Professional Conduct Committee v Martin HC Wellington CIV-2006-485-1461

[2007] NZHC 1675

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2006-485-1461

IN THE MATTER OF     an appeal pursuant to section 106(2) of the Health Practitioners Competence Assurance Act 2003

BETWEEN  PROFESSIONAL CONDUCT COMMITTEE

Appellant

AND  LESLEY JANE MARTIN Respondent

Hearing:         5 February 2007

Appearances: K P McDonald QC and C Prendergast for Appellant

D L Stevens QC and P J Jensen for Respondent

Judgment:      27 February 2007

In accordance with r 540(4) I direct the Registrar to endorse this judgment with the delivery time of 12.30pm on the 27th day of February 2007.

RESERVED JUDGMENT OF GENDALL J

[1]      The respondent (Ms Martin) is a registered nurse.  She was convicted in the High Court at Wanganui on 26 August 2003 of the crime of attempted murder and sentenced to a term of 15 months imprisonment with leave granted to apply for home detention.   The Court of Appeal dismissed her appeals against conviction and sentence on 14 February 2005.

[2]      The appellant (“the PCC”) brought a charge before the Health Practitioners

Disability  Tribunal  (“the  Tribunal”)  based  upon  Ms  Martin’s  conviction  for attempted murder, contending that such conviction reflected adversely on her fitness

PROFESSIONAL CONDUCT COMMITTEE V MARTIN HC WN CIV-2006-485-1461  27 February 2007

to practise.  The Tribunal found the charge to be established and acting pursuant to s101 the Health Practitioners Competence Assurance Act 2003 placed conditions on Ms Martin’s ability to practise as a nurse namely:

“(1)      Ms Martin must satisfy the Nursing Council of New Zealand that she is   competent   to   practise   by   undergoing   and   passing   a   full competence assessment.

(2)       Ms Martin must undergo an evaluation by either a psychiatrist or psychologist approved by the Nursing Council of New Zealand and establish  that  she  is  able  to  make  appropriate  decisions  when working under pressure.

(3)       Ms  Martin  may  only  practise  for  the  first  three  years  after  she resumes practice under strict supervision and only in her area of specialty, namely, intensive/critical care nursing.”

[3]      Against  those  orders the  PCC  appeals  against  such  decision  contending, essentially,  that  the  Tribunal  erred  in  failing  to  order  that  the  registration  of Ms Martin be cancelled and in purporting to make the conditions of practise in the manner that it did.

Background

Statutory provisions

[4]      The Health Practitioners Competence Assurance Act 2003 provides that a health practitioner (which includes a nurse) may be disciplined if certain grounds exist.  Section 100(1)(c) provides one such ground, namely:

“(c)      the  practitioner  has  been  convicted  of  an  offence  that  reflects adversely on his or her fitness to practise.”

That was the charge in the present case.

[5]      If the Tribunal finds the charge to be established then it may make one or more of the orders authorised by s101 of the Act.  That is the “penalty” section and provides:

“101    Penalties

(1)      In any case to which section 100 applies, the Tribunal may—

(a)       order  that  the  registration  of  the  health  practitioner  be cancelled:

(b)       order  that  the  registration  of  the  health  practitioner  be suspended for a period not exceeding 3 years:

(c)       order  that  the  health  practitioner  may,  after  commencing practice following the date of the order, for a period not exceeding 3  years, practise his  or  her  profession  only  in accordance with any conditions as to employment, supervision, or otherwise that are specified in the order:

(d)      order that the health practitioner be censured:

(e)      subject to subsections (2) and (3), order that the health practitioner pay a fine not exceeding $30,000:

(f)       order that the health practitioner pay part or all of the costs and expenses….:

(2)       In dealing with a matter that constitutes an offence for which the health practitioner has been convicted by a court, the Tribunal must not impose a fine.

(3)      ….”

[6]      Section 102 provides for orders which may be made to limit or regulate any application  by  a  nurse  for  restoration  of  registration  if  such  be  cancelled. Section 102 where relevant provides:

“102    Orders limiting restoration of registration

(1)       When making an order that the registration of a health practitioner be cancelled, the Tribunal may impose 1 or more conditions that he or she must satisfy before he or she may apply for registration again.

(2)      The conditions may include any or all of the following:

(a)       a condition that the person undertake a specified course of education or training:

(b)      a condition that the person undergo—

(i)       any specified medical examination and treatment;  or

(ii)      any     specified    psychological     or     psychiatric examination, counselling, or therapy:

(c)       a condition that the person attend any specified course of treatment or therapy for alcohol or drug abuse:

(d)       any other condition designed to address the matter that gave rise to the cancellation of the person's registration.

(3)       The Tribunal must not impose a condition under subsection (2)(b) or (c) unless the person consents to the examination, treatment, counselling, or therapy concerned.

(4)      Subsection (2) does not limit subsection (1).”

Factual backgrounds

[7]      These  are  set  out  in  the  decision  of  the  Tribunal  when  recording  the respective cases or submissions made for the PCC and for Ms Martin.   The facts further  are  contained  in  the  sentencing  notes  of  Wild  J  who  presided  over Ms Martin’s trial and sentenced her on 30 April 2004.  They are further extensively analysed in the judgment of the Court of Appeal delivered by Anderson P (as he then was) in the judgment of 14 February 2005.   I refer to those sentencing notes and judgment and provide only a summary as follows.

[8]      Ms Martin had been a registered nurse with 17 years experience but had not practised since 1997.  Her mother was diagnosed with a terminal illness in 1998 and she returned from Australia to nurse and care for her.  After a number of procedures Ms Martin’s mother was discharged from the Wanganui Hospital on 24 April 1999 and was nursed and cared for her at her home by Ms Martin.  A Health Wanganui nurse visited from time to time and by 25 May 1999 narcotic and other medication was required because of pain and nausea.   The doctor prescribed  certain drugs, including morphine, for Ms Martin to collect from a pharmacy.  He knew she was a nurse experienced in dealing with and administering drugs.  One hundred milligrams in the form of 10 x 10mg ampoules of morphine was prescribed by him, to be administered on the basis of 1 ampoule every 4-6 hours, titrating that up as and if necessary.   It was expected that the 100mg would be enough to last her for about three days.  Ms Martin said that she had promised her mother that she would end her life without further suffering if and when the time came.   On the night of 27 May

1999 she deliberately administered 60mg of morphine in a single injection intending to kill her mother.   It was sufficient to kill her although this did not immediately occur.

[9]      The next day a Wanganui Health Board palliative care nurse visited and a discussion took place with Ms Martin, described in the judgment of the Court of Appeal as follows at [19]:

“[19]    In her evidence Nurse Alward said that the appellant told her about her administering 60 milligrams of morphine and when Nurse Alward challenged her about this she said that her mother did not have increased pain;  she had given her the medication because her mother had said she did not want a slow painful death, and that the appellant did not want that either. that the appellant did not want that either.  The appellant told Nurse Alward that she and her mother had discussed euthanasia.  The witness had told the appellant that what she had done was in fact a crime, that she had broken the law and breached the trust between herself and the general practitioner who was attending her mother.”

[10]     Although Ms Martin was interviewed by police officers at that time as to the circumstances surrounding the death of her mother no police action followed. However, Ms Martin thereafter wrote and published a book.  Its contents are referred to in the Court of Appeal judgment.   Essentially it contained what Ms Martin said was a true account of how her mother had died and that whilst she knew that what she was doing was illegal she did it “to keep a promise to someone, to help them die, peacefully and painlessly”, and that she had “given her mother 60 milligrams of morphine thinking it would end her mother’s life”.

[11]     The scientific evidence relating to the cause of death was not sufficient to support a charge of murder.   Clearly, there was sufficient evidence to justify conviction for attempted murder and the Court of Appeal described the position as being at [24]:

“[24]    It is difficult to imagine a case where an accused has made so many deliberate,  repetitive,  detailed,  private and  public  admissions  of  conduct carried out in the knowledge of its criminality.  It is not surprising therefore that having elected to defend the prosecution, the appellant found herself constrained to defend on the basis that her admissions were untruthful or, as her counsel put it to this Court on appeal, unreliable.  She did not, however, recant those admissions or her description of them as truthful.”

[12]     When sentencing Ms Martin Wild J noted mitigating factors including her previous good character and unblemished record and that he regarded her acts as “‘an attempted mercy killing’.  He said that she did it “out of love and compassion for your mother, because you did not want her to die a long and lingering death”;

“You were open about what you did”.  The Judge regarded as aggravating the fact that what  was done was “premeditated and deliberate”;   that Ms Martin was an experienced registered nurse which should have given her insight;   that what was done was in breach of the trust of doctors and nurses caring  for the appellant’s mother:

“in particular the trust her general practitioner had imposed in you, as a nurse, in giving you 100 milligrams of morphine to administer to Joy as required to alleviate her pain.”

Finally, the Judge considered it aggravating that Ms Martin failed to consult the family and longstanding friends of the deceased who were still visiting her.

[13]     In dismissing the appeal the Court of Appeal remarked on the trial Judge’s observations that Ms Martin had “demonstrated a lack of remorse and arrogance”. The Court referred to statements which had been made to the probation officer in which Ms Martin is alleged to have said:

“I have never felt that I was guilty of attempted murder or murdering my mother.   My views on that will never change.   I do not consider myself a criminal.

…

Am I likely to reoffend?  I am making this political stand in the hope that I will never be placed in this situation again.  If you ask me whether I would reoffend I can say that if someone else I loved dearly was suffering and asked me to help them die, and we continued to live in our current legal environment, I would help again.”

[14]     The Court of Appeal went on to say:

“[135]  The Judge remarked that in some way the appellant seemed to be believe that she is above the law.  The Judge did not specifically mention, but may well have had in mind, the inconstancy of the appellant’s stance and numerous  admissions  before  and  after  trial  of  conduct  amounting  to attempted murder, and her instructions to counsel for the purpose of trial (and, we would add, for the purposes of this appeal) that her admissions are unreliable.

[136]    The Judge considered that the appellant ought to be held accountable for the harm she had done to the fundamental human value of life itself.  He saw it as his duty to express the community’s and the law’s denunciation of actions which conflict with or devalue the sanctity of human life.  Although the appellant had no sense of responsibility for what she had done and would

not personally be deterred from future conduct, there was, however, an issue of general deterrence to be considered.”

[15]     Later, when dealing with counsel’s submissions that Ms Martin was subject to stress at the limits of human endurance the Court said at [150]-[151]:

“[150]  It  is  significant  to  our  mind  that  the  appellant  has  not  herself suggested that stress and exhaustion induced her to do what she would not otherwise have done.    On the contrary,  her  justification was  a  sense  of obligation to her  mother and her  inclination  would be to do  it  again in similar circumstances.

[151]    It  is,  in  any  event,  difficult  to  reconcile  the  idea  of  reduced culpability through stress  and  the Judge’s  findings  that  the offence was premeditated and deliberate.  Nevertheless the Judge did give credit for the filial love and compassion which had motivated the conduct.”

[16]   In disposing of the appeal against sentence the Court emphasised the humanitarian principle behind the respect for human life, and that it is enshrined in s8 of the New Zealand Bill of Rights Act, and concluded at [166]-[168]:

“[166]  A just and humane society expects accountability for the deliberate taking, or attempted taking, of a human life.  The issue is not one of private arrangement, but community values.

[167]    In her book, which must now be accepted as essentially true, the appellant says she deliberately injected her mother with a potentially lethal dose of morphine, in order to kill her, at a time when her mother was deeply unconscious.

[168]    This is not a case of a person driven to the depths of anguish and despair, acting impulsively and otherwise with greatly diminished responsibility.  It is a case of a professional nurse acting deliberately.   Her stance, as we have noted, has been equivocal, depending on whether her audience is public or judicial.   But in the end it is a case of the deliberate taking [sic] of a life.  It cannot fairly be said that in vindicating the sanctity of human life and the authority of our criminal law, the imposition of the particular sentence was manifestly excessive or wrong in principle.”

Principles to apply on appeal

[17]     Counsel largely agree about the principles to be applied on such an appeal. Counsel for Ms Martin contended that the appellant must show that the Tribunal was plainly wrong in imposing the disciplinary sanctions that it did, that as a specialist Tribunal it was open to it in the exercise of its discretion to dispose of the matter in a

way short of ordering de-registration, and that this Court ought not interfere with the exercise of that discretion.

[18]     Section 109 of the Health Practitioners Competence  Assurance  Act  2003 provides that an appeal from the Tribunal is by way of rehearing.  Principles drawn from earlier authorities remain relevant, namely that whilst the Court proceeds on the basis of the record from the Tribunal it is required to exercise its own judgment in accordance with ordinary appellate principles.   It would be slow to interfere with factual findings;   the onus is on an appellant to establish material error of law or facts;   or that the Tribunal proceeded on a wrong principle;   or a miscarriage of justice  has occurred;   or that  the  decision  was  plainly  wrong.    The  Court  will ordinarily give substantial weight to the professional experience and expertise of those sitting in disciplinary tribunals;   see for example Brake v Preliminary Proceedings Committee of the Medical Council of New Zealand [1997] 1 NZLR

71,  77-78;     Duncan  v  Medical  Practitioners  Disciplinary  Committee  [1986]

1 NZLR 513, 548 (CA); Ongley  v  Medical  Council  of  New  Zealand  [1984]

4 NZAR 369, 375; and Dad v General Dental Council [2000] 1 WLR 1538, 1542 (PC), but on hearing the appeal the Court may confirm, reverse of modify the decision or order appealed against and make any other decision or order that the Tribunal could have made.

[19]     The present case is not so much about the setting of professional standards by the respondent’s peers or members of the respondent’s profession – because that has arisen through the finding that the charge was established – but rather akin to an appeal against a sentencing decision of a Judge or Tribunal on the basis that the sanction imposed was manifestly inadequate, inappropriate or otherwise not justified in all the circumstances.   Due deference must be paid to the conclusions of the Tribunal containing, as it did, registered nurses and a lay member and legal representative in a sense representing the wider community, but in the end the Court will consider whether the Tribunal was wrong, and whether the orders imposed were proper and sufficient to protect the public and maintain the standards expected of the profession by the community.  Whilst respect must be accorded to the opinion of a professional tribunal on technical matters, the appropriate degree of defence – especially on matters of “sentence” – will depend on all the circumstances;  Preiss v

General  Dental  Council  [2001] 1 WLR 1926, 1936. I respectfully adopt the remarks of Elias J (as she then was) in B v The Medical Council HC AK HC11/96 8

July 1996 when dealing with the category of disciplinary conduct then known as

“conduct unbecoming”:

“The structure of the disciplinary processes  set  up  by the  Act  [Medical Practitioners Act 1968], which rely in [a] large part upon judgment by a practitioner’s peers, emphasises that the best guide to what is acceptable professional conduct  is  the standards  applied  by  competent,  ethical,  and responsible practitioners.   But the inclusion of  lay representatives  in the disciplinary process and the right of appeal to this court indicates that usual professional practice, while significant, may not always be determinative: the reasonableness of the standards applied must ultimately be for the court to determine, taking into account all the circumstances including not only usual  practice  but  also  patient  interests  and  community  expectations, including the expectation that professional standards are not to be permitted to lag.  The disciplinary process in part is one of setting standards.”

[20]     Likewise, in Brake v Preliminary Proceedings Committee of the Medical Council of New Zealand [1997] 1 NZLR 71 the Full Court said that whilst it was a matter for a professional body to assess the seriousness of conduct and range the penalties appropriate it did not follow that the Court would not interfere where it concludes that the penalty imposed was inappropriate or manifestly excessive – or for that matter manifestly inadequate.

[21]     The issue is whether the Tribunal was clearly wrong in making the orders that it did.

Discussion

Reasons of Tribunal

[22]     After finding that the conviction for attempted murder reflected adversely on Ms Martin’s fitness to practise, the Tribunal said that its functions in disciplinary proceedings, when fixing penalty, were to protect the public, maintain professional standards and  punish and  rehabilitate practitioners.    It  said  that  it  believed  that Ms Martin “has already been appropriately punished by society” and thus saw no need to impose a penalty designed to punish.  It sought to balance aggravating and mitigating factors, and noted absence of remorse and contrition, and Ms Martin’s

adherence to the belief that she had done no wrong and “would act in the same way if similar circumstances arose in the future, [which] leaves the Tribunal with no option other than to impose conditions on Ms Martin’s ability to practise that will render it very difficult for her to practise as a nurse again”.  The Tribunal said that it had “by a very narrow margin” resolved not to remove Ms Martin’s name from the Register, stating the view that it would have “unreasonably” equated her case with that of a medical practitioner, Dr Simpson, who was struck off after having been convicted of manslaughter of his mother.  So the Tribunal said that it “has decided not to punish Ms Martin” in the same way.

Purpose of disciplinary proceedings

[23]     Obviously striking off or suspension has a punitive effect.  However, that is not necessarily the purpose of the order.  A professional (e.g. lawyer or accountant) who steals from clients and who  is imprisoned is usually de-registered so  as to maintain professional standards and deter others.   That he/she is punished by the disciplinary penalty is a consequence of the order but not necessarily why the order should be made.   It is made for the primary purpose of protecting the public and community by upholding proper professional standards, deterrence (both specific and general), ensuring only those who are fit, in the widest sense, to practise are given that privilege.   A lawyer who commits perjury or forgery may illustrate an unfitness to practise even though such may be unlikely to reoccur.

[24]     Removal from the Register or striking-off may have the consequences of a punishment but as has been made clear in many cases the order is not made by way of punishment but because the person was not a proper and fit person to remain registered as a professional person.   If the conviction and the actions of the practitioner lead to the conclusion that he/she is not fit to be registered as a nurse, or to practise in a particular profession, then de-registration or suspension is inevitable. In Guy v Medical Council of New Zealand [1995] NZAR 67 Tipping J said, at 73:

“While there is, of course, an element of punishment in some of the powers available to the Medical Council, its principal function is not punishment on behalf of the State, as in a criminal Court, but rather the regulation of the conduct of the members of the medical profession in the public interest and

in the interests of the patients, both present and prospective of individual practitioners.”

His Honour refers to the judgment of Gresson P In re a Medical Practitioner [1959] NZLR 784 at 802 (CA) who said:

“the primary purpose… is to ensure that no person unfitted because of his conduct should be allowed to continue to practice…”

[25]     Similar comments were made in Ziderman v General Dental Council [1976]

2 All ER 334 (PC) at 336:

“The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence, but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession.”

and also in Dentice v Valuers Registration Board [1992] 1 NZLR 720 Eichelbaum

CJ said at 724-725:

“[disciplinary] provisions exist to enforce a high standard of propriety and professional conduct;  to ensure that no person unfitted because of his or her conduct should be allowed to practise the profession in question;  to protect both the public and the profession itself against persons unfit to practise; and to enable the profession or calling, as a body, to ensure that the conduct of members conforms to the standards generally expected of them;   see, generally, Re A Medical Practitioner [1959] NZLR 784 at pp 800, 802, 805 and 814. …. The very nature of the professions mentioned indicates the significance of the subject-matter for the public.

Obviously and distinctly, it is in the public interest that in respect of such professions and callings, high standards of conduct should be maintained.”

[26]     The appropriate starting point seems to me to ask:  “What orders will protect the public, through advancing the proper responsible standards and practice of nursing?” rather than to ask:  “Should the professional be punished again?”

PCC argument

[27]     Counsel for the PCC said the Tribunal was clearly wrong to impose the conditions it did.   She said they were inappropriate, being designed to achieve a position which made it very difficult for Ms Martin, if ever, to return to practise as a nurse.  Counsel said had the Tribunal properly directed itself it should have found

that cancellation of registration was the only appropriate course to take.  Conditions that Ms Martin was required to satisfy before commencing practice fell more readily within s102, which provides the Tribunal has power to impose conditions prior to re- instatement after registration has been cancelled.   It was argued that s101, which provides for the penalties which the Tribunal may order, did not contemplate the imposition of conditions of the type imposed.  She said that had the Tribunal ordered cancellation then the Council remained in the position to satisfy itself on any application for re-instatement.

[28]     Conditions that a Tribunal may impose after cancellation of registration and before re-registration, as set out in s102, can be very wide, but conditions requiring medical examination, psychological or psychiatric examination, counselling or therapy or treatment or therapy for alcohol or drug abuse cannot be imposed unless the practitioner consents.   That does not seem to fit squarely with conditions the Tribunal proposed to impose under s101.  But as Ms Martin has not challenged the imposition  of  the  conditions  that  the  Tribunal  imposed  it  is  probable  that  she consents  to  conditions  (1)  and  (2)  (satisfying  the  Council as  to  competency  to practise by undergoing a competence assessment and evaluation by either a psychiatrist or psychologist), and her counsel did not argue otherwise.

[29]    Counsel for the PCC submitted further that the purported imposition of conditions pursuant to s101(1)(c) of the Act, apart from being inappropriate, was not mandated by the section.  Her argument was that s101(1)(c) applies only after there has been an order for cancellation or suspension of registration, and that upon re- commencement of practice, and for a period thereafter not exceeding three years, the practitioner may only practise subject to conditions as to employment, supervision or otherwise.  She said there no longer exists the statutory power to impose conditions in relation to continued practice (as was the case under earlier legislation) unless first there has been an order cancelling registration, or suspension.  Prior to the enactment of the present legislation the Nurses Act 1977 gave to the Council a disciplinary power under s42(2)(ba) to order a nurse to practise for a period not exceeding three years only subject to such conditions.  That specific power does not appear to have been included in the present legislation.  The matter was the subject of argument and discussion in the case of J v Director of Proceedings HC AK CIV-2006-404-2188

17 October 2006 Baragwanath J, where the Judge, although he considered there was force in counsel’s submission that the Tribunal lacked jurisdiction to impose conditions, preferred the construction with the words “after commencing practice following the date of the order” to be read as “re-commencing”.   He went on to express the view that a narrow construction of the section ought to be avoided as it would circumscribe the powers of an expert tribunal by limiting consideration for “the redemption of health professionals [which] should be carried out by all practical means”.

[30]     I do not necessarily express a concluded view on whether s101(1)(c) provides jurisdiction to make the orders or conditions that were made in this case because I propose to deal with the appeal on the merits and on a consideration of whether the Tribunal was clearly wrong not to order cancellation or suspension of registration.

[31]     Whilst the Tribunal rightly said the primary objective of the Tribunal was to protect the public as expressed in s3 of the Act, it is to be borne in mind that the section goes on to say that such protection is to arise “by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions”. One of those mechanisms of course is the disciplinary function of the Tribunal.  The protection of the public and the health sector may involve suspension of practitioners who are negligent or incompetent;  the training of practitioners who show they are in need because of shortcomings in their professional abilities;   the upholding of professional standards necessary for the treatment and care of patients.

[32]     There is also a crucial requirement that there be trust as between patients and health professionals and as between, for example, nurses who  share professional duties and doctors and nurses who must work together.   This is a feature which cannot  be  discounted  in considering  public  protection,  community  interests  and professional standards.  It arises out of the evidence as to Ms Martin’s breach of trust towards the palliative care nurse and the general practitioner, who had trusted her to adhere to his instructions.  This was referred to by Wild J in his sentencing remarks. Irrespective of the personal views of a nurse the proper ethical practice of medicine and nursing of patients demands that doctors be able to trust nurses to administer drugs and other treatment as directed.  So too, nurses also must be able to trust each

other.  Where there is a deliberate breach of trust, and a practitioner adopts the stance that no wrong has been done and that he or she would act in the same way again should the situation arise, the crucial element of trust in the practitioner is eroded.  It may jeopardise the crucial relationship between health professionals.

[33]     Counsel referred to the Tribunal cases involving doctors (Dr Cox who killed a patient in a “mercy killing”, and Dr Simpson who killed his mother).  The Tribunal was asked by counsel to compare Ms Martin’s position with those cases.  Attempts to compare cases in this area are generally unhelpful because each are fact specific and different.   The Tribunal appears to have concluded that because in its view Ms Martin’s case was not as serious as that of Dr Simpson therefore should not be subject to the same sanction as he was, namely removal from the Register.  It said that the doctor’s culpability was in a “greater league than Ms Martin’s”.  Dr Simpson was convicted of manslaughter on the basis that his actions were under legal provocation which mitigated against a finding of murder.  There was evidence that he suffered from a psychiatric Bi-polar disorder, insufficient to enable an insanity finding, but a “special characteristic” for a provocation defence.  He was also said to be genuinely remorseful.

[34]     Likewise, the Tribunal appears to have been persuaded by the submission of counsel that Ms Martin’s position was similar to that of an English doctor, Dr Cox, who was simply admonished by the disciplinary body after having been convicted of attempted murder in a mercy killing case.   He was permitted to return to practice subject to conditions.   But the General Medical Council in Britain decided not to impose any disciplinary sanction on the doctor after hearing evidence from three consultants to the effect that the practitioner’s action “was an error of judgement but an understandable error” and the Tribunal concluded that “the doctor acted in good faith so as to relieve intolerable suffering”.  The doctor had not been imprisoned and was  said  to  be  remorseful.     Factually,  there  were  significant  differences  in Ms Martin’s case.  Her actions had not been described as errors of judgement, nor does she express any regret or remorse for them.

[35]     In a disciplinary exercise the Tribunal is required to concentrate its focus on the facts surrounding the practitioner with whom it is dealing and the actions of that

practitioner.  The cases are fact specific.  Indeed, as was made clear by Wild J in his sentencing notes,  in terms of gravity the  actions  of attempted  murder  can  vary widely.  That Ms Martin’s case was regarded as serious was reflected in the fact that she was sentenced to 15 months’ imprisonment, and not the subject of a community- based sentence;  she signified no remorse and stated, and maintains, that she would act in that way again if the same situation arose.

[36]     Her counsel argued that Ms Martin posed no danger to the public because the same situation could never reoccur.  The difficulty with that is that Ms Martin has repeatedly said that if the same circumstances arose again, that is if she was caring for a loved one who wanted to end their life rather than die a slow lingering death, then she would act in the same way.  She said to the probation officer that she hoped she would never be placed in this situation again but that:

“…if someone else I loved dearly was suffering and asked me to help them to die, and we continued to live in our current legal environment, I would help again.”

[37]     The Court of Appeal,  in referring to the  sentencing  of Wild  J,  said  that although the appellant had no sense of responsibility for what she had done and would not personally be deterred from future conduct, there was, however, an issue of general deterrence to be considered.  It is not possible to predict the future but it is not beyond the bounds of possibility that if a loved one whether family or close friend of Ms Martin should happen to be in a terminal situation then she would act out that which she ardently espouses.   Respectful adherence to the criminal law, especially where the law is designed to protect life and maintain the expectations of society, is to be expected of professional persons irrespective of their personal views. It is not really open for counsel to submit that the situation will never arise again where Ms Martin herself proclaims that if it should do so then she would act in the same way.

[38]     Counsel for Ms Martin further contended that  she was acting  not  in  her capacity as a nurse, but as a daughter caring for her mother.   I do not accept that accurately describes the position.   At the trial the deceased’s general practitioner’s evidence was that Ms Martin said to him that:

“She had come back from Australia, she was in charge, had been in charge of intensive care in Australia, she had come back to Wanganui to nurse her dying mother….”

[39]     Nurse Alward, the palliative care nurse, referred to Ms Martin describing the deceased in medical terms which “reinforced my view that she knew what she was talking about and had the knowledge of being a nurse” and that Ms Martin told her that she was a registered nurse and further that as a nurse “I did say she had breached my trust and the answer from Lesley was I have betrayed your trust”.  Further, she made it “absolutely clear that she wanted to do totally everything herself [in relation to nursing care] including reloading the syringe driver”.   Wild J in his sentencing notes referred to Ms Martin as “an experienced registered nurse” breaching the trust of the doctors and nurse caring for the deceased particularly the trust the doctor had reposed in her.

[40]     The Court of Appeal described the case as being:

“…a case of a professional nurse acting deliberately…”

to inject the deceased with a potentially lethal dose of morphine in order to kill her at a time when the woman was deeply unconscious.

[41]     Counsel also contended that Ms Martin’s actions were to relieve pain and were borne out of stress, anguish and exhaustion, arising from the limits of human endurance.  But the palliative care nurse’s evidence was:

“When I challenged her she said my mother didn’t have increased pain, I gave her the medication because my mum had indicated that she didn’t want a slow painful death and I did not want that either.”

[42]    And the Court of Appeal observed that the potentially lethal dose was administered whilst Ms Martin’s mother was unconscious, so as to terminate life. The finding of the jury clearly was based upon the conclusion that the intent was to kill.

[43]     Both Wild J and the Court of Appeal did not accept counsel’s submission concerning exhaustion.  The Court of Appeal said at [150]:

“It is significant to our mind that the appellant has not herself suggested that stress and exhaustion induced her to do what she would not otherwise have done.   On the contrary, her justification was a sense of obligation to her mother and her inclination would be to do it again in similar circumstances.”

[44]     I consider the Tribunal erred and was clearly wrong in making the conditions that it did, they being an inappropriate sanction to impose upon this practitioner. Those conditions would not have fulfilled the considerations of protection of the public,  by  maintaining  professional  standards.    It  was  never  suggested  to  the Tribunal or otherwise that Ms Martin was other than an experienced, able, competent nurse.    It  was  inappropriate  that  a  condition  be  imposed  that  she  satisfy  the Nursing Council of such competence.   Likewise, before Wild J and the Court of Appeal, it was never suggested that Ms Martin was not able to make appropriate decisions when working under pressure.   The position was that her actions were premeditated (as the Tribunal concluded) and made deliberately based upon what she said was a commitment or promise she had made to her mother.  The psychiatric or psychological evaluation as proposed would appear to be inappropriate given that her actions did not arise out of stress and despair.   The third condition relating to practice under “strict supervision namely in her area of specialty” could be designed to protect the public, but of course that would cease after expiration of three years.  It would not provide any public protection thereafter.

[45]     A technically competent and skilled nurse, such as Ms Martin was and is, would not pose a danger to the public through incompetence or inability to perform normal nursing duties.  But her adherence to a particular belief and assertion that if the need arose she would ignore the criminal law, and act in the same way again, must seriously impact upon the confidence the public and the community has in her fitness to practise as a nurse.   The Tribunal clearly regarded that to be the case, because it sought to impose conditions that were intended to “render it very difficult for her to practise as a nurse ever again”.  But I think the conditions are inappropriate in the circumstances.  If the Tribunal wanted it to be very difficult for Ms Martin to practise again as a nurse it ought not have endeavoured to achieve that aim through the imposition of inappropriate orders designed to regulate her return to practice.

[46]     The real issue is that, as the primary finding made clear, Ms Martin’s actions and conviction reflected adversely on her fitness to practise.  That finding is not now challenged.    “Fitness”  often  may  be  something  different  to  competence.    That Ms Martin maintains a commitment to a particular viewpoint  which of necessity involves a rejection of the criminal law of New Zealand, and a rejection of ethical standards, showed no remorse, and has expressed that she would not personally be deterred from future conduct, are telling factors.   Aspects of general deterrence as well as specific deterrence remain relevant.  So, too, is the broader consideration of the public or community’s confidence and the upholding of the standards of the nursing profession.

[47]     To summarise, the Tribunal erred:

(1)      In  seeking  to  prevent  Ms  Martin’s  return  to  practice  by  making conditions designed to regulate return to practice.

(2)      In  utilising  conditions  designed  to  regulate  return  to  practice  to achieve a de facto suspension.

(3)      In seeking to achieve the aim of making it “very difficult for her to practise as a nurse, again”, without ordering de-registration or suspension.

(4)       Imposing conditions inappropriate to Ms Martin’s situation because:

(a)      She was not incompetent in the technical practice of nursing.

Proof of such competence was unnecessary.

(b)      She  was  not  mentally  compromised  in  performing  nursing tasks or  decisions  and  had  not  acted  impulsively  or  under extreme stress.  Proof of psychiatric fitness, or assessment as to ability to make decisions, was unnecessary.

(c)      Suspension,  but  only  for  three  years  after  any  return  to practice, did not provide public protection after that time if the

adherence   to   ethical  and   legal  standards   remains   as   is espoused.

[48]     The Court of Appeal judgment implicitly contains some stinging criticism of Ms Martin.  Given her pronounced intention and determination to ignore her ethical and criminal responsibilities if ever faced in the same situation, she cannot meet the test of being fit to continue to practise as a nurse.  The only proper orders to make in a case such as this so as to protect the public, in the widest sense, and to ensure that professional standards are adhered, was that her registration as a nurse be cancelled. That would not prevent her reapplying at any time so as to satisfy the Council that she ought to be restored to the Register.

[49]     Whilst conditions may be made pursuant to s102 that Ms Martin must satisfy before   she   can   apply   for   re-registration,   specific   conditions   contained   in subsection (2) do not appear to me to be necessary, for the reasons that I have given. She does not require educational training, medical examination and treatment, psychological or psychiatric examination, counselling or therapy, or any course of treatment.   Her unfitness to practise arising out of the action and conviction has a totally different basis.

[50]     I am satisfied by a wide margin that the appellant has established that the Tribunal was clearly wrong in the manner in which it imposed the penalties under s101.  Accordingly the appeal is allowed and the Tribunal’s orders reversed.  Instead there will be an order under s101(1)(a) that Ms Martin’s registration as a nurse be cancelled.

[51]     As Ms Martin is legally aided no question of costs arises.

……………………………….

Solicitors:

J W Gendall J

Clare Prendergast, Nursing Council of New Zealand, Wellington for Appellant

Jensen Law, New Plymouth for Respondent