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  • Unreported Judgment

The Health Ombudsman v Jolley

 

[2019] QCAT 173

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

The Health Ombudsman v Jolley [2019] QCAT 173

PARTIES:

THE HEALTH OMBUDSMAN

(applicant)

 

v

 

KANDICE JOLLEY

(respondent)

APPLICATION NO/S:

OCR180 of 2018

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 August 2019

HEARING DATE:

19 December 2018 and 20 February 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

Assisted by:

Ms Mary Barnett

Dr Kim Forrester

Mr Michael Halliday

ORDERS:

  1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  3. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent shall be subject to the conditions set out in the attached schedule of conditions.
  4. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is twelve months from the date hereof.
  5. Subdivision 2, Division 11, Part 7 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions.
  6. Each party bear their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – GENERALLY – where the respondent enrolled nurse engaged in an inappropriate personal and physical relationship with a patient – where the respondent attempted to end relationship with patient – where patient threatened to tell the respondent’s employer of their relationship – where the respondent disclosed to employer that she had had contact with a patient outside of work – where respondent’s employment terminated – where respondent applied for registration to be a registered nurse and disclosed she was subject to an investigation by the Office of the Health Ombudsman – where respondent’s registration subsequently granted with conditions – where respondent did not disclose full extent of relationship with patient to employer – where respondent admitted that statement provided to employer was false and misleading - where respondent later disclosed full extent of relationship with patient and cooperated fully in the proceedings – where respondent admitted to professional misconduct – where respondent subject to further ethical training before hearing – whether respondent should be suspended –

Health Ombudsman Act 2013 (Qld), s 103, 107, 109

Health Practitioner Regulation National Law 2009 (Queensland) Subdivision 2, Division 11, Part 7

HSK v Nursing and Midwifery Board of Australia; Health Ombudsman v HSK [2018] QCAT 404, distinguished 

Medical Board of Australia v Jansz [2011] VCAT 1026, cited

Nursing Midwifery Board of Australia v Buckby {[2015] WASAT 19, distinguished

Nursing Midwifery Board of Australia v Clydesdale [2013] QCAT 191

Nursing Midwifery Board of Australia v Evans [2016] QCAT 77, distinguished

Nursing and Midwifery Board of Australia v Sandra Garie [2019] SAHPT 4, distinguished

Nursing and Midwifery Board of Australia v Jackson [2013] WASAT 140, cited

Nursing v Midwifery Board of Australia v Makoni (Review and Regulation) [2017] VCAT 2065, distinguished

Nursing Midwifery Board of Australia v Tainton [2014] QCAT 161, distinguished

Pharmacy Board of Australia v The Registrant [2015] QCAT 477, cited

APPEARANCE &

REPRESENTATION:

Applicant:

A Forbes, solicitor with Lander and Rogers

Respondent:

E Bassingthwaighte, solicitor with Hall Payne Lawyers

REASONS FOR DECISION

  1. [1]
    On 29 June 2018, the Health Ombudsman referred to the tribunal disciplinary proceedings against the practitioner, Kandice Jolley.  The referral was made pursuant to s 103 of the Health Ombudsman Act 2013 (Qld) (HO Act). 
  2. [2]
    The referral relates to allegations of the practitioner having transgressed the professional boundaries of a nurse with a patient while working at the Princess Alexandra Hospital (PAH).
  3. [3]
    The matter proceeded before the tribunal by way of a statement of agreed facts. 
  4. [4]
    The practitioner accepted that the conduct admitted in the statement of agreed facts amounted to professional misconduct.  The issue in dispute was whether the conduct necessitated a period of suspension.

Admitted facts and circumstances of conduct

  1. [5]
    Ms Jolley gained registration as an enrolled nurse on 17 January 2014.  From 31 March 2014 to 20 September 2016, she was employed at Metro South Hospital in health services and worked as enrolled nurse at PAH in the Metro South Addiction and Mental Health Service. 
  2. [6]
    It was while working in that service that Ms Jolley first met patient DM, when he was an inpatient at PAH in 2014.  Ms Jolley did not provide treatment of care to DM during his admissions in 2014.
  3. [7]
    DM had a history of mental illness including post-traumatic stress disorder (PTSD) following an assault when he was 15 and subsequent psychosis characterised by heavy illicit drug use and grandiose delusional beliefs. 
  4. [8]
    It was not until DM’s admission in the period from 6 November 2015 to 17 November 2015 that Ms Jolley was part of DM’s treatment team. 
  5. [9]
    Shortly after DM’s discharge from PAH on 17 November 2015, Ms Jolley accepted a Facebook friend request from DM and received a Facebook message from DM.  In the message, DM thanked Ms Jolley for the care she had provided during his hospital admission.  Ms Jolley subsequently gave DM her mobile telephone number.
  6. [10]
    Between 18 November and 27 November 2015, Ms Jolley and DM had lunch together at a Japanese restaurant at Sunnybank and afterwards DM attended Ms Jolley’s house. 
  7. [11]
    On 27 November 2015, DM was again admitted to PAH for a period of six days.  Ms Jolley was not involved in DM’s care at the time of that admission.
  8. [12]
    During the period of that admission, the contact between Ms Jolley and DM continued; albeit Ms Jolley deposes to having between 27 November and 29 November 2015 sent a message to DM that because of his readmission to hospital contact must cease and he must delete her from Facebook and stop messaging her.  That evidence is not challenged.
  9. [13]
    Despite that, it is admitted that on 1 December 2015 Ms Jolley sent a text message to DM asking him to have coffee with her whilst he was on his two hour release from PAH. 
  10. [14]
    After DM’s discharge on 3 December 2015, Ms Jolley and DM continued to exchange personal and social text messages.  In the period between 13 and 15 December 2015, they went away together to Pottsville in northern New South Wales where they slept in the back of DM’s car and slept together in a tent, talked about their relationship and kissed. 
  11. [15]
    By 15 December 2015, Ms Jolley and DM had developed a physical relationship to the extent of hugging, kissing and sleeping in the same bed together including laying naked in bed together. 
  12. [16]
    In late December 2015 or early January 2016, DM stayed at Ms Jolley’s house and they slept together in her bed, kissed, DM removed Ms Jolley’s clothes and DM was naked.  On that occasion, DM placed his mouth on Ms Jolley’s genitals.  In the statement of agreed facts, it is accepted that Ms Jolley was an unwilling recipient of this sexual contact and that Ms Jolley had requested that DM stop and DM did stop. 
  13. [17]
    The contact between Ms Jolley and DM continued, with each continuing to visit each other at their respective houses.
  14. [18]
    Regular communication between Ms Jolley and DM continued until early March 2016 via Facebook messages, text messages and telephone calls.  The messages included intimate exchanges talking about missing each other, enjoying kissing each other, having dreams of each other and being cuddled together.

Events after conduct

  1. [19]
    In her affidavit, Ms Jolley gives further details of her interaction with DM.  She says that by late February 2016, the contact with DM only continued because of DM’s demands.  Ms Jolley says that she said to DM that she would continue a friendship with him on the grounds that they were not to meet face-to-face and he could no longer pressure her to be more than friends with him. 
  2. [20]
    Ms Jolley says that in or about early March 2016, she blocked DM on Facebook and changed her display name to make herself harder to locate. 
  3. [21]
    Ms Jolley says that about three days later, when DM became aware of this, he called her and threatened to tell her employer that she had had contact with a patient outside the hospital.  She said that DM said to her words to the effect of, “You’ll lose your job. I will wreck your career.” 
  4. [22]
    Ms Jolley says that between early March 2016 and 27 April 2016 she had no contact with DM as she had blocked his phone number. 
  5. [23]
    Ms Jolley says that she woke on the morning of 27 April 2016 and noticed five missed phone calls from a private number.  She says her phone records indicated that the calls had been made between 1:30am and 2:30am. 
  6. [24]
    Ms Jolley says later that morning she received a Facebook message from an account of a person that she did not know.  She said the message contained the words, “I hope you lose your job when they find out. You’ll lose your job when they find out.”
  7. [25]
    On 27 April 2016, Ms Jolley attended work and disclosed to the assistant director of nursing and nurse unit manager that she had had contact with a patient outside of work and that their relationship had deteriorated to the point where she was considering making a complaint to the Queensland Police Service for stalking and harassment. 
  8. [26]
    Ms Jolley was asked by her employer to put together a statement setting out her dealings with DM.  That statement was provided to her employer two days later on 29 April 2016.
  9. [27]
    On 18 May 2016, Ms Jolley’s employment at PAH was suspended and on 20 September 2016, her employment at PAH was terminated.
  10. [28]
    Following her termination, Ms Jolley worked as a casual enrolled nurse for Health Care Australia, where she worked in a variety of facilities including Belmont Private Hospital. 
  11. [29]
    She commenced working permanently at Belmont Private Hospital in January 2017 as an enrolled nurse and moved to the position of a registered nurse following her graduation and registration as a registered nurse in April 2017. 
  12. [30]
    In making her online application for registration as a registered nurse in November 2016, Ms Jolley disclosed she was subject to an investigation by the Office of Health Ombudsman arising from a notification relating to a professional boundary issue with a patient.  It was said that issue had been disclosed to her employer.
  13. [31]
    In granting registration, conditions were placed on her registration requiring her employer to provide three monthly reports regarding her conduct.  Following an application by Ms Jolley in August 2017 to review the continuance of the conditions, the conditions were removed by the Board with effect from 14 December 2017.  By that time, the Board had before it two satisfactory supervision reports.
  14. [32]
    In July 2018, Ms Jolley was again employed as a full time registered nurse with Metro South Health Service and has worked at QEII Hospital in the medical and cardiology unit since that time.
  15. [33]
    Ms Jolley has enrolled in a Masters of Nursing with the University of Southern Queensland.  At the time of the hearing, the Tribunal was told Ms Jolley was due to commence her Masters of Nursing in February, 2019. 

Statements to PAH

  1. [34]
    In her statement dated 29 April 2016 provided to her employer, Ms Jolley admitted to having contact with DM during his admissions to PAH in late 2015. Ms Jolley referred to having, at the time of DM’s readmission in late November 2015, told him it was unacceptable for contact to continue, requested that he delete all her details and believed that he had. 
  2. [35]
    She said after his discharge, she was contacted again and that through Facebook, he had obtained her mobile phone number. 
  3. [36]
    Ms Jolley said that they spoke over the next several weeks and met face to face throughout December.  She said, “During this time, I had no contact with any of DM’s friends.  We were not in a relationship and there was no sexual intimacy”. 
  4. [37]
    In her statement, she admitted to meeting DM three times in January 2016 but after that she said “with work and university commitments she was unable to see him.”
  5. [38]
    Ms Jolley then said, DM began to “harass” her.  She said she had one further discussion in early February and that after that she had blocked his Facebook account, barred his phone number from being able to call her, changed her display name and changed her personal Facebook account settings to private. 
  6. [39]
    Ms Jolley said that after that time she did not try to contact DM but that he continued to contact her multiple times. 

Interview on 25 May 2016

  1. [40]
    Ms Jolley was required to participate in a show cause process initiated by her employer.  In that process, Ms Jolley was interviewed on 25 May 2016.  Present at the interview was a representative of the Queensland Nurses’ Union (QNU).
  2. [41]
    In the interview, Ms Jolley was asked whether her statement of 29 April 2016 was true.  Ms Jolley maintained it was true but said that obviously not everything was in there.  In the interview, Ms Jolley gave a more detailed account of her dealings with DM.
  3. [42]
    She admitted to visiting Pottsville with DM, to DM having stayed at her house, to them having slept in the same bed, to both being naked, to kissing and to DM having attempted to have oral sex with her but she having asked him to stop and he having stopped. 
  4. [43]
    Ms Jolley maintained that they were not in a relationship because they had both said “we are not going to do that”.  She said he wasn’t her boyfriend but admitted she could not really say we were just friends because they were kissing.  Ms Jolley described herself as a wreck at the time, having just broken up with her boyfriend. 
  5. [44]
    She admitted to some of the messages being “flirty and inappropriate”.  When asked, she gave as an example, like I miss you.  She accepted that he may have thought she was willing to continue a relationship or have a relationship with him but said they had had multiple conversations in regards to it not being a relationship.
  6. [45]
    She was asked as to why she continued contact.  She said she was worried about him telling work.  She said the threats over the phone that he was going to tell her employer were made “throughout the whole thing”.  She admitted to having thought she was “smart enough to be able to break contact with him in a way that he would be happy with” and for him to not come forward to her employer like he had told her he was going to.  She said that, “But in the end it stressed me out so much, I just thought, I’m going to tell them because I’ve done the wrong thing and they need to know and I need their help…”
  7. [46]
    Ms Jolley did admit to enjoying spending time with DM and was prepared to admit that as a reason as to why she continued to engage with him.  When specifically asked, she even admitted to having, at one point, romantic feelings for DM.
  8. [47]
    She admitted to knowing that DM was still taking prescribed medication and to his continuing use of cannabis at times.  However, in the interview, she said she did not consider DM to be vulnerable.
  9. [48]
    When asked whether she had kept a record of the text messages with him, Ms Jolley said she knows she should have but said that she just wanted to forget about it.  She said, “I wanted it to go away.  I’ve never been so stressed out in my life.  I’ve been so sick. I’m losing weight, I’m seeing a counsellor, I’m on anti-depressants, it’s killing me.”
  10. [49]
    Ms Jolley explained that her understanding of professional boundaries had been wrong.  She had considered there to be a distinction between at work and outside work; identifying there being a need at work to ensure there was no preferential treatment.  She considered that outside work she was no longer in a position of authority: she looked at him like her other friends and didn’t see him as a patient anymore.

Course on Boundaries

  1. [50]
    Ms Jolley participated in a two day workshop on Professional boundaries with Davaar Consultancy on 9 and 10 June 2016.  As part of the course she was required to complete a 60 page workbook, attend in person at a two day workshop and participate in subsequent phone conversations with the course co-ordinator.
  2. [51]
    In her affidavit, she deposes to having been introduced through that process for the first time to the terms boundary transgressions, boundary crossings and boundary violations.  She says she realised the importance of the statement, ‘once a patient, always a patient’.

Correspondence of 18 July and 16 August 2016

  1. [52]
    By letter dated 23 June 2016, the Executive Director of Metro South Health set out six allegations against Ms Jolley and sought a response.  Included amongst the allegations was that between November 2015 and March 2016, Ms Jolley had engaged in an ongoing relationship with the patient, that at least on one occasion she had sexual relations with her consent and that she provided incorrect or misleading information in her statement dated 29 April 2016 regarding the nature of the relationship.
  2. [53]
    A response was provided by letter from the QNU on 18 July 2016.  This letter attached a separate response signed by Ms Jolley.
  3. [54]
    In its letter, QNU submitted that “on the basis of the information provided by Ms Jolley there was no ‘ongoing relationship’ in the general sense of the word used to describe two people who knew each other and have committed on a personal, emotional and social level.”  It was said, it was clear a “relationship” had not yet formed.  QNU submitted that DM aspired to an “ongoing relationship” but “that did not eventuate and all that transpired between the two was flirtatious communication and conduct.”  The QNU denied on behalf of Ms Jolley that she had sexual relations with the patient in that he performed cunnilingus on her with consent.
  4. [55]
    In this letter and the statement, there is a denial that the statement of 29 April 2016 was “incorrect nor purposefully misleading”.  In her statement, Ms Jolley admits she and DM were in contact between November 2015 to March 2016, but said there was no “on-going relationship” in the general sense of the word.  She denied she gave her consent to DM to perform cunnilingus.
  5. [56]
    Ms Jolley explained that she took the meaning of “sexual relations” as referring to sexual intercourse or oral intercourse.  She acknowledged, however, that “sexual relations” could be interpreted in a wider respect and apologised for any confusion or misunderstanding. 
  6. [57]
    Ms Jolley explained in her letter of July 2016 that in progressing to obtain her Bachelor of Nursing degree, she had gained further knowledge of professional standards, conflicts of interest and patient confidentiality.  Ms Jolley admitted to having made mistakes and referred to the extraordinary lengths which she had gone to on a personal level to ensure they were rectified and will never reoccur.
  7. [58]
    The Executive director wrote a further letter dated 5 August 2016 seeking responses to five allegations.  Two of the allegations had been raised previously: one related to the engagement in an ongoing relationship and the other to the provision of incorrect or misleading information.
  8. [59]
    By letter dated 16 August 2016, the QNU again responded on Ms Jolley’s behalf, attaching a separate letter from Ms Jolley.  The letters maintained her denial of their being an “ongoing relationship” but acknowledged the evidence of sleepovers, kissing, laying together naked and some 1,500 texts and Facebook messages. Ms Jolley stated that that level of messaging was nothing unusual in people of her age group.
  9. [60]
    At the conclusion of the show cause process, on 20 September 2016, Ms Jolley’s employment with PAH was terminated but by agreement it was recorded as a resignation rather than a dismissal.

The Referral

  1. [61]
    The referral proceedings were filed on 29 June 2018.  The conduct the subject of the referral can be summarised as follows:
  1. The respondent engaged in a boundary crossing and/or boundary violation in her interactions with patient DM;
  2. The respondent breached her duties of confidentiality by disclosing in her dealings with patient DM confidential information about four patients.
  1. [62]
    The particulars of the transgression of professional boundaries are described as engaging in an inappropriate personal or social relationship with DM, physical or sexual behaviour with DM and forming an emotional relationship and/or emotional attachment and/or romantic attachment with DM. 
  2. [63]
    The circumstances of the transgressions as detailed in the referral are largely agreed in the statement of agreed facts.
  3. [64]
    It is accepted the conduct occurred in the period from 18 November 2015 to about March 2016.  It is admitted that during the period, Ms Jolley and DM engaged in a social, physical and/or emotional relationship.
  4. [65]
    Ms Jolley disputed there being any consensual sexual contact and the matter proceeded before the Tribunal on the basis that Ms Jolley was an unwilling recipient of the sexual contact.
  5. [66]
    During the period, Ms Jolley knew that DM continued to take medication prescribed to him while he was a patient at PAH.  Further, by engaging in the relationship with DM, Ms Jolley admits she put DM’s mental health at risk.
  6. [67]
    Ms Jolley further admits that during the course of her relationship with DM, she had disclosed to DM confidential information about other patients at PAH.  In her affidavit sworn 28 November 2018, she explains these disclosures on the basis that DM knew the patients and she considered he already had knowledge of their issues.
  7. [68]
    Ms Jolley admits that the statement provided to her employer on 29 April 2016 was false and misleading.  In her affidavit, in referring to that initial statement, she says that, “I did not intend the statement to be misleading, however, I accept that it may have had that effect.” She says, “I am deeply regretful that I was not more cautious with my wording.”
  8. [69]
    There is no doubt that the statement was false and misleading. However, when Ms Jolley was interviewed by her employer in May 2016, Ms Jolley gave a forthright account of her interactions with DM.  The fact of the statement to her employer being misleading is not a matter particularised in the referral.  The Ombudsman relies on the making of that false statement as giving context to the evidence in her affidavit including the level of her understanding.  It is described as an aggravating feature.

Characterisation of conduct

  1. [70]
    The parties agree that the conduct admitted means that Ms Jolley has behaved in a way that constitutes professional misconduct.  It is agreed the conduct falls within subparagraphs (a) and (b) of the definition of professional misconduct under s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law), namely:
  1. (a)
    Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
  1. (b)
    more than one instance of unprofessional conduct that when considered together amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
  1. [71]
    In the circumstances of the conduct admitted to, there can be no doubt that the totality of Ms Jolley’s behaviour is properly characterised as professional misconduct.

Sanction

  1. [72]
    In accepting the totality of the conduct amounted to professional misconduct, the tribunal must determine the sanction to be imposed under s 107 of the HO Act. 
  2. [73]
    The position of the Health Ombudsman was that these circumstances warranted a period of suspension of between six and 18 months.  In addition, whilst the Health Ombudsman did not advocate for the imposition of any conditions, in making oral submissions it was said the Tribunal may consider some further supervision or mentoring would be beneficial. 
  3. [74]
    On behalf of Ms Jolley, it was submitted that a reprimand would be an appropriate sanction.  It was submitted that given the previous imposition of supervisory conditions, the subsequent removal of those conditions and the fact that Ms Jolley was not considered to be at risk of reoffending, no further conditions or orders were required to be made by the Tribunal.  It was said the circumstances were such that no period of suspension was necessary. 
  4. [75]
    The Tribunal accepts, as was submitted, that emphasis must be placed on the entirely protective purpose of the jurisdiction; there is no element of punishment involved.
  5. [76]
    The Tribunal accepts, as commented by Deputy President Gurry in Nursing and Midwifery Board v Meyer,[1] that sanction may have one or more of the following purposes: preventing persons who are unfit to practise from doing so, securing the maintenance of proper professional standards, assuring members of the public and the profession that applicable standards are being maintained and that professional misconduct will not be tolerated, bringing home to a practitioner the seriousness of professional misconduct, deterring the practitioner from any future departure, deterring other members of the profession who might be minded to act in a similar way and imposing restrictions on the practitioner’s right to practise to ensure the public is protected.
  6. [77]
    Little or no weight should be given to factors personal to the practitioner; matters such as shame, personal ordeal and financial difficulty are of little relevance save in so far as they contribute to specific deterrence.[2]  It was submitted that it is certainly no excuse for a practitioner to say that at the time of the conduct they were not aware of their legal and ethical obligations.[3]
  7. [78]
    Insight and demonstration of remorse, regret and the wrongfulness of the conduct will be central to any determination of sanction as they will be factors impacting the assessment of any ongoing risk and will guide the particular form of sanction to be imposed.[4]

Submissions

  1. [79]
    In submissions on behalf of the Ombudsman, the focus seemed to be on the extent to which the Tribunal could be satisfied that Ms Jolley had a full understanding, knowledge and insight into the significance of her behaviour.  It was submitted that the significance of her false and misleading statement dated 29 April 2016, and her subsequent statements in July and August 2016, is that Ms Jolley was “putting a colour on her behaviour”.
  2. [80]
    In referring to her response dated 16 August 2016, the Ombudsman says that response was sent at a time when she had already completed the Davaar Consultancy course on professional boundaries.  The Ombudsman submits her response of 16 August must be seen as Ms Jolley still trying to minimise her role. 
  3. [81]
    Ultimately, the Ombudsman seeks to challenge Ms Jolley’s knowledge and understanding of her ethics and her professional standards.
  4. [82]
    While accepting that Ms Jolley is young, the Ombudsman does not accept that she was inexperienced.  He says she had been employed in the mental health unit for some 18 to 24 months prior to this incident.
  5. [83]
    On the other hand, in submissions on behalf of Ms Jolley, it was submitted that Ms Jolley has made the full admissions as contained in the statement of agreed facts because she has obtained insight.  She has co-operated fully in these proceedings.
  6. [84]
    It was submitted that any suggestion that she has sought in her responses to “pull the wool over the eyes of her employer, or at least colour the employer’s view of the conduct in which she engaged” must be contrasted with the “forthright, frank, candid responses” that she provided to the employer when interviewed.  In those circumstances, it was submitted, adverse inferences should not be drawn from the correspondence with her employer.
  7. [85]
    It was submitted that regard should be had to the circumstances in which the initial statement was provided: by a young 23 year old who was highly emotional, sleep deprived and suffering from considerable stress and anxiety because she feared losing her job and her career.
  8. [86]
    Likewise, it was submitted that the Tribunal should not accept the invitation to make adverse findings against her credit because of the absence of records of the text messages referred to and relied on in the affidavit of Ms Jolley.  From her affidavit, it was submitted we know that Ms Jolley no longer has access to the Facebook and text messages and changed her phone number.  The Ombudsman did not seek to cross-examine Ms Jolley.

Analysis

  1. [87]
    In this case, the Tribunal considers that Ms Jolley has demonstrated remorse and insight into her wrongdoing.  It is true that in 2016 she contested whether the conduct amounted to an ongoing relationship.  However, by that time, in the interview with her employer three months earlier she had made full admissions as to the relevant facts, from which she has never recanted.  The Tribunal does not accept that Ms Jolley either then or now is seeking to put “a colour on her behaviour”.
  2. [88]
    Ms Jolley co-operated fully in the investigation and in these proceedings, including in these proceedings making full admissions to their having been an ongoing relationship.  Properly advised, that definitional issue may never have arisen at any time.
  3. [89]
    Since the conduct, in 2016 she undertook a two day intensive professional boundaries course with Davaar Consultancy and then in 2018 she completed further relevant courses in professional boundaries and ethics in nursing.[5]  She also undertook a course on patient privacy and confidentiality.[6]
  4. [90]
    The Tribunal does not accept that it is appropriate to question the extent of knowledge gained by Ms Jolley through the Davaar Consultancy course on the basis of the subsequent communications sent to her employer.
  5. [91]
    It is disappointing that young graduates, like Ms Jolley, are placed in difficult roles, without the appropriate level of support or mentoring.  It is also concerning that in the 18 month diploma course for enrolled nurses, it would seem there is no formal education or training on professional boundaries, or if there is such training, it is inadequate.
  6. [92]
    Following the reporting of the conduct, Ms Jolley sought the assistance of a psychologist in relation to the stress she was experiencing associated with the incident.  Ms Jolley says she found those sessions very useful in identifying factors from her childhood that it is considered would have influenced her conduct with DM.  She deposes to still having regular appointments with her psychologist which she continues to find beneficial.
  7. [93]
    Since the incident, Ms Jolley has been diagnosed as suffering from depression, a condition which is being managed with medication and counselling; though it was not suggested that her depressive condition was ever such as to be likely to impact her ability to practise.

Case Comparatives

  1. [94]
    These findings by the Tribunal are relevant in considering the comparative cases to which the Tribunal was referred.
  2. [95]
    Both parties accepted that other Tribunal decisions rarely provide a direct comparison. In determining the appropriate disciplinary consequence for misconduct, the Tribunal must apply the accepted objects of disciplinary proceedings to the particular circumstances of any given case.[7]
  3. [96]
    The Ombudsman referred to the decisions involving the Nursing and Midwifery Board in the cases of Garie,[8] Clydesdale,[9] Evans,[10] Makoni,[11] Tainton[12]and Buckby.[13] 
  4. [97]
    The Ombudsman submitted that, in cases involving boundary violations, the authorities suggest that almost without exception the practitioner’s registration will be suspended.  It was said, referring to the decision of the tribunal in Evans, that only in extenuating circumstances will a reprimand only be ordered.
  5. [98]
    As submitted on behalf of Ms Jolley, the decisions in Clydesdale, Makoni and Buckby are clearly distinguishable.  Clydesdale involved an older male practitioner who had formed a personal relationship with a male patient which lasted some six months.  During the relationship, the practitioner had bought the patient expensive gifts and supplied prescription medication which he had taken from his employer. 
  6. [99]
    Whilst the tribunal rejected any suggestion that the practitioner was grooming the patient with a view to a sexual relationship, there was medical evidence of the practitioner having unresolved psychological issues, including a possible diagnosis of personality disorder and the existence of countertransference issues between the practitioner and the patient which arose from practitioner’s identification of the patient with his deceased brother. 
  7. [100]
    At the time of the tribunal’s decision, the practitioner had been suspended for over five years.  The practitioner was reprimanded and precluded from reapplying for registration for 12 months and until he had satisfied a number of conditions.  The decision was impacted by the evidence regarding the health of the practitioner, making the circumstances very different to the circumstances in this case. 
  8. [101]
    Makoni involved a practitioner who was an older practitioner than Ms Jolley, more experienced and employed in a senior position within the mental health unit.  His conduct involved engaging in sexual relations with two female patients with significant psychiatric conditions; one of whom became pregnant and for whom he arranged an abortion.  The relevant professional board took immediate action imposing a condition that the practitioner not see female patients. 
  9. [102]
    By the time the matter came before the tribunal, the practitioner had surrendered his registration and indicated that he would not be re-applying for registration.  There was no evidence about the practitioner’s personal circumstances, or state of mind in relation to the conduct.  The tribunal made orders disqualifying him from re-applying for registration for twelve months.  The tribunal commented that it would have been a strong case to have ordered a cancellation of registration. 
  10. [103]
    Like Makoni, Buckby also involved a senior nurse in charge of a mental health unit who was found to have engaged in sexual relations with two patients.  The practitioner denied the allegations but did not attend the proceedings.  The patients were required to give evidence.  Clearly there was no sign of remorse or insight into his conduct.  Not surprisingly, an order was made for the cancellation of his registration.  The circumstances again are so different that no useful guidance can be found from this case. 
  11. [104]
    Tainton is a case involving a boundary violation, characterised as a platonic relationship, between a registered nurse and a patient.  Unlike Ms Jolley, Ms Tainton had over 14 years experience and was working at the time at a medical centre at a correctional facility, where she had worked for some four years.  The patient involved was an inmate who had been sentenced to life imprisonment for murder.  He had presented at the medical centre on a day when the prison psychologist was unavailable, the two talked and it was arranged that the prisoner would call Ms Tainton using a friend’s phone and would refer to her by a different name. 
  12. [105]
    Over the course of a month, the practitioner and the prisoner spoke 31 times over the phone and exchanged five letters.  Despite the absence of physical intimacy between them, there were expressions of affection and love.  Shortly after, Ms Tainton sought a transfer from the correctional facility in an effort to put some distance between herself and her current circumstances.
  13. [106]
    The tribunal reprimanded the practitioner and precluded her from reapplying for registration for three months from the date of the order.  Ms Tainton was not, however, a registered practitioner at the time of the decision.  In fact, in the decision there are no statements as to her current circumstances.  There is reference to the Board seeking conditions requiring the submission of records as to her fitness to practice.  The circumstances surrounding the voluntary surrender of registration after the Board brought the conduct to her attention, are unclear.  The tribunal commented that the “nature and effect of this procedure was not elaborated”.  In those circumstances, it is difficult to draw any real analogy between the two cases. 
  14. [107]
    At the time of the misconduct in Evans, Mr Evans was working as a registered nurse in a mental health hospital.  He had been a registered nurse for approximately 20 years, primarily practicing in mental health nursing.  In 2012, he had treated a mental health patient during five of her six admissions to hospital. 
  15. [108]
    On one of her admissions, the patient had obtained Mr Evans’ mobile phone number, it would seem from another patient.  On being discharged after one of her admissions, she sent Mr Evans a text message.  From that point on, Mr Evans and the patient frequently communicated by phone.  It is agreed that an inappropriate personal relationship commenced around that time, resulting one night in Mr Evans arriving home to find the patient unconscious in his living room with a bottle of pills next to her.  Mr Evans denied that he had given the patient his residential address.
  16. [109]
    A sexual relationship commenced between Mr Evans and the patient about four months later in April 2013, some months after the cessation of any therapeutic relationship.  The relationship lasted until mid-September 2014.   
  17. [110]
    It was accepted that Mr Evans did not tell the total truth with respect to the commencement of the relationship when first approached by AHPRA.
  18. [111]
    The tribunal found that Mr Evans’ dishonesty must be viewed in light of the medical evidence before the tribunal concerning his own mental health issues and in particular issues of countertransference which had arisen because of the similarities between the condition of the patient and the condition of Mr Evans’ late wife.
  19. [112]
    In the proceedings before the tribunal, the Board questioned the truthfulness of various statements made by Mr Evans in his affidavit, though chose not to cross-examine him.  In giving its decision, the tribunal found that there was no basis for not accepting Mr Evans’ sworn testimony. 
  20. [113]
    The tribunal accepted that Mr Evans had developed awareness and insight into his conduct and his own mental illness.  The tribunal reprimanded Mr Evans and imposed conditions requiring the continuance of counselling for a period of twelve months.  The tribunal determined that a period of suspension was not justified.
  21. [114]
    In referring to Evans’ case, on behalf of the Ombudsman, reference was made to Mr Evans’ exceptional personal circumstances referring to the evidence as to the patient’s own vulnerabilities, which it was submitted is not present here.  Reference was also made to the tribunal having been impressed by the insight and knowledge that the practitioner had shown.
  22. [115]
    In oral submissions, on behalf of Ms Jolley the Tribunal was referred to the recent decision of Health Ombudsman v HSK,[14] in support of the submission that a period of suspension need not necessarily follow.  In the case of HSK, the primary offending conduct related to boundary violations between the respondent and two former patients over a three day period.  HSK was reprimanded and no further orders were made in relation to this conduct. 
  23. [116]
    There are similarities between the circumstances of the respondent in HSK and Ms Jolley in that they were both young practitioners, working in mental health units, absent appropriate support networks and mentoring.  The  boundary violations in each case are different: in  HSK it extended to socialising and drinking with two patients and an incident of sexual intercourse with one whereas Ms Jolley’s conduct was more prolonged and involved a social, physical and emotional relationship, though no consensual intercourse.  Importantly, in each case the practitioners had insight and remain passionate and committed to the nursing profession. 
  24. [117]
    The Tribunal was also referred to the recent decision of the South Australian Health Practitioners Tribunal in the matter of Garie.  At the time of the hearing, the reasons were not yet published and so it was difficult for the decision to be compared or distinguished.
  25. [118]
    Since the hearing, the reasons have now been published.  The circumstances of the misconduct involved the practitioner accessing the patient’s records, obtaining the patient’s private details, making telephone contact with the patient, exchanging text messages of a personal nature and attending at the patient’s home where consensual sexual behaviour occurred.  There was evidence that the practitioner at the time was having marital difficulties and other stressful issues at home and in the workplace.
  26. [119]
    Ms Garie was dismissed from her employment as a result of the conduct and, at the time of the proceedings, some 18 months later, remained unemployed.  There was no evidence in relation to attempts to obtain employment.  At  the time of the misconduct, the practitioner had almost 20 years’ experience as a nurse.  The tribunal was not satisfied as to the steps taken to educate herself.  Submissions were made on behalf of Ms Garie accepting the imposition of a reprimand and of her being agreeable to a suspension of up to 12 months.
  27. [120]
    Ultimately, the Tribunal reprimanded the practitioner and imposed a suspension for a period of 12 months.  As the tribunal was not satisfied in respect of the programs of education undertaken by the practitioner, she was required to participate in further education. 
  28. [121]
    The decision appears to have been influenced by the submissions made.  There appeared to be an acceptance that suspension was inevitable.  The practitioner was very experienced and that must be a significant factor.  The decision highlights the seriousness with which professional boundary violations will be viewed and that a sanction involving suspension may follow.

Conclusion

  1. [122]
    The conduct involved in this case is serious and must be denounced.  Like in all cases to which the Tribunal was referred, Ms Jolley’s behaviour is appropriately characterised as professional misconduct.
  2. [123]
    Her conduct resulted in her suspension and the taking of disciplinary action by her employer resulting in the tendering of her resignation some four months later in September 2016.
  3. [124]
    Her initial registration as a registered nurse was made subject to conditions as a result.  Whilst those conditions were subsequently removed, it was a reminder for a time of the consequences of her actions.
  4. [125]
    Since the time of her first interview in May 2016, she has given a forthright account of the relevant conduct.  While subsequent responses to her employer sought to contest whether the relationship was ongoing, the Tribunal does not consider any adverse inferences should be drawn.  Throughout these proceedings, she has made full admissions.  In her affidavit, she expresses remorse, speaks of her embarrassment and shame, acknowledges the impact of her conduct on DM and DM’s treatment and recognises DM’s vulnerabilities.  She states that she feels she is a different person to the one that engaged in the relationship with DM.
  5. [126]
    Ms Jolley refers to the knowledge she gained in undertaking the educational course on professional boundaries and the further education undertaken so as to rectify the deficiencies in her own understanding.  She speaks of the benefits in dealing with her own underlying issues.
  6. [127]
    Throughout this period, Ms Jolley has retained her passion for nursing.  Her references speak of the high regard she is held in by fellow work colleagues.  They refer to her being kind and gentle with patients, her integrity and her excellent clinical skills and professionalism.
  7. [128]
    The Tribunal is satisfied Ms Jolley has a full understanding of and insight into her conduct, she has sought and maintained psychological support and treatment and developed coping mechanisms.
  8. [129]
    Given her youth, the steps already taken and her insight, the Tribunal does not consider a period of suspension is necessary.  The practitioner is clearly now aware of the seriousness of violation of professional boundaries and is unlikely to act in the same way again.  The importance of maintaining professional boundaries is emphasised by these proceedings and practitioners will by this decision be aware of the sanctions that may follow should they digress.
  9. [130]
    The Tribunal considers that, for the next twelve months absent the pressure of these proceedings, there would be benefit in ensuring Ms Jolley continues to obtain psychological support and obtains the benefit of structured mentoring.
  10. [131]
    The Ombudsman did not seek an order for costs.  It is appropriate that the Tribunal record that position by making a formal order that each party bear their own costs.

Decision

  1. [132]
    Accordingly, it is the decision of the Tribunal that: 
  1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  3. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent shall be subject to the conditions set out in the attached schedule of conditions.
  4. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is twelve months from the date hereof.
  5. Subdivision 2, Division 11, Part 7 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions.
  6. Each party bear their own costs.

Schedule of Conditions

Attend for mentoring

  1. The Practitioner must be mentored by another registered health practitioner.  For the purposes of this condition, ‘mentoring’ is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner. 
  2. The mentoring must be for a period of 12 months and performed: 
  1. for at least 1 hour per fortnight for a period of 3 months; and 
  2. for at least 1 hour per month for a period of 9 months. 
  1. Within 28 days of the making of the orders, the Practitioner must notify the Board, in writing, the name of the mentor.  The Practitioner must ensure: 
  1. the mentor is a registered nurse who holds unrestricted registration;
  2. the notification is accompanied by the contact details of the mentor together with a detailed copy of the mentor’s curriculum vitae which demonstrates that the mentor is senior to the Practitioner by at least five years of experience or position and has additional training, experience and/or qualifications in order to provide the mentoring required;
  3. that the mentor is not in a close collegiate, family, social or financial relationship with the Practitioner; 
  4. the notification is accompanied by written confirmation from the mentor that the mentor has read these conditions and agrees to the appointment, the mentor is not in a relationship with the Practitioner as described in paragraph (c) and the mentor agrees to provide the report outlined in paragraph (f);
  5. the notification is accompanied by a written mentoring plan outlining the form the mentoring will take including as to how it is proposed to address the allegations which gave rise to the reprimand by the Board and the imposition of these conditions and the proposed schedule for mentoring; and
  6. the notification is accompanied by written acknowledgement from the Practitioner that the Board may require reports to be provided from the mentor.  These reports should include details of the number of mentoring session(s) including details of whether or not the Practitioner has, in the opinion of the mentor, satisfactorily participated in and understood the focus of the mentoring. The reports may be obtained at any or all of the following occasions:
  1. every 3 months;
  2. at the conclusion of the mentoring relationship in order to confirm the outcomes of mentoring;
  3. whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner's conduct or professional performance; and
  4. when requested either verbally or in writing by AHPRA or the Board.
  1. In the event the mentor is no longer willing or able to provide the mentoring required the Practitioner is to appoint a new mentor and notify the Board in writing within 7 days of becoming aware of the termination of the mentoring relationship.

Attend for counselling

  1. The Practitioner will undertake psychological counselling with Mr Carver or if he becomes unavailable such other psychologist as chosen by the Practitioner and notified to the Board (‘the treating psychologist’): 
  1. for a period of 12 months commencing from 28 days from the making of the orders; and
  2. at a frequency considered appropriate and recommended by the treating psychologist.
  1. The treating psychologist will provide reports to the Board, with respect to the Practitioner’s compliance with the conditions, on a 4-monthly basis (that is, at 4, 8 and 12 months post the commencement date of the counselling conditions). 

Other requirements

  1. All costs and expenses in relation to the terms set out in these conditions are to be at the Practitioner's expense. 
  2. The Practitioner will provide to the Board any documentary evidence required by these conditions, within the timeframes specified. 
  3. Failure to comply with these conditions may be a ground for health, conduct or performance action against the Practitioner. 

Footnotes

[1]  [2016] SAHPT 8, [14].

[2] Medical Board of Australia v Jansz [2011] VCAT 1026, [369].

[3]  Ibid, [314].

[4] Pharmacy Board of Australia v The Registrant [2015] QCAT 477, [30].

[5]  Affidavit of Kandice Jolley sworn 28 November 2018,[84]- [85]; Affidavit of Kandice Jolley sworn 20 February 2019, [7]-[8].

[6]  Written Submissions of the Applicant dated 10 December 2018, [36].

[7] Nursing and Midwifery Board of Australia v Jackson [2013] WASAT 140, [8]

[8] Nursing and Midwifery Board of Australia v Sandra Garie [2019] SAHPT 4.

[9]  [2013] QCAT 191.

[10]  [2016] QCAT 77.

[11]  [2017] VCAT 2065.

[12]  [2014] QCAT 161.

[13]  [2015] WASAT 19.

[14] HSK v Nursing and Midwifery Board of Australia; Health Ombudsman v HSK [2018] QCAT 404.

Close

Editorial Notes

  • Published Case Name:

    The Health Ombudsman v Jolley

  • Shortened Case Name:

    The Health Ombudsman v Jolley

  • MNC:

    [2019] QCAT 173

  • Court:

    QCAT

  • Judge(s):

    Sheridan J

  • Date:

    09 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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