TUNNICLIFF v A PROFESSIONAL CONDUCT COMMITTEE OF THE NURSING COUNCIL [2015] NZHC 1092

TUNNICLIFF v A PROFESSIONAL CONDUCT COMMITTEE OF THE NURSING COUNCIL [2015] NZHC 1092 [21 May 2015]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2014-485-11295[2015] NZHC 1092UNDER the Health Practitioners CompetenceAssurance Act 2003IN THE MATTER OF an appeal to the High Court pursuant tosection 106(2) of the Health PractitionersCompetence Assurance Act 2003BETWEEN NANO CHRISTINA TUNNICLIFFAppellantAND A PROFESSIONAL CONDUCTCOMMITTEE OF THE NURSINGCOUNCILRespondentHearing: 13 April 2015Counsel: J P Coates and K Rademacher for appellantM F McClelland QC and H S de Montalk for respondentD D Vincent for Health Practitioners Disciplinary TribunalJudgment: 21 May 2015RESERVED JUDGMENT OF DOBSON JContentsLeave to appeal out of time ............................................................................................................... [2]Ms Tunnicliff's relevant conduct...................................................................................................... [7]The disciplinary proceedings and the Tribunal's decision ............................................................[11]The approach to an appeal on penalty .......................................................................................... [17]The grounds of appeal..................................................................................................................... [24]The Tribunal incorrectly identified aggravating factors and/or gave too much weight to the identified aggravating factors ...................................................................................................... [27]The penalty was unnecessary to protect the public, to deter others, and the Tribunal failed to adequately explain why a penalty less than suspension was not appropriate .............................. [36]The Tribunal failed to act consistently with its own decisions ...................................................... [41]The Tribunal failed to take into account the prospects for Ms Tunnicliff's rehabilitation ............ [45]The Tribunal made incorrect findings in relation to Patient 81 ................................................... [52]The Tribunal's decision was disproportionate, excessive and substantively unfair ...................... [58]Outcome ........................................................................................................................................... [68]Costs ................................................................................................................................................. [77][1] The appellant (Ms Tunnicliff) has appealed against the penalty imposed by the Health Practitioners Disciplinary Tribunal (the Tribunal) in respect of a finding that she was guilty of professional misconduct.1Leave to appeal out of time[2] Section 106(4)(b) of the Health Practitioners Competence Assurance Act 2003 (the Act) provides that an appeal must be lodged within 20 working days after notice of the decision is communicated to an appellant, or within any further time that the Court allows. Ms Tunnicliff's notice of appeal was filed some 12 monthsafter the statutory period had expired, and she accordingly sought leave to bring her appeal out of time.[3] In seeking leave to appeal, Ms Tunnicliff deposed that the legal advisers who represented her before the Tribunal were not optimistic about her prospects on appeal. Subsequently she experienced serious difficulty in seeking employment in the health sector. She attributed this difficulty to the conditions imposed by the Tribunal as an aspect of the penalty. Ms Tunnicliff therefore reconsidered the need for pursuing an appeal. Having obtained more optimistic legal advice on her prospects on appeal, she commenced the appeal and sought leave to do so out of time.[4] The respondent (the PCC) opposed leave, arguing that the extent of delay was significant and the reasons provided for it were not compelling. The PCC argued that the overall interests of justice did not favour the grant of leave, that the merits of the proposed appeal were weak, and that there were no issues of public importance that would justify entertaining an appeal out of time.[5] The Court of Appeal in My Noodle Ltd v Queenstown Lakes District Councilsummarised the factors relevant to a decision on an extension of time as including"the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay".21 Re Tunnicliff HPDT 570-Nur13-248P, 12 September 2013.2 My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].[6] Apart from the delay in achieving finality with this disciplinary matter, granting leave would cause no material prejudice. The circumstances leading to Ms Tunnicliff not pursuing a timely appeal are understandable. As appears from the reasoning that follows, I do not accept the PCC's argument that the appeal is without merit. Given the importance of the matter to Ms Tunnicliff, and the long-term adverse consequences that she credibly claims have resulted from the conditions imposed as part of the penalty, the interests of justice do favour granting leave to appeal. I accordingly do so.Ms Tunnicliff's relevant conduct[7] From 2005 to 2012, Ms Tunnicliff was employed by the Nelson Marlborough District Health Board (DHB) as a specialty clinic nurse in rheumatology. The disciplinary charge related to her conduct between 2010 and 2012. Throughout that period, there was an expectation that, during or after every patient consultation, a nurse in Ms Tunnicliff's position would create an appropriate electronic record. That record would be added to the clinical records maintained by the DHB in relation to every patient.[8] In a rheumatology clinic consultation with Ms Tunnicliff in January 2012, a patient (Patient 81) had reported that she was experiencing "a funny feeling in herchest and pain and swelling in her right hand". She recalled Ms Tunnicliff explaining to her that Dr Porter, the rheumatologist, was away and would not be back for a further two weeks. Patient 81 reported that Ms Tunnicliff told her she would talk to Dr Porter when he got back and, based on his advice, would be back in touch with Patient 81. Ms Tunnicliff told Patient 81 that if she was concerned in the meantime, she should contact her general practitioner. However, Ms Tunnicliff didnot discuss Patient 81's symptoms with any medical practitioner including Dr Porter after he had returned, and Ms Tunnicliff did not get back in touch with Patient 81.[9] As a result of the apparent omission in the records of Patient 81, the DHB conducted an investigation that revealed an absence of relevant records for 87 patients with whom Ms Tunnicliff had consulted. The DHB discovered that in 2010 she had 42 patient appointments, 33 of which did not result in a clinical record beingmade. In 2011, she had 46 patient appointments and 35 were without an appropriate record. In 2012, up to late March when the investigation was undertaken, Ms Tunnicliff had 20 appointments, 19 of which were not appropriately recorded.[10] In late May 2012, Ms Tunnicliff was given informal notice of the preliminary decision by the DHB to terminate her employment, and she then resigned. In June 2012, the DHB gave notice to the Nursing Council of Ms Tunnicliff's resignation,which it treated as being pre-emptive of termination on the ground of incompetence.The disciplinary proceedings and the Tribunal's decision[11] Thereafter, a PCC was appointed to investigate the conduct. In July 2013, a disciplinary charge was laid by the PCC. The charge was that Ms Tunnicliff had compromised patient safety by failing to document contacts with patients of the rheumatology service. It cited 79 particulars of this having occurred after a consultation. In addition, the charge alleged Ms Tunnicliff had compromised, or potentially compromised, the health and safety of Patient 81, as a patient in her care. This occurred when she failed to notify a medical practitioner of Patient 81's advicethat she was experiencing "a funny feeling in their chest and swelling and pain in their right hand". The charge then contended that all the particulars, either separately or cumulatively, constituted professional misconduct.[12] The Tribunal hearing was conducted in August 2013, with the decision being delivered on 12 September 2013. Having found Ms Tunnicliff guilty of professional misconduct, the Tribunal censured Ms Tunnicliff and ordered suspension of her registration as a nurse for nine months, ending on 20 May 2014.3[13] In addition, the Tribunal imposed the following conditions on her resumption to practice:4 she was to practice for a period of 12 months only under the supervision of a supervisor approved by the Nursing Council;3 Re Tunnicliff, above n 1, at [86] and [88].4 At [91]. that supervision was to include at least monthly meetings with the supervisor, and was to focus on adequate note-taking and documentation and compliance with her responsibilities as a nurse, with the supervisor to report to the Nursing Council on the supervision that had been undertaken; before resuming practice she was to complete a course approved by the Nursing Council to address ethical and professional obligations of a registered nurse; after resumption of practice, she was to practice for a period of three years with personal supervision, with Ms Tunnicliff reporting annually to the Nursing Council; Ms Tunnicliff was to meet the costs of all the supervision; for a period of three years she was required to provide a copy of theTribunal's decision to any existing or future employer; for that three year period she was to advise the Nursing Council of the identity of her employer and any change in employer.[14] In reaching its decision, the Tribunal reviewed various considerations affecting the relative seriousness of Ms Tunnicliff's conduct. It listed what it treatedas the aggravating features in the following terms:83.1 The period of time over which the offending occurred.83.2 The number of patients affected by this offending.83.3 The risk that each patient was placed in and in particular, the risk that Patient 81 was placed in by a failure to report the concerns that were expressed.83.4 The fact that Ms Tunnicliff has sought to place responsibility for this offending on others such as her alleged unsupportive work environment, alleged inadequate training in the use of the electronic document management system and the other "workplace culture"matters referred to in her letter of 18 May 2012 to the ServiceManager, Specialist Services, Nelson Marlborough District Health Board.83.5 Ms Tunnicliff's referral in that letter to allowing herself to beinfluenced by the medical professional in relation to documentation that did not meet best nursing practice.83.6 Ms Tunnicliff's leadership role in NZNO and the standards that it tries to maintain, such as in the brochure "Documentation", andMs Tunnicliff's knowledge of these.[15] As to the last of these matters, Ms Tunnicliff had been elected President of the New Zealand Nurses Organisation (NZNO) in 2009. In explaining to the Tribunal the context in which her failures had occurred, she cited the extent of the commitment, which she put at around 20 hours per week, in discharging the responsibilities of the President of NZNO and that those responsibilities weighed heavily on her. At the disciplinary hearing, the Tribunal invited both parties to comment on an NZNO brochure entitled "Documentation". The Tribunal citedextracts from the brochure in its decision, including:Accurate documentation is a critical element of nursing practice Clinicalrecords must be accurate, concise and include the care that has been givenand/or is planned. When documenting in the clinical record many peoplemay read the notes you have written. Counsel for Ms Tunnicliff had accepted that she was aware of the document.[16] The Tribunal then summarised the mitigating factors in the following terms:84.1 The fact that Ms Tunnicliff has acknowledged now, and to a large extent throughout, the inadequacies of her note-taking.84.2 The (perhaps fortuitous) fact that there have been no adverse medical consequences for any of the patients in question including Patient 81.84.3 Ms Tunnicliff's cooperation with the prosecution process, acknowledgement of her acceptance of the Charge as made out and her agreement to the Statement of Facts which have all expedited the matter and confirmed her acceptance now of the situation.The approach to an appeal on penalty[17] There has been a divergence of judicial opinion as to the correct approach in appeals from disciplinary tribunals that are by way of re-hearing. The divergenceturns on a distinction between general appeals and appeals against an exercise of discretion. Mr Coats urged me to prefer the approach applied in Austin, Nichols & Co Inc v Stichting Lodestar, where the Supreme Court approved the High Court reaching its own opinion on appeals from a tribunal.5 That approach was adopted by the Full Court of the High Court in Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society, which involved a challenge to the penalty imposed by a law society disciplinary body.6 If I took this approach, it would be incumbent on me to reach my own view on the appropriateness of the remedy imposed.[18] In Sisson, the Full Court acknowledged that an earlier Full Court decisionaddressing solicitors' disciplinary matters had favoured a bifurcated approach: professional misconduct findings were to be considered afresh, but penalty decisions were to be considered on appeal by reference to the principles that govern the exercise of a discretion.7 However, it preferred the view taken in a more recent Full Court decision that both misconduct findings and penalty decisions require an appellate court to reach its own view.8[19] For Ms Tunnicliff, Mr Coates fairly acknowledged the weight of recent High Court authority where appeals from penalty decisions in respect of health practitioners have adopted the approach from May v May.9 The High Court has treated penalty decisions in disciplinary proceedings as involving the exercise of a discretion, which means the appellate court must be satisfied that the Tribunal acted on a wrong principle, failed to take into account some relevant matter or took account of some irrelevant matter, or was plainly wrong.[20] In Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, Collins J distinguished between the Court's role in determining an appeal from a disciplinary finding, and the evaluative exercise involved in deciding5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.6 Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society [2013] NZHC 349, [2013] NZAR 416.7 At [14], citing Bhanabhai v Auckland District Law Society [2009] NZAR 282 (HC).8 At [15], citing Hart v Auckland Standards Committee (1) of the New Zealand Law Society[2013] NZHC 83.9 May v May (1982) 1 NZFLR 165 (CA).on penalty.10 The former would lend itself to a general appeal, but the latter is to be treated as an appeal from a discretion. The approach adopted in Roberts has been followed in at least two more recent decisions in Joseph v Professional Conduct Committee and Katamat v Professional Conduct Committee.11[21] In Joseph, Ronald Young J summarised the approach that this involved in the following terms:12(a) to assess whether the Tribunal has correctly identified the relevant facts and other factors relevant to penalty. This requires a de novoassessment by the appellate court. If the appellate court differs fromthe Tribunal's assessment of relevant factors, then it may itself assess the proper penalty;(b) if the appellate court is satisfied the Tribunal's assessment ofrelevant factors is correct, then;(c) the appeal will only be allowed if the penalty is outside the range of penalties reasonably available to the Tribunal given the assessment undertaken. This recognises a proper element of discretion exercised by the Tribunal in setting a penalty.[22] By and large, judges are more likely to be comfortable placing themselves inthe shoes of a law practitioners' disciplinary tribunal when considering the appropriateness of penalty, because of their own experience as members of the legal profession. Almost invariably judges will lack the same familiarity with the context in which penalty is assessed for medical practitioners. However, the difference in approach between the cases cited cannot be rationalised on the basis that an appellate court forms its own view on penalty in the case of legal practitioners, but recognises that penalty is a matter of discretion for medical practitioners.[23] The Tribunal does have on-going disciplinary responsibilities for the conduct of health professionals, and has a responsibility to protect the public from conduct that is likely to be more life-threatening than comparably arises in disciplining legal practitioners. That difference influences the appropriate approach to an appealwhere the Tribunal's discretion on the terms for a penalty will be coloured by its10 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354.11 Joseph v Professional Conduct Committee [2013] NZHC 1131; Katamat v Professional Conduct Committee [2012] NZHC 1633.12 At [39].members' experiences, and the Tribunal's appreciation of context. That expertise gives the Tribunal a real advantage over a judge on appeal. For this reason, I will follow the approach set out at [21] to determine the appeal.The grounds of appeal[24] The essence of Ms Tunnicliff's appeal is that the conditions imposed were disproportionately harsh. She has been unable to find any work in the health sector and has provided evidence of her unsuccessful attempts to do so. She says the conditions imposed by the Tribunal have either discouraged potential employers, or precluded her employment in positions where the conditions for supervision could not be accommodated. Mr Coates raised numerous more specific criticisms, all intended to support this general point.[25] For the PCC, Mr McClelland QC argued that the orders were proportionate, appropriate and reasonably open to the Tribunal. He objected to Ms Tunnicliff leading evidence of her unsuccessful attempts to find further work, arguing that the appropriateness of the orders was to be assessed by reference to matters as they were, and not with the benefit of hindsight.[26] Mr Coates cited eight grounds of appeal in challenging the penalty decision. Some of the criticisms can be grouped, and can be considered under six headings.The Tribunal incorrectly identified aggravating factors and/or gave too much weight to the identified aggravating factors[27] Ms Tunnicliff sought to explain to the DHB the context in which she failed to make adequate clinical records of consultations. She stated that she had significant difficulty adapting to the new electronic record-keeping system that the DHB had introduced in 2010. She had hoped that a template would be designed for her by those responsible for information technology at the DHB, and that the pressure of her work might lessen to an extent that she could undertake training on how to dictate notes so that they were recorded in the correct way. She also stated that a doctor she was working with did not maintain clinical records to the standardcontemplated by the electronic system, which lessened her own perception of the seriousness of her failures to complete the clinical records to the requisite standard.[28] The Tribunal's decision treated these explanations by Ms Tunnicliff as aggravating the seriousness of her misconduct.[29] If, in the context of a criminal sentencing, a defendant attempted to explain offending conduct, it would be open to the sentencing court to reject the explanation as not constituting a valid mitigating factor. Blaming others may signal a lack of remorse and failure to have insight into the circumstances of offending. However, it would generally be inappropriate to treat such explanations as rendering the offending behaviour more serious.[30] The line between an ineffectual attempt to mitigate the seriousness of professional misconduct, and an explanation that suggests the misconduct is more serious, may be more difficult to draw. In the disciplinary context, a subsequent acceptance of responsibility for misconduct could be taken into account as a mitigating factor. It is understandable that the Tribunal might reject what it saw as Ms Tunnicliff's attempts to share the blame for her omissions with others. If suchexplanations are rejected, that could be weighed against any claim that she was contrite and regretted the omissions in an unqualified way. In other words, her explanation might lessen the mitigating factor that might otherwise be taken into account in Ms Tunnicliff's favour.[31] However, it is inappropriate to treat such an explanation as an aggravating factor when she has admitted the misconduct.[32] The Tribunal listed Ms Tunnicliff's leadership role in NZNO, her involvement in maintaining standards, and her knowledge of the contents of the"Documentation" brochure as aggravating her misconduct. It is not possible to quantify the extent to which the Tribunal took these features into account. Most likely, the Tribunal considered that because of Ms Tunnicliff's role with NZNO shecould be expected to be more aware than other nurses of the importance of adequately documenting clinical records. Alternatively, in the negative sense, shehad less justification than nurses not involved in NZNO to be unaware of the relative importance of appropriately documenting clinical records.[33] Ms Tunnicliff had readily acknowledged that she was aware of the standards, so she did not argue she was unaware of what was expected of her.[34] Treating a heightened level of awareness of the importance of adequate record-keeping as an aggravating factor risks double-counting the criticisms legitimately made of the misconduct. The starting premise is that the requirement to adequately document clinical records is both important and basic, so no competent nurse would be unaware of it. A breach of the standard must therefore involve a conscious decision. Awareness of the requirements is an aggravating factor inherent in any breach of the standard. It double-counts that same factor if Ms Tunnicliff is treated as having committed more serious misconduct because she ought to be more aware than other nurses of how important the requisite record-keeping was.[35] I accept that the Tribunal erred when it mischaracterised these aspects of Ms Tunnicliff's misconduct. It follows, in terms of the sequence of considerations proposed in Joseph, that I will embark on my own assessment of an appropriate penalty in light of the remaining grounds of appeal argued by Mr Coates.The penalty was unnecessary to protect the public, to deter others, and the Tribunal failed to adequately explain why a penalty less than suspension was not appropriate[36] These criticisms require a view to be formed on the relative seriousness of Ms Tunnicliff's misconduct in not maintaining adequate clinical records for 87 patients over some 27 months. Mr McClelland argued that this constituted one of the most serious breaches of the required standards that had come before the Tribunal. Patient safety and the standard of care that could be provided depended critically on an efficiently maintained and constantly available record of previous consultations and treatments. Ms Tunnicliff persistently ignored this fundamental and important requirement for a period of at least 27 months, and it was a deficiency that was likely to have continued unless her omissions were discovered by others. He argued that it was purely fortuitous that the safety of any of the patients involved had not been compromised.[37] Mr Coates argued that Ms Tunnicliff's practice of keeping a hard copy of her own individual patient records, and the continuity of her contact with the patients, meant that the failure to note her consultations in the electronic clinical record should not be seen as significantly serious misconduct. Once the failing was disclosed, Ms Tunnicliff accepted the need to change her ways, and the Tribunal ought to have been assured that she would do so. She had co-operated with the DHB and subsequently with the course of the prosecution. No patient suffered as a result of the inadequate record-keeping.[38] Mr Coates argued that, in such circumstances, the penalties imposed did not need to protect the public. Ms Tunnicliff's omissions were not so serious as to require a deterrent signal to be sent to others in the nursing profession.[39] The ranking of seriousness is not addressed explicitly in the Tribunal'sdecision. It is apparent that the Tribunal treated it as substantially serious misconduct and I am not persuaded it erred in ranking it in that way. It must have been apparent to Ms Tunnicliff that the quality of medical treatment in all cases, and patient safety in some cases, would be compromised unless all providers of medical services had access to complete and accurate records of consultations and treatment for each patient. A relatively substantial penalty was therefore justified.[40] The extent of Ms Tunnicliff's failures, in terms of the number of inadequatelyrecorded consultations and the period throughout which her failures continued, certainly justified the Tribunal imposing conditions that constrained Ms Tunnicliff'sfuture work as a nurse. The Tribunal might be criticised for naiveté if it simply accepted her assurances that she had turned over a new leaf, and relied on that to allow her to practice again, without any monitoring. The Tribunal recognised there was a need to protect the public, and to set appropriate standards. Given the range of powers open to it, a period of suspension, and some form of supervision of Ms Tunnicliff after she resumed work as a nurse, were justified and appropriate components.The Tribunal failed to act consistently with its own decisions[41] In the Tribunal's discussion on the appropriate penalty, no reference is madeto other decisions to establish or consider comparability. In responding to this criticism, Mr McClelland submitted that was simply because there were no other penalty decisions of the Tribunal dealing with sufficiently similar misconduct. He made the point that counsel for Ms Tunnicliff at the disciplinary hearing had accepted there were no penalty decisions of the Tribunal in comparable situations.13[42] In arguing the appeal, Mr Coates' two sets of submissions referred to nine decisions in which inadequate record-keeping by a practitioner comprised a part of alleged misconduct.14 I am not persuaded that useful comparison can be drawn between the penalties imposed in those cases and the appropriate outcome for Ms Tunnicliff. They all involved misconduct in relation to one or a small number of patients, where the inadequacy of record-keeping appears to have been a relatively minor or incidental aspect of the misconduct of concern for disciplinary purposes.[43] Mr Coates also cited cases where comparably severe penalties had been ordered, and which he characterised as involving far more serious misconduct than Ms Tunnicliff's.15 Those cases had elements of serious dishonesty offending, and in one case criminal violence and inappropriate prescription of morphine for a patient with whom a doctor was having an intimate relationship. Mr Coates validly submitted that these other cases in which practitioners were suspended for nine months reflected more serious misconduct than was involved in Ms Tunnicliff'scase. Beyond that general point, it is not realistic to measure the extent of difference that might reasonably have been recognised between Ms Tunnicliff's circumstancesand those of the practitioners being dealt with in those other cases. The comparison makes out the point that the length of suspension imposed here was, in relative13 Transcript of submissions on penalty at 29/20-27 and 33/3-16.14 J v Director of Proceedings HC Auckland CIV-2006-404-2188, 17 October 2006; Re Dr DHPDT 6/Den05/05D, 4 April 2005; Re Dr N HPDT 553/Med-12/225D, 3 July 2013; Re JohriHPDT 54/Med06/33D, 25 July 2006; Re Stubbs HPDT 316/Med09/113D, 29 July 2010; Re PHPDT 30/Med05/11D), 12 April 2006; E v Director of Proceedings (2008) PRNZ 1003;Director of Proceedings v Vatsyayann [2012] NZHC 2588; Re Mistry HPDT 269/Nur09/123D, 10 December 2009.15 Re Dr D HPDT 220/Med08/102P, 27 April 2009; Re Winefield HPDT 83/Phar06/30P), 5 February 2007; Re Marchand HPDT 280/Med09/133P), 5 March 2010; Re Petcher HPDT 99/Nur07/54P, 10 May 2007.terms, harsh. However, that does not of itself make out an entitlement to have it varied.[44] Mr Coates also criticised the Tribunal for not taking into account the period during which Ms Tunnicliff had voluntarily removed herself from work in the health sector. She had not sought re-employment between resigning and the disciplinary hearing substantially more than a year later. I agree that the Tribunal could have given her some credit for that when assessing the appropriate length of suspension. That consideration would also need to take into account how modest the prospects of re-employment would have been while this matter was hanging over Ms Tunnicliff.The Tribunal failed to take into account the prospects for Ms Tunnicliff'srehabilitation[45] Mr Coates criticised the primacy that the Tribunal had given to protection of the public, and urged an interpretation of the statutory provisions that allowed the Tribunal to also have regard to the prospects for Ms Tunnicliff's rehabilitation. Hecharacterised the Act as balancing the need to protect the public with the promotion of an environment for competent health professionals, who are fit to carry out their jobs, to do so. In a resourcing sense, Mr Coates suggested that it was contrary to the public interest for "over-regulation" to prevent health practitioners from attaining the required standards and being available to provide health services.[46] He cited from the explanatory note to the Bill which became the Act. That stated the Bill was seeking "to create a supportive environment in which healthpractitioners can practice, maintain their competence throughout their careers, andlearn from their experiences and the experiences of their colleagues".[47] Mr McClelland rejected the idea that the Tribunal should be distracted by rehabilitative concerns. He relied on s 3 of the Act which specifies that its principal purpose: is to protect the health and safety of members of the public by providingfor mechanisms to ensure that health practitioners are competent and fit to practice their profession.[48] He submitted that any concern to have professionals return to work is of secondary importance. Part 3 of the Act has relatively detailed provisions in relation to competence, fitness to practice and quality assurance. The potential relevance of rehabilitating or restoring the competence of health professionals involved in disciplinary proceedings has previously been recognised. For instance, Collins J inRoberts:16 where it is appropriate, the Tribunal must give consideration to rehabilitating health professionals. This point was made by Blanchard J in B v B. A reason why rehabilitation may be an important consideration is that health professionals and society as a whole make considerable investments in the training and development of health practitioners. Where appropriate, the Tribunal should endeavour to ensure these investments are not permanently lost, provided of course the practitioner is truly capable of being rehabilitated and reintegrated into the profession.[49] The extent to which the Tribunal can accommodate concerns for apractitioner's rehabilitation at the same time as addressing the concern to protect thepublic in appropriate measure will depend on the circumstances of the case. As with the imposition of any penalty, the Tribunal ought to identify the least restrictive form of penalty that addresses the purposes for which the penalty is to be imposed. The Tribunal would err if it preferred a rehabilitative approach and thereby failed to protect the health and safety of the public. The penalty would be too harsh if thepenalty constrains the practitioner's ability to practice for longer than necessary, orin respects that are unnecessary to provide reasonable protection for the health and safety of the public.[50] Here, Ms Tunnicliff's misconduct reflected a persistent practice of inadequately documenting consultations for the clinical record. There is no suggestion that this material blind-spot in her practice adversely affected the qualities she otherwise displayed. The materials in support of her from others that were before the Tribunal tend to confirm her competence in other respects.[51] It accordingly presents as a serious, but curable, deficiency. I incline to the view that the totality of the conditions imposed was more protective of the public16 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand, above n 10, at [47] (citations omitted).than was necessary, and correspondingly failed to optimise the prospects of Ms Tunnicliff's rehabilitation.The Tribunal made incorrect findings in relation to Patient 81[52] In reviewing Ms Tunnicliff's conduct relevant to the charge, the Tribunalcharacterised her communication with Patient 81 as a "promise" that she would report Patient 81's concerns to Dr Porter on his return. That characterisation elevates the only source of evidence available to the Tribunal, which was the agreed statement of facts. The relevant extract of that states:[Ms Tunnicliff] stated that she would talk to Dr Porter when he got back and based on his advice, she would get in touch with Patient 81.[53] Mr Coates was understandably uneasy that the Tribunal's criticism ofMs Tunnicliff's conduct had an additional measure of condemnation because she was perceived to have broken a promise, when her failing was a somewhat lesser one in not carrying through on an assurance that she would speak to the doctor.[54] Ms Tunnicliff made a separate statement that she did not recall Patient 81 telling her that she had pain or swelling in her right hand. The Tribunal treated that statement as a contradiction of the relevant part of the summary of facts to which she had agreed. That criticism is misconceived. The relevant sentence in the agreed statement of facts was entirely consistent in recording Ms Tunnicliff's not recallingPatient 81 as mentioning pain and swelling in her right hand.[55] Mr McClelland submitted that nothing turned on the language used by the Tribunal, and that Ms Tunnicliff's evidence contradicted the charge as admitted in the summary of facts. In any event, this inconsistency did not form the basis of theTribunal's findings in respect of Patient 81.[56] Mr Coates accepted that it is impossible to define the extent to which the Tribunal relied on these particular findings in respect of the components of the charge relating to Patient 81. However, it is clear the Tribunal considered this aspect of the misconduct to be particularly serious. Further, it is reasonable to infer the Tribunal may have increased its perception of the gravity of the misconduct as aresult of an error. It wrongly perceived her to have breached a promise made to the patient, and to be advancing inconsistent recollections in response to this aspect of the charge.[57] I would not be persuaded that this reflected a material error, if assessed on its own. However, it does add somewhat to the criticisms of the penalty as more severe than was reasonably justified.The Tribunal's decision was disproportionate, excessive and substantively unfair[58] This final group of criticisms is to be assessed in light of my findings on the extent to which the other criticisms are justified.[59] A significant component of Ms Tunnicliff's unfairness argument relied on her evidence of the extensive difficulties she has encountered in attempting to obtain further employment since the period of suspension had expired. That evidence certainly suggests that she has made numerous attempts to find employment, and that the apparent difficulties in complying with the requirements for supervision have been the reason, or among the reasons, given for her not being employed.[60] Mr Coates described Ms Tunnicliff as passionate about her career and desperate to re-establish herself. However, the impracticality of the extent of required supervision has thwarted all her endeavours.[61] Mr McClelland opposed the admission of evidence of subsequent events on the ground that it could not have had a bearing on the Tribunal's decision. Grounds for the appeal had to be made out on the state of affairs as presented to the Tribunal at the time of its decision. He pointed out that if a timely appeal is pursued, the appellant will not have the advantage of reviewing such a lengthy period of post- decision conduct.[62] Subject to minor exceptions, I accept Mr McClelland's objection.Ms Tunnicliff bears an onus to challenge the penalty decision as a wrong exercise of discretion. The classic grounds for doing so do not admit of criticisms that depend on subsequent events.[63] However, in assessing whether the Tribunal was wrong to impose the extent of constraints on subsequent practice that it did, it is possible for Ms Tunnicliff to argue that the Tribunal ought to have appreciated the extent of difficulties it would be creating by imposing those conditions. If her subsequent experience ought reasonably to have been anticipated, then evidence of it is indirectly relevant in establishing what the Tribunal ought reasonably to have appreciated would follow from the conditions it imposed.[64] Mr McClelland also objected to the quality of the evidence. He disputed whether Ms Tunnicliff could establish that it was the existence of the conditions and their terms that has precluded her being employed. He argued that it was equally likely that Ms Tunnicliff was in fact not offered jobs because prospective employers considered the misconduct involved in the charge was too serious for them to assume the risk that her subsequent conduct would be sufficiently different.[65] Mr McClelland also disagreed with the extent of supervision that would be necessary to comply with the conditions imposed. He suggested that the concerns raised in the course of Ms Tunnicliff attempting to find employment related to a greater degree of on-going supervision than the Tribunal's conditions would require.[66] Mr McClelland's oral submissions included an explanation that the supervision required by the conditions could be indirect, so not necessarily by another employee of the employer with whom she found work. Certainly in the period after the initial 12 months, the periodic contact with a supervisor was intended to afford Ms Tunnicliff an opportunity of discussing with a mentor any difficulties she was continuing to have in practising competently.[67] Notwithstanding those being Mr McClelland's instructions from the PCC, it is not immediately apparent from the terms of the Tribunal's decision that the degreeof supervision contemplated in the terms of the conditions imposed was as indirect as Mr McClelland described them. I note that three years was the maximum period for which the Tribunal could order on-going supervision.1717 Health Practitioners Competence Assurance Act 2003, s 101(1)(c).Outcome[68] Having regard to all these considerations, I am satisfied that the Tribunal'sdecision on penalty was wrong. Mr McClelland submitted that if I reached this point, I ought to direct the matter of penalty back to the Tribunal for reconsideration of Ms Tunnicliff's case in light of any errors that had been made out.Mr McClelland urged that the Court respect the expertise of the Tribunal in its on-going supervisory role of those medical practitioners required to appear before it.[69] For Ms Tunnicliff, Mr Coates urged the Court to substitute its own view of the less onerous conditions which he argued should have applied. He opposed any reference back to the Tribunal on grounds of the lapse of time since the relevant events, and the additional cost that would be incurred for Ms Tunnicliff.[70] I agree with Mr Coates that a final resolution of the matter ought to be achieved without any further delay. I intend no disrespect to the Tribunal in coming to that view, with the assistance of the competing contentions that were thoroughly aired in the submissions for the parties, and in light of the length of time that has passed since the relevant misconduct.[71] I consider that the penalty decision was expressed in harsher terms in respect of Ms Tunnicliff than were warranted. I am satisfied that it was an unduly harsh component of the penalty to require Ms Tunnicliff to disclose the full terms of the decision to any prospective employer, especially given that I have found it expresses criticisms of her in harsher terms than were warranted. Henceforth she will be required to disclose the fact of the decision and the extent of penalties, as amended by this judgment, but she will not be required to produce the full terms of theTribunal's decision.[72] I am also satisfied that the period of suspension was longer than was necessary to reflect the seriousness of the misconduct. In that finding, I am influenced by Ms Tunnicliff's self-imposed exclusion from the health sector for more than a year between her resignation and the Tribunal's determination. A periodof six months' suspension would have been adequate to reflect the seriousness of the conduct and to protect the public. I substitute an order for length of time.[73] Given that the longer period of suspension has now been completed, any reduction in the period of suspension is to adjust the perception of seriousness, without being able to provide any positive relief for Ms Tunnicliff.[74] The conditions requiring her to be supervised also need to be re-defined, particularly in light of Mr McClelland's view that they have been interpreted asrequiring closer supervision than the PCC considers the Tribunal intended.[75] "Supervision" is defined in s 5 of the Act as meaning " the monitoring of, and reporting on, the performance of a health practitioner by a professional peer". A "professional peer" is defined as a person who is registered with the same authoritywith which the health practitioner is registered". In this case, that is clearly theauthority responsible for registering nurses. It follows that Mr McClelland is correct, in terms of the statutory provisions, in suggesting that supervision of Ms Tunnicliff could be achieved by someone other than an employee of any new employer.[76] I substitute the conditions governing Ms Tunnicliff's resumption of practicewith amended conditions that reduce the period contemplated for personal supervision from 12 to six months, and the longer period of personal supervision from three to two years. The original conditions are to be clarified by an acknowledgement that the supervision can be indirect, so as not to require a co-employee at the same site to conduct the supervision. From the date of this judgment, the conditions are:(a) She is to practice for a period of six months only under the supervision of a supervisor approved by the Nursing Council.(b) The supervision is to include at least monthly meetings with the supervisor, and is to focus on adequate note-taking and documentation and compliance with her responsibilities as a nurse. At the conclusion of the six month period the supervisor is to report to the Nursing Council on the supervision that has been undertaken.(c) Before resuming practice she is to complete a course approved by the Nursing Council to address ethical and professional obligations of a registered nurse.(d) After resumption of practice, she is to practice for a period of two years with personal supervision, with Ms Tunnicliff reporting annually to the Nursing Council.(e) Neither the six month nor the two year period of supervision necessarily requires a supervisor employed by the same employer as Ms Tunnicliff. The supervisor is to have a sufficient relationship with Ms Tunnicliff and her working environment to enable, for the first six month period, effective review of the quality of note-taking and documentation. The supervision for the second period (that is, for 18 months after the first six month period has expired) is in the nature of mentoring for Ms Tunnicliff's support. Ms Tunnicliff is to meet the costs of all the supervision.(f) For the two year period she is to advise the Nursing Council of the identity of her employer and any change in employer.Costs[77] My provisional view is that costs should follow the event, and that Ms Tunnicliff is entitled to costs on a 2B basis, together with reasonable disbursements as approved by the Registrar. If the parties do not accept this indication, I will receive submissions. These are to be filed, first, on behalf of Ms Tunnicliff, not later than 35 days after delivery of this judgment, and thereafter on behalf of the PCC within 10 working days of the service on its solicitors of submissions on behalf of Ms Tunnicliff.Dobson JSolicitors:Claro Law, Wellington for appellantThomas Dewar Sziranyi Letts, Lower Hutt for Health Practitioners Disciplinary TribunalCounsel:M F McClelland QC for respondent