and convenient to do so". The Tribunal's power to make an order under subsection (1) is exercisable by a judicial member such as the President: s 90(2). The Tribunal may make the order on the application of a party or on its own initiative: s 90(3).
The President invited the parties to lodge further submissions on the question whether such an interim injunction should be given in this case.
106 In Madden and Shire of Broome [2007] WASAT 117, the President discussed the Tribunal's power to grant an interim injunction, albeit in the context of an application for what amounted to a mandatory interim injunction. The President noted at [26] that it is usual to say when an interlocutory injunction is sought in court proceedings, as was stated in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, that there are a number of principles that normally have to be established to get the injunction. The first is that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability at the trial of the action that the plaintiff will be entitled to relief; secondly, that the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and thirdly, that the balance of convenience favours the granting of an injunction.
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107 The President at [27] pointed out that those principles were laid
down in the context of the principles governing the grant or refusal of interlocutory injunctions in private law litigation. They have also been applied in constitutional cases. The President suggested they were not entirely relevant in an administrative review context where the Tribunal has a statutory power to grant an interim injunction. However, they provide some guidance to the exercise of the statutory power in an administrative review context.
108 The President emphasised, at [28], for example, that it remains
important whenever an injunction question is raised to ask "How serious is the 'question to be tried' or the issue that the person wanting the injunction is contending for?"
109 In this case, there is undoubtedly a serious question to be tried, in the
sense that there is an allegation supported by a statement of facts that the nurse is guilty of stealing a prescribed drug from the hospital at which she worked as a Registered Nurse. If the evidence remains as it is, there would seem to be a probability that the nurse acted as alleged. So far as the consideration of irreparable injury and balance of convenience is concerned, the principles devised for private law or constitutional litigation are not entirely apposite in such circumstances. However, what one can ask, and the Tribunal believes it should ask, in circumstances such as the present, is whether the public interest will be put at risk if the nurse is not restrained from acting in her profession? If the public will not be adequately protected, pending the determination of the disciplinary proceedings brought by the Board, then the Tribunal considers serious consideration must be given to the granting of an interim injunction restraining her from practising as a nurse.
110 The power of a judicial member to grant an interim injunction is not
inconsistent with the power of the Board to order the interim suspension of a nurse or midwife, but complementary to that power. The Board is empowered to act urgently in limited situations. The Tribunal has a wider power to grant an injunction in other cases once proceedings have been commenced in the Tribunal.
111 In the opinion of the President (and the other members of this
Tribunal), it is inappropriate for a nurse to continue practising as a nurse, attending to patients and the like, where there is a serious issue to be tried, as there is here, concerning the allegation that the nurse has unlawfully taken prescribed drugs from the hospital at which she or he works.
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112 In saying this, the President repeats what the Tribunal stated above to
the effect that it does not consider that it can reasonably be inferred, on the material currently before the Tribunal, that the nurse herself has a substance abuse problem or that there are proper grounds for believing she has deprived patients of their medication. However, the fact that the nurse is alleged to have unlawfully taken prescribed drugs, in the circumstances described, in our view seriously undermines any claim the nurse may put that she can properly continue in practice while the allegations remain unresolved without putting at real risk the confidence colleagues and patients are entitled to place on her having the capacity to exercise good judgment. For example, any patient who were to be advised that the nurse caring for him or her is currently charged with the offence of stealing or is suspected by the hospital or the Board of having unlawfully taken a prescribed drug from the hospital and had it in her private possession outside the premises of the hospital in the circumstances described, would feel alarmed at the prospect that the nurse would be rostered on to care for him or her. Any person would be similarly concerned if his or her family member were to be put in the charge of such a nurse. Any nurse would also find himself or herself in an uncertain professional working relationship with his or her colleague if that colleague had these unresolved allegations made against him or her. The basic relationship of trust and confidence that must exist between a patient and a nurse, and a nurse and his or her colleagues, would be put at serious risk while the allegations remained unresolved.
113 For these reasons the President considers that an interim injunction
should be granted in the terms described preventing the nurse from practising as a nurse under the NM Act pending the determination of the disciplinary proceedings commenced by the Board.
114 In circumstances where the applicant for the interim injunction is a
vocational regulatory body and the interim injunction is granted to advance the protection of the public, it is unnecessary to require any undertaking as to damages.
Conclusion and Order
For the reasons set out above, the Tribunal finds:
• the application of the Board for the extension of the interim suspension order made by the Board in respect of the nurse under s 57 of the NM Act on 2 October 2007 should be refused. [2007] WASAT 289
The President finds:
• that an interim injunction should be granted restraining the nurse from practising as a nurse under the NM Act pending the determination of disciplinary proceedings VR 205 of 2007 commenced by the Board against the nurse on 11 October 2007.
The Tribunal, therefore, orders as follows:
1. The application of the Nurses and Midwives Board of Western Australia for an order extending the interim suspension order against the nurse made 2 October 2007 is dismissed. 2. The nurse is hereby restrained from carrying on the practice of nursing pending the determination of the disciplinary proceedings commenced against her by the Board in State Administrative Tribunal proceedings VR 205 of 2007. 3. These reasons for decision are to be published but the name of the nurse is not to be published by reason of the pending criminal proceedings in the Magistrates Court involving the nurse. However, the parties are to be given a copy of the Tribunal's order containing the full name of the nurse. 4. The Board is authorised to provide a copy of the order containing the full name of the nurse, together with the reasons for decision, to the hospital at which the nurse worked at the time of her initial interim suspension by the Board, and to other bodies either in Western Australia or elsewhere in Australia concerned with the registration of nurses.
I certify that this and the preceding [117] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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