Nursing and Midwifery Board of Australia v Corderoy - [2020] WASC 247

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   NURSING & MIDWIFERY BOARD OF AUSTRALIA -v- CORDEROY [2020] WASC 247
CORAM:   HILL J
HEARD:   24 OCTOBER 2019 & WRITTEN SUBMISSIONS, 26 JUNE 2020
DELIVERED          :   2 JULY 2020
FILE NO/S:   GDA 8 of 2019
BETWEEN:   NURSING & MIDWIFERY BOARD OF AUSTRALIA
Appellant
AND
RACHEL CORDEROY
Respondent

ON APPEAL FROM:
For File No:   GDA 8 of 2019
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   MS D QUINLAN - MEMBER
MS R PETRUCCI - MEMBER
MS E PAVLOS - SESSIONAL MEMBER

File Number : VR 213 OF 2018

Catchwords:

Professions and trades - Nursing practitioner - Vocational regulation - Appeal from State Administrative Tribunal - Appellant found guilty of unprofessional conduct but not professional misconduct - Whether appellant denied procedural fairness - Whether Tribunal erred in law

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 5, s 193(a)(i)
State Administrative Tribunal Act 2004 (WA), s 32, s 60(2)

Result:

Leave to appeal granted on grounds 2 to 5
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Ms F A Stanton & Ms L Hunter
Respondent	:	No appearance

Solicitors:

Appellant	:	Australian Health Practitioner Regulation Agency (AHPRA)
Respondent	:	No appearance

Case(s) referred to in decision(s):

Bernadt v Medical Board of Australia [2013] WASCA 259
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334
Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Felix v General Dental Council [1960] AC 704
Herron v McGregor (1986) 6 NSWLR 246
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Medical Board of Australia and Roberts [2014] WASAT 76
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Nursing & Midwifery Board of Australia v Corderoy [2019] WASAT 48
Panegyres v Medical Board of Australia [2020] WASCA 58
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134
Singh v Medical Board of Australia [2019] WASCA 51
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355
WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; (2004) 134 FCR 271

HILL J:

Following an investigation by the Nursing and Midwifery Council of New South Wales (Council) in 2016, a number of conditions were imposed on the respondent's registration as an enrolled nurse. These conditions required the respondent to be supervised by a registered nurse when administering medication to patients. She was also required to inform all current and future employers of the conditions on her registration and inform the Council of her employer.
In 2017, the respondent moved to Western Australia and commenced as an enrolled nurse with Sonic HealthPlus Pty Ltd (Sonic Health). The Nursing and Midwifery Board of Australia (Board) alleged that the respondent breached the conditions on her registration by failing to inform Sonic Health of the conditions on her registration and administering medication without direct supervision. The Board referred the respondent's conduct to the State Administrative Tribunal (Tribunal) under s 193(1)(a)(i) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law).
On 1 July 2019, the Tribunal delivered its reasons for decision on the documents comprising the referral.[1] The Tribunal accepted that the conduct complained of had occurred and found that respondent's behaviour amounted to unprofessional conduct but not professional misconduct as alleged by the Board.
[1] Nursing & Midwifery Board of Australia v Corderoy [2019] WASAT 48.
The Board seeks leave to appeal against this decision. As a consequence of the appeal being lodged, the Tribunal has not yet determined penalties or costs in the matter.
For the reasons which follow, I would grant leave to appeal and allow the appeal on grounds 2 to 5 and remit the matter to the Tribunal for reconsideration.

Notice of Appeal and Leave to Appeal

On 26 July 2019, the appellants appealed against the finding of the Tribunal that the respondent was not guilty of professional misconduct but only unprofessional conduct. The appeal by the Board may only be brought on a question of law.[2]
[2] State Administrative Tribunal Act 2004 (WA), s 105(2).
There are six grounds of appeal, namely that:
1.The Tribunal erred in failing to provide an opportunity for the appellant to present written or oral submissions as to the characterisation of the respondent's conduct for the purposes of the National Law prior to making its decision on the papers in characterising that conduct.
2.The Tribunal erred in failing to consider whether the respondent's conduct constituted professional misconduct, pursuant to the definition under s 5(a) of the National Law.
3.The Tribunal erred in failing to consider whether the respondent's conduct constituted professional misconduct pursuant to the definition under s 5(b) of the National Law.
4.The Tribunal erred in failing to consider whether the respondent's conduct constituted infamous conduct in a professional respect or was otherwise sufficiently serious to justify being characterised as professional misconduct.
5.The Tribunal erred by failing to consider and make explicit factual findings as to whether the respondent had behaved dishonestly and finding that the appellant's allegations of dishonesty were part of the Board's allegation of the respondent's breach when this was material to the characterisation of the conduct under the National Law and the appropriate penalty.
6.The Tribunal erred in characterising the appellant's commencement of the primary proceedings when the appellant was required to refer the respondent's conduct to the Tribunal pursuant to s 193(1)(a)(i) of the National Law.
The appellant requires leave to appeal.[3] Leave to appeal should be granted if, in all of the circumstances, it is in the interests of justice that there be a grant of leave.[4] There are no exhaustive guidelines governing the grant of leave. Generally, the applicant must show there is sufficient doubt to justify the grant of leave and that substantial injustice would occur if the error went uncorrected.[5]
[3] State Administrative Tribunal Act 2004 (WA), s 105(1).
[4] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] - [18], quoting Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 [16] (Phillips JA).
[5] Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].
The respondent was served with the appeal notice on 7 August 2019.[6] The respondent did not lodge a notice of intention to appear at the appeal,[7] file any papers in relation to the appeal or seek to appear at the hearing of the appeal. This is consistent with the hearing before the Tribunal, which the respondent took no part in. The Tribunal was satisfied that the respondent had received notice of the primary proceedings.[8] I am similarly satisfied that the respondent has received notice of the appeal.
[6] Certificate of service filed 28 August 2019.
[7] Rules of the Supreme Court 1971 (WA), O 65 r 12.
[8] Reasons for decision [3] - [6].

Factual Background

From 2008, the respondent was employed as an enrolled nurse, initially living and working in New South Wales. In 2016, she was working at the Royal North Shore Hospital. On 18 February 2016, the Australian Health Practitioner Regulation Agency (AHPRA) received a complaint in relation to the respondent concerning her access to certain medication.[9] AHPRA referred the matter to the Council.
[9] Reasons for decision [14].
On 21 March 2016, the Council imposed conditions on the respondent's registration, effective from that date (Conditions).[10] The Conditions meant that the respondent could not administer medication to patients unless under the direct supervision of a registered nurse. She was also required to notify her current employer and, immediately prior to commencing work, all future employers of the Conditions and was only to be employed as an enrolled nurse where her employer agreed to notify the Council of any breach of the Conditions.
[10] Reasons for decision [14].
On 22 March 2016, by letter from the Council the respondent was notified of the Conditions.[11] On 23 March 2016, a further letter was sent by the Council to the respondent advising her of her responsibilities in complying with the Conditions and how the Council proposed to monitor her compliance.[12] Between March and April 2016, the Council received correspondence from the respondent which referred to and acknowledged the Conditions.[13]
[11] Reasons for decision [15].
[12] Reasons for decision [16].
[13] Reasons for decision [17] - [18].
On 1 May 2016, the respondent signed the Council's form entitled 'Notification of Conditions ‑ Registrant'. This form stated that by signing the document, the respondent was 'acknowledging that [she was] aware of the conditions on [her] registration'.[14]
[14] Reasons for decision [20].
Between December 2016 and May 2017, correspondence was exchanged between the respondent, the Council and the Health Care Complaints Commission (HCCC) regarding the continuance of the Conditions on the respondent's registration.[15]
[15] Reasons for decision [22] - [24].
On 24 August 2017, the respondent signed an employment agreement with Sonic Health, with a start date of 4 September 2017.[16] The position description included the 'safe administration of medications as required under the direct and indirect supervision of a Registered Nurse or Medical Practitioner'.[17]
[16] Reasons for decision [26].
[17] Appellant's documents, Tab 3, p 90.
From 4 September 2017 until 25 October 2017, the respondent worked at Sonic Health and administered medication to patients.[18]
[18] Appellant's documents, Tab 3, 'Consultation notes', p 94 ‑ 127; reasons for decision [27].
On 4 October 2017, the respondent informed Ms Patero of the Council by email that she had moved to Western Australia and was now living in Perth.[19] On 25 October 2017, the respondent emailed Ms Patero again, confirming that she had moved to Perth and asking how long the Conditions on her registration would remain in place. Ms Patero replied the following day stating that the Conditions remained in force until the Council advised otherwise. She also informed the respondent that she was required to inform AHPRA that her details had changed.[20]
[19] Appellant's documents, Tab 3, p 47 - 48.
[20] Appellant's documents, Tab 3, p 49 - 50; reasons for decision [29].
Following a routine quarterly AHPRA registration check, Sonic Health became aware of the Conditions on the respondent's registration. On 25 October 2017, the clinic manager of Sonic Health, Ms Stojcevski, spoke with the respondent and, later that evening, received a text message from her. In the text message, the respondent stated that when she had worked at the Royal North Shore Hospital, Pyxis machines were used to dispense medication. The respondent said that these machines had been audited in 2017 which had shown discrepancies in the medications dispensed under the respondent's name in October 2015. The respondent stated that 'it's a bit dodgy as I can't say I definitely logged out after each time I used it [the machine]'. She said AHPRA had placed the Conditions on her registration when she failed to turn up for a meeting after they sent correspondence to her former NSW address and that she was going to express post a statutory declaration and the necessary documentation to have the Conditions lifted. The respondent stated that she was 'in shock and so incredibly upset by all this'.[21]
[21] Appellant's documents, Tab 3, p 59; reasons for decision [30].
On 26 October 2017, the respondent sent a further text message to the clinic manager which confirmed the documents and declaration had been sent by express post to AHPRA.[22] The clinic manager replied saying that the respondent should take some time off and reminded the respondent of a meeting that had been scheduled at 10.30 am on 30 October 2017 to discuss the matter.[23]
[22] Reasons for decision [32].
[23] Appellant's documents, Tab 3, p 60.
On 26 October 2017, the area manager of Sonic Health sent a text message to the respondent confirming the 30 October meeting and that the respondent had been stood down 'on full benefits until further notice'.[24] In reply, the respondent advised that she had flown to Sydney to speak with the NSW Nurses' Association and get advice on what steps to take next. The respondent requested that she be stood down indefinitely as she did not want to further inconvenience the clinic manager or Sonic Health.[25]
[24] Appellant's documents, Tab 3, p 57 and 70 ‑ 71; reasons for decision [34].
[25] Appellant's documents, Tab 3, p 57 and 72 - 73.
On 27 October 2017, Sonic Health's human resources team sent a letter to the respondent advising that she had been stood down from her position on full pay, pending an investigation into the Conditions on her registration. The letter stated that a meeting would occur with the area manager and nursing manager of Sonic Health.[26]
[26] Appellant's documents, Tab 3, p 56.
On 27 October 2017, Sonic Health's nurse manager notified AHPRA that Sonic Health had become aware of the Conditions on the respondent's registration and informed them of the steps Sonic Health had taken to date. She requested clarification on the Conditions on the respondent's registration. The notification stated that no harm had occurred to patients from the respondent's employment.[27]
[27] Appellant's documents, Tab 3, p 135 ‑ 141; reasons for decision [43]. The reasons erroneously refer to the notification being lodged in November not October.
Following receipt of this letter, an officer of AHPRA contacted the nurse manager. On 31 October 2017, the nurse manager sent a follow‑up email to AHPRA confirming that administering medication was part of the respondent's role at Sonic Health and that she was supervised indirectly by the nurse manager and had access to and the support of medical practitioners and a senior registered nurse. Sonic Health's nurse manager described the respondent as a 'conscientious practitioner' and expressed the view that she 'did not believe [the respondent] is a risk to the public'.[28]
[28] Appellant's documents, Tab 3, p 61 reasons for decision [36].
On 30 October 2017, AHPRA received an application from the respondent for the removal of the Conditions on her registration. She referred to a Certificate IV in Nursing (Endorsed Enrolled Nurse) that she had obtained from the Northern Sydney TAFE campus in support of her application.[29]
[29] Reasons for decision [35].
On 3 November 2017, the Board proposed that the respondent's registration be suspended and the matter referred to Council pursuant to s 148(2) of the National Law. The respondent was notified of this proposal and provided with relevant documentation.[30]
[30] Reasons for decision [37].
On 6 November 2017, the respondent responded to this notification. She complained that the accusations had been continuing for two years and that over this time she had received 'zero support'. The respondent explained that she had moved to Perth for a fresh start. The response concluded with the statement that she 'will no longer fight this' and that she wished to surrender her registration and consider other career paths.[31]
[31] Reasons for decision [38] - [39].
On 9 November 2017, Sonic Health sent an email to the respondent confirming they had attempted to contact her and her next of kin and had received no response.[32] Later that day, Sonic Health wrote to the respondent advising that they had not heard from her since 27 October 2017 and had not received any response to their calls, emails or texts. The letter stated that if Sonic Health did not hear from the respondent by 13 November 2017, they would consider the respondent had abandoned her employment and would, on that basis, terminate it.[33]
[32] Appellant's documents, Tab 3, p 62.
[33] Appellant's documents, Tab 3, p 64.
On 10 November 2017, the Board considered the submission of the respondent (received on 7 November 2017) and decided to take immediate action under s 156 of the National Law. The Board suspended the respondent's registration, which took effect immediately pursuant to s 159 of the National Law and continues until it is appealed or revoked by the Board.[34]
[34] Reasons for decision [40].
The Board wrote to the respondent on the same date. The Board informed the respondent that it reasonably believed she posed a serious risk to persons and that immediate action was required to protect public health or safety. The Board also gave notice to the respondent that it had decided to conduct a further investigation into the matter, separate to its decision to take immediate action. The letter informed the respondent that notice would be given to her employer of the Board's decision and the respondent's right to appeal the Board's decision.[35]
[35] Appellant's documents, Tab 3, p 144 - 150.
On 17 November 2017, the respondent responded to the notice stating that she considered it was 'ridiculous' her registration had been suspended when she had never hurt or put a patient at risk and would never do so. She referred to a variety of scenarios where medical practitioners and nurses had their registration suspended and expressed the view that she was not on par with those.[36]
[36] Reasons for decision [42].
On 13 November 2017, Ms Rodrigues of Sonic Health sent an email to the respondent attaching a letter. Ms Rodrigues confirmed that they had not heard from the respondent within the required timeframe and that her actions constituted a breach of her employment contract. Ms Rodrigues stated that the respondent was deemed to have abandoned her employment, which would be terminated effective immediately.[37]
[37] Appellant's documents, Tab 3, p 66 ‑ 67; reasons for decision [41].
On 22 December 2017, AHPRA sent the respondent a letter referring to her application for review of the Conditions imposed on her registration. The letter stated that on 8 December 2017, the Board had decided, under s 125(5) of the National Law, to refuse to grant the respondent's application. AHPRA noted that the respondent's registration was currently suspended, following a breach of the Conditions. On this basis, they did not consider it was appropriate to grant an application for removal of the Conditions when a matter of non‑compliance remained under investigation. The letter stated that the respondent could appeal the decision to refuse to grant an application to change the Conditions on her registration.[38]
[38] Reasons for decision [46].

Appellant's case before the Tribunal

The Board filed their application with the Tribunal on 15 November 2018. Amended grounds of application were filed on 1 March 2019.
In the amended grounds, the appellant alleged that there were two separate breaches of the Conditions by the respondent: first, administering medication to patients at Sonic Health without the direct supervision of a registered nurse; and second, failing to advise Sonic Health of the Conditions or advising the Council of the name and contact details of Sonic Health.

The amended grounds referred to the text messages the respondent had sent to her employer and stated that the statutory declaration referred to in her messages to Ms Stojcevski had never been received. The only document that had been received was the application to remove the Conditions on the respondent's registration.
The appellant alleged that by reason of the matters set out in the amended grounds, the respondent engaged in professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance, as defined in s 5 of the National Law.[39]
[39] Amended grounds of application [24].
The appellant relied on the respondent's breaches of conditions, her dishonesty in failing to advise Sonic Health of the Conditions and advising them that she was unaware of the Conditions following Sonic Health becoming aware of the Conditions and her failure to comply with the Code of Professional Conduct for Nurses in Australia (Code).[40] In relation to the alleged breach of the Code, the appellant referred to:
(a)Conduct Statement 2, in failing to practice in accordance with the standards of the profession and broader health system;
(b)Conduct Statement 3, in failing to conduct herself in accordance with laws relevant to the profession and practice of nursing;
(c)Conduct Statement 9, in failing to maintain and build on the community's trust and confidence in the nursing profession; and
(d)Conduct Statement 10, in failing to practice nursing reflectively and ethically.
[40] Amended grounds of application [24].
The appellant alleged that the respondent's conduct was inconsistent with the respondent being a fit and proper person to hold registration in the nursing profession.[41]
[41] Amended grounds of application [25].
In support of its application, the appellant filed a bundle of documents which included copies of correspondence between the Council and the respondent, correspondence between Sonic Health and the respondent, the respondent's employment documents with Sonic Health, the respondent's consultation notes from her employment, AHPRA documents and the Code.[42]
[42] Applicant's bundle of documents.

Proceedings before the Tribunal

The matter initially was listed for directions before the Tribunal on 4 December 2018. It was adjourned to a mediation on 11 February 2019 and then relisted for directions on 26 February 2019.
Prior to the directions hearing, the appellant filed a minute of proposed orders which programmed the matter through to decision. The minute provided for the filing of amended grounds of application and any response from the respondent. The appellant also sought an order that:
Subject to any further order, the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
I note that the appellant did not request orders for the filing and service of submissions in support of the application. Orders were made in terms of the appellant's minute on 7 March 2019.
Following the making of the orders, the appellant filed an amended grounds of application on 1 March 2019 and its bundle of documents on 26 March 2019. The respondent was entitled to file a response to this material by 26 April 2019. The respondent did not file any material by this date or at all.
The applicant did not file submissions in support of its amended grounds of application nor seek to file any submissions. There was no oral hearing.
On 1 July 2019, the Tribunal delivered its reasons for decision.

Tribunal's reasons for decision

In their reasons for decision, the Tribunal found that the respondent was aware of the Conditions on her registration, as evidenced by correspondence between the respondent and the Council where she referred to the Conditions.[43]
[43] Reasons for decision [60].
The Tribunal made specific findings in relation to each of the breaches of Conditions, namely:
(a)the respondent had breached the first Condition as she had administered medication to Sonic Health patients without the direct supervision of a registered nurse;[44]
(b)the respondent had breached the second Condition, as the respondent had failed to notify Sonic Health of the Conditions prior to commencing employment and had failed to notify the Council of Sonic Health's name and contact details prior to commencing employment;[45]
(c)in breach of the third Condition, at no time prior to 25 October 2017 did the respondent notify Sonic Health of the Conditions, which required Sonic Health to agree to notifying the Council of any breaches or unsafe practice by the respondent, as well as exchanging information relating to the respondent's compliance with the Conditions;[46]
(d)in breach of the fourth Condition, the Tribunal found that the respondent did not notify the Council that she had moved to Perth until her responsive email to Ms Patero on 4 October 2017. As a consequence, the Council was not able to amend the Conditions, to require the respondent to report to the Board rather than the Council before 4 October 2017.[47]
[44] Reasons for decision [61].
[45] Reasons for decision [62] - [63].
[46] Reasons for decision [64].
[47] Reasons for decision [65].
As a consequence, the Tribunal accepted that the respondent had breached the Conditions between 4 September and 10 November 2017.[48]
[48] Reasons for decision [66].
The Tribunal did not make separate findings on the allegations of dishonesty or breach of the Code as the Tribunal viewed these as 'part and parcel' of the Board's allegations that the respondent had breached the Conditions.[49]
[49] Reasons for decision [72].
The Tribunal was not satisfied that the breach of the Conditions by the respondent supported a conclusion that she was not a fit and proper person to hold registration in the nursing profession and did not make a finding of professional misconduct against the respondent. Instead, the Tribunal concluded that the respondent had engaged in unprofessional conduct in breaching the Conditions. The Tribunal specifically relied upon the definition of unprofessional conduct under s 5 of the National Law which includes 'contravention of a condition on which the practitioner's registration was subject to'.[50]
[50] Reasons for decision [73] - [76].
Having found the respondent's conduct amounted to unprofessional conduct, the Tribunal determined that the matter should proceed to determining the appropriate disciplinary consequence. It made orders that the parties should file and exchange written submissions on the penalty and costs of the decision, which the Tribunal would determine on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
As a result of this appeal, the Tribunal has not proceeded to determine penalty.

Statutory Background

The Health Practitioner Regulation National Law (WA) Act 2010

The Health Practitioner Regulation National Law (WA) Act 2010 (WA) (Act) provides for a national registration and accreditation scheme for all health practitioners, including nurses. The Schedule to the Act is the National Law.
By s 193(1) of the National Law, the appellant (as a 'National Board') must refer a matter about a registered health practitioner to a responsible tribunal if the appellant reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct. Under s 6 of the Act, the Tribunal is declared to be a responsible Tribunal.
After hearing the matter, under s 196(1) of the National Law, the Tribunal may decide the practitioner has no case to answer or that:[51]
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct.
[51] National Law, s 196(1)(b).
That is, on a referral from the appellant, it is open to the Tribunal to make a finding other than professional misconduct.
Each of the terms 'unsatisfactory professional performance', 'unprofessional conduct' and 'professional misconduct' are defined in s 5 of the National Law.
'Unsatisfactory professional performance' is defined as:
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience;
'Unprofessional conduct' is defined as:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes ‑
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of ‑
(i)a condition to which the practitioner's registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner; and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.
'Professional misconduct' means:
professional misconduct, of a registered health practitioner, includes ‑
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
The definition of 'professional misconduct' is an inclusive one and is not an exhaustive statement of the concept.[52] Professional misconduct has two components: a performance component (par (a) and (b)) and a conduct component (par (c)).[53]
[52] Panegyres v Medical Board of Australia [2020] WASCA 58 [149] (Vaughan JA).
[53] Panegyres v Medical Board of Australia [150] (Vaughan JA); Bernadt v Medical Board of Australia [2013] WASCA 259 [23].
In considering the concept of 'professional misconduct' in Panegyres v Medical Board of Australia, Vaughan JA stated:[54]
[54] Panegyres v Medical Board of Australia [151] - [157] (Buss P and Murphy JA agreeing [11]).
Under pars (a) and (b) of the definition of 'professional misconduct', there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct.
It follows from the non-exhaustive nature of its definition that the concept of professional misconduct is wider than that which is provided for in pars (a) to (c). 'Professional misconduct' under the National Law can include conduct which does not fall within any of pars (a), (b) or (c) in the definition; for example, conduct which was infamous conduct in any professional respect in the sense of being conduct that would be reasonably regarded as disgraceful or dishonourable by a practitioner's professional brethren of good repute and competency would be professional misconduct.
A finding of professional misconduct under pars (a) or (b) of the s 5 definition involves, in substance, two elements:
1.First, the practitioner's conduct as established must constitute one (in the case of par (a)) or more (in the case of par (b)) instance or instances of unprofessional conduct. (As to this element it is necessary to draw on the s 5 definition of 'unprofessional conduct'.)
2.Second, the conduct must individually (in the case of par (a)) or taken together (in the case of par (b)) amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
The second element involves answering three questions:
1.What level of training or experience is possessed by the practitioner?
2.What standard of conduct would be reasonably expected of a registered health practitioner of that level or experience?
3.Was the conduct of the practitioner substantially below the standard identified in answer to question 2?
The enquiry as to the second element is thus potentially different to the question that must be considered under the designated meaning of the term unprofessional conduct. For unprofessional conduct the standard is what might reasonably be expected of the practitioner by the public or his or her professional peers. Often, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level or experience (as applicable under pars (a) and (b) of the definition of professional misconduct). But the standard may not always be the same. More significantly, for professional misconduct it is not enough that the practitioner's conduct is merely less than the standard. The departure must be 'substantially below' the standard.
Some indication of what is required before conduct constituting unprofessional conduct will be classified as professional misconduct because it is conduct that is 'substantially below' the requisite standard is provided by par (c) of the definition of professional misconduct. Paragraph (c) is relevant as it provides part of the context in which pars (a) and (b) are to be construed. Paragraph (c) of the inclusive definition expounds the concept of professional misconduct in terms of conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Accordingly, for conduct to be 'substantially below' the requisite standard it ought to reflect a corresponding degree of serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience. That is not to suggest that conduct is only substantially below the relevant standard where the conduct is inconsistent with the practitioner being a fit and proper person to hold registration. That approach would leave pars (a) and (b) without an independent scope of operation. The relevance of referring to par (c) is to acknowledge the gravity of a finding of professional misconduct - something that is properly taken into account in exercising the evaluative judgement required by pars (a)'s and (b)'s criterion of unprofessional conduct 'substantially below' the appropriate standard. (citations omitted)
To find conduct 'infamous' requires that it to be 'conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking‑off'.[55]
[55] Felix v General Dental Council [1960] AC 704, 720.
The term 'unprofessional conduct' is defined as conduct of a lesser standard than that which might be reasonably expected of the health practitioner by their peers or the public. As set out above, s 5 of the National Law lists examples of what may constitute 'unprofessional conduct'. The definition is an exhaustive statement of the term. It encompasses conduct of a less serious nature than professional misconduct and is to be judged in accordance with the standards of the practitioner's profession.[56] Relevantly, for present purposes, s 5(b)(i) of the definition includes the contravention of conditions on a practitioner's registration within unprofessional conduct.
[56] Medical Board of Australia and Roberts [2014] WASAT 76 [178].
The definition of unprofessional conduct also has two components: namely, performance and conduct.[57] Performance encompasses professional conduct that is of a lesser standard than that which might be reasonably expected of the practitioner by their peers or the public. The conduct component includes scenarios, such as contravention of conditions on the practitioner's registration which may affect the practitioner's suitability to practice their profession.
[57] Medical Board of Australia and Roberts [181].
'Unsatisfactory professional performance' is also an exhaustive definition under the Act and refers to a practitioner's practice of their profession rather than their conduct.

The SAT Act

The principal and ultimate issue for the Tribunal when determining disciplinary proceedings against medical practitioners is the practitioner's fitness to practice.[58] However, proceedings under the Act may still occur even if the practitioner is no longer registered.[59]
[58] Herron v McGregor (1986) 6 NSWLR 246, 258.
[59] National Law, s 138.
Under s 60(2) of the SAT Act, the Tribunal may order that a matter be determined entirely on the documents.
Section 32 of the SAT Act deals with the practice and procedure of proceedings before the Tribunal. It relevantly states:
(1)The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.
…
(6)The Tribunal is to take measures that are reasonably practicable ‑
(a)to ensure that the parties to the proceeding before it understand the nature of the assertions made in the proceeding and the legal implications of those assertions; and
(b)to explain to the parties, if requested to do so, any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceeding; and
(c)to ensure that the parties have the opportunity in the proceeding ‑
(i)to call or give evidence; and
(ii)to examine, cross-examine or re-examine witnesses; and
(iii)to be heard or otherwise have their submissions considered.

Disposition of appeal

Grounds 2, 3 and 4

Grounds 2 to 4 of the appeal were addressed together by counsel for the appellant at the hearing before me. These grounds concern whether the Tribunal considered all three parts of the definition of 'professional misconduct' under the National Law before finding that the respondent had engaged only in 'unprofessional conduct' as defined under the National Law.

Counsel for the appellant contended that the analysis of the Tribunal in considering whether the respondent was guilty of professional misconduct was incomplete. In particular, the appellant submitted that the fact that a contravention of a condition on a practitioner's registration falls within the definition of 'unprofessional conduct' under the Act does not preclude the Tribunal from finding that the respondent had engaged in professional misconduct.[60]
[60] ts 11 - 12.
Counsel submitted that the Tribunal should have examined the respondent's conduct in total and assessed whether by reason of its seriousness, or the number of occasions on which it occurred, it constituted professional misconduct.
The appellant's amended grounds of application alleged that the respondent had engaged in professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance,[61] and that the respondent's conduct is inconsistent with the respondent being a fit and proper person to hold registration in the nursing profession.[62]
[61] Amended grounds of application [24].
[62] Amended grounds of application [25].
In its reasons for decision, the Tribunal considered only whether the respondent was a fit and proper person to hold registration in the nursing profession under paragraph (c) of the definition of 'professional misconduct'. The Tribunal did not in its reasons for decision consider whether the respondent's conduct constituted a breach of paragraphs (a) or (b) of the definition. Rather, the Tribunal concluded that the definition of 'unprofessional conduct' included the contravention of a condition of registration, which is what the respondent had done.[63] On this basis, the Tribunal found that the respondent had engaged in unprofessional conduct.[64]
[63] Reasons for decision [76].
[64] Reasons for decision [77].
As was noted by Vaughan JA in Panegryes v Medical Board of Australia:[65]
Under pars (a) and (b) of the definition of 'professional misconduct', there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct.
[65] Panegryes v Medical Board of Australia [151]. See also Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 [20].
The only requirement is that it be 'substantially below' the standard reasonably required of a practitioner of an equivalent level of training or experience. In determining whether a practitioner's conduct can fairly be described as substantially below this standard, whether the practitioner has acted dishonestly or with conscious impropriety is a 'significant factor'.[66]
[66] Panegryes v Medical Board of Australia [94] (Buss P and Murphy JA); [398], [402] (Vaughan JA).
The amended grounds of application filed by the appellant allege that the respondent engaged in professional misconduct without specifying which paragraphs of the definition it relied upon. The application separately asserted that the respondent's conduct was inconsistent with her being a fit and proper person to hold registration.
In my view, on a fair reading of the application, the appellant did not limit its allegation of professional misconduct to paragraph (c) of the definition. For this reason, the Tribunal was required to consider whether the conduct of the respondent fell within the terms of paragraphs (a) or (b) of the definition. Its failure to do so is, in my view, an error of law.
I turn then to consider whether it is in the interests of justice that leave be granted. On the material before me, for the following reasons, I consider that it is arguable that if the Tribunal considered the conduct of the respondent was dishonest or done with conscious impropriety, it may have found that her conduct was substantially below the standard reasonably required of a practitioner of an equivalent level of training or experience.
First, the Tribunal found that the respondent was aware of the Conditions on her registration and that she breached five of these Conditions on numerous occasions between 4 September 2017 and 10 November 2017.[67] Second, the Tribunal found that when the respondent told Sonic Health on three separate occasions that she was unaware of the existence of the Conditions, she was clearly aware of these Conditions.[68] Each of these findings are consistent with a finding of conscious impropriety and may support a finding of dishonesty. Without a specific factual finding of conscious impropriety or dishonesty (as discussed below in relation to ground 5 of the appeal), it is not possible to conclude whether the respondent's conduct constitutes professional misconduct.
[67] Reasons for Decision [60] - [67].
[68] Reasons for decision [75].
Third, where it is alleged that a practitioner's conduct falls substantially below the standard expected, it is incumbent on the appellant to establish the standard reasonably expected of a practitioner of an equivalent length of training or experience. In considering this standard, the Code of Professional Conduct for Nurses in Australia is evidence of what constitutes appropriate professional conduct or practice for the nursing profession.[69] While the Tribunal considered that the allegation that the respondent breached the Code was 'part and parcel of the Board's allegation that [the respondent] breached the Conditions',[70] the Tribunal did not consider whether, by reference to the Code, the conduct of the respondent fell substantially below the standard reasonably required.
[69] National Law, s 41.
[70] Reasons for decision [72].
For these reasons, I consider that it is in the interests of justice that leave be granted on grounds 2 to 4 of the appeal.

Ground 5

In the amended grounds of application, the appellant raised two allegations of dishonesty by the respondent being:
(a)the failure of the respondent to advise Sonic Health of the Conditions prior to commencing employment or at any stage prior to being stood down from her employment with Sonic Health; and
(b)the respondent's advice to Sonic Health on 25, 26 and 27 October 2017 that she was unaware of the existence of the Conditions, when she knew or ought to have known this was false.
In their reasons for decision, the Tribunal considered that it was not necessary to make a separate finding in relation to the allegation of dishonesty as it was 'part and parcel' of the allegation that the respondent had breached the Conditions on her registration.[71]
[71] Reasons for decision [72].
The appellant submitted that the failure to make a factual finding of dishonesty was an error of law. Counsel for the appellant contended that the Tribunal was required to make a finding of fact as it was relevant both in the characterisation of the respondent's conduct as well as the appropriate penalty. Counsel for the appellant accepted that while dishonesty will always be 'part and parcel' of findings of professional misconduct, this does not mean the Tribunal is prevented from making a separate finding of dishonesty.[72]
[72] ts 21.
In support of this submission, counsel for the appellant referred to Legal Profession Complaints Committee v Detata[73] where Martin CJ observed that it is unsatisfactory for the Tribunal to express findings of fact related to professional misconduct equivocally or in the alternative. As Martin CJ noted, it is necessary for the Tribunal to state the basis upon which it has made its decision and whether it has accepted or rejected the evidence before it. These matters are relevant to both the penalty which should be imposed as well as an assessment of whether the person is a fit and proper person to remain in practice if found guilty of misconduct[74] and the assessment of the need for the protection of the public.[75] The importance of a finding on these matters is also illustrated by Panegryes v Medical Board of Australia as referred to at [76].
[73] Legal Profession Complaints Committee v Detata [2012] WASCA 214 [23].
[74] Legal Profession Complaints Committee v Detata [23].
[75] Singh v Medical Board of Australia [2019] WASCA 51 [60] - [62] (Quinlan CJ & Pritchard JA, Allanson J agreeing).
Under s 105(1) of the SAT Act, an appeal against the Tribunal can only be brought on a question of law.
A ground of appeal that a tribunal has failed to take into account a consideration which it was required to take into account alleges an error of law.[76]
[76] Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [57] citing with approval Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40.
Under s 77(2) of the SAT Act, the Tribunal is required to make findings on material questions of fact, referring to the evidence or other material on which the findings were based.
In this case, the Tribunal did not make any finding on the respondent's dishonesty. For the reasons stated by Martin CJ in Legal Profession Complaints Committee v Detata and the Court of Appeal in Panegyres v Medical Board of Australia, the question as to whether the respondent was dishonest was material to whether the respondent was guilty of professional misconduct, whether she was a fit and proper person to remain in practice and the penalty to be imposed. Accordingly, I consider that, under s 77(2) of the SAT Act, the Tribunal was required to make a factual finding on this. Its failure to make a factual finding on a matter that is necessary to the decision under review is, in my view, an error of law rather than an error of fact.[77]
[77] V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355 [22] (Wilcox J), [28] (Hill J).
For the reasons set out above in relation to grounds 2 to 4, I consider that it is in the interests of justice that leave be granted on this ground of appeal.
Given my conclusions on grounds 2 to 5 of the appeal, it is unnecessary for me to consider the remaining grounds of appeal. For the sake of completeness, I deal with these grounds briefly below.

Ground 1

The appellant contends that it was denied procedural fairness by the Tribunal making a decision on the documents, without affording either party the opportunity to make further submissions.
Generally speaking, unless there is a clear legislative intention to the contrary, a statutory power must be exercised in a way that affords procedural fairness to a party whose interests may be affected by its exercise.[78]
[78] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [11] - [13]; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 [97]; Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134 [113].
The question as to whether procedural fairness applies to proceedings before an administrative tribunal, as well as the content of the requirement to afford procedural fairness depends on the statute under which the proceedings of the tribunal are regulated and the circumstances of the particular case.[79] Accordingly, in determining whether the Tribunal was required to give the appellant an opportunity to make submissions, it is necessary to consider the statutory framework of the SAT Act. The particular content of the requirement to accord procedural fairness depends on the facts and circumstances of each particular case.[80] An administrative decision will not necessarily be held invalid because the procedures of adversary litigation are not fully observed.[81]
[79] WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; (2004) 134 FCR 271 [91] (Hill J) citing Kioa v West [1985] HCA 81; (1985) 159 CLR 550.
[80] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26].
[81] Kioa v West, 628 - 629 (Brennan J).
It is not in doubt that, pursuant to s 32(1) of the SAT Act, the Tribunal is bound by the rules of natural justice, except where the Act or the enabling Act authorise a departure from those rules. A right to be heard before a decision is made is one of the traditional rules of natural justice.
Further, s 32(6)(c) of the SAT Act requires the Tribunal to take measures that are reasonably practicable to ensure that parties have the opportunity in a proceeding to call or give evidence, examine witnesses and be heard or have their submissions considered.
Under s 60(2) of the SAT Act, the Tribunal may conduct all or part of the proceedings entirely on the basis of documents.
In this case, the Acting President of the Tribunal made orders on 7 March 2019 giving the parties notice that the matter would proceed under s 60(2) of the SAT Act. These orders were made following the filing of a minute of proposed orders by the appellant. No further orders were made in the matter until judgment was delivered on 1 July 2019.
Counsel for the appellant contended that the 7 March 2019 orders were initial programming orders only and that it was unknown at that stage whether the respondent would participate in the primary proceedings. On this basis, the appellant submitted that these programming orders should not have been the last the parties heard prior to the reasons for decision being published.[82] The appellant in effect contends that by the Tribunal not giving notice to the appellant of its intention to deliver reasons or giving the appellant an opportunity to be heard as to whether the respondent's conduct constituted professional misconduct, the appellant was denied the opportunity or lost the opportunity to present its case to the Tribunal.
[82] ts 6.
I do not accept this submission. At the time the orders were made on 7 March 2019, the respondent had not participated in any step in the proceedings at that stage. The application that had been filed by the appellant was a detailed application (comprising seven pages) which set out the basis for the appellant's contentions. I consider that the proper inference from the directions made by the Tribunal in March 2019 is that the Tribunal assumed and understood that if the appellant wished to make further submissions in support of its application, it would inform the Tribunal.
There was a period of two months between the time that the respondent was to file a response and the delivery of the Tribunal's decision on 1 July 2019. A professional complaints board bringing an application before the Tribunal knows well how the matter is to be dealt with, particularly in circumstances where it has sought an order that the matter be dealt with on the documents.
If the appellant had sought the opportunity to file submissions, the Tribunal would be obliged, as a matter of procedural fairness, to give the appellant the opportunity to do so. However, this did not occur. In my view, the opportunity to make submissions was not lost because the Tribunal denied the appellant the opportunity to do so but because the appellant failed to seek directions for the filing of submissions or inform the Tribunal that it wished to do so. Accordingly, I do not consider the appellant has established 'practical injustice'.
For these reasons, I do not consider this ground has any merit.

Ground 6

The Tribunal noted at the start of their reasons for decision:[83]
It is not clear to the Tribunal why the Board has taken the pre-emptive step to make an application to the Tribunal when [the respondent] has not sought to set aside her suspension and has let her registration lapse. Regardless of the reason(s) for the Board in making its application, the Tribunal retains jurisdiction under s 138 of the [Act] and therefore must determine the matter before it.
[83] Reasons for decision [10].
The appellant contends that the Tribunal erroneously found that it took a 'pre-emptive' step in referring the respondent's conduct to the Tribunal.
As the Tribunal's reasons state, the Tribunal recognised that regardless of the motivation behind the Board referring the respondent to the Tribunal, it was required to determine the matter referred to them by the Board and did so.
In my view, the comment by the Tribunal as to the 'pre‑emptive' step by the Board while erroneous is not an error of law. Accordingly, this ground of appeal is incompetent.

Conclusion

For the reasons set out above, I consider that leave to appeal should be granted on grounds 2 to 5 and the appeal allowed on these grounds.
Under s 105(9) of the SAT Act, the court has wide power on the appeal. However, given that findings of fact need to be made prior to the determination of the applicant's amended application, in my view, it is appropriate that the matter be remitted to the Tribunal, differently constituted, for reconsideration.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill
2 JULY 2020