Nursing and Midwifery Board of Australia v Tainton

[2014] QCAT 161

CITATION: Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161

PARTIES:	Nursing and Midwifery Board of Australia (Applicant)
v
Amanda Tainton (Respondent)

APPLICATION NUMBER: OCR089-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon JB Thomas (Judicial Member),
assisted by: Dr Allen Barnard, Ms Mary Barnett and Mr Graeme Lawrence

DELIVERED ON: 26 May 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    It is recorded that the respondent practitioner has behaved in a way that constitutes professional misconduct;

2.    The respondent is reprimanded;

3.    The respondent is disqualified from applying for registration as a registered nurse for a period of three months from the date of this order;

4.    The respondent shall pay the Board's costs of these proceedings, limited to $1,000.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSE – DISCIPLINARY PROCEEDINGS – where the registrant engaged in a low key but improper relationship with a prisoner – where the registrant admitted professional misconduct and voluntarily surrendered registration two years before the hearing – where the Board seeks to impose conditions on future registration – whether it is beyond the power of the Tribunal to make orders when no registration subsisting

PROCEDURE – COSTS – MAXIMUM COSTS ORDERS AND CAPPED COSTS – GENERALLY  – where the registrant voluntarily surrendered registration – where the registrant co-operated completely – where a full costs order would be onerous – whether the costs payable by the registrant should be limited

Health Practitioners (Disciplinary Proceedings) Act 1999 s 398C(1), s 398K, s 398L
Health Practitioner Regulation National Law Act 2009, (Schedule) s 193, s 196(1), s 196(2)

HCCC v Karja [2012] NSWNMT 11
Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 39
Pharmacy Board of Australia v Arulogun [2013] QCAT 685
Psychology Board of Australia v Dall [2011] QCAT 608

APPEARANCES and REPRESENTATION (if any):

APPLICANT: McInnes Wilson Lawyers

RESPONDENT: G J Rebetzke (counsel), instructed by Hall Payne Lawyers

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Jurisdiction

1. This is a reference from the Nursing and Midwifery Board of Australia under s 193 of the Health Practitioner Regulation National Law. That law is scheduled to the Health Practitioner Regulation National LawAct 2009 (Qld) and, to the extent that it is set out in the schedule, it is binding law in this state. It will be referred to as “the adopted national law”.

2. The events the subject of this disciplinary proceeding occurred after the commencement of the adopted national law which commenced operation on 1 July 2010.

3. QCAT is the responsible Tribunal with jurisdiction to deal with references made under s 193 of the adopted National Law.[1]

   [1]Health Practitioner Regulation National Law Act 2009 (Qld) s 6; and s 5 (definition of “responsible Tribunal” in the adopted national law).

4. The present tribunal, consisting of a judicial member and three assessors, has been constituted under the provisions of Part 12A of the Health Practitioners (Disciplinary Proceedings) Act 1999 (“the Disciplinary Proceedings Act”), of which the most relevant sections for present purposes are ss 398C(1), 398K and 398L.[2]

   [2]Cf Medical Board of Australia v. the Registrant, [14].

5. The basis of this reference to QCAT is the Board’s belief that Ms Tainton behaved in a way that constitutes professional misconduct.

6. The misconduct in question was the maintenance of an inappropriate relationship between Ms Tainton (a nurse employed with Queensland Health at the Woodford Correctional Centre) and a prisoner.

7. The decisions and orders that may be made in these proceedings are relevantly prescribed in s 196 of the adopted national law.  They include findings of “unsatisfactory professional performance”, “unprofessional conduct”, and “professional misconduct” or of conduct amounting to one or more of those terms, each of which is defined in s 5 of the Act.

8. Section 196(2) specifies the types of order that may be made by QCAT upon such a referral.

Main Facts and circumstances

1. The respondent Ms Tainton commenced working as a nurse with Queensland Health in 1997, and in 2007 commenced work at the Woodford Correctional Centre.

2. She has an unblemished work history preceding the conduct the subject of the present proceedings.

3. The relevant prisoner (Mr RR) was in 2005 convicted of murder and sentenced to life imprisonment.

4. On 14 August 2011 RR presented to the Medical Centre at Woodford on a health matter, and spoke casually with Ms Tainton, mentioning the recent death of his father, and that the prison psychologist was not available on that day.  They arranged that RR would call Ms Tainton on a friend’s phone and that he would refer to her by a different name.

5. He duly telephoned her on 17 August, and in all 31 telephone calls were made between then and 15 September 2011.  The relevant telephone calls were all monitored.

6. Ms Tainton and RR also exchanged 5 letters by post.

7. There was never any physical relationship between them, and there was only one further meeting in person namely at the Correctional Centre on 27 August 2011, during which no particular impropriety is alleged.

8. The recorded conversations may be described as relatively low key, commencing as a conversation between two apparently dependant personalities which fairly quickly turned into expressions of affection and love.  However during one of the conversations Ms Tainton commented “my boss is being a cow”, and stated that she would make life for her as hard as possible.

9. At the relevant time Ms Tainton was separating from a 12 year relationship which had involved bullying, harassment and breach of confidence.  It is accepted that she was in an abnormal state.

10. On 2 September 2011 she voluntarily sought a transfer from the Woodford Centre in an effort to put some distance between herself and her then current circumstances.  Some insight was shown on her part, and an early attempt to desist before disciplinary intervention.

11. On 2 March 2012 she “surrendered” her registration as a nurse after the Board brought the matter to her attention. The nature and effect of this procedure was not elaborated, but it is common ground that she is no longer a registered practitioner and that no registration is subsisting.

12. A little over a year later (on 15 April 2013) the Board filed the present reference to QCAT, and a further year has expired before its determination.

Discussion

1. Ms Tainton has already in a sense punished herself by relinquishing her registration. This apparently made it unnecessary for the Board to consider any “immediate action” under section 156 of the adopted national law.

2. The relationship was a subdued one, and is described in the agreed facts as “platonic”.  Putting to one side the fact that it was covert and that it happened at all between a professional nurse and an inmate, there is little in the recorded conversations between them that is intrinsically objectionable, other than of course its potential to lead further. Such liaisons are of course a slippery slope.

3. Her vulnerable state at the time is a relevant factor, and there is no reason to think that there would be any recurrence of similar conduct in the future.

4. She has shown genuine remorse and insight.

5. Ms Tainton has also offered an undertaking to the Board that should she be granted registration in the future she would complete various courses and counselling, and submit to indirect supervision for a period of 12 months following re-registration, and to other conditions being imposed.  These are of course matters for a future admitting board to consider but the giving of such an undertaking is a relevant factor which may be taken into account in proceedings of the present kind.[3]

   [3]Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 39.

6. No benefits were exchanged or offered to the prisoner.  Not too much should be read into the derogatory reference to her boss or her comment that she was going to make life as hard as possible for her.  There appears to have been some tension between them, and apart from the misconduct in question, there is no allegation of unsatisfactory work performance.

7. Ms Tainton and her advisors have conceded that the conduct in question is sufficient to support a finding of “professional misconduct” as that term is defined in the adopted national law, although the applicable part of the definition was not identified.

8. In my view, aided by the assessors, while this is not at the serious end of such cases, it is capable of satisfying sub paragraph (a) of the definition of “professional misconduct”[4], and the above concession is acceptable.

   [4]Sub-para (a) of the definition states – “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;”

9. The Board seeks a wide range of sanctions, including reprimand, exclusion from reapplication for 12 months, the imposition of further education and counselling, indirect supervision upon re registration for a period of 12 months, and the imposition of an obligation upon any future employer of Ms Tainton to submit records regarding her fitness and competency to practice, prohibition from working in a corrective services health facility, and an order that she pay the Board’s costs of these proceedings.

10. It may be mentioned immediately that some of these proposed orders are beyond the powers conferred upon QCAT by the adopted national law. Its proposal is beyond the power of the Tribunal to impose. Section 196(2)(b) permits the imposition of conditions on a practitioner’s registration, but this does not give QCAT the power to bind a future board that may deal with an application for re-registration or to impose conditions on future registration such as “indirect supervision upon re-registration” or other conditions proposed by the Board.[5]

    [5]Nursing & Midwifery Board of Australia v Fankhauser above; Pharmacy Board of Australia v Arulogun [2014] QCAT 685 at [18]-[23].

11. Furthermore QCAT has no power to bind unknown future employers to submit records of future events. 

12. The powers conferred upon QCAT by the adopted national law considerably simplify and reduce the scope of orders that used to be made under legislation such as the Health Practitioner’s (Disciplinary Proceedings) Act 1999.  The adopted national law has now been in force for some years, and the inappropriateness of orders based on practice under the superseded legislation has been pointed out in the above-mentioned cases and a number of other similar decisions.  The Board and its legal advisors should by this stage be well aware of the limited nature of orders that may be made under s 196(2)(b) of the adopted national law when there is no subsisting registration to which conditions can be applied.[6]

    [6]Suspended registrations fall into a different category because the registrations still subsist and revive when the period of suspension ends. But this is not such a case.

13. The Board’s proposal included the imposition of various educational requirements including “a tertiary level course or courses addressing professional boundary management” a course of counselling with a clinical psychologist, “indirect supervision upon re-registration period of 12 months” and that she be prohibited from working in a corrective services health facility.

14. There is also reason to think that the various “conditions” sought by the Board, even if capable of imposition, would be unnecessary or unduly oppressive.

15. In the circumstances of the present case there appears to be no good reason why the scope of her future employment should be limited in any respect.  Further, in the light of the undertakings Ms Tainton has offered (see [25] above), the proposed additional requirements (see [33] above), even if within jurisdiction, seem oppressive and unnecessary.

16. With the assistance of the appointed assessors, I am of the view that the Board is seeking too heavy a sanction upon a practitioner having regard to the nature of the conduct involved and to the fact that she has already relinquished registration for more than 2 years, partly spun out by reason of the leisurely pace at which proceedings were conducted.  The imposition of a further 12 months deferment of reapplication would be excessive, especially when viewed in association with the combination of other orders, which include a reprimand which will be registered, and the undertakings which Ms Tainton has offered.

17. In my view the appropriate order will be a reprimand, along with the imposition of a period of 3 months imposed during which she is prohibited from any reapplication for registration.

18. In reaching this decision account has been taken of a number of decisions based on the earlier legislation, including Psychology Board of Australia v Dall [2011] QCAT 608 and HCCC v Karja [2012] NSWNMT 11. In Dall a prohibition of 18 months was placed upon reapplication, and in Karja there was a suspension of six months, but the circumstances were far worse than those of the present matter, and the mitigating factors in the present matter are stronger.

Costs

1. The Board also seeks an order for costs against Ms Tainton.  Commonly a professional board is awarded its costs having regard to the fact that it is engaging in a public duty and is wholly funded by its profession through the fees of practitioners. 

2. However this Tribunal has a broad discretion in such matters.[7] Section 195 of the adopted National Law empowers it to make any order about costs it considers appropriate for the proceedings. This displaces the more limited discretion which exists in QCAT proceedings under ss 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009. Ms Tainton has been without her customary employment for at least two years following her resignation, and the burden of a full costs order is likely to be crushing.

   [7]Cf Medical Board of Australiav Putha  [2014] QCAT 159

3. The outcome of the present litigation will favour the result contended for on Ms Tainton's behalf considerably more than that contended for by the Board. Further, the original referral notice alleged four grounds of misconduct and two of these were later discontinued. In my view the appropriate order should provide for a relatively minor contribution by Ms Tainton towards the Board's costs which should in any event be low because of Ms Tainton's complete co-operation and lack of resistance from the outset. In the circumstances, the Board's costs will be limited to $1,000.

4. The question of appropriate conditions and fitness for future registration will of course be matters for a separately constituted admitting board in due course.

Orders

1. The orders will be:

   1.    It is recorded that the respondent practitioner has behaved in a way that constitutes professional misconduct;

   2.    The respondent is reprimanded;

   3.    The respondent is disqualified from applying for registration as a registered nurse for a period of three months from the date of this order;

   4.    The respondent shall pay the Board's costs of these proceedings, limited to $1,000.