Exit Distraction Free Reading Mode
- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Thomson  QCAT 145
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
ALLAN BRUCE THOMSON
Occupational regulation matters
18 May 2020
On the papers
Judicial Member D J McGill
Assisted by Ms L Dyer, Ms S Harrop and Mr J McNabb.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – Where respondent engaged in boundary violation with a patient – whether unprofessional conduct – whether respondent should undertake a course about professional boundaries – whether respondent should pay a fine – significant of previous incident – significance of circumstances of respondent and capacity to pay
Health Ombudsman Act 2013 (Qld) s 107
Health Practitioner Regulation National Law (Queensland) s 5.
Health Ombudsman v Kimpton  QCAT 405
Health Ombudsman v Rissanen  QCAT 96
Lee v Health Care Complaints Commission  NSWCA 80
Medical Board of Australia v Dolar  QCAT 271
Medical Board of Australia v Holding  QCAT 632
Medical Board of Queensland v Martin  Queensland Medical Assessment Tribunal (unreported, No 6 of 1997)
Nursing and Midwifery Board of Australia v Tainton  QCAT 161
The applicant was not represented
Roberts & Kane Solicitors for the respondent
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. Under s 126 of that Act, I constitute the Tribunal. I am sitting with assessors Ms Dyer, Ms Harrop and Mr McNabb in accordance with the Act s 126; their function is to advise me in relation to questions of fact: s 127.
- The respondent is a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld), being a registered nurse. The applicant alleges that the respondent engaged in unprofessional conduct in a particular respect, in that he engaged in inappropriate communications with a patient who was under his care at a hospital.
- The parties have provided the Tribunal with an agreed statement of facts. The respondent, who has been legally represented in these proceedings, admits the grounds alleged, and that the conduct in question amounts to unprofessional conduct. The parties have provided written submissions to the Tribunal, and the hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32.
- The Tribunal accepts the facts set out in the agreed statement of facts. They, and some other information before the Tribunal, may be summarised as follows: The respondent was born in 1964 and is now 55. He was first registered as a Registered Nurse in 1987. He was employed as a Registered Nurse, Level 1, at a hospital from October 2012 to April 2017. While in that employment, in August 2015 he had contact with a female patient to whom he sent a number of text messages, which are admitted to have been inappropriate. These included comments on her appearance, offering her a hug and a back massage, and offering her painkillers and Temazepam, the latter from “my own supply”, knowing that this had not been ordered for her. It is not alleged that any medication was supplied by the respondent to the patient, or that a social or sexual relationship developed with the patient. At a later time, the patient complained about this behaviour. The matter was investigated, and as a result the respondent lost his employment at the hospital. After being advised of the findings of the hospital enquiry, the respondent telephoned the applicant and advised the details of the matter, claiming to have little recollection about them.
- The applicant submitted that the respondent by his conduct had failed to maintain appropriate professional boundaries between himself and a patient. That was accepted in the submission on behalf of the respondent. The Code of Professional Conduct for Nurses in Australia, issued by the Nursing and Midwifery Board of Australia, includes Conduct Statement 8 – “that Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care” – and states, as an aspect of that: “Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for.” The Board has also issued a Nurses Guide to Professional Boundaries, providing more details about this aspect of professional conduct. The Tribunal accepts that this conduct did amount to a failure to maintain proper boundaries.
- The parties have also both submitted that the conduct in this case amounted to unprofessional conduct. I am aware of the definition of unprofessional conduct in s 5 of the National Law, and agree that in the circumstances this conduct amounted to unprofessional conduct.
- In Nursing and Midwifery Board of Australia v Tainton  QCAT 161 the respondent, a registered nurse, communicated by telephone and by post on a number of occasions with a person met as a patient. This was characterized as professional misconduct, although “not at the serious end of such cases”, with the possible aggravating feature that the patient was an inmate at a correctional facility when they met. The respondent had surrendered her registration two years earlier; she was reprimanded, and prevented from reapplying for registration for three months.
- In Medical Board of Australia v Holding  QCAT 632 the respondent, a medical practitioner, sent a patient three text messages requesting that she meet him socially. When his contact was rebuffed, he had not persisted. This was characterized as unprofessional conduct, and the respondent was required to complete further education in boundary violation issues, and pay a fine of $5,000. He was continuing to practice, and his registration was not suspended.
- In Health Ombudsman v Rissanen  QCAT 96 the respondent, a psychologist, had been communicating for some time on a social basis with a young, vulnerable patient, and had met her socially, and expressed affection, although it was not reciprocated. An aggravating feature was that he persisted in communicating when she sought to stop further contact from him. This was characterized as professional misconduct. The respondent was reprimanded, but no other sanction was imposed, as he was no longer registered, had not worked full time since the incident which occurred five years earlier, and had left the health care field for two years.
- The respondent referred to Health Ombudsman v Kimpton  QCAT 405. In that case an experienced enrolled nurse formed an inappropriate relationship with a patient who was being discharged from a secure mental health facility. There were communications over three years, no intimacy but the respondent provided financial support. This was characterized as professional misconduct, on the basis of the importance of enforcing ethical rules, but “at the lower end of the spectrum.” It was acknowledged that the relationship was supportive and there was no evidence of harm to the patient. The respondent was reprimanded, but no other sanction was imposed.
- In imposing a sanction, the health and safety of the public are paramount. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. The function of the Tribunal is protective, not punitive. It was submitted for the respondent that personal and general deterrence are only incidentally relevant to this jurisdiction, in contract with the position in criminal sentencing, and reference was made to the decision in Lee v Health Care Complaints Commission  NSWCA 80 at . It is no doubt true to say that deterrence should be taken into account only if and when it is material to the jurisdiction, because of the circumstances of the case. That did not contradict the decisions which have held that they are commonly relevant. General deterrence is relevant because of the importance of maintaining professional standards and public trust in the profession, which requires that ethical rules be observed. That is less likely to occur if there are seen to be no adverse consequences to the practitioner of a failure to comply with them.
- In relation to personal deterrence, it is relevant that in 2012 the registration of the respondent was subject to a condition that he undertake professional boundary education following the substantiation of allegations that he had engaged in overfamiliar conversations with a patient. The condition was removed on his completion of a course in January 2013. Given that the present boundary violation occurred within two years after than condition was removed, it is necessary to consider whether the proper protection of the public requires some specific adverse consequence for the respondent of the present conduct. That makes personal deterrence relevant in this matter.
- As against that, there is the consideration that the relevant conduct occurred about five years ago, and there is no allegation that there has been any further similar incident, although presumably the respondent has continued to work as a registered nurse. The time which has elapsed is relevant, because it suggests that the respondent has rehabilitated since this conduct occurred. It is also relevant that he desisted from this conduct spontaneously, no complaint having been made at the time, and after the complaint was made and substantiated, the respondent self-reported to the applicant. There has been cooperation with the investigation, and in the proceeding.
- The applicant proposes that the respondent be reprimanded, pay a fine of $2,000 and complete a professional boundaries course within the next twelve months. The respondent accepts the imposition of the reprimand, and does not oppose the requirement for a professional boundaries course, but resists paying the fine. It was submitted for the respondent that remorse and insight may be inferred from the engaging of legal representation, his cooperation in the proceeding and his acceptance of the sanction of a reprimand. I do not regard the first of these as indicative of remorse or insight, or that the others show these strongly. The respondent did not show any insight at the time of this behaviour, and not much at the time of the hospital investigation. Of some significance is the absence of any other complaints over the last five years, and the fact that the respondent desisted from the conduct voluntarily.
- It was submitted that Holding was distinguishable, because of the difference in the nature of the doctor/patient relationship, and because of the greater earning capacity of nurses than doctors. As to the former, I do not know that the ethical obligations of nurses are less important than the ethical obligations of doctors. There is also the consideration that the actual communications were less significant in Holding, where there was no offer of physical contact or of unprescribed medication. As to the question of earning capacity, I agree that fines should always take into account the capacity of the individual practitioner to pay: See by analogy the Penalties and Sentences Act 1992 s 48(1). Unfortunately, there is no material before the Tribunal from either side as to the financial capacity of the respondent. Apart from the bare fact that he lost his employment in 2017, I know nothing about what has happened to him. I assume he is still registered as a nurse, and is still working as a nurse, or could do so if he chose, but where the issue of a fine has been raised, the parties should provide material as to the capacity of the respondent to pay.
- I do not consider that the source of the applicant’s funding is relevant. The significance of the earlier incident of overfamiliarity with a patient is that the present conduct occurred only a couple of years after the respondent had undertaken further education in professional boundaries as a result of that earlier incident, which should have made the respondent particularly conscious of the inappropriateness of the present conduct.
- That earlier course ought to have provided the respondent with all the instruction he needed in professional boundaries. In view of that, and bearing in mind that the time that has passed without further complaints, I do not consider that it is necessary for the protection of the public that the respondent complete a further course about professional boundaries. I consider that the protection of the public is better achieved by the imposition of a fine. From the point of view of the respondent, that step carries the prospect that any future boundary violation would risk a larger fine, which should help protect the public from him. It also supports considerations of general deterrence and maintenance of public standards. In all the circumstances, I consider a fine is appropriate in this case, but because of the absence of information about the capacity of the respondent to pay, I propose to limit the fine to a figure of $1,000.
- I considered adjourning this matter and seeking further information about the more recent history of the respondent, and concerning his capacity to pay a fine. This is something which ought to have been dealt with by the parties, particularly in circumstances where the issue of capacity had been touched on in submissions on behalf of the respondent. In the end however I decided that, given the amounts under consideration, it was not worthwhile putting the parties to the additional legal costs involved. I would hope, however, that in the future the Tribunal will be provided with information about what has happened to the respondent after the events the subject of the reference, and where relevant the financial position of the respondent.
- Accordingly the orders of the Tribunal are:
- The Tribunal decides that the respondent has behaved in a way that constituted unprofessional conduct.
- The Tribunal reprimands the respondent.
- The respondent is fined the sum of $1,000, to be paid to the applicant within one month.
- The parties bear their own costs of this proceeding.
  QCAT 405 at , .
 Health Ombudsman Act 2013 s 4(2)(c).
 Health Ombudsman v Kimpton  QCAT 405 at .
 Medical Board of Australia v Dolar  QCAT 271 at .
 Medical Board of Queensland v Martin  Queensland Medical Assessment Tribunal (unreported, No 6 of 1997) per Fryberg J.
 That was also the position in Holding:  QCAT 632 at .
- Published Case Name:
Director of Proceedings on Behalf of the Health Ombudsman v Allan Bruce Thomson
- Shortened Case Name:
Director of Proceedings on Behalf of the Health Ombudsman v Allan Bruce Thomson
 QCAT 145
Judicial Member D J McGill
18 May 2020