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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Gascard  QCAT 264
lauren michelle gascard
Occupational regulation matters
25 March 2020 (ex tempore)
On the papers
Judicial Member D J McGill SC
Ms Harriet Barker
Dr Kim Forrester
Mr Ross Smith
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was an enrolled nurse – where the referral alleges professional misconduct – where the referral alleges boundary violation with a vulnerable patient – respondent no longer registered -whether sanction by reprimand warranted
Health Ombudsman Act 2013, s 103(1)(a), s 104
Health Ombudsman v Kimpton  QCAT 405
Health Ombudsman v Wood  QCAT 35
Medical Board of Australia v Blomeley  QCAT 160 Medical Board of Australia v Wakelin  QCAT 516
Nursing and Midwifery Board of Australia v Tainton  QCAT 161
Psychology Board of Australia v GA  QCAT 409
Director of Proceedings on behalf of the Health Ombudsman
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) and s 104. Under s 126 of that Act I constitute the Tribunal. I am sitting with assessors, Ms Barker, Dr Forrester and Mr Smith in accordance with the Act, s 126. Their function is to advise me in relation to questions of fact in s 127.
- The respondent was a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Queensland) (National Law) being formerly an enrolled nurse. The applicant alleges that the respondent engaged in professional misconduct in a particular matter, in that she engaged briefly in a sexual relationship with a patient who was under her care at a medical centre. The respondent has not engaged with the Tribunal proceeding and no submissions have been received from her. It follows that she has not disputed any of the matters set out in the applicant’s statement of facts. Indeed, the essential parts of that statement are based on the respondent’s self-reporting.
Summary of the facts
- After obtaining a Diploma of Nursing in 2014, the respondent was registered with the Board on 28 January 2015. During that year she was employed at a medical centre as an enrolled nurse. At that centre she dealt with a patient who was a longstanding patient with mental health issues and, in particular, he attended her to conduct an ATSI health assessment. She later contacted the patient after he had missed an appointment and they made arrangements to meet. This led to a couple of incidents of intercourse, but within a few days the respondent disclosed the relationship to her supervisor.
- A few days later she resigned from the medical centre, and soon afterwards submitted a self-notification to the applicant. In it she admitted culpability and expressed remorse. She claimed that stress at work had led to poor judgment on her part. After leaving the medical centre, the respondent has not worked as a nurse except for brief part-time work in 2017. In 2018 she did not renew her registration, which lapsed. The applicant referred the matter to the Tribunal on 28 June 2019.
- I am conscious of the definition of professional misconduct in the National Law, s 5. I am also aware of the content of the code of professional conduct for nurses of the Nursing and Midwifery Board of Australia, and the Board’s guide to professional boundaries. It is generally not appropriate for a nurse to enter a sexual relationship with a patient, particularly if the patient is vulnerable in some way, such as having mental health issues. That involves a failure to maintain proper professional boundaries, and some exploitation of the professional relationship in the nurse’s personal interest. There is, however, no evidence of harm to the patient in this case.
- For a registered practitioner to maintain a sexual relationship with a patient or former patient has commonly held bound to amount to professional misconduct. See, for example, Medical Board of Australia v Blomeley  QCAT 160 at , ; Medical Board of Australia v Wakelin  QCAT 516 at . There have been cases where a non-sexual relationship has been characterised as professional misconduct: for example, Health Ombudsman v Wood  QCAT 35; Health Ombudsman v Kimpton  QCAT 405.
- In the present case the behaviour of the respondent justifies a decision that her conduct amounted to professional misconduct. Although her training and experience were limited, she ought to have been well aware that this is seriously inappropriate behaviour. As noted in Blomeley, supra, at , there have been a range of suspensions imposed in cases where the practitioner was still registered. 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 respondent is no longer registered and has not been for some time. To the extent that there has been a de facto suspension of practice since 2015, that is a relevant factor when determining what order the Tribunal should make: see Psychology Board of Australia v GA  QCAT 409 at ; Nursing and Midwifery Board of Australia v Tainton  QCAT 161 at . In the present case the fact that the respondent not only admitted the relevant conduct but disclosed it herself to a relevant body suggests that she has appropriate insight into the wrongfulness of her conduct, and is displaying remorse. This provides promise of rehabilitation, though it appears that the respondent has left the profession.
- If the respondent were still practising as a nurse, a period of suspension of 12 to 18 months would have been appropriate to give proper effect to the protection of the public. Given the respondent’s circumstances, that is not appropriate. No further time away from nursing should be imposed by the Tribunal, although the point may be academic if the respondent has left the profession.
- The Tribunal, therefore, makes the following orders.
- The Tribunal decides that the respondent behaved in a way that constituted professional misconduct, in that she engaged in conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
- The Tribunal reprimands the practitioner.
- The parties bear their own costs of this proceeding.
- Published Case Name:
Health Ombudsman v Gascard
- Shortened Case Name:
Health Ombudsman v Gascard
 QCAT 264
Member D J McGill SC
25 Mar 2020