The High Court decision was released last week after considering a late appeal by Tunnicliff against the Health Practitioners Disciplinary Tribunal penalty.
The serious misconduct finding related to the Nelson rheumatology clinical nurse specialist’s practice during the time she was president of the New Zealand Nurses Orgnisation (2009 -2012) and were investigated while she stood for a second presidential term.
She was found guilty by the Tribunal in 2013 of professional misconduct for failure to keep adequate clinical records and notes for 87 patients of Nelson Marlborough District Health Board’s rheumatology service between 2010 and 2012. Also that she failed to notify a medical practitioner of a significant health issue raised by one of her patients.
Following the tribunal’s decision she said she sincerely regretted her conduct and had been wrong to let “personal circumstances, heavy workload and my focus on other wider nursing issues cloud my judgement”. “I lost sight of some of the basic fundamentals of nursing.”
The Tribunal at the time said the seriousness of the charges and the need to send a “message” to the nursing profession about the importance of documentation and notes lead to it suspending Tunnicliff from nursing for nine months (the suspension ended on May 20 2014).
The tribunal also placed conditions on her return to nursing practice including: working for 12 months under supervision of a Nursing Council-approved supervisor; completing a Nursing Council-approved course addressing ‘ethical and professional obligations of a registered nurse’; after the initial supervision period of a year she was required her to work for an additional two years under personal supervision; and for a period of three years she was required to provide a copy of the tribunal’s decision to any existing or future employer.
The High Court decision noted that Tunnicliff did not appeal the tribunal’s penalty at the time as her legal advisors were not optimistic about her success but, after experiencing ‘serious difficulty’ in finding nursing work, she sought further legal advice and lodged a late appeal against the penalty conditions which she believed discouraged employers.
The appeal judge Justice Dobson also noted that the Tribunal had regarded Tunnicliff having been NZNO president and her involvement in maintaining standards as “aggravating her misconduct”.
After considering evidence from Tunnicliff’s and the Tribunal’s lawyers, Justice Dobson said he was satisfied that the Tribunal’s penalty decision was wrong and ruled that it be amended.
“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.” From now on she was required to disclose to future employers the tribunal’s decision and amended penalties but not to produce the original Tribunal decision.
He also ruled that the nine-month suspension had been “longer than was necessary to reflect the seriousness of the misconduct” and six months would have been adequate.
Justice Dobson then substituted new supervision conditions on Tunnicliff’s return to practice including: halving the term she needed to work under the supervision of a supervisor approved by Nursing Council from 12 to six months; after the initial six months she was to was to practice for a further 18 months with personal supervision; and that the supervisors did not necessarily need to be employed by the same employer as Tunnicliff.
