New South Wales Supreme Court CITATION : Hodis v Nurses and Midwives Tribunal of NSW & 1Ors [2007] NSWSC 240 HEARING DATE(S) : 15/03/2007 JUDGMENT DATE : 27 March 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The appeal fails. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. CATCHWORDS : Appeal against decision on penalty - evidence of subsequent conduct - was it taken into account - alleged denial of procedural fairness. LEGISLATION CITED : Nurses and Midwives Act 1991 (NSW) Ex parte Tziniolis (1966) 67 SR (NSW) 448 Forge v Australian Securities and Investment Commission [2004] NSWCA 448 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 HCCC v Litchfield (1997) 41 NSWLR 630 CASES CITED : House v The King (1936) 55 CLR 499 Huang v Walton (NSWCA), unreported, 20 April 1993 Law Society of New South Wales v Bannister (1993) 4 LPDR 24 Law Society of New South Wales v Walsh (NSWCA), unreported, 15 December 1997 Prakash v HCCC [2006] NSWCA 153 Saville v HCCC [2006] NSWCA 298 Ann Patricia Hodis PARTIES : Nurses & Midwives Tribunal of NSW Health Care Complaints Commission FILE NUMBER(S) : SC 30105/06 COUNSEL : Mr C. Magee (Pl) Ms G. Furness (2nd Def) SOLICITORS : Maurice Blackburn Cashman (Pl) Health Care Complaints Commission (2nd Def) LOWER COURT JURISDICTION : Nurses and Midwives Tribunal of NSW LOWER COURT DATE OF DECISION : 04/08/2006 - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 27 MARCH 2007 30105/06 Ann Patricia Hodis v Nurses & Midwives Tribunal of NSW & 1 Ors JUDGMENT 1 HIS HONOUR: The plaintiff was a registered nurse. During a period from about 1996 to about November 2002, she was employed as a registered nurse at a confused and disabled elderly residents house (St John of God Hospital located in Goulburn, New South Wales, in a unit known as Giles Court). Complaint about her conduct surfaced from about September 2002. The Health Complaints Commission commenced making enquiries. She was not subjected to any suspension. A formal complaint was made on 6 May 2004. 2 The conduct of an inquiry took place before the Nurses and Midwives Tribunal of New South Wales (the Tribunal). There were thirteen hearing days. Primarily, the hearing was had in November 2004. The evidence was completed on 2 February 2005. A number of witnesses were called. The plaintiff made two statements and was cross-examined. Submissions were made on the thirteenth day of the hearing (9 February 2005). The decision of the Tribunal was not handed down until 4 August 2006 (a delay of about 18 months). It gave a written Statement of Reasons (the reasons). 3 Prior thereto, (on 4 September 2003), the plaintiff had obtained other employment as a registered nurse with the Southern Highlands Private Hospital (the hospital). As at 4 August 2006, she remained in that employment. 4 The Tribunal conducted an Inquiry into two complaints. Complaint 1 alleged that the plaintiff was guilty of 'unsatisfactory professional conduct', as defined by the Act, in that she demonstrated a lack of adequate knowledge, skill, judgment, and/or care in the practice of nursing and/or guilty of improper or unethical conduct relating to the practice of nursing. Complaint 2 alleged that the plaintiff was guilty of 'professional misconduct' as defined by the Act. 5 There were seventeen identical particulars in each Complaint. The particulars related to conduct of the plaintiff said to have occurred between 22 April 1991 and 19 September 2002. 6 The Complaints relate to some eleven residents of Giles Court. In all cases, each resident was an elderly person suffering from some form of dementia with a differing degree of severity in each case. 7 The particulars of Complaint fell broadly into 5 general categories of conduct: "(a) Inappropriate language in dealing with colleagues including in relation to references to patients; (b) Use of inappropriate, abusive and insulting language towards patients; (c) Inappropriate and excessive application of force towards patients; (d) Confining or threatening to confine residents; (e) Sleeping whilst on duty". 8 The Tribunal found that the complaints (save in respect of particular 9) had been made out. It came to the view that her conduct was of a sufficiently serious nature to justify her removal from the register of nurses. It made the following orders:- 1. Direct that the name of Ann Patricia Hodis be removed from the register of nurses for the State of New South Wales. 2. Fix a period of four years after which Ann Patricia Hodis may apply to be registered. 9 The plaintiff filed a Summons in this Court. She presently moves on an Amended Summons, filed on 31 October 2006. She seeks, inter alia, to have the orders of the Tribunal set aside. The Amended Summons sets out nine matters under the heading "Grounds and Reasons". The ninth matter identifies eleven individual matters in respect of which it is said that the Tribunal erred in the exercise of its discretion by failing to consider and/or give any, or any sufficient, weight to those individual matters. 10 The appeal was heard on 15 March 2007. The hearing occupied much of the day. There have been written submissions (including lengthy and detailed ones from the plaintiff). The written material was supplemented by oral argument. 11 The Court had placed before it the material that was before the Tribunal. In addition to that material there was also a number of affidavits tendered by the plaintiff (without objection) which fell into the category of further evidence. 12 Whilst this material was not before the Tribunal, it overlapped with material that was before it. None of the deponents gave evidence before the Tribunal. However, it had before it what has been described as "character references" from each of them (each of these documents was in the form of a letter). Each "character reference" and the corresponding affidavit had similarity in substance (the "character reference" being an abbreviated form of what was more elaborately expressed in the affidavit). The affidavits also dealt with a period up to and following 4 August 2006. They were sworn about October 2006. 13 During the course of argument it became common ground that there were two principal arguments agitated by the plaintiff. The first concerned an alleged failure to consider what might be described as evidence of conduct of the plaintiff during the period from September 2003 up to the inquiry (the evidence of subsequent conduct). The second concerned an alleged denial of procedural fairness. The "Grounds and Reasons" see it being expressed as follows:- "(viii) In circumstances where the reasons for decisions and orders of the Tribunal were made eighteen (18) months after the hearing of evidence and submissions in the inquiry, the Tribunal should have, as a matter of fairness, invited the plaintiff to put forward any further evidence and make any further submissions on the question of whether the Tribunal should make any orders under s.64 of the Act, and if so what orders were appropriate. In failing to do so the Tribunal erred in that the plaintiff was denied procedural fairness and natural justice." 14 It seems to me that I should not have regard to the further evidence in dealing with the first of those two matters. However, it can be looked at in dealing with the second of them. It can be treated as an indication of the further material that the plaintiff could have placed before the Tribunal if it had been given the opportunity to do so. 15 I shall now look at the first of the two principal matters. At the outset, I should observe that the plaintiff does not seek to challenge the findings made in respect of the complaints. She seeks to challenge only what was done pursuant to s64 of the Nurses and Midwives Act 1991(NSW) (the Act). Section 64(1) is as follows:- "64 Determinations of the Tribunal (1) The Tribunal may determine to do any one or more of the following if it finds the subject-matter of a complaint made against a person to have been proved: (a) caution or reprimand the person, (b) order that the person seek medical or psychiatric treatment or counselling, (c) direct that such conditions, relating to the person's practice, as it considers appropriate be imposed on the person's registration or enrolment, (d) order that the person complete such educational courses as are specified by the Tribunal, (e) order that the person report on his or her practice at the times, in the manner and to the persons specified by the Tribunal, (f) order that the person seek and take advice, in relation to the management of his or her practice, from such persons as are specified by the Tribunal, (g) by its order: (i) suspend the person from practising for such period as it specifies, or (ii) direct that the person's name be removed from the Register of Nurses or the Register of Midwives, or both, or from the Roll." 16 Relief is sought pursuant to s67(1) of the Act. It enables an appeal to this Court against the exercise of any power under s64 by the Tribunal. The section sets out the powers which the Court may exercise in determining an appeal. One of those powers is to dismiss the appeal. 17 There is no dispute that the jurisdiction of the Tribunal is protective in nature and that the public interest and the protection of the public are the guiding considerations for the Tribunal in considering the appropriate penalty. 18 The authorities recognise that the exercise of power constituted by the making of a disciplinary order is discretionary in nature and that the appellant must identify error of the kind referred to in House v The King (1936) 55 CLR 499 at 504-505. 19 The plaintiff contends that the Court should intervene because the Tribunal failed to either take into account relevant matters or give them sufficient weight and/or because the result was so out of harmony with the facts as found by the Tribunal. 20 I shall now look at the nature of the evidence of subsequent conduct. The material contained in the "character references" was from other persons employed at the hospital. One of the providers of this information was Ms Horsley (the Surgical Nurse Unit Manager). The material is described in the submissions made on behalf of the plaintiff (see, inter alia, paragraphs 40-48 thereof). The description by the Tribunal of the letters as "character references" might be thought to be loose. The letters contained material concerning her work performance at the hospital. The fact that these letters may have been more appropriately described seems to me to be a matter of no consequence. 21 The broad thrust of this material has been described by the plaintiff as providing testimonial evidence from a number of her professional nursing colleagues to the effect that the plaintiff, in the practice of nursing, exhibited considerable skill and expertise as a registered nurse and was of good standing amongst her professional peers. It was also said that the evidence demonstrated that the plaintiff had adopted appropriate nursing standards through her employment as a registered nurse in the period subsequent to the complaints. It was also said that it showed no evidence of any complaint against her during the period that she worked with the hospital. The second defendant did not seek to rebut this material. 22 It seems to me that the reasons make it clear that the Tribunal had regard to her remaining in practice as a nurse and to this material. There were express references (which appear at pp1 and 66 of the Reasons). 23 In reaching that view, the remaining consideration is whether or not the material was given sufficient weight. In dealing with that consideration, regard has to be had to the other material that was before the Tribunal. 24 The second defendant has drawn attention to a number of findings that were made by the Tribunal. I shall mention certain of them. In relation to one complaint it was said that there was even a strong suggestion that the plaintiff may well have acted with malice (in addition to a strong inference that she had acted without due regard for a resident's welfare). These findings appear at pp21-22 of the reasons. In respect to another complaint, there was a finding of poor nursing skills (see p23 of the reasons). At p51 of the reasons, the Tribunal expressed the view that it found the plaintiff to be a particularly unsatisfactory and an ultimately untruthful witness. There were findings that the plaintiff mocked and demeaned residents in the presence of her colleagues (see p53 of the reasons). At pp56-57 of the reasons, there was an observation that the evidence strongly suggested an element of gratuitous force and cruelty in the plaintiff's behaviour. There were findings that the confinement of residents caused considerable distress to them and that this was exacerbated by the residents suffering confusion and disorientation. At p54 of the reasons, there was a finding that the nursing care provided to one resident was so unskilled so as to constitute an act of cruelty. 25 The fact finding process included the following [at p65]:- "In regard to the five more serious particulars, the nurse's conduct involved breaches of standards each of which is fundamental to the practice of nursing. The breaches themselves occurred over a lengthy period of time, the first of which was in 1996 and the most recent in the period immediately prior to the termination of her employment at Giles Court in about September 2002. The breaches involved a disregard for the welfare of particularly vulnerable, elderly and frail residents who were also suffering marked confusion and disorientation arising from their dementia. The respondent's behaviour in these events was marked by a degree of wilfulness. Her sleeping while being the only registered nurse on night duty was marked by acts of premeditation. Under the circumstances, the Tribunal is comfortably satisfied that the respondent is guilty of professional misconduct." 26 The Tribunal dealt with the question of protective orders at pp66-67 of the reasons. The observations that were made in respect of this matter included the following :- "The professional misconduct of the respondent occurred over a lengthy period of time between about 1996 and 2002. There were multiple instances of misconduct which were particularised in 16 particulars. A number of those particulars, however, referred to more than one act of misconduct over a period of several years. On the other hand, the Tribunal has also taken into account the fact that the respondent has been registered in Australia since 1990, was first registered in Ireland in1972 and also practiced for a number of years in the United Kingdom before coming to Australia. The Tribunal also takes into account the character references which are in evidence. The number of serious breaches of nursing standards which involve causing distress to residents and the multiple nature of the breaches was of concern to the Tribunal. A number of the particulars involved the respondent's behaviour which inflicted mental distress or physical pain. This was compounded by the respondent's own evidence before the Tribunal. The Tribunal was adversely impressed by evidence from the respondent herself which demonstrated to us that, despite in the intervening years, she has yet to fully understand the gravity of her actions. Further evidence of the respondent also indicates that she is not remorseful for her actions despite the passage of time since many of them occurred. In this regard, her evidence in relation to her sleeping while on night duty when she was the only registered nurse on duty was marked by a considerable lack of frankness with the Tribunal. The respondent's evidence in regard to Particular 17 is of concern because the respondent's outright denials regarding her acts of preparation by spreading out blankets or a sheet on furniture, her posture while laying down and her denial that she ever slept, while admitting that she may have temporarily dozed, led the Tribunal to the view that she was an unreliable and untruthful witness. In our view, that evidence causes us to conclude that the respondent has little or no contrition as regard to this aspect of the complaints against her. The Tribunal is left with a feeling of considerable unease at the prospect of the respondent adequately caring for her patients, in particular especially vulnerable persons, if she were to remain in practice as a registered nurse. We conclude that Ms Hodis is not fit to practise as a registered nurse. In the Tribunal's view, the appropriate order to make in relation to the respondent's registration is that she be removed from the register." 27 What weight was given to the evidence of subsequent conduct may be debatable. Be that as it may, in my view, having regard to the other material that the Tribunal was requested to take into account, it was entitled to give it little weight (see, inter alia, The Law Society of New South Wales v Bannister (1993) 4 LPDR 24; HCCC v Litchfield (1997) 41 NSWLR 630; Law Society of New South Wales v Walsh (NSWCA), unreported, 15 December 1997 and Ex parte Tziniolis (1966) 67 SR (NSW) 448). 28 The passages quoted from the reasons illustrate other matters that were taken into account. Apart from questions of the seriousness of the numerous breaches of nursing standards and the consequences thereof, there were other significant considerations. The other matters included the degree of wilfulness in her behaviour, the Tribunal's view that despite the intervening years she was yet to fully understand the gravity of her actions, that she was an unreliable and untruthful witness, that she had little or no contrition and the Tribunal's considerable unease at the prospect of her adequately caring for patients (in particular especially vulnerable persons) if she were to remain in practice as a registered nurse. 29 Even if a more favourable view be taken in respect of the weight to be given to the evidence of subsequent conduct, it seems to me that it would not affect the conclusion reached by the Tribunal. 30 It was also said that the Tribunal failed to give weight to a report of a clinical psychiatrist (Ms Campbell). She provided psychological counselling to the plaintiff after complaint had been made against her. It was said to have relevance concerning the impact upon her of the complaints and concerning the language that had been used by her to residents (see paragraph 67 of the plaintiff's submissions). 31 The Tribunal did not mention the report in the reasons. In my view, it is not required to expressly mention matters to which it has accorded little or no weight. I consider that the report falls into that category. 32 Three other matters were raised orally. The first of the matters was alleged error on the part of the Tribunal in failing to have any, or any sufficient, regard to the alternative penalties available under s64. The second matter was the four year period adopted by the Tribunal. 33 The period was said to be overly severe for the protection of the public. It was said that insufficient reasons were given for the imposition of that period. 34 Section 64(1) may be said to provide the Tribunal with a range of options offering differing degrees of severity. What the Tribunal appears to have done is select the option which it considered to be the most appropriate having regard to its findings. I do not consider that it was obliged to canvass the suitability of each and every one of the other options. 35 I also consider that the reasons amply disclose why the four year period was adopted. I do not consider that it was out of harmony with the found facts (it may be added that this was not a case in which the plaintiff was unable to identify alleged error). 36 The third matter was what was said by the plaintiff concerning how the Tribunal dealt with the matter of the lack of any suspension. It was a matter upon which the plaintiff placed some emphasis. Firstly, I should mention that the question of suspension did not fall within the jurisdiction of the Tribunal. The power rested with the Nurses and Midwives Board. Secondly, I should observe that the matter of the lack of suspension was referred to by the Tribunal in the reasons. I am not satisfied that the Tribunal failed to have appropriate regard to such matter. 37 I have not expressly addressed all of the multitude of matters raised by the plaintiff in submissions (be they written or oral) concerning allegations of failure to either consider or give sufficient weight to matters said to be relevant. I have expressly mentioned only those that were given prominence during oral argument. However, the position is that I have considered all of the material and have come to the view that I am not satisfied that any relevant matter was not either considered or given sufficient weight. 38 Further, if there be a general attack on insufficiency of disclosure of reasoning process, I reject that submission. 39 There remains the question of alleged denial of Procedural Fairness. "Procedural Fairness" is a flexible concept of fairness. Each case can be expected to turn on its own particular facts. The plaintiff has the onus of demonstrating that there was a denial of procedural fairness that justifies the disturbing of its orders. 40 The Court was told that the general (if not invariable) practice of the Tribunal was to receive submissions on contravention and penalty at the same time. Such practice was followed in this case. In particular, Counsel for both parties addressed on the question of penalty. Counsel for the second defendant provided the Tribunal with a draft set of alternative orders. Counsel for the plaintiff expressly sought to make submissions in respect of protective orders. He then made those submissions (the recording of which occupied over three and a half pages of transcript). A particular submission was that the plaintiff would not oppose a condition being placed on her practice (this submission was again put during the appeal). The question of costs was reserved. This was done on the application of Counsel for the plaintiff. 41 Unfortunately, there was a delay of about eighteen months before the delivery of the reasons. The Court was informed that delay in this jurisdiction is not unusual. However, in this case the delay was regarded as being excessive. 42 No application was made to re-open prior to the handing down of the reasons (prior notice of the handing down of the decision had been given). The transcript of what took place when the reasons were handed down is before the Court. It reveals that there were opportunities for the plaintiff to move to re-open had she wished to do so (including after the handing down of the decision on contravention and before the orders on penalty were made). In fact, the only matter that Counsel for the plaintiff sought to agitate was that of costs. When that matter was raised, the Tribunal dealt with the question of costs. 43 The plaintiff contends that she was denied both the opportunity to put further material before the Tribunal (being material of a nature of the further evidence contained in the affidavits) and of the opportunity of making further submissions on penalty. 44 The further evidence does concentrate on the period between February 2005 and August 2006. However, the evidence in respect of that period was similar to what may be gleaned from the "character references". 45 It is common ground that the orders are to be made as things stand at the time of the making of the order. The further evidence does not evince any change in circumstances between the time of hearing and the time of the decision. I do not consider that the leading of the further evidence would have brought about a different result. 46 The Court has been taken to numerous cases (including Huang v Walton (NSWCA), unreported, 20 April 1993; Law Society of New South Wales v Walsh (NSWCA), unreported, 15 December 1997; Prakash v HCCC [2006] NSWCA 153; Saville v HCCC [2006] NSWCA 298 and Forge v Australian Securities and Investment Commission [2004] NSWCA 448). 47 The plaintiff has looked to Forge for support. In my view, the circumstances of this case are distinguishable from what was before the Court of Appeal in that case. In my view, what was observed by McColl JA in paragraph 423 has application in this case. 48 As has been earlier observed, the concept is a flexible one. In this particular case, the plaintiff had a reasonable opportunity to present her case on penalty before the Tribunal and she took advantage of that opportunity by the making of a full presentation. 49 It is also one of those cases in which it can be said that the plaintiff waived a separate hearing on the question of penalty (see Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378). 50 In my view, the plaintiff has failed to demonstrate that there was a denial of procedural fairness. 51 The appeal fails. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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