Nursing & Midwifery Board of Australia v Feeney

[2011] QCAT 261

CITATION: Nursing & Midwifery Board of Australia v Feeney [2011] QCAT 261

PARTIES:	Nursing & Midwifery Board of Australia (Applicant)
v
Bruce Iain Feeney (Respondent)

APPLICATION NUMBER:   OCR143-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 3 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.   The Queensland Public Interest Law Clearing House is appointed to represent Mr Feeney in these proceedings until further order.

2.   The Registrar is directed to provide QPILCH with a copy of the material filed in this matter and of this order and the reasons for it.

3.   The matter is listed for a directions hearing in Brisbane, at 10:00am on 22 July 2011.

CATCHWORDS: 

OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – NURSE – PROCEDURAL – LEGAL REPRESENTATION – where Nurse did not contest disciplinary proceedings brought against him – where Nurse signed written submissions prepared by the Board – where the Tribunal has a duty to ensure all parties understand the process and the legal effect of submissions made against them – where Tribunal has a duty to ensure proceedings responsive to parties with special needs – where Nurse not represented – where no material filed by the Nurse – where Tribunal determined that a lawyer should be appointed to represent the Nurse to make submissions about the further conduct of the matter – where Tribunal exercised power to appoint representation

Queensland Civil and Administrative Tribunal Act 2009, ss 28(1)(3)(c), 29(1)(c)(i), 32(2), 43(2)(b)(ii), 43(6)

Nursing Act 1992, s 104A(1)(g)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Feeney was registered as a nurse in 1998.  In June 2009 he was convicted of two counts of armed robbery as well as two more minor offences.  The armed robbery convictions constitute grounds for the Tribunal to take disciplinary action against Mr Feeney.[1]

   [1]        Nursing Act 1992, s 104A(1)(g).

1. Mr Feeney does not contest these proceedings and has signed written submissions on penalty prepared for the Board by its lawyers.  The orders proposed involve a lengthy period during which Mr Feeney may not seek to be registered as a nurse. 

1. Both parties have asked that the Tribunal proceed to determine the matter on the papers.  The Tribunal may do so if it considers it is appropriate to do so.[2]  In the circumstances of this case, the Tribunal is unwilling to proceed on the current material without hearing further from the parties.

   [2]        Queensland Civil and Administrative Tribunal Act 2009, s 32(2).

1. The functions of disciplinary proceedings are to uphold professional standards; to maintain public confidence in the profession and to protect the public interest.  Their purpose is not punitive.

1. In disciplinary proceedings, parties have a right to legal representation without leave of the Tribunal being required.[3]  This recognises the consequences such proceedings may have for a person’s right to practice.

   [3]        Queensland Civil and Administrative Tribunal Act 2009, s 43(2)(b)(ii).

1. Mr Feeney has had the support of a relative during the limited pre-hearing processes in this matter but does not appear to have received legal advice.  The Board has been represented throughout.

1. The Tribunal must take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the Tribunal, the nature of assertions made in a proceeding and their legal implications and any decision of the Tribunal relating to the proceedings.[4]

   [4]        Queensland Civil and Administrative Tribunal Act 2009, s 29(1).

1. The Tribunal must also take all reasonable steps to ensure the proceedings are conducted in a way that recognises and is responsive to the needs of a party who is from another culture.[5]

   [5]        Queensland Civil and Administrative Tribunal Act 2009, s 29(1)(c)(i).

1. There are some indications in the very limited material before the Tribunal that Mr Feeney may not properly understand the nature or effect of the submissions made by the Board’s lawyers.  It appears, also, that he identifies as an Indigenous person, although there is insufficient information to demonstrate whether he has particular needs because of his cultural background.

[10]  Currently there is no material at all from Mr Feeney, other than his signature on a proposed set of orders.  It concerns the Tribunal that it has no information about Mr Feeney’s current circumstances.

[11]  The Board has, properly raised questions about Mr Feeney’s rehabilitation.  This is an important factor for the Tribunal to consider.  The remarks made by the sentencing judge reveal that she considered Mr Feeney’s offences were explained by alcoholism and that she crafted a sentence intended to promote his rehabilitation.  Unfortunately there is no material before the Tribunal about Mr Feeney’s performance under those orders.

[12]  Nor is there any information about the types of matters the Tribunal routinely considers in mitigation of penalty.  In short, there is insufficient material for the Tribunal to assess whether the orders proposed by the parties are appropriate and, as a result, the Tribunal is not yet in a position to properly discharge its function.

[13]  The Tribunal may inform itself in any way it considers appropriate.[6]  The Tribunal is reluctant to exercise that power without hearing from the parties first.

[6]        Queensland Civil and Administrative Tribunal Act 2009, s 28(1)(3)(c).

[14]  The Tribunal has the power to appoint a person to represent a party.[7]  This is a power rarely exercised.  In this case, the Tribunal has determined that a lawyer should be appointed to represent Mr Feeney, at least at a directions hearing at which the parties could make submissions about the further conduct of the matter.  That would proceed most effectively if Mr Feeney had first received advice about his options.  At the directions hearing, the question of representation can be revisited, with the benefit of submissions from representatives of both parties.

[7]        Queensland Civil and Administrative Tribunal Act 2009, s 43(6).

[15]  The Tribunal has confirmed the Queensland Public Interest Law Clearing House (QPILCH), a not for profit organisation which offers an advice and referral service for parties representing themselves in the Tribunal, would accept an appointment for that limited purpose.