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(Image via abc.net.au)

Dr Don Kane shares one nurse's tragic experience: a regulatory system rife with bullying and dysfunction, where health professionals are guilty even when proven innocent.

This is the story of a registered nurse who was the victim of gross deficiencies in the regulation and administration of health professionals.

The nurse experienced enormous suffering from events that embroiled her in a battle to prove the perpetrators of her plight as dishonest.

It started with a Health Care Complaints Commission (HCCC) action in which the victim was charged in relation to the management of an emergency. This progressed to a failed appeal for dismissal of the charge and, finally, a successful appeal to the Tribunal to have the previous decisions overturned.

The Tribunal found that the complaints from which the charges were generated were unfounded, the allegations had nvolved untruthful statements by several complainants and the “expert witness” used was not an expert.

In the second incident (10 months after the initial incident), the nurse was working in the operation recovery unit. The alarm system was not working and known to be not working, an anaesthetist left the area without a handover briefing and did not provide contact details. This was a similar scenario to the previous incident.

The nurse withdrew from working in the operating theatre and acute care nursing — areas in which she had trained and which she previously enjoyed. The reason was a complete lack of trust in colleagues in these areas, generated by their mendacious behaviour. This culminated in a period of extreme stress resulting from the workplace incidents and toxic culture, media involvement and even death threats. Support from so-called colleagues and management was non-existent.

It was a lengthy, distressing but successful battle. The “victory” has been a pyrrhic one. The victim was the big loser while the perpetrators escaped any sanction for their wrongful activities.

We appear to have a legal system without justice for so many victims. The following extracts provide more detail about this case.

The victim's account

I am an innocent person and was subjected to what was tantamount to persecution for six years. The law is meant to protect the innocent, not condemn them to a ruthless mockery of justice. An honest and diligent review should have identified the many flaws and mitigated the need for a very costly process.

The course of my life has been drastically altered and has taken a severe toll on my family, my financial security, my career and my health. This lengthy prosecution caused me many anxious sleepless nights. The financial cost to defend myself directly caused my marriage to breakdown ending in a divorce. My children, now 11 and 13 years old, continue to live in hardship as a result of the fact that I am now battling to provide for them on a drastically reduced income and I am forced to pay off an enormous debt.

I suffer from severe anxiety, depression and often experience periods of extreme anger and deep sadness. I do not have the ability to work in my previous capacity prior to this incident, even though I have been exonerated of any wrongdoing. I told the truth from the very beginning — unfortunately others didn’t. I suffered and continue to suffer as a result of the irresponsible investigation.

The legal opinion 

This is the legal opinion provided to the nurse when she sought compensation for the wrongful actions of others:

I am acutely aware that the plaintiff has obtained a Whole Person Impairment of at least 16 per cent and is prima facie entitled to bring a claim for work injury damages.

The inquest attracted a great deal of media attention and it’s fair to say that the plaintiff was defamed.

The investigation process, the Coroner’s Inquest and the two Tribunal sets of proceedings led to the plaintiff sustaining significant and understandable emotional trauma. They also led to the irretrievable breakdown of her marriage and consequential problems arising out of a bitter separation which have now been passed on to at least one child.

Australia, like England, has accepted for a substantial amount of time the doctrine of witness immunity as well as advocates immunity and the immunity of judicial officers. The plaintiff sets out chapter and verse in the medical reports by way of an accurate history that she has provided to the psychiatrists of the enormity of the trauma that she had to endure due to the perception that she was to blame primarily for the system failure that occurred. That allegation was based on evidence.

That evidence was given by various persons, both before the Coroner and also before the Tribunal. It is that evidence and the allegations put to the plaintiff in cross-examination together with the experience of cross examination and the reading of the report of the Coroner and recommendations that was the overwhelming and incontrovertible cause of the plaintiff’s psychiatric injury.

… The concept of witness immunity … effectively anything said out of court used as evidence in court and any statement made in court or evidence tendered which caused the plaintiff to stress is not actionable, it is immune from suit. Even if the witnesses concerned were pathological liars, they are still immune from suit for specific policy reasons. So, too, the judicial officers concerned are axiomatically completely immune. The employer, if it gave evidence against the plaintiff, which it did by its servants or agents, is immune to the extent that it did or said anything for the purposes of the Coronial Inquiry, the police investigation and for the purposes of the disciplinary proceedings in the Tribunal and on appeal.

It does not matter how deliberately false the evidence is or how defamatory. If litigants were permitted to sue witnesses for giving false evidence, then there would be an endless amount of litigation and for strong policy reasons such an action is prohibited. There is a long pedigree of cases both in Australia and in England that supports this fact.

Thus, there is no course of action available to the plaintiff against the HCCC who unreasonably disciplined the plaintiff and exposed her to such trauma and it follows that there is also no course of action against the lawyers representing the HCCC as well, as they owed no duty of care to the plaintiff.

I am troubled by the fact that the plaintiff has not sued the media outlets as she is out of time. She should urgently be referred to a defamation specialist to see what can be done which will clear her name if she be successful.

The victim was never advised to take a defamation action against anyone or any organisation at the appropriate time. Is this another failing within the legal profession?

If you would like to learn more about the Health Professionals Australia Reform Association (HPARA) please email hparacommittee@gmail.com or call 0499 399 081

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This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License

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