Nurses Board of Victoria v RJT
[2002] VSCA 191
•29 November 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 6309 of 2000
| THE NURSES BOARD OF VICTORIA | |
| Appellant | |
| v. | |
| RJT | Respondent |
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JUDGES: | ORMISTON, BATT and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 23 and 24 September 2002 | |
DATE OF JUDGMENT: | 29 November 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 191 | |
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ADMINISTRATIVE LAW – Powers of Nurses’ Board under Nurses Act 1993 – Jurisdiction of Board to conduct investigation of “professional conduct” of nurse pursuant to ss.22 and 23 of the Act – Whether potential harm to marital relationship of patient can be relevant to investigation – Procedure to be adopted by Board when complaint made – Jurisdiction of Supreme Court to restrain Board from hearing complaint alleging professional misconduct – Extent of jurisdiction of judge under O.56 of Supreme Court (General Civil Procedure) Rules 1996 – Power to make conclusive findings of fact – Relevant issues – Whether factual errors by judge.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J. Ruskin, Q.C. | Best Hooper |
| For the Respondent | Mr T.V. Hurley | Steven J. Peak & Co. |
ORMISTON, J.A.:
This appeal is brought by the Nurses Board of Victoria which seeks to set aside a decision of Nathan, J. who ordered, in a proceeding brought pursuant to O.56 of the Supreme Court (General Civil Procedure) Rules 1996, that a determination by the appellant, directing that a formal hearing under the Nurses Act 1993 (“the Act”)[1] be held into the professional conduct of the respondent as a registered nurse, be quashed. His Honour further ordered that the appellant be restrained from proceeding any further with a formal hearing into the respondent’s conduct based on the complaint giving rise to the determination. In essence the judge held that, although he considered that there had been no failure to comply with the requirements of the Act, it was not open to the Board[2] at a hearing under Division 3 of Part 3 of the Act to make a finding that the respondent had engaged in unprofessional conduct, as defined in s.3(1) of the Act. Shortly stated the subject matter of the proposed hearing, as alleged and identified in a letter from the Board to the respondent dated 12 July 2000, was that the respondent had:
“Engaged in unprofessional conduct of a serious nature in that:
·in and between October 1998 and January 1999 you commenced and continued a sexual relationship with [Mrs B], a former psychiatric client, for whose care you had been responsible in and between May and July 1995, and whom you knew to be married and still living with her husband at the time of the relationship.”
[1]All references to the Act are to the Act as it stood in July 2000: see Reprint No. 2 or, more precisely, Version 022.
[2]Strictly speaking any finding at a formal hearing is made by a “panel” of the Board, appointed under ss.44 and 45 of the Act, which may, in special circumstances, include persons other than Board members, but a panel’s determinations are treated as those of the Board: see s.52(2). I shall use the word “Board” also to cover decisions of a kind which can be made by any such panel.
The principal reason why the judge held that the hearing should not proceed was that in his opinion “no complaint concerning the professional conduct of a registered nurse within the meaning of s.22” had been made.[3] This conclusion flowed, so the judge said, from the fact that, although the respondent was still working as a psychiatric nurse at the time the alleged misconduct took place, that conduct took place some three and a quarter years or more after he had been treating Mrs B professionally as a nurse in a large Melbourne maternity hospital and the alleged behaviour occurred at Mrs B’s home at a time when the respondent was not actively engaged in treating her. The judge concluded that no question of “unprofessional conduct could have arisen”, and thus the “professional conduct” of the respondent could not properly be investigated. Another technical point, namely that the complaint was frivolous or vexatious, was rejected by Nathan, J. and other complaints about the Board’s conduct, by which it was alleged that it had not followed the procedures under the Act, were not fully dealt with by his Honour, although they became the subject of a notice of contention, leave to rely on which was given during the hearing before this Court.
[3]See para.[58] of the judgment: [2000] VSC 498.
On these matters the Board contended on this appeal, in broad terms, that it was no part of the judge’s function in hearing the proceedings brought under O.56 to determine whether the complaint was made out, for relief thereunder should only be given if he could be satisfied that no facts could be made out at a full hearing of the Board which might reasonably lead to a finding of unprofessional conduct. I shall return in due course to the manner in which the appellant put its case and likewise to the one matter in the notice of contention which the respondent persisted in seeking the Court to find, so that the orders in favour of the respondent might otherwise be upheld.
For a number of reasons I believe the order of Nathan, J. cannot be justified, either on the judge’s own reasons or for the reasons expressed in the notice of contention. I shall endeavour to express those reasons as briefly as is practicable, but it should be understood that I have in no way reached the conclusion that the respondent was in fact guilty of unprofessional conduct, for the only conclusion which should follow is that the matter should go to a proper hearing on the merits before the Nurses Board.
Factual background
In setting out these matters of background it should also be understood that I am describing only the allegations which have been made and the manner in which that was said to amount to professional misconduct. It is not appropriate that this Court should reach any factual conclusions on the issues yet to be resolved and what appears below should be read subject to that qualification.
The respondent has been for a number of years a registered psychiatric nurse and, as he has conceded, was employed at the relevant maternity hospital at various times including the period May to July 1995. Likewise he has conceded that the subject of the complaint, Mrs B, was admitted to that hospital “as a general patient” at that time.
Mrs B had been married to Mr B, the complainant, since about 1986 and their first child, a daughter, was born in April 1995. Shortly thereafter it seems that Mrs B was diagnosed with post-natal depression. For that reason she was admitted to the mother/baby unit of the hospital in May 1995 where she stayed for several months, at least until July 1995, although she had some later treatment as a day patient. Because of her treatment she was under the care of a team of about eight psychiatric nurses, including the respondent who was, however, not her “main carer”.
It is alleged, primarily by Mr B, that Mrs B had suffered from clinical depression since her teenage years, although it may be that the only specific bouts treated occurred in 1978 and 1981. Although the respondent was not the nurse in charge of Mrs B, it is said that they became familiar during her time in hospital, even to the extent of there having been some sexual approaches, primarily by Mrs B. It is also said that, whatever his precise position as a nurse may have been, the respondent came to know a good deal about Mrs B’s condition and treatment, such that he came to speak privately to Mr B on a number of occasions about her treatment and matters at home. It seems generally from the hospital file notes that the respondent made a small number of entries relating to Mrs B but, by reason of his position and the nature of her treatment, it is suggested that he would have been familiar with her psychiatric condition both from observation and through the notes, which can be seen incidentally to refer to difficulties in her marital relationship.
There was no contact between the respondent and Mrs B for some three or so years after her discharge from hospital. Mrs B says that she had further psychiatric difficulties during 1997 and began to consult a psychiatrist again in about January 1998, which consultations had continued on and off at least until the time of the conduct complained of and thereafter. There is no suggestion, however, that the respondent knew of this later treatment, although the appellant has contended throughout that he must from his earlier knowledge have been aware of her psychiatric vulnerability.
In September 1998, when she was about 37 years of age, Mrs B says that she renewed her acquaintanceship with the respondent, who was by then 43 years of age, by telephoning him, first at the maternity hospital and then at another hospital where he was then working. She suggested that they meet for coffee, but when they met in the morning on a day when her husband was at work, he came directly to their house where it is alleged by her that they had intercourse. Thereafter, up to Christmas 1998, the affair continued, so she alleges, in the sense that they had intercourse on about three or four other occasions. By that time some unpleasant aspects of the relationship and the respondent’s attitude began to evidence themselves, according to her, including a degree of verbal abuse and the expression of some sadomasochistic fantasies on his part, which need not be elaborated.
Thereafter, it seems that Mrs B was unsure about the relationship with the respondent in that she communicated with him by telephone on a number of occasions until about March 1999 and she had a final meeting with him at his hospital in April of that year. She says that these communications were largely to express her dissatisfaction about his abuse but that she remained confused about her feelings towards him. It has also been said by the complainant Mr B that his wife had a breakdown in February 1999 from what he thought was an overdose.
In April 1999 Mr B, who had been unaware of his wife’s relationship with the respondent, came across what appeared to him to be evidence of it in somewhat unusual circumstances. While looking through some broken jewellery he came across a letter, or the commencement of a letter, addressed to the respondent. It did not appear to have been sent and may well have been unfinished, and Mrs B has asserted that she might not have sent it or intended to send it to the respondent. It commenced by expressing, in explicit and detailed terms, her strong affection for the respondent and the physical pleasure she derived from his attentions, although it proceeded towards the end to complain of certain aspects of his verbal abuse and sexual fantasies, which she could not understand and reminded her of certain unhappy aspects of her childhood. When confronted with this it was said by the complainant that his wife at first denied the relationship, but afterwards admitted it, but said it had finished in December 1998. The complainant had also obtained and checked on a phone bill which contained numerous calls in March and April 1999, including a 41-minute call, as to which she responded that she was angry at how the relationship had ended.
It seems that by about this time the marital relationship between Mr and Mrs B had likewise broken down for a number of reasons, which included an alleged affair of Mr B.
Shortly afterwards, on 3 May 1999 Mr B addressed a written complaint as to the respondent’s behaviour and asserting that he would have had an understanding of her illness and her history of psychiatric illness, which would have left his wife “in a position to be vulnerable and easily manipulated”. It was this complaint as to his behaviour which led to the commencement by the Nurses Board of a preliminary investigation into the respondent’s conduct.
Although the validity of the various steps taken by or on behalf of the Nurses Board is no longer challenged, the relevant grounds of the notice of contention having been abandoned, it is desirable simply to set out the history of that investigation[4] which led to the recommendation that there be a formal hearing into the complaint. Before the Board dealt with the matter Mr B had also sent copies of his wife’s explicit letter in draft and of the telephone accounts. The Board thereafter, being of the opinion that it “must” investigate the complaint pursuant to s.22(1) of the Act, in May 1999 delegated its power to conduct a preliminary investigation to Ms Peisley, the Manager-Professional Conduct of the Board. Shortly thereafter the Board informed the respondent that the preliminary investigation had been initiated and gave brief details of the complaint, requesting that he attend the office to discuss the complaint. On the same day the Board wrote to Mr B notifying him of the preliminary investigation.
[4]See the principal sections set out below at para.[51].
Thereafter, for a period of about a year, the investigation continued, with correspondence between the Board and the respondent being in many cases between their solicitors. Mrs B’s attitude, however, was ambivalent. The following month she rang to enquire about the complaint, saying that the respondent had accused her of reporting him to the Board. Having been told that the complainant’s identity was not revealed, she stated that she had had an affair with the respondent but that “he had never been her nurse” and that the affair was over. Moreover, she had become separated from her husband. When asked if she would make a statement about the matter, Mrs B said she did not wish to get involved or to take sides. Later that month Mr B attended the Board for the purpose of an interview with Ms Peisley and the Board’s solicitor, which extended over some time, in which, in considerable detail, he outlined his complaint and the background to it. It seems that he was given a copy of the typed version of the interview which he added to and corrected.
In late August 1999 the Board wrote to Mrs B saying that it would appreciate her assistance and asked her to discuss the matter with the Board at their offices. For whatever reason there was no positive response to this until March 2000 when Mrs B provided a three page statement. It did not condescend to as much detail as had previously been obtained, whether accurate or otherwise, from her estranged husband, but it appeared to confirm the essential elements of the complaint. She said that she thought the respondent was a good psychiatric nurse “so far as nursing went”. Significantly, however, she said that she did not believe “he should ever be working with female patients”. Shortly thereafter the Board asked again for the respondent to attend for an interview and give his version of events, but he declined and he has never been interviewed by the Board or provided his version to it.
A number of matters were raised between the parties’ solicitors as to whether an issue as to professional conduct had arisen, especially in the light of the interval between the hospital treatment and the alleged intercourse. Eventually, in the absence of any material from the respondent as to the complaint itself, Ms Peisley made a written recommendation to the Board that a formal hearing be held into the respondent’s professional conduct. On 22 June 2000 the Board accepted the recommendation and appointed a panel of four persons to conduct the formal hearing into the respondent’s professional conduct. It was that resolution which was communicated to the respondent by a letter of 28 June 2000, expressed in somewhat brief terms, which was followed up by the longer letter of 12 July 2000 formally setting out the nature of the complaint which would be further investigated, as well as details of the hearing. The Board, in notifying the respondent of the proposed hearing, said that it had taken into account some eleven documents, many of which I have referred to, together with some correspondence between the parties or their solicitors. In addition, another eight kinds of document were said to be available for the purposes of the hearing, which had been obtained from the maternity hospital and included the whole of the medical and nursing notes. On 2 August that year the respondent commenced the present proceeding. There has in consequence been no full hearing to this stage by the Board itself.
The originating motion taken out on 2 August 2000 sought relief on a number of grounds, including a failure to observe the proper procedures and claims in substance asserting that the matter referred to hearing by the Board did not constitute “professional conduct” within the meaning of the Act. The trial took place, as might be expected, entirely on affidavit, including the related exhibits, and there was no cross-examination. Indeed, the only participant in the alleged conduct who made an affidavit was the respondent, who confined himself almost exclusively to formal matters and there was no affidavit material sworn by the complainant or his wife Mrs B.
The judge’s findings
As I have said, Nathan, J. rejected a contention that the complaint was frivolous or vexatious and was prepared to assume that the proceedings of the Board were otherwise regular.[5] All that his Honour later said about the somewhat detailed contentions alleging a failure to comply with the proper procedure was an observation[6] that he rejected counsel’s contention, based on the terms of the Act, that there was no material to support the conclusion that a preliminary investigation had been conducted, so that he had been invited to find that the procedure of the Board was fatally flawed. About that his Honour said only that: “Nothing was produced to substantiate that contention”. In consequence he said that no other conclusion was possible than that the Board had authorised the preliminary investigation of a complaint relating to professional conduct and that it had accepted the recommendation made to it that it proceed to a formal hearing. Perhaps his Honour’s failure to deal further with these technical matters arose out of his firm conclusion that the complaint did not relate to the “professional conduct” of the respondent.
[5]See at para.[26].
[6]At para.[30].
His Honour therefore disposed of the matter solely on the basis of his conclusion that “there was no complaint concerning the professional conduct of a registered nurse within the meaning of s.22”.[7] He thus held that the “essential platform” for the Board’s investigation had been lacking and that there was no point in permitting the matter to be taken further. This led to his declaration that the Board had no jurisdiction to proceed with the complaint and his order that the determination of 22 June 2000 be quashed and the further order that the Board be enjoined from proceeding further with any hearing.
[7]At para.[50].
The reason for this conclusion is a little curious. It seems to be that, as argued on behalf of the respondent, the original complaint itself was said not to relate to the professional conduct of the respondent because of the interval between treatment and the alleged conduct, so denying the Board power to do anything further in relation to it under s.22 other than to conclude that it did not “concern” the respondent’s professional conduct. In turn that would suggest that no investigation, whether preliminary or final, into the complaint should have been conducted by the Board. That would mean that the Board would have been obliged to reach that conclusion on the complaint as forwarded to it, which might fairly have included Mrs B’s draft letter and the telephone account, but it would not, on this hypothesis, have allowed the Board to conduct even a “preliminary investigation” as to whether or not there was some relevant connection between the respondent and Mrs B or into the causes or nature of that relationship.
Moreover it would seem that the judge’s reasons depended more on an evaluation of the whole of the material before the Board, as obtained during the preliminary investigation by the investigating officer and such other materials as might have been used by the Board in determining under s.23(2) whether or not to act on the investigator’s recommendations. That his Honour looked at the question in the light of the material available at this later stage, may be seen from his more explicit finding[8], on the Board’s “own material” that: “The Board’s evidence viewed in its most favourable light, could not carry a proposition that the conduct complained of could be said to arise out of the professional conduct of RJT as a nurse.” Although one could not in general terms cavil with the formulation of the test, nevertheless in the circumstances it might have been preferable to ask the question whether the conduct complained of “could be said to amount to unprofessional conduct” on the part of the respondent, as it was that “material” which was then, in July 2000, alleged against him and which was to be the basis of the formal hearing.
[8]At para.[57].
One must go further back into his Honour’s reasons, however, to see why he reached a conclusion that the complaint could not be said to relate to the respondent’s professional conduct. The basis for his reasoning seems to depend upon a number of factors which he reiterated in paragraph [54] of his judgment in these terms:
“(1)The lapse of more than three years between the cessation of the medical practitioner/patient relationship and the sexual activity;
(2) The age of the participants;
(3)The consensual, one might say, enthusiastic nature of the sexual relationship terminating any pre-existing professional relationship leading to my conclusion there was no ‘professional conduct’ for the NBV to investigate;
(4)The source of the complaint … “.
Though it was not said now that items (2) and (4) were especially relevant, the facts referred to above were not said to be inaccurate except, most significantly, for his Honour’s conclusion that the sexual relationship “terminated” the existing professional relationship. The objections now made to that conclusion are that it is not a matter for a judge on a judicial review application to make such a fact-finding, unless it be uncontrovertible, but, if correct, it would have simplified the relationship and the factors which the Nurses Board might have taken into account in considering and determining the complaint.
On the face of it the judge might have been accepting the contention that the mere facts that the period of nursing attention or treatment was over for some time and that the parties’ later resumption of contact was therefore wholly unconnected with the respondent’s professional activities were sufficient to deny the Board the right to enquire into the matters as relating to his professional conduct. However his Honour held[9] clearly that there was “no need for contemporaneity between the practitioner/patient relationship and the conduct complained of, for it to amount to unprofessional behaviour” and that, for example, a medical practitioner might abuse a professional position by later exploiting the relationship for the purpose of sexual gratification. Moreover, the judge correctly referred at the outset to the conclusions of the full High Court in Hoile v. The Medical Board of South Australia[10] where it was said[11]:
“No-one maintains that all serious departures on the part of a medical practitioner from the standards of moral conduct amount to misconduct in a professional respect. But if his professional relationships are the occasion or source of the misconduct and it is sufficiently serious it may be deemed by the Medical Board to be infamous conduct in a professional respect.”
I note incidentally that it was accepted that the test of unprofessional conduct under the Act was essentially the same, at least for the purposes of this appeal. Nevertheless his Honour held[12] that here there was no relevant connection between the former professional relationship and the conduct later engaged in, nor, moreover, was it of relevance, as the charge appeared to assert, that the respondent was aware that Mrs B was married and still living with her husband at that time.[13]
[9]At para.[44].
[10](1960) 104 C.L.R. 163.
[11]At 163, per Dixon, C.J., McTiernan, Fullagar, Menzies and Windeyer, JJ.. His Honour cited the first paragraph of the headnote but what is here included is the passage from the judgment itself which is virtually identical: para.[46].
[12]See para.[45].
[13]At para.[56].
Each of those conclusions was reached upon his Honour’s analysis of the facts as made available to him for the purpose of the O.56 proceeding. Although he accepted that contemporaneity was not essential, he found that the long since terminated relationship “did not result in RJT engaging in sex with Mrs B”.[14] He said there was no suggestion that the respondent was able to manipulate that relationship into a sexual one or that when it occurred Mrs B was “psychiatrically vulnerable or disturbed”. The latter conclusions, of course, must have depended upon the evidentiary materials, such as they were, placed before his Honour. He held that Mrs B was “the seducing and pursuing party”[15] and that it was she who invited the respondent into her home “one must assume for the purposes of sexual congress”, although the excuse given by her, “for a coffee”, was, in the judge’s words, “somewhat novel”[16]. He further concluded this was not a case of somebody with superior age intellect or position abusing another, but rather one of the patient “pursuing a person who happened to be formerly, and only partially, responsible for her care”.[17] His Honour added that there was no evidence of any intervening relationship or that he had ever sought to contact her during that period.
[14]At para.[45].
[15]At para.[46].
[16]A remarkable proposition in itself, but of little consequence.
[17]At para.[46].
The judge also reached the conclusion[18] that whilst in his partial care Mrs B was being treated only for post-natal depression and “from this malady he was entitled to assume she had recovered or at least sufficiently so to have been discharged home”. It followed in the judge’s view that it was “highly unlikely” that the respondent would have thought that she could have been suffering from “this malady” nearly three and a half years later, adding[19] that the Board did not so contend. So it was that he concluded that “the hospital stay was the vehicle for introducing Mrs B to RJT and nothing more”.[20]
[18]At para.[47].
[19]Ibid. The Board did not at any time contend that Mrs B was still suffering from post-natal depression but it certainly said, and maintained before this Court, that generally she was psychiatrically vulnerable and had a history with which the respondent might be taken to be familiar, at least to a significant degree.
[20]At para.[48].
His Honour then turned to other matters which he saw to be relevant, particularly that the complaint came from a disgruntled spouse.[21] In broad terms he said that the Board should have taken account of the fact that the motive for the complaint was his hostility based on a perception of the role of the respondent in this tripartite relationship, which his Honour, I regret to say, described in flippant and tasteless terms.[22]
[21]At paras.[49]-[51].
[22]He described (in para.[50]) the respondent (and Mr B) in terms which were entirely inappropriate in a judgment. Were it not for the fact that judgments of the kind under appeal are reported without editing or supervision and are freely available on computer databases, regardless of merit, it would not be necessary to make a criticism of this kind.
This first criticism of the complainant’s evidence seemed largely to be directed to its unreliability in the circumstances in that, so it fairly might be conceded, the motivation of the husband in such a position, whether spite or retribution or whatever, must fairly be suspect. So the reasoning also included[23] an admonition to the Board to be “extraordinarily careful” when considering complaints by family members and advice to the effect that “the Board must be vigilant that it is not enticed into the bedrooms of its registered nurses, as I find has happened here”. What precisely was the purpose of this finding of fact is not clear, for it does not seem strictly to be relevant to the decision whether or not there was a case which the Board was entitled to investigate. It seems more likely that the judge was conceding that an enquiry into the parties’ moral behaviour might occasionally be pertinent, for in the next paragraph[24] he said that the Board had failed to take cognisance of the first part of the proposition of the High Court in Hoile to the effect that not all serious departures by professional people from the standards of moral conduct amount to misconduct. He appears then to have found[25] that the Board had formed the view that “any sexual congress with a former patient could amount to professional misconduct”, though it is not clear on what basis he considered that the Board proceeded on that absolute proposition. In the end he seems only to have decided[26] that “the circumstances must be taken into account”.
[23]See para.[51].
[24]Para.[52].
[25]Ibid.
[26]At para.[53].
If that were all, then perhaps it would be of little consequence but, after reiterating the four factors which formed the basis of his conclusions to that stage, which I have set out above[27], his Honour then returned to the Board’s obligations as bearing upon the issue he had to determine. He said[28], which is doubtless the case, that complaints of this kind must be carefully examined; indeed that “careful examination of such complaints is required before and not after the matters are referred for preliminary investigation” (emphasis added). How that can be done, except by some preliminary examination before the preliminary investigation is not clear, but his Honour continued that, “if that had been more thoroughly done” in the present case, he would not be disposing of the issue.
[27]In para.[24].
[28]At para.[55].
After referring to the need to apply “the objective standard of professional conduct”, his Honour returned[29] to his outrage at what he assumed the Board had done in the present case, by reiterating that the Board did not have “the jurisdiction to clomp into the bedrooms of registered nurses or their former patients, simply and only because sexual congress has occurred”. He continued by saying that it should not become “partisan in the disputes” between competing spouses. Consequently he found the reference in the charge to the fact that the respondent knew Mrs B to be married and still living with her husband to be “a very curious and irrelevant one”.[30] He proceeded[31]:
“It is redolent of morality which penalises adultery. It is not the function of the NBV to enforce the seventh Commandment. Every citizen whether a registered nurse or otherwise has a basic freedom to fornicate.” [32]
He continued[33], however, by saying that “in some circumstances fornication may well be personally reprehensible, but only when a practitioner/patient relationship exists or should be protected, does it become unprofessional”. He concluded[34] that neither of these preconditions prevailed in this case, although that must be an inference which he drew from the matters which he had previously discussed.
[29]At para.[56].
[30]Para.[56].
[31]Ibid.
[32]Again I would not have quoted or referred to this tasteless and inappropriate last sentence but for the fact that the judgment has already been published on computer databases.
[33]Ibid.
[34]Ibid.
Those observations led to his ultimate holding[35] that there was no jurisdiction in the Board as the conduct alleged could not “be said to arise out of the professional conduct of RJT as a nurse”. So the investigation ought to be terminated forthwith.
[35]At para.[57].
Errors in the judge’s reasoning
I have already stated that, although Nathan, J. purported to apply a seemingly correct test, it was not appropriate that he conclude either that there was no complaint concerning professional conduct or, more precisely (and as he had also expressed it[36]), that the Board’s own material “could not possibly sustain the existence of a professional relationship to which unprofessional behaviour or misconduct could append”. In simple terms I consider that the evidentiary material available to the judge was not of a kind, unless it had been agreed to contain the whole of the evidence to be adduced at the final hearing before the Board, which would permit a judge to reach the conclusion that the Board could not at that final hearing determine that the respondent had been guilty of unprofessional conduct. There may, of course, be cases where, either for technical reasons or because the allegations are so remote from that which might sustain a relevant finding, a judge might intervene at this stage to restrain a further disciplinary hearing of a board such as the Nurses Board. Perhaps that might have been so here, if certain of his conclusions of fact had been irrefutable and not capable of further investigation after the calling of more comprehensive evidence at the hearing. It must be remembered that, with the possible exception of Mrs B’s statement (which in any event appears to be very cautiously drafted, for obvious reasons), there was insufficient material in the form of witness statements or the like upon which the judge could act.
[36]Ibid.
The judge assumed that that which was set out in summary form in the various documents would be the whole of the evidence and was not capable of later elaboration or explanation at the final hearing. Sometimes the form of evidence put forward at a preliminary examination might provide a basis for saying that a tribunal should not go beyond the substance of the materials considered at that preliminary stage, but that degree of formality is not required for a “preliminary investigation” under the Act. Moreover a tribunal such as the Nurses Board has, or ought to be taken as having, built into it an expertise into matters of nursing and medical practice ordinarily sufficient to evaluate matters of this kind. It is an approach not entirely dissimilar to the view once espoused and not entirely abandoned that courts can reach conclusions as to the professional misconduct and negligence of barristers and solicitors without the need for expert evidence to be called on the subject. The subject matter is different, but one should be cautious in denying the power of a Board vested with the protection of the public[37] to reach appropriate conclusions as to what is or is not acceptable professional behaviour, certainly at the preliminary stage.
[37]See s.1(a) of the Act.
It was thus inappropriate that, on such materials, Nathan, J. should have held that there was, in effect, no case for the respondent to answer. Nor should he have made the findings of fact set out above on such limited evidence. I would again repeat that, in saying that the judge should not have decided to terminate the investigation before the Nurses Board, it does not follow that I would myself be satisfied that a case of professional misconduct has been made out or that the Board is hereafter be obliged to reach that conclusion. That will be a matter for consideration on the whole of the evidence called at the formal hearing.
Moreover, his Honour’s findings are premised on a number of conclusions which were either not supported on the materials before him or were conclusions of fact which were not open to him on the hearing of an application of this kind. In the first place his Honour seemed to assume or was willing to find that there was no connection between the professional relationship between the respondent and Mrs B during the time she was in hospital in 1995 and the subsequent meeting and relationship in 1998 about which complaint was made and which is now the subject of the matter referred for hearing. At the end of the day it may well be that there is insufficient connection between the two for a charge of professional misconduct to be made out, so that the principle in Hoile, to which the judge referred, may lead to the conclusion that, whatever may have been inappropriate in their behaviour, it neither arose out of nor was contributed to by their professional relationship. However, the judge was not entitled at this stage to conclude that there was no connection.
His Honour appeared to assume that the only basis upon which one could find an improper relationship after such a period of time had gone by was if there had been a breach of trust of the kind which would render Mrs B as the patient “psychiatrically vulnerable or disturbed”[38] in any later relationship with the respondent. Indeed the judge placed great weight on the fact that the relationship was, as seems so far not to have been disputed, one which was commenced or recommenced by Mrs B and one in which Mrs B appeared to participate enthusiastically, at least for a time. Likewise his Honour appeared to concentrate on the facts that, unlike most doctor/patient relationships, there was no necessary or assumed superiority or dominance of an intellectual or other kind and that each of the parties here were dealing on an equal basis as mature adults. Doubtless those factors are relevant, but another factor, which must be taken into account when considering whether a subsequent relationship is proper or not, is any other advantage which the nurse (as with any other medical professional) may have gained from confidential knowledge acquired during his dealing with the patient. It is quite possible that some advantage of that kind, based on a breach of confidence of the special kind which exists between patient and a professional person with medical qualifications, may have some bearing on a subsequent relationship between the parties. Details of symptoms or treatment for flu or a broken bone may not provide any basis for concluding that there was misuse of the information. On the other hand where the treatment is for a psychiatric disturbance and the materials available to any treating professional have been set out in great detail and refer to the personal relationships of the patient, then there must be real concern, or there may fairly be thought to be a real concern, as to the possibility of their being misused subsequently, even if not deliberately. In the end it may turn out that I have placed the risk too highly, but it will be better appreciated only when the evidence has been given in full at the hearing and its full significance can then be understood. For the present, and in the absence of any reasons for the recommendation or for the Board’s acceptance of it (which seemingly were not sought, whether or not they ought to have been provided), then I see no reason to prefer the judge’s assessment of these facts, limited as they are at the moment, to the Board’s appreciation of them, having regard to the extent to which its members were likely to have had some expertise in the field.
[38]At para.[45].
There would, moreover, seem to be two particular errors in the reasons of Nathan, J. relating to this issue. The first is a more general one, namely the assumption by the judge that the relevant advantage which the Board was asserting was confined to an advantage of the kind which might have flowed directly from Mrs B’s psychiatric vulnerability or any related weakness in circumstances where it might be said that a medical professional could use superior intellect or position to obtain influence over a former patient. As I have said, I do not understand that to be asserted by the appellant, rather that the respondent was in the position to take advantage of particular confidential knowledge of specific psychiatric problems or weaknesses, even if only unconsciously.
The second and more specific error is that the judge appeared to assume that the only relevant disturbance was that related to Mrs B’s post-natal depression. The judge, on the material before him, asserted that the respondent was entitled to assume that she had recovered from this and it was highly unlikely that she would have been suffering from it three and a half years later. As a practical proposition that may well be correct, although not directly founded on specific evidence. But the difficulty is that the Board’s contention went beyond the post-natal depression, as it was entitled to, and sought to rely on a history of depression which extended back to Mrs B’s teenage years. There was evidence of later treatment for some depression or other disturbance, although so far that has not been proved to be known to the respondent. The whole of her psychiatric history may well be seen to be irrelevant at the hearing, but neither the judge nor this Court has had it presented as a whole, nor with any expert appreciation of it, whether or not the Board at the formal hearing will ultimately require that having regard to its own expertise, a matter about which one need not here express any final conclusions. What this Court does know, however, is that the respondent had access to such of Mrs B’s medical history as was included in the notes kept in the maternity hospital, at the least, and this included personal details which went also to difficulties in her own marriage at that time. It is impossible to say at this stage what conclusion ultimately should be drawn from the whole of this material. The only thing one can fairly conclude is that the judge applied his mind to a very limited facet of that medical and psychiatric history and the knowledge which the respondent may be assumed to have gained[39] while Mrs B was under the kind of psychiatric nursing care which she received from him in hospital. No factual conclusion should therefore have been drawn by the judge on this subject, and certainly not the conclusion which he did in fact draw.
[39]This again may well be a matter to be proved at the formal hearing.
What I have said in the preceding paragraphs, and the issues thereby raised, shows that the judge’s conclusion that there was no connection between the respondent’s caring for Mrs B in hospital and their ultimate sexual relationship may well turn out to be incorrect. It is again sufficient to say that such a conclusion should not have been drawn in a proceeding of this kind which in substance was enquiring whether there was any evidence upon which the Board might reasonably find that there was a case to go for a formal hearing by the Board. I would add that what the judge said as to the age of the participants and as to the fact that on the material before him it appeared Mrs B was responsible in the first place for renewal of their acquaintanceship, may also turn out to be of significance at such a hearing. What the comparative significance of each of these issues will ultimately be is, however, not for a court to resolve on an O.56 application, but for the Board itself at the appropriate hearing. Again I should not be understood as expressing any view as to how these matters ought to be viewed at the end of the day.
There is a final matter, or perhaps a combination of matters, upon which the judge appeared to place considerable reliance, so as to suggest that there had been no case of professional conduct to be investigated further. I refer to his Honour’s observations about the fact that the husband Mr B was responsible for the complaint and the fact that the Board in its charge has asserted that the relationship of the respondent was with a person whom he knew to be married and still living with her husband at that time. No doubt, as the judge said, care has to be exercised when complaints come to the Board from persons not the subject of the specific nursing care or want of care alleged. It does not, however, follow that a person such as the husband (or any other relation or partner) of a patient is not entitled to make a relevant complaint about what that person perceives to be professional misconduct on the part of a nurse. If such persons are affected they ought to have the right to complain and have the Board consider their complaints, whatever care should be applied to their consideration.
More importantly, it may well be of relevance that a relationship of the kind here alleged could have affected the relationship of a patient with that patient’s spouse, or other relative or partner. The reason why conduct of a kind which affects a patient may be properly described as “unprofessional” is because it has or may have a harmful or deleterious effect on that person. How it may harm the patient will depend on many circumstances. It may cause direct physical harm; it may cause insult; it may cause emotional distress, whether psychological or otherwise. Within this latter class, at the least, may be found cases where the distress will flow from the effect it has on the mutual relationships the patient has with other people, whether spouse or children or persons more remote or less permanently connected.
“No man is an island, entire of it self”, as John Donne so wisely said in 1624.[40] Of course, nurses are not to be visited with the wisdom of Solomon or unreasonable foresight, but where they have dealings with their patients of any kind or engage in relationships with them, they must be at the least imbued with sufficient common sense to know that others closely related to their patients may also be affected and that, in consequence, those other persons’ reactions to their behaviour will or may have direct harmful or distressing consequences so far as the patients themselves are concerned. A professional person who seeks to engage in a sexual relationship with a former patient may believe, at least for an instant, that the patient is willing and well aware of its effect on spouse and child, and so may the patient, but the very conduct is fraught with risks, risks which often none can foretell and which may cause hurt not merely to the spouse and child, but in time to the patient who must thereafter sustain their reactions, however unintended.
[40]Devotions on Emergent Occasions “Meditation XVII”.
There is no question, contrary to what the judge has suggested, of becoming “partisan in the disputes between competing spouses”, for the Board’s concern is primarily and properly with the effect of a nurse’s behaviour on the patient, but the effect on the patient’s marital relationship can be relevant to an investigation, just as the effect on any other relationship may become relevant. Life cannot be broken up into simple compartments. The reaction of a husband who might feel himself cheated must be relevant to the well being of a married patient such as Mrs B, for their future relationship affected not merely those two but the child of the marriage as well, which in turn might have brought untoward and unanticipated consequences for the patient. There may be cases where the marital relationship is entirely finished and the parties have worked out their future relationship: that is quite different from the present, so far as one can presently tell.[41] More significantly in the present case Mrs B had been suffering and, so far as one is able to tell, still suffered at the relevant time from some form of depressive illness, of which the respondent seems to have been at least partly aware. In such a case where there is a risk to the mental well-being of the patient, such an interference with the marital relationship may bring with it even greater risks to her own well-being.
[41]On the limited evidence the break-up of Mr and Mrs B seems to have occurred after the affair of the respondent and Mrs B.
It was certainly not for his Honour at this stage of the Board’s hearing to interfere by concluding that her relationship to her husband was totally irrelevant. In substance the judge has said, quite wrongly in my opinion, that the reference in the charge to the fact that Mrs B was known to be married and still living with her husband was both “very curious and irrelevant”. It is hard to think of a relationship, outside the four walls of that between nurse and patient, which could be of greater significance if its fracturing were capable of causing harm to the patient. Moreover, in my opinion it was entirely inappropriate for the judge to describe the allegation as “redolent of morality which penalises adultery”; rather his assertion appears to be redolent of an attitude of some who supported the passing of the Family Law Act 1975 (C’th) as bringing the concept embodied in the seventh commandment to an end.[42] This may not be a court of morals but moral values are in certain fields still properly recognised,[43] especially where they are respected by a significant proportion of the population. More importantly, it is not a court which should condone a conscious attempt, if it be proved to be improper, to harm a relationship so well known and recognised as that of marriage. The judge’s remarks were, I regret to say, insensitive and offensive. They might appear to reflect a hedonistic view of life, human relationships and, in particular, the institution of marriage, which is still, to a significant degree at least, recognised by the Constitution, by statute and common law and by the community in general. Some may share the judge’s views, but that is irrelevant. The Board must take account of the fact that many people, on the contrary, respect marriage, as they would any other long-term relationship. The Board might fairly be expected to understand that alleged misconduct with a patient may have a deleterious effect on that person because its indirect consequences on a spouse (or other partner) may in turn cause harm to the patient.
[42]See, e.g., the provisions contained in s.120 of that Act and their limited effect.
[43]See, e.g. the passage in Hoile itself, set out above in para.[26] and tests applied under family provision legislation: cf. Collicoat v. McMillan [1999] 3 V.R. 803 at 815-820.
I should repeat that at the end of the formal investigation it may appear to the Board, or more precisely to the panel appointed by it, that this factor is of little or no consequence. The precise relationship between all three relevant parties is but barely touched on in the materials so far available and which were relied upon by the judge. It may be that all the “blame” for instigating the later relationship between the respondent and Mrs B can be placed on Mrs B and that her mental condition and the respondent’s knowledge of that condition will be seen to have little relevance to the circumstances about which complaint has been made. At present, however, there is sufficient evidence that the respondent knew from confidential sources both of her mental condition, at least of a tendency to suffer depressive illnesses, and of the fragile nature of her marriage, for the Board to have been concerned properly whether the confidential knowledge so acquired by the respondent in the course of treating Mrs B may have been put to misuse, in the sense that the respondent may have taken advantage of her condition when she appeared to instigate the relationship some years later. In the light of his knowing at least some of that information the respondent may be held to have been at fault in failing to resist and turn down her advances, if they may properly be so characterised. That was not a matter for the judge to determine. The Board at the relevant stage should not be considered to have been ill-equipped to reach a conclusion that there were allegations that should be investigated pursuant to its powers under the Act. I do not suggest what the proper outcome should be; merely do I say that the enquiry should not have been stopped at this stage by order of a judge of the Supreme Court.
It follows that I consider that Nathan, J. was in error in concluding that there was no complaint concerning the professional conduct of the respondent within the meaning of s.22 of the Act. In that respect his Honour was also incorrect to make a declaration that the Board did not have any jurisdiction to proceed with the hearing of the allegations arising out of the complaint set out in its letter of 22 June 2000. Nor was his Honour correct in holding in effect that the Board’s evidentiary material could not, viewed in its most favourable light, sustain a conclusion that the respondent had been guilty of unprofessional conduct within the meaning of the Act.
Notice of contention – Whether Board received recommendation within s.23(2) of the Act
The respondent was by leave permitted to rely upon a notice of contention served only a few days before the hearing in this Court, although he did not pursue two of the three grounds referred to in the notice. He did not seek to pursue one contention that the complaint was “frivolous or vexatious” within the meaning of s.22(1) of the Act, nor another that the reference to the marital status of Mrs B “meant the matter ceased to be a complaint about the professional conduct of the respondent as a nurse”. As will have been seen, I have, in effect, already dealt with and rejected that proposition.
The remaining ground of contention asserted that Nathan, J. “erred by holding (at reasons paragraph [26]) that it could be assumed that the Nurses Board had received recommendation on completion of a preliminary investigation and determined whether or not to act on it for the purposes of s.23(2) of the Nurses Act”[44], though the judge’s reasons on this issue seem to have been set out in both paragraphs [26] and [30] of his judgment.
[44]The relevant reasons are summarised above in para.[20] of this judgment.
There was before us some dispute as to what in fact had been in issue before the trial judge and what evidence was then available. The appellant then sought to file evidence setting out the formal steps taken by the Board pursuant, so it said, to the provisions of the statute, but counsel then reached agreement as to what took place, although that left some minor matters unresolved. It was agreed in the first place that there had been a recommendation to the Board that a formal hearing be held into the respondent’s professional conduct. Secondly it was agreed that that the recommendation had been placed before a meeting of the Board on 22 June 2000 and that the Board, following consideration of the recommendation, determined to hold a formal hearing. Consequently, as I understand it, counsel did not press an argument based on want of regularity in so far as it had previously been contended that there was no proof of the making of the recommendation or of the determination that a formal hearing be held. Rather, so I understood it, was it now argued that all the steps required under s.22 had not been carried out in relation to the complaint, so that the recommendation was not one which could properly have led to the exercise of jurisdiction by the Board to investigate the professional conduct of the respondent. In so far as that comprehended an argument that there was never a complaint relating to the professional conduct of the respondent, that has already been rejected earlier in this judgment.
For present purposes it is desirable to set out only the substance of two relevant sections, although a number of other sections and definitions were referred to in argument:
“22(1) The Board must investigate a complaint if the complaint concerns the professional conduct of a registered nurse and if the complaint is not to be dealt with by the Health Services Commissioner under s.21 or the Board has not determined the complaint to be frivolous or vexatious.
(2) In order to determine whether or not it is necessary to conduct a formal or informal hearing into a complaint, the Board must conduct a preliminary investigation into the complaint.
(3) The Board may, in writing, delegate to –
(a) an officer of the Board …
its power to conduct a preliminary investigation, other than its power to make determinations upon a preliminary investigation.
23(1) Upon completing a preliminary investigation, the person conducting the investigation may make one of the following recommendations –
(a)that the investigation into the matter should not proceed further; or
(b)that an informal or formal hearing should be held into the matter.
(2) The Board must determine whether or not to act on the recommendation of the person conducting the preliminary investigation.”
What is now said is that the Board did not go through the proper procedures in dealing with the complaint under sub-s.(1) of s.22. It failed to do so, so it was contended, because it was first obliged to determine whether the complaint should be sent to the Health Services Commissioner and whether or not it was frivolous or vexatious. The argument suggested that some earlier examination was required before the “preliminary investigation” was directed, largely, as I understand it, because it was said that a complaint of this kind ought to have been considered frivolous and vexatious and disposed of without further ado.
It is already clear why I would not accept the latter conclusion. Implicit in it, however, is also the contention that the matter had to be resolved one way or the other before the matter could proceed to a preliminary investigation, as if it were a precondition to that decision that the two other alternative courses should have been formally rejected. I do not accept that argument. The Board has a choice but it is not obliged to take formal steps to consider which of the three choices it will make. If it is a matter for the Health Services Commissioner, that will be largely obvious from the nature of the complaint and the Board will act accordingly. If it is seen to be frivolous or vexatious, then the Board is entitled to bring the matter to an end summarily without referring it for further examination. It does not, however, have to make a formal enquiry into whether it is frivolous or vexatious for, on a proper construction of the section, that will ordinarily be obvious. If it is not obvious, then usually it will be a matter to be sent for a preliminary investigation under the section. The conditions in the sub-section, other than that concerning “conduct”, are both negative conditions, that is, equivalent to “unless” clauses. They are not preconditions which must be specifically resolved in the negative by the Board.
There was in my opinion no defect in the procedure adopted by the Board in relation to this complaint. The contention therefore should be rejected.
Conclusions
Consequently the Board’s appeal should be allowed, so that each of the orders of Nathan, J. made on 29 November 2000 should be set aside and in their place there should be an order that the originating motion be dismissed with costs.
BATT, J.A.:
I have had the benefit of reading the reasons for judgment of Ormiston, J.A. I agree with his Honour that the reasoning and conclusion of the primary judge cannot be sustained and, subject to what follows, I do so for the reasons which his Honour gives.
With regard to the views on matters of morals expressed or implied by the primary judge and the flamboyant language in which he conveyed them, it is sufficient for me to say that, in my opinion, the views and language were out of place in a judgment of a court of law in this jurisdiction and that those views tended, I think, to colour the judge’s consideration of the legal issues.
I agree in the orders proposed by Ormiston, J.A.
VINCENT, J.A.:
I agree that although the judge in the court below adverted to the correct test to be applied to the matter before him, he fell into error with respect to its application. I also agree that the limited evidentiary material upon which his Honour’s decision was based was incapable of supporting a number of the conclusions of fact at which he arrived, as has been pointed out by Ormiston, J.A. in his judgment. In particular, it was, on that material, not open to the judge to conclude that at a final hearing the Nurses Board could not, after full examination of the circumstances, properly determine that the respondent had been guilty of unprofessional conduct.
I further agree that it has not been demonstrated that the procedure adopted by the Board in relation to the complaint was defective and reject the contention to this effect.
Finally I do not consider that I need address the opinions expressed by his Honour on aspects of private morality. However, it is apparent that his remarks in this regard not only reflected his own personal and strongly held, but irrelevant views, about which I express no opinion whatever, but also seem to have led him into approaching his task from a totally inappropriate commencement point and into reaching unsustainable findings of fact and conclusions of law.
Accordingly I agree that this appeal should be allowed and the orders proposed by Ormiston, J.A. made.
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