Nursing and Midwifery Board of Australia v Sanam
[2011] QCAT 290
•22 June 2011
| CITATION: | Nursing and Midwifery Board of Australia v Sanam [2011] QCAT 290 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant) |
| v | |
| Mehry Sanam (aka Vudrag) (Respondent) |
| APPLICATION NUMBER: | OCR160-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 23 February; 22 June 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President (Assessors) Ms Elizabeth Robertson Mr Alan Barnard Mr Kai Dahl |
| DELIVERED ON: | 22 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Tribunal finds Ms Sanam has engaged in unsatisfactory professional conduct but makes no further order in these proceedings. 2. The Board’s application for costs is refused. |
| CATCHWORDS: | DISCIPLINARY – Nurse – where nurse admitted she possessed and administered restricted drugs without authorisation – where hearing adjourned – where nurse died before the hearing resumed – whether a finding of unsatisfactory professional conduct should be made COSTS – where Board requested order as to its costs – principles that should be applied where the power is in broad general terms – whether costs should be awarded Health (Drugs and Poisons) Regulation 1996, ss 146, 175, sch 4 Latoudis v Casey (1990) 170 CLR 534 applied |
REASONS FOR DECISION
Ms Sanam was registered as a nurse in Queensland in 1973. In an agreed Statement of Facts filed before the hearing in February this year, Ms Sanam admitted that, between October 2009 and November 2010, she possessed restricted drugs,[1] including Botox, and without authorisation administered Botox to patients.[2] There were other admissions about failure to keep records and improper disposal of syringes.
[1]Ms Sanam possessed restricted drugs within the meaning of the Health (Drugs and Poisons) Regulation 1996, Sch 4. A person must not have such drugs in their possession unless endorsed to possess them: Health(Drugs and Poisons) Regulation 1996, s 146(1).
[2]A person must not administer a restricted drug unless endorsed to do so: Health (Drugs and Poisons) Regulation 1996, s 146(4). A registered nurse is only endorsed to administer a restricted drug to the extent necessary to practise nursing, on the oral or written instruction of specified health professionals: Health (Drugs and Poisons) Regulation 1996, s 175(1)(b).
When the matter came on for hearing in February, the Board led hearsay evidence that indicated Ms Sanam may have continued to administer Botox despite these proceedings. Ms Sanam disputed that was so. If that allegation was proved it would have affected the Tribunal’s decision on penalty. So that the Tribunal could properly determine the dispute between the parties about that allegation, the hearing was adjourned to enable the Board to lead evidence from the patient who made the most recent complaint.
The hearing was listed to resume today. Tragically, Ms Sanam passed away two days ago.
At the resumed hearing the Board led evidence from the patient but did not ask the Tribunal to make a finding about that matter. Instead it requested the Tribunal make a finding of unsatisfactory professional conduct, based on the admissions Ms Sanam had made in the agreed Statement of Facts. That is an entirely appropriate course.
The Board also asked the Tribunal to make an order for its costs to be paid, capped at the amount fixed by the Nursing Act 1992, s 116. The Board’s request was made in recognition of the fact that the costs of disciplinary proceedings are derived from the registration fees paid by members of the profession. In this case, the investigation, the preparation for hearing and the costs of the hearing itself have resulted in the Board incurring significant costs. It can be expected that the Tribunal would usually make an award of costs where unsatisfactory professional conduct is proved.
Nevertheless, the power conferred on the Tribunal to award costs is in general terms and is discretionary. It allows the Tribunal to make an order as to costs that is justified in the circumstances.[3] It is a broad general discretion which must be exercised judicially.[4]
[3] Oshlak v Richmond River Council (1998) 193 CLR 72 at 88.
[4] Latoudis v Casey (1990) 170 CLR 534 at 557.
The circumstances which have brought these proceedings to this sudden conclusion ought not to be disregarded. Nor should the Tribunal ignore the impact on bereaved relatives if it were to make such an order. In the unusual and unfortunate circumstances of this case, the Board’s application is refused.
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