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Jurisdiction: Queensland

Citation: [2009] QCA 364  

Court: Queensland Court of Appeal

Judges: De Jersey CJ, Muir JA, Chesterman JA

Judgment Date: 27/11/2009

PROFESSIONS AND TRADES - Health care professionals - Nurses - Disciplinary proceedings - Where the applicant preferred a charge against the respondent of unsatisfactory professional conduct to the Nursing Tribunal under s 104A of the Nursing Act 1992 (Qld) - Where the respondent was found to have acted in a manner that was professionally unsatisfactory by the Tribunal and that the respondent be deregistered for two years along with other orders - Where the findings and orders of the Tribunal were appealed to the District Court pursuant to s 137 of the Nursing Act - Where the appeal was allowed by the District Court - Where the applicant appeals the decision of the District Court under s 118 of the District Court of Queensland Act 1967 (Qld) - Whether the learned District Court Judge erred in allowing the appeal - Whether the charge against the respondent which involved an 'abuse of position of trust and influence' required an element of intent.

LEGISLATION CITED: District Court of Queensland Act 1967 (Qld) s 118; Nursing Act 1992 (Qld) s 6, s 84, s 96, s 104, s 104A, s 105, s 116, s 137

CASES CITED: Bhattacharya v General Medical Council [1967] 2 AC 259 considered; Coleman v Kinbacher & Anor (Qld Police) [2003] QCA 575 applied; Fletcher v Queensland Nursing Council [2009] QDC 129 cited; Graham v Queensland Nursing Council [2009] QCA 280 distinguished; Johnson v Buttress (1936) 56 CLR 113, [1936] HCA 41 considered; Louth v Diprose (1992) 175 CLR 621, [1992] HCA 61 considered; Medical Board of Qld v Thurling [2003] QCA 518 considered; Parfitt v Lawless (1872) LR 2 Probate & Divorce 462 cited; Union Bank of Australia Ltd v Whitelaw [1906] VLR 711 cited; Wingrove v Wingrove (1885) 11 PD 81 considered; Winter v Crichton (1991) 23 NSWLR 116 cited

In this case the Queensland Nursing Council brought disciplinary action against a registered nurse alleging a series of actions by the nurse amounted to an increasing degree of misconduct from professional conduct of a lesser standard than expected to fraud and dishonesty.

The Nursing Tribunal found the nurse guilty of 4 out of the 5 charges laid and the nurse appealed to the District Court.  That Court overturned the conviction.  The QNC appealed to the Court of Appeal and in a 2:1 majority decision the Court upheld the appeal and set aside the decision of the District Court meaning that the nurse was ultimately found guilty of the charges.

The Court of Appeal had occasion to consider what is meant by abusing a position of trust in the context of a patient/nurse relationship.  Muir J who dissented states, "In my respectful opinion, in normal everyday speech, to "abuse" a position, whether it be one of trust or authority or otherwise, is to act or fail to act in a way which is inconsistent with the obligations and duties imposed by the holding of the position: to misuse the position. It may well be that questions of degree are involved in the determination of whether a particular act or omission constitutes an "abuse" but I am not persuaded that the words of the charge contemplate that offending conduct must be intentional."