Yelds v Nurses Tribunal

[2000] NSWSC 755

Reported Decision: 49 NSWLR 491

New South Wales

Supreme Court

CITATION:	YELDS v NURSES TRIBUNAL & ORS [2000] NSWSC 755
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 30047/99
HEARING DATE(S):	7 December 1999
JUDGMENT DATE:	2 August 2000
PARTIES :	Duncan Yelds (Plaintiff) The Nurses Tribunal (First Defendant) Health Care Complaints Commission (Second Defendant)
JUDGMENT OF:	Adams J at 1

LOWER COURT JURISDICTION :	Nurses Tribunal
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL :	Mr P Roberts SC (Plaintiff) Mr P Neil SC (2nd Defendant)
SOLICITORS:	Stewart Levitt & Company (Plaintiff) I V Knight (1st Defendant) Mr D Swain (2nd Defendant)
CATCHWORDS:	Appeal from Nurses Tribunal - Section 4(2) Nurses Act 1991 - meaning of unsatisfactory professional conduct - nurse working as a counsellor - whether misconduct "in the practice of nursing" - procedural fairness - rule in Browne v Dunne
LEGISLATION CITED:	Nurses Act 1991 Medical Practitioners Act 1938
CASES CITED:	Briginshaw v Briginshaw (1938) CLR 336 Quidway v Brown 1984 NSWLR 100 Sherritt Gordon Mine Ltd v FCT (1976) 10 ALR 441 YZ Finance Co Pty Ltd v Cummings [1964] ALR 667 Lamond v Commissioner for Railways (1963) 80 WN (NSW) 1242 Re Gray; ex parte Marsh (1985) 62 ALR 17 Childs v Walton (unreported NSWCCA 13 November 1990, BC9001755) Jacobsen v Nurses Tribinal & Anor (unreported Dunford J NSWSC 3 October 1997) Oceanic Life Limited and Anor v Chief Commissioner of Stamp Duties [1999] NSWCA 416 Hope v Bathurst City Council (1980) 144 CLR 1 R v Deputy Industrial Injuries Commissioner; ex parte Moore 1965 1 QB 465 Browne v Dunne (1893) 6 R 67 Allied Pastoral Holdings Pty Limited v Commissioner of Taxation [1983] 1 NSWLR 1 Smith v NSW Bar Association (1992) 176 CLR 256 Pettit v Dunkley 1971 1 NSWLR 376
DECISION:	Appeal upheld, with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

2 AUGUST 2000

30047/99

YELDS v THE NURSES TRIBUNAL & ORS

JUDGMENT

1    HIS HONOUR: This is an appeal under s 67 of the Nurses Act 1991 (the Act) from a decision of the Nurses Tribunal constituted under s 61 of the Act. The Health Care Complaints Commission had made a complaint under Part 5 of the Act that the appellant had been guilty of professional misconduct or, alternatively, unsatisfactory professional conduct within the meaning of s 4 of the Act. The particulars of the complaint were as follows -

“Between about 31 May 1996 and 16 October 1996, the nurse engaged in conduct which demonstrates a lack of adequate judgment and care in the practice of nursing and/or engaged in improper or unethical conduct relating to the practice of nursing, in that:
1. On or about 31 May 1996, during a professional consultation at the ‘Wayback Centre’ whilst employed as a locum counsellor, the nurse falsely informed a client, Ms MF, that he was a psychologist;
2. Between about 31 May 1996 and late July 1996, the nurse conducted counselling sessions at the Wayback Centre with Ms MF in an inappropriate manner in that:
(a) the nurse commented upon Ms MF’s physical appearance during counselling sessions in a manner that was inappropriate;
(b) the nurse inappropriately disclosed details of his personal life to Ms MF;
(c) the nurse engaged in inappropriate physical contact with Ms MF which included massaging Ms MF’s shoulders, hugging or embracing Ms MF, kissing Ms MF on her cheek and touching her bottom;
(d) the nurse made inappropriate statements to Ms MF which indicated that the nurse had a personal interest in Ms MF; and
(e) the nurse inappropriately suggested that Ms MF engage in conduct of a sexual nature with the nurse.
3. Between about June 1996 and September 1996, the nurse inappropriately facilitated or permitted contact of an inappropriate nature with Ms MF outside of formal counselling sessions in that:
(a) the nurse accompanied Ms MF to a coffee shop and engaged in conversations of a personal and sexual nature with Ms MF;

(b) the nurse provided Ms MF with his home contact details and mobile telephone number;

(c) the nurse engaged in telephone conversations of a personal nature with Ms MF; and
(d) the nurse inappropriately attended Ms MF’s home.
4. Between about 31 July 1996 and about mid September 1996, the nurse inappropriately commenced and maintained a sexual relationship with Ms MF.
5. In about early August 1996, the nurse inappropriately invited Ms MF to Network 21 meetings and encouraged and permitted Ms MF to purchase an Amway’s business pack with the nurse and the nurse’s wife as Ms MF’s sponsor.
6. In about September and October 1996, the nurse engaged in threatening and intimidating behaviour towards Ms MF.”

2    After a lengthy hearing, the Tribunal found that the complaint was “established to our comfortable satisfaction” (Briginshaw v Briginshaw (1938) CLR 336 at 361). The Tribunal made findings adversely to the appellant to the effect of particulars 1, 4 and 5 and the general opening words of paragraphs 2 and 3 of the particulars. It was not “comfortably satisfied” as to the matter alleged in paragraph 6 of the particulars. Although a number of grounds of appeal have been particularised, the matters complained of in argument in this Court fell into clearly identifiable classes. The first of these concerns the application of s 4 of the Act, which provides, so far as is material -

“(1) For the purposes of this act, professional misconduct, in relation to an accredited nurse, means unsatisfactory professional conduct of a sufficiently serious nature to justify the removal of the nurse’s name from the Register or the Roll.
(2) For the purposes of this Act, unsatisfactory professional conduct, in relation to an accredited nurse, includes any of the following:
(a) any conduct that demonstrates a lack of adequate:
(i) knowledge,
(ii) experience,
(iii) skill,
(iv) judgment, or
(v) care,
by the nurse in the practice of nursing,
...
(e) any other improper or unethical conduct relating to the practice of nursing.”

3 Although the appellant conceded that he was an accredited nurse, it was submitted in this Court on his behalf, for reasons which will become apparent, that the conduct alleged against him, even if it occurred, was not done by him within the meaning of s 4(2) of the Act “in the practice of nursing”; nor did it relate to the practice of nursing. Although the definition in s 4(2) is inclusive, it was submitted that the term “unsatisfactory professional conduct” was a term of art and had no general or common law meaning. It was then argued that the term “professional misconduct” in s 4(1) of the Act, being confined to unsatisfactory professional conduct of a relevantly serious kind, picked up the definition provided in s 4(2) and also had no general or common law meaning. Accordingly, it was argued, even if the behaviour alleged was proven, and even if it was reprehensible, it nevertheless could not amount to relevant conduct unless it demonstrated a lack of the particular qualities listed in s 4(2)(a) “in the practice of nursing” or fell within s 4(2)(e). It was submitted, on the other hand, on the Commission’s behalf that the words “professional misconduct” and “unsatisfactory professional conduct” were words of ordinary English usage and were not confined to the particular characteristics alleged (relevantly) in s 4(2)(a) and (e). 4 I consider that the term “professional misconduct” necessarily adopts as its starting point a finding of “unsatisfactory professional conduct” within the meaning of s 4(2). Although it is true that, so far as medical practitioners were concerned, the test “was whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence” (Quidway v Brown 1984 1 NSWLR 100 per Priestley JA at 105), the language in the Act does not purport to adopt the same standard. Generally speaking, the correct approach to the application of “means” and “includes” is that the former is intended to be exhaustive whilst the latter is intended to enlarge the ordinary meaning of the word (Sherritt Gordon Mine Ltd v FCT (1976) 10 ALR 441 at 455; cf YZ Finance Co Pty Ltd v Cummings [1964] ALR 667; Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242). Having regard to the generality of the matters covered in s 4(2), I have some difficulty in identifying any matters which might be additional to those listed and yet fall within the phrase “unsatisfactory professional conduct” (cf Re Gray; ex parte Marsh (1985) 62 ALR 17). It is clear that the Tribunal regarded itself as limited to the specific matters specified in the definition, a course which it was invited to take by the complainant’s submissions. Accordingly, even if some common law meaning of wider application can be regarded as within s 4(2) (which I doubt), it would not be appropriate to consider such a meaning in this case. 5 The difficult question of substance is whether the alleged conduct demonstrated a lack of adequate judgment and care in the practice of nursing or to be improper or unethical conduct relating to the practice of nursing, these being the specific heads of unsatisfactory professional conduct alleged by the complainant in a situation where the relationship between the appellant and the client arose when the former was a counsellor and not working as a nurse. To consider this point, it is necessary to refer to a number of factual matters. 6    The Wayback Centre, which is a drug and alcohol referral centre, provides psychiatric, psychological and counselling services and, for that purpose, employs appropriately qualified staff. One of the employed psychologists, Ms Petrinas, took long service leave and the Centre sought, through an employment agency, a suitable person to provide counselling services during this period. On 24 May 1996, the appellant was offered employment for ten weeks as “a relief counsellor”, to be paid at the rate of a social welfare worker. Although the appellant was a registered nurse, he was clearly employed to provide services as a counsellor and nothing more. The complainant was referred to a Dr Dalton, who was the attending psychiatrist at the Wayback Centre, by her general practitioner, for management in respect of what were described as “emotional problems”. It is not controversial that the only connection with the complainant of a professional kind was as a counsellor. This is obvious from the particulars of complaint themselves. 7    In Childs v Walton (unreported NSWCCA 13 November 1990, BC9001755), the Court of Appeal considered the application of s 27(1) of the Medical Practitioners Act 1938 which is in sufficiently similar terms to s 4(1) of the Act hereto provide guidance as to its interpretation. The medical practitioner was a psychiatrist who had a sexual encounter with a client after the professional relationship terminated. It was submitted that the psychiatrist’s duty to the client ended at that point and that the words “in the practice of medicine” in s 27(1)(a) of the Medical Practitioners Act 1938, set temporal boundaries outside which it was not possible for a practitioner to behave to or concerning a client in such a way as to be guilty of professional misconduct. Samuels JA, with whom the other members of the Court agreed, said (BC 9001755 at 9) -

“I do not think, with all respect that this argument is sound. The phrase ‘in the practice of medicine’ does not have a temporal meaning, but rather a qualitative or descriptive character. It does not circumscribe the period during which the conduct impugned must occur if it is to be capable of satisfying the prescription; it describes its nature. The conduct must be such as to demonstrate the lack of a quality (eg adequate knowledge) necessary in the practice of medicine. The conduct is the vehicle by which a specified defect is revealed. Hence the act or omission constituting the conduct (see the definition of ‘conduct’ in s27(1)) need not occur while the relationship of doctor and patient exists between a complainant and the practitioner. It may occur at any time. It need not be conduct which occurs in the course of treating a patient. The only requirement is that it must demonstrate one of the specified deficits. It is often risky to construe by paraphrase, but in this case I think it is accurate to say that s27(1)(a) contemplates conduct by a practitioner that demonstrates his or her lack of one or more qualities indispensable to the practice of medicine; or, in the case of lack of adequate experience, to the particular procedure undertaken.”
“Since there is no occasion for it in the present case, I will not venture further into the construction of s 27(1) save to observe that its final words (whether or not ‘other’ means that proof of the defects stipulated in s 27(1)(a) requires evidence of ‘reprobation’) clearly regard the conduct itself as the gravamen of the complaint, rather than the professional incompetence which the conduct reveals...”

8    In Jacobsen v Nurses Tribunal & Anor (unreported Dunford J NSWSC 3 October 1997), the appellant was a mental health nurse who, after termination of the professional relationship with a client, maintained a personal and then sexual relationship with her which was found by the Nurses Tribunal to be professional misconduct. The client had commenced to reside at a group home as a client of a Health Service Residential Rehabilitation Unit in which he was a team leader but with purely administrative responsibilities which ceased some months later, and he became involved as one of the team members in the management of all the residents at the home. He thus came into direct contact with the client as was specifically found by the Tribunal and accepted by Dunford J “in his capacity as a nurse”. By a sequence of events, which it is unnecessary to detail, the client moved into the nurse’s house as a paying tenant or boarder and he ceased to be her case manager. This place of residence was regarded, for obvious reasons, as inappropriate and in due course the client moved. In the meantime, the client was referred to a community health centre, with which the nurse was not connected, and then to a private psychiatrist. Even so, the nurse continued personal communications, and a personal relationship developed which culminated in a sexual relationship lasting about six months. Forming a close personal, emotional and subsequently sexual relationship, was regarded by the Tribunal as professional misconduct warranting the nurse’s removal from the register. Dunford J considered that the Tribunal’s conclusion that this conduct, in all the circumstances, was improper or unethical conduct relating to the practice of nursing within s 4(2)(e) of the Act and, in part, that it demonstrated a lack of adequate knowledge in the practice of nursing within s 4(2)(a), was open to the Tribunal. There was no doubt that the appellant was a mental health nurse and the client was under his care as such, and that she had been diagnosed as suffering from various mental disorders of which the nurse was aware and which showed her to be troubled and vulnerable and liable to be exploited and hurt. The nurse’s position, therefore, was one of power and influence which was inevitably material in facilitating his personal, private and economic interests. 9 The Tribunal, in its reasons in this case, said that it had “previously set out relevant standards in relation to sexual and intimate emotional relationships between registered nurses and patients”, a reference to the Jacobsen case and repeated the detailed account of the material matters concerning the proper relationship between a client and a psychiatric nurse which was contained in the Tribunal’s reasons for decision in that matter. Those considerations were said by the Tribunal to “apply with equal force here”. Since the Tribunal had stated unequivocally that the appellant was employed as a locum counsellor and hence not as a nurse, let alone a mental health nurse, it seems that the conclusion that what I might respectfully call the Jacobsen considerations applied equally to the appellant, meant that the Tribunal was of the view that they applied with equal force to ethical conduct required of a counsellor who happened to be a nurse. 10 It was essential to a finding of professional misconduct that the material conduct occurred either in the practice of nursing or relate to the practice of nursing. But these are not exclusive categories. Often they will overlap, especially where the conduct in question is morally questionable and occurs when the nurse is in the course of his or her duties or the activity concerns a patient or former patient. It was submitted on appeal that the Tribunal failed adequately to consider the significance of the conditions of the appellant’s appointment and the role he actually undertook so far as the client was concerned. It was further submitted that, at all events, the behaviour found to have occurred, in the circumstances, could not satisfy the statutory requirements having regard to the appellant’s actual duties. 11 Detailed written submissions were made by both parties to the Tribunal. These submissions and, in particular, those for the appellant, were confined to the factual issues which, essentially, were whether the alleged behaviour occurred and, in respect of particular 5 relating to the involvement of the client in an Amway’s business, whether it was inappropriate. No submission was made suggesting that the alleged conduct would not have demonstrated a lack of any of the specified qualities in the practice of nursing or that this behaviour could not relate to the practice of nursing. It seems to me to be clear that the complaint was litigated before the Tribunal upon the assumption that, if proved, the alleged conduct could amount to unsatisfactory professional conduct within the meaning of s 4(2) of the Act by reliance on either paragraphs (a) or (b) of the sub-section. Counsel for the appellant conceded in the Tribunal that misconduct occurred so far as particular 5 of the complaint was concerned, and that this amounted to unsatisfactory professional conduct but disputed that it was professional misconduct. It was also conceded in the written submissions that, if the Tribunal found a sexual relationship did occur between the appellant and the client, “that would require the Tribunal concluding that Mr Yelds was guilty of professional misconduct”. These concessions could not obviate the fundamental importance that the link between the impugned conduct and the practice of nursing should be found by the Tribunal. Although the appellant gave evidence that he was “a registered nurse in a counselling role” and that he “acted to the best of my ability in my role as a registered nurse in that role” and agreed that it was because of his registration as a nurse that he was referred by the employment agency for the position at the Wayback Centre, this does not dispose of the legal question. 12 The Tribunal concluded that as the appellant “took the view that his contact with Ms MF [at the relevant time] was of a personal rather than a professional nature, the unsatisfactory professional conduct of Mr Yelds was not truly in the course of providing nursing services and consequently should not be seen as behaviour which demonstrates a lack of adequate judgment and care “in the practice of nursing”. Whilst, no doubt, the appellant’s view was relevant, I do not see how it could be influential, let alone determinative, of the question whether the conduct reflected a lack of the required qualities in the practice of nursing. Indeed, such a view might reasonably be regarded as demonstrative of such a lack. The Tribunal cited Childs v Walton (supra) to show why the conduct was unethical and “demonstrated the lack of an important quality required for the proper practice of nursing” and thus concluded that it fell within s 4(2)(e). The Tribunal’s reasoning is somewhat obscure but, I take it from the reference to Childs v Walton (supra) that it was not the fact that the counselling had ceased but that the appellant was not acting as a nurse at any time which was the foundation for the decision that there had been no conduct within s 4(2)(a). 13 The point raised by the appellant in this Court is that the impugned conduct, whether professional or not, did not reflect or reveal a specified defect so far as the appellant’s ability to practice as a nurse is concerned, for the simple reason that he had not been employed and was not working as a nurse, but as a counsellor with very limited functions. 14 It is clear that the profession of nursing involves a wide range of activities which might include psychological or therapeutic counselling or care. The only evidence on this aspect of the case was a statement, admitted without objection, of Ms Jenna Bateman, who referred to the professional standards of practice required by a mental health nurse in providing counselling to a client in the circumstances of the client in this case, as prescribed by the Australian and New Zealand College of Mental Health Nurses. Although Ms Bateman sometimes refers to the practice of nursing, it is clear that the standard which she applied is that which related to what she called “mental health nursing” and, in particular, the College’s requirements concerning the counselling process for such nurses. She said on a number of occasions, that the appellant departed from “acceptable standards of Mental Health Nurse practice”. It is not obvious why the standards applicable to a mental health nurse applied to the appellant in respect of the work he was employed to undertake or, at all events, undertook. The functions of a mental health nurse or a mental health nurse in a counselling role, assuming there to be a distinction, were never specified in the evidence. The material conduct for the purposes of s 4(2)(a) did not need to be conduct as a nurse: the paragraph refers to “any conduct” (my emphasis). The crucial question is whether the impugned conduct revealed any of the specified defects material to his being a nurse. Of course, if the impugned behaviour occurred when a nurse is undertaking nursing care of the patient in question, the link between the conduct and the relevant defect is more easily established. 15 In this case, defining the nature and relevance of the appellant’s conduct for the purposes of both s 4(2)(e) was not easy. Dr Dalton’s evidence as to the appellant’s duties was that he would “see patients with drug and alcohol problems or people who came to the Wayback Committee for assistance...to assess them, to follow them up if necessary and to write notes as to what is happening and to inform the other members of staff what is going on”. Following objection as to relevance, counsel for the complainant did not press the question which elicited this evidence, saying that he did not wish to “waste the Tribunal’s time on matters that are non-essential”, then asking, without objection, whether Dr Dalton had any understanding of what the appellant was actually doing on a particular day. This appears to be a suggestion, at least, that the duties actually performed by the appellant as a counsellor were sufficiently analogous to those of a nurse, to establish that, if the allegations were true, a relevant defect was demonstrated. 16 Dr Dalton was asked to respond to the suggestion that the appellant’s function as a counsellor was “to mind the patient, if you like, until the patient was able to see yourself or a psychiatrist”. Dr Dalton said “the job as a counsellor is to listen and to write down and to report and to help as much as possible”, pointing out that the unit was very busy and normally that a counsellor could, at the best, see a patient only once or twice a week and, if necessary, “if the patient was very depressed they would then tell me or if there was something wrong with the patient that they were needing to see them...often they would tell me and I would then bring them in as an emergency”. It is obvious, therefore, that, so far as the duties expected of the appellant were concerned, they did not actually involve any therapy. It was not his job to assist the patients but to note their concerns and, if it appeared that some therapeutic intervention of one kind or another was required, to refer the patient on. The underlying assumption of the statement of Ms Bateman is that the appellant was acting as a nurse. He certainly was not acting as a nurse, let alone a mental health nurse. 17 It seems that the Tribunal accepted the appellant’s description of his duties as essentially “a baby sitting position” for Ms Petrinas, who was going to be in and out of the premises every couple of days and needed someone to take new clients through the assessment form and, if he or she felt they might be a danger to themselves, arrange for them to see Dr Dalton; otherwise, to keep in touch with the patients who lived in the community houses and listen to people and talk with them to deal with (what I take to be) everyday issues, referring them on if there was a problem that needed to be dealt with. This does not strike me as necessarily involving any nursing task but the Tribunal did not, regrettably, consider whether these responsibilities were indeed those of a nurse or a mental health nurse. On the face of it, there may have been some nursing responsibilities involved but it is difficult to relate them to Ms Bateman’s evidence. On the other hand, the client said that there were a number of long sessions, sometimes over an hour, which occurred regularly and which seemed to involve the discussion of the client’s life, problems and feelings. None of this material was discussed in submissions, which were confined substantially to arguments about whether the particular allegations of impropriety were established, an approach adopted in turn by the Tribunal. 18 Whilst it seems reasonably clear that the allegations made against the appellant are capable of reflecting on his suitability (in respect of the specified characteristics in s 4(2)(a)) to practice as a mental health nurse, and it is fair to infer that this is a form of specialisation within the profession of nursing (I note in passing that Ms Bateman was a registered psychiatric nurse, at least at one time), the relationship of this specialty and general nursing is obscure. Accepting that the conduct nevertheless related to the practice of general nursing, the extent to which it was of a sufficiently serious nature to justify the removal of the appellant’s name from the register and hence amount to professional misconduct within s 4(1) of the Act, necessarily involved an evaluation of the nature and quality of the relationship between the inappropriate conduct as a counsellor performing the duties described in the evidence and the practice of nursing. In fairness to the Tribunal, it should be noted that neither counsel brought this issue to the forefront, although it was fundamental to the exercise of its responsibilities. The finding that the allegations were proved could not, by itself, lead to the conclusion that the appellant had professionally misconducted himself, in the circumstances of this case, where he was not working as a nurse, strictly so called. 19 If the findings of fact in this case be accepted, it is fairly arguable that the conduct in question was inappropriate in the same sense in which such behaviour was wrong and for the same reasons that the Jacobsen considerations make it wrong for a mental health nurse so to act. The purpose of the legislation is to protect the public from seriously improper behaviour, amongst other things, on the part of persons who, being recognized under the Act as nurses, have a position which induces trust. It seems to me clear that the kind of behaviour alleged against the appellant, if proved, showed such a serious shortcoming in understanding and obeying the restraints placed by his professional responsibilities to the client in any personal relationship with her, in particular, that it was likely to be exploitative and, if intimate was fraught with the substantial risk of emotional damage and infliction of serious emotional pain on a vulnerable and, at times, depressed client, that his unfitness to be a nurse was demonstrated. In short, his alleged exploitation of the Centre’s client in this case might reasonably have been regarded by the Tribunal as betraying such an attitude to appropriate professional responsibilities and was itself so inappropriate as to demonstrate, at least, a lack of adequate judgment or care within the meaning of s 4(2)(a)(iv) or (v) of the Act. It was the fact that the appellant’s alleged conduct concerned a relationship with a client or patient of his, rather than the particular responsibilities of a counsellor compared with those of a nurse (even if not working in the mental health area), where his position allowed him to acquire (in the words of Dunford J quoted above) “power and influence” over her, which was capable of providing a sufficient nexus between what he did at the Centre and the practice of nursing to satisfy the requirements of s 4(2)(a) of the Act. However, this line of reasoning, which required an analysis of both the requirements of general nursing and the duties actually performed by the appellant to demonstrate this nexus, was not adopted by the Tribunal. As the Tribunal found that the behaviour of the appellant did not come within s 4(2)(a) because it did not occur (as I have pointed out) “in the course of nursing”, it dismissed this ground for finding him guilty of unsatisfactory professional conduct. However, for the reasons I have expressed, I do not consider that the conduct must occur in the course of nursing to satisfy the requirements of the paragraph: it is both necessary and sufficient if it demonstrates a lack or insufficiency of the specified qualities of a kind necessary for the practice of nursing. The inadequacy must reflect in a real and significant way on the suitability of a person to work as a nurse. Thus - to take an extreme example - the nurse might be an inveterate and uncontrollable gambler, but this behaviour, although demonstrating very bad judgment, would not reflect on his or her ability to be a nurse. 20 Except for involvement in Amway, all of the impugned behaviour in this case involved allegations of improper or unethical conduct and thus, assuming (although I doubt) that “other” in s 4(2)(e) qualifies also the conduct to which s 4(2)(a) refers, was capable of satisfying the requirements of the latter paragraph. Whether it did so, having regard to the circumstance that the appellant was not working as a nurse, but as a counsellor of sorts, was a matter to which the Tribunal needed carefully to consider. 21 In Pillai v Messiter (No 2) 1989 16 NSWLR 197, Kirby P said (at 201)-

“In giving meaning to the phrase ‘misconduct in a professional respect’ in the context within which is appears, it must be kept in mind that the consequence of an affirmative finding is drastic for the practitioner and the purpose of providing such a drastic consequence is not punishment of the practitioner as such but protection of the public. The public needs to be protected from delinquents and wrong doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed.”

22    Although these observations were made in the context of alleged misconduct by a doctor, they obviously apply with equal force to the interpretation of the Nurses Act 1991. The complainant, in this Court, has submitted that the conduct did demonstrate the elements of s 4(2)(a) of the Act, despite the Tribunal’s error, but argued that it also satisfied the requirements of s 4(2)(e). The Tribunal held, as I have mentioned, that the complainant had established that the appellant was guilty under s 4(2)(e) of “improper or unethical conduct relating to the practice of nursing”. The appellant submitted in this Court that the impugned conduct could not fall within s 4(2)(e) of the Act. 23 In Oceanic Life Limited and Anor v Chief Commissioner of Stamp Duties [1999] NSWCA 416, Fitzgerald JA said (at [56]) -

“The width of the phrase ‘relating to’ is undoubted. Lord Macnaughton stated that ‘[t]here is no expression more general or far-reaching’, IRC v Maple & Co (Paris) Ltd (1908) AC 22, 26. See also Fountain v Alexander (1982) 150 CLR 615 (629); Colakovski vTelecommunications Corporation (1991) 100 ALR 111; Secretary,Department of Foreign Affairs & Trade v Boswell (1992) 108 ALR 77; PMT Partners Pty Ltd (in liq) v ANPWS (1995) 131 ALR 377, 398, although the addition of the words ‘or depending on’ was presumably intended to give the combined phrase ‘relating to or depending on’ a wider operation than ‘relating to’. The difficulties of construction presented by such language have also been noted. Taylor J observed that ‘...the expression ‘relating to’...is...vague and indefinite...’ and ‘...leaves unspecified the plane upon which the relationship is [to be] sought and identified.’ Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, 620. One area of debate has been whether, in particular legislation, a relationship need or need not be ‘direct’ or ‘direct and immediate’. See, for example, Ausfield Pty Ltd v Leyland Motor Corp. ofAustralia Ltd (No 2) (1977) 14 ALR 457, 460, 462; Re Dingjan; exp Wagner (1995) 182 ALR 81, 110, 115; Joye v Beach PetroleumNL & Cortans Ltd (in liq) (1996) 137 ALR 506, 514. See also Perlman v Perlman (1984) 51 ALR 317. Overall, the position judicially adopted has been that the operation of the phrase ‘relating to’ is determined by the statutory context and purpose. Butler vJohnston (1984) 55 ALR 265, 268; Hatfield v Health Insurance Commission (1987) 77 ALR 103, 106-107.”

24    As Samuels JA said, in the passage from Walton v Childs quoted above, it is the conduct itself which is “the gravamen of the complaint, rather than the professional incompetence which the conduct reveals”. In the context of this legislation, I consider that the necessary relationship between the alleged misconduct and the practice of nursing for the purposes of s 4(2)(e) is demonstrated where the misconduct shows attitudes or characteristics inconsistent with the moral qualities fairly required of a person undertaking the responsibilities of nursing. Taking financial advantage of the client in the sense established here, which involved no deceit or dishonesty, does not, to my mind, necessarily demonstrate any of the specified defects in s 4(2)(a), nor, as it seems to me, would it, considered in isolation and provided there was no abuse of trust, constitute improper or unethical conduct relating to the practice of nursing. Of course, it might well still have been inappropriate. If this particular behaviour had not concerned a client it could not, at all events, have come within the meaning of s 4(2)(e) since introducing persons to such commercial activities is not, of itself, improper or unethical. The alleged sexual conduct was not, of itself, improper or unethical in the relevant sense: it had this quality because of the relationship between the appellant and the client through his employment at the Centre as a counsellor. It was, therefore, capable of falling within s 4(2)(e) of the Act, providing the character of the employment and his professional relationship with the client showed that the conduct, in the circumstances, was related to nursing. I have some difficulty in seeing how this proviso could be satisfied on the evidence, but it is a question of fact rather than law. The alleged pretence by the appellant that he was a psychologist was both unethical and improper in the circumstances and it might well relate to nursing. This also was, in the circumstances, a question of fact and, as with that concerning sexual conduct, was determined adversely to the appellant. 25 Whether facts fully found fall within the provisions of a statute is a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 17 per Mason J (with whom Gibbs, Stephen and Aicken JJ agreed). Here, the Tribunal found that the conduct was unethical and that it demonstrated “a lack of an important quality required for the proper practice of nursing”:, adopting the language of Samuels JA which is quoted above. However, that part of his Honour’s judgment is a reference to the equivalent in the Medical Practitioners Act 1938 of s 4(2)(a) of the Act, not s 4(2)(e). In Childs v Walton the sexual behaviour arose out of the doctor/patient relationship and it did not matter, in the circumstances, that the professional consultations had ended. The conduct demonstrated “one of the specified deficits”, for example, adequate knowledge. Here, the Tribunal found (for the wrong reason) that the conduct of the appellant did not demonstrate such a deficit. As I read its reasons, the Tribunal concluded, essentially, that the unethical conduct related to the practice of nursing, as it constituted an abuse of an analogous professional, and, to some extent, therapeutic relationship. Although the passage cited from Childs v Waltson was not (as it happened) concerned with this category of behaviour, the sense of the conclusion is clear enough. I do not see how the finding that the conduct, taken as a whole, was unethical could be gainsaid, nor can there be any real doubt that, if it occurred, it reflected on the appellant’s suitability to be entrusted with the work of a nurse and the status provided by official recognition. Whether it did so to the extent of constituting unsatisfactory professional conduct depended, in the unusual circumstances of the case, on the Tribunal’s view of the actual role of the appellant or, in other words, the aptness of the analogy between the responsibilities of a counsellor and those of a nurse. This essential link was not discussed at all in the Tribunal’s reasons, though it referred extensively to the incidents of mental health nursing. It appears to me, however, that the case was conducted on the basis that the questioned behaviour, if established (and there was a specific concession in respect of admitted financial involvement, though it was less than that alleged) amounted to unsatisfactory professional conduct. The Tribunal, therefore, did not err in not exposing fully its reasons for concluding that the necessary nexus existed. 26    The second matter argued in the appeal concerns the first particular of complaint, namely “that whilst employed as a locum counsellor, the nurse falsely informed a client...that he was a psychologist”. The only direct evidence on this point was that of the client and, the Tribunal said, if that stood alone, it could not be comfortably satisfied that the complaint was proved. The Tribunal considered that “the evidence which the Tribunal regards as ultimately conclusive on Ms MF’s allegation that Mr Yelds described himself as a psychologist is in the medical records of the Drs Tan”. The relevant entry was -

“1.6.96 Seen psychologist. Psychologist rang to say she is to go on Zoloft. Agreed to see him 2 to 3 x 1 week. Zoloft 50 mg on (7 tabs given)”.

The note was made by Dr Mary Tan. She said that she wrote it “because my husband told me that, in my absence, the psychologist rang to give the message to me that MF (the client) is to go on Zoloft”. Objection was taken to this evidence, essentially for reasons of fairness, since Dr Alan Tan was not available to give evidence. The Chairman indicated that the evidence was received only upon a limited basis, namely that it explained the content of the entry in the notes. It was therefore wrong to use this material as evidence of the fact that the appellant had told Dr Alan Tan that he was a psychologist. Moreover, it is obvious that the comment of Dr Alan Tan to his wife may simply have reflected his own assumption. The Tribunal reasoned, in an extended discussion, that Dr Alan Tan would not have prescribed the anti-depressant medication unless he had satisfied himself of the appellant’s qualifications as a psychologist. Certainly, he should not have done so, but there is no presumption of regularity in these circumstances. However, the medication was prescribed by Dr Mary Tan, not by her husband, which fact was adduced in unambiguous evidence elicited by counsel for the complainant. Moreover, Dr Mary Tan said that her understanding that the appellant “is a psychologist [?came] entirely from MF” (emphasis mine). The submission of the complainant to the Tribunal that Dr Mary Tan relied as well on what her husband told her was not her evidence and was not sought to be elicited from her. Accordingly, the suppositious, and to my mind, almost entirely speculative discussion of what Dr Alan Tan might have done and what his professional attitudes might have been, was completely irrelevant. There was simply no evidence from which it was either reasonable or fair to infer that the appellant had deliberately (or even accidentally) conveyed the information to Dr Alan Tan that he was a psychologist, as distinct from the doctor’s assumption. In so far as the Tribunal relied on the content of the note, which it explicitly did so, this was contrary to the assurance given to counsel for the appellant that the note would not so be used. The irresolvable ambiguity meant that the evidence had no probative worth at all events. In the circumstances, I consider that it was, at the least, procedurally unfair to use the evidence of the note to support the testimony of MF.

27    Clause 1 of schedule 2 to the Act provides -

“In proceedings before it, a committee or the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit.”

28    As was stated in R v Deputy Industrial Injuries Commissioner; ex parte Moore 1965 1 QB 465 by Diplock LJ at 488, the Tribunal -

“...may take into account any material which, as a matter of reason, has some probative value...if it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom the Parliament has entrusted the responsibility of deciding the issue”.

Of course, the note made by Dr Mary Tan could be received. The power to disregard the rules of evidence, however, is not a power to give weight to evidence which has no probative value, still less when it is procedurally unfair to do so. The use of the note contrary to the basis upon which it was admitted is an error of law upon a matter stated by the Tribunal to have played a significant role in its process of reasoning.

29    The third ground argued concerned the appellant’s curriculum vitae. This document was sent by him to the Health Commission attached to his letter responding to the complaints. It contained an entry under the rubric “Education” in which, next to the years 1995 and 1996, appear the words respectively “Degree in Nursing at UTS” and “Nursing Science Degree UTS”. In answer to a question first by a member of the Tribunal and then by counsel for the complainant, the appellant said that he had not obtained these degrees but had simply commenced studies which were still not completed. The Tribunal found that the appellant’s credibility was adversely affected by what they considered to be “deliberate and knowingly false representations by the respondent concerning his qualifications” with respect to these entries. 30    It was submitted here that it was not open to the Tribunal to have made such a finding upon the basis that this allegation was not unambiguously put to the appellant during his cross-examination. Counsel for the complainant asked the appellant what he understood a degree in nursing to mean and an objection was taken by his counsel in the following terms -

“PIKE: Well I object. On this basis, my friend is now going to be suggesting that there’s been some kind of improper holding out, and really the entry in its context should be put to him, and the explanation passed [sic, presumably ‘asked’].
LYNCH: It goes to the question, whether the witness should be believed on his oath.
PIKE: Is that right? My submission, Mr Chairman, is that the context of that entry needs to be explained by this witness. If that’s what my friend wanted to do, he can’t approach it in this way.
CHAIRPERSON: Well, Mr Yelds in your CV, page 2, under the heading of education. 1995 you’ve listed Degree in Nursing at UTS, Diploma in Remedial Massage at Nature Care College. What did you intend to convey by that entry? Degree in Nursing at UTS.
YELDS: That I had commenced a Degree of Nursing at UTS.
LYNCH: Doesn’t say that does it?
YELDS: No it doesn’t.
LYNCH: Suggests that you hold a Degree in Nursing, does it not?
YELDS: To me it doesn’t. And to respective employers, I have never had that question asked before.
LYNCH: That’s most likely, because readers of the CV would normally conclude from those words that you hold a Degree in Nursing from...
PIKE: I object to that question, and I’ll just draw it to the Tribunal’s attention, and my friend’s attention, the fact that this comes under a category of education, not qualifications....out of fairness that could be put.
...
LYNCH: I suggest to you that, that it is positively misleading to assert that you hold a Degree in nursing in your Curriculum Vitae, under the heading Education.
CHAIRPERSON: What Mr Lynch is putting to you is, the way in which those words are put. In that list under the topic of, or heading of education is Mr xxxx. (sic)
YELDS: You could take it...this [is] misleading if you look at the front page of my CV under Duncan Clarke Yelds, page 3 of it. I’ve got Registered General Nursing Certificate, xxxx Certificate I’ve got Nursing Certificate, Rehab Certificate and Diploma Remedial Massage. The initials there, I say nothing about a Degree in Nursing.”

31    The appellant had given evidence in chief, in the context of his work history, that the curriculum vitae had been put together by the employment agency. He was not cross-examined on this aspect. 32    The written submissions of the complainant said that the respondent’s curriculum vitae made a “quite false and misleading” assertion that the appellant had a degree in nursing. It was submitted that this reflected “adversely on his credit as a witness”. The written submissions of the appellant did not deal with this issue. I understand that there were no oral submissions. There is, of course, a very significant difference between, on the one hand, characterising the curriculum vitae as being objectively misleading and, on the other, concluding that this was the result of deliberate deceit. In my view, the distinction was not adequately made in the questions to which I have drawn attention. The explanation for the relevance of the line of questions following objection, that it went to the question “whether the witness should be believed on his oath”, is not sufficient for this purpose. If the case for the complainant was that the curriculum vitae was deliberately deceptive, that should have been put directly to the appellant. This would necessarily open up the question of how the curriculum vitae came to be in that form. If the appellant had provided it in that form to the employment agency that might well be significant but if, as he said, in evidence which was not sought to be controverted, it was assembled by the agency, it may be that he thought that the reporting of his education was simply done in the conventional way. In this respect, the fact that he did not enumerate any degrees on the front page of the document which, however, lists all his other qualifications, might be thought to be of considerable importance. 33    In my opinion, the conclusion of the Tribunal concerning the appellant’s curriculum vitae effected a substantial procedural unfairness: Browne v Dunne (1893) 6 R 67; Allied Pastoral Holdings Pty Limited v Commissioner of Taxation [1983] 1 NSWLR 1; Smith v NSW Bar Association (1992) 176 CLR 256, esp at 270. The Tribunal considered that this matter was one of three matters of importance adversely affecting the appellant’s credibility. 34 It was submitted on behalf of the complainant that no error of law arose, as the findings of fact upon the particulars depended upon the Tribunal’s consideration of the evidence of the protagonists on the particular points in question, together with objective material which supported the complainant’s account in a number of respects. However, the Tribunal expressly stated that its findings of fact relied upon both matters of credit and also evidence in relation to each particular event which, if I may respectfully say so, must necessarily be the case. It follows that the decision of the Tribunal was significantly affected by this error of law. 35 The fourth ground of appeal concerned the fifth particular of alleged misconduct. This arose from the appellant’s invitation to the client to attend meetings connected with the sales and marketing of Amway products and his encouraging or permitting her to purchase an Amway business pack with him and his wife as sponsors. The essence of the alleged misconduct in this respect is, obviously, that he would benefit financially from the client’s involvement with Amway. 36 The appellant points out that the Tribunal accepted that, although it was the appellant who initially introduced the client to the Amway network by inviting her to a Network 21 meeting on one occasion, it was the appellant’s wife “who played the major role in dealing with the client in their Amway business”. This distinction, however, was unimportant since, as the Tribunal found, the appellant and his wife were in partnership and accordingly it was reasonable, indeed inevitable, to infer that the appellant’s wife was acting also on his behalf in this respect. The matter was characterised by the Tribunal as “a business relationship and for profit”. The Tribunal decided “that in early August 1996 onwards the nurse inappropriately involved Ms MF in Amway business” and hence that the particular 5 of the complaint was established. 37 It is submitted here that the Tribunal did not explain why this conduct amounted to professional misconduct and that it was simply assumed to be so. 38 It is clear enough that the Tribunal regarded the involvement by the appellant in the Amway business as inappropriate because of his professional relationship with her as a counsellor. This was conceded in the appellant’s submission’s to the Tribunal. There are a number of reasons which occur to me why this might be so, but it is a significant step to move from a finding that conduct was inappropriate to a conclusion that it was unsatisfactory professional conduct. However, the appellant submitted to the Tribunal that the conduct “amounts only to unsatisfactory professional conduct”. This concession necessarily involved accepting that it fell within either s 4(2)(a) or (e). But for this concession, the failure to characterise the nature and extent, in other words, the significance of the finding in respect of the business involvement, when it was one of the important findings which led to the conclusion that the appellant was guilty of professional misconduct, would have been an error of law: Pettit v Dunkley 1971 1 NSWLR 376. This ground thus fails. 39 The final ground of appeal agitated before me concerns the finding by the Tribunal that the client suffered psychological damage as a result of the relationship between her and the appellant in 1996. It is submitted that this was never part of the complaint against the appellant. Nor was it put to him that this was so. It was also submitted that such a consequence was not germane to the proceedings. Dr Dalton gave the following evidence, which was not objected to although, to some extent, it was not responsive to the question -

“LYNCH: Doctor, so far as the seeking to ensure proper professional services provided by health professionals to patients of the Wayback committee what do you say about the absence of notes on the assumption that 14 counselling sessions were held between Mr Yelds and MF and the notes are limited to those which form the assessment form and the one page?
DALTON: I would say that in any case it would be unprofessional and unexpected in our area and secondly if I may say this, I first saw MF on the 15 July when I did a complete psychiatric assessment and she was perfectly well as far as I could see, she just wanted to talk. I saw her again on the 10 September and she is suffering from a major depression with anxiety, so the first thing that I thought and said was, what has he been doing with her, he has seen her 16 times and she is now in this terrible state. I was terribly worried because it is my responsibility as medical director, what has happened to this patient.”

40    I think it is obvious that the reaction of the client to the relationship with the appellant was a relevant fact. He was not cross-examined to suggest that he had or should have noticed that she demonstrated any psychological harm. However, it was also relevant to provide a context within which to assess the conduct complained of. The only evidence of a medical kind relied on by the complainant in this Court was the evidence of Dr Dalton to which I have referred. This was far from an opinion that attributed to the appellant’s conduct a contribution to the patient’s condition. There is no analysis at all of the material factors of her illness, which is, perhaps, not surprising considering the context in which this evidence was given. The Tribunal said that its conclusion of psychological damage resulting from the relationship with the appellant, was based “on Dr Dalton’s evidence, that of Ms MF herself, her friends and even the behaviour reported by Mr and Mrs Yelds”. In drawing this conclusion the Tribunal must have acted upon its own expertise, since Dr Dalton’s evidence could not support the link. It is difficult to avoid the conclusion that the Tribunal’s reasoning was post hoc ergo propter hoc. Even so, I do not think that it can be said that there was no evidence for the conclusion and, accordingly, no error of law is demonstrated in this regard. 41 The appeal must be upheld, with costs. Section 67(3) of the Act gives this Court a wide power to make orders “having regard to the merits of the case and the public welfare.” I refrain from making final orders pending submissions.

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Last Modified: 09/26/2000