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

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

CITATION:

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

PARTIES:

Nursing and Midwifery Board of Australia

(Applicant)

 

v

 

Phillip Evans

(Respondent)

APPLICATION NUMBER:

OCR054-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

4 March 2016

HEARD AT:

Brisbane

DECISION OF:

Judge Suzanne Sheridan, Deputy President

Assisted by:

Mr K MacDougall

Ms M Sidebotham

Mr A Urquhart

DELIVERED ON:

9 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law), the Tribunal finds Mr Evans has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 196(2)(a) of the National Law, Mr Evans is reprimanded.
  3. Pursuant to s 196(2)(b)(i) of the National Law, Mr Evans’ registration shall be subject to the following conditions:
    1. (a)
      Mr Evans will undertake psychological counselling with Dr Elsa Germain (‘the treating psychologist’):
      1. for a period of 12 months commencing from 9 June 2016; and
      2. at a frequency considered appropriate and recommended by the treating psychologist.
    2. (b)
      The treating psychologist will provide reports to the Board, with respect to Mr Evans’ compliance with the conditions, on a 4-monthly basis (that is, at 4, 8 and 12 months post 9 June 2016).
    3. (c)
      Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions.
    4. (d)
      Pursuant to s 196(3) of the National Law, and for the purposes of Subdivision 2, Division 11, Part 7 of the National Law, the relevant review period for the conditions is 12 months, commencing from 9 June 2016.
    5. (e)
      The costs of compliance with the conditions are to be borne by Mr Evans.
  4. Each party is to make written submissions on costs within 14 days.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURE FROM ACCEPTED STANDARDS – where registrant engaged in an inappropriate personal and sexual relationship with a patient – where registrant experienced unique and extreme personal circumstances at the time of the relevant conduct – where registrant initially gave dishonest responses during the investigation – where registrant subsequently made full admissions and fully cooperated in the investigation and proceedings – where registrant admitted professional misconduct – where registrant subject to conditions following immediate action – where further ethical training and psychotherapy undertaken before the hearing – whether registrant should be suspended – whether Tribunal has power on a disciplinary referral under s 193 of the National Law to remove conditions imposed under immediate action

Code of Professional Conduct for Nurses in Australia

Health Practitioner Regulation National Law 2009 (Qld), ss 5, 159, 193, 196, 205 and 225

Chinese Medicine Board of Australia v Garvin [2015] QCAT 244, applied

Legal Services Commissioner v Yarwood [2015] QCAT 208, cited

Medical Board of Australia v Jones [2012] QCAT 362, cited

Nursing and Midwifery Board of Australia v Buckby [2015] WASAT 19, cited

Psychology Board of Australia v Wakelin [2014] QCAT 516, distinguished

APPEARANCES:

APPLICANT:

Mr Campbell QC of counsel, instructed by Moray & Agnew Lawyers

RESPONDENT:

Mr Allen QC of counsel, instructed by Hall Payne Lawyers

REASONS FOR DECISION

  1. [1]
    On 8 April 2015, the Nursing and Midwifery Board of Australia (Board) referred to the Queensland Civil and Administrative Tribunal (Tribunal) disciplinary proceedings against the registrant, Mr Evans, pursuant to s 193(1)(a) of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law). 
  2. [2]
    The initial complaint was made to the Australian Health Practitioner Regulation Agency (AHPRA) on 11 July 2013.  AHPRA conducted an investigation, and the Board imposed conditions upon Mr Evans’ registration by way of immediate action on 10 October 2014.[1]
  3. [3]
    The grounds for the referral to the Tribunal were that Mr Evans had engaged in an inappropriate personal and sexual relationship with a patient (patient), and that he had deliberately misled, or attempted to mislead, and/or provided false responses to AHPRA officers during the investigation of that relationship.  Mr Evans admits the allegations, and concedes that his conduct amounts to professional misconduct.[2]

Background

  1. [4]
    Mr Evans swore an affidavit on 9 November 2015 deposing to the background circumstances that he submits are relevant to the charges.
  2. [5]
    Mr Evans married his wife in 2001. Despite divorcing in 2004, Mr and Mrs Evans remained in a de facto relationship for some years.  Even after the cessation of the de facto relationship, Mr Evans continued to support Mrs Evans financially and emotionally.  At all times, he remained the primary caregiver for their son.
  3. [6]
    Throughout the duration of their relationship, Mrs Evans suffered from significant mental health issues.  Tragically, she committed suicide in September 2008.

Facts and circumstances

  1. [7]
    Mr Evans commenced working as a qualified nurse in 1995.  He has been a registered nurse for approximately 20 years.  He has predominately practiced mental health nursing.  He has no professional transgressions other than those currently before the Tribunal.
  2. [8]
    The parties filed a statement of agreed and disputed facts on 10 November 2015.  Whilst the facts are largely agreed, there remained some areas of dispute.
  3. [9]
    Mr Evans practised at the Sunshine Coast Private Hospital (Hospital) from in or about March 2012 to February 2013.  The patient was admitted to the Hospital on the following occasions:
    1. a)
      3 to 5 July 2012;
    2. b)
      16 July to 17 August 2012;
    3. c)
      8 to 9 October 2012;
    4. d)
      12 to 27 October 2012;
    5. e)
      5 to 14 November 2012; and
    6. f)
      12 to 19 December 2012.
  4. [10]
    During these periods of hospitalisation, the patient was diagnosed as suffering from a range of illnesses, including alcohol dependency, substance abuse, anxiety and depression.
  5. [11]
    During the periods of hospitalisation referred to in subparagraphs (a) to (e) above, Mr Evans formed part of the patient’s treating mental health team and provided direct nursing care to the patient.  He did not provide direct nursing care to the patient during the period of hospitalisation in subparagraph (f).
  6. [12]
    In the period in or about November and/or December 2012, the patient also spent time in a rehabilitation clinic.
  7. [13]
    On 20 November 2012, the patient contacted Mr Evans via text message.  In his affidavit, Mr Evans says he had not given the patient his telephone number.  He believed the patient obtained his number from another patient, who had asked Mr Evans to send him a text message to see whether his mobile was working.  From this point, Mr Evans and the patient frequently communicated by phone.
  8. [14]
    It is agreed between the parties that the inappropriate personal relationship between Mr Evans and the patient commenced from this point, in or around December 2012.[3]
  9. [15]
    In or around December 2012, the patient separated from her fiancé and became homeless.
  10. [16]
    In his affidavit, Mr Evans says that on 9 December 2012, he came home to find the patient unconscious in his living room.  There was a bottle of pills next to her.  Mr Evans said that he was both surprised and angry to see the patient, as he had not told her where he lived and she had entered his house without permission.  Mr Evans immediately called an ambulance.  The police also attended. 
  11. [17]
    When questioned by police, Mr Evans said that the patient was staying with him at his home.  In his affidavit, he says this statement was untrue and says:

I said this because it was my opinion that [the patient] needed help, and that if she had broken in she would face criminal charges.  I wanted [the patient] to get well and did not think that facing criminal charges would help with this.[4]

  1. [18]
    The patient was taken to the Nambour General Hospital.  Mr Evans says that she called him that night and apologised for breaking in.  She told Mr Evans she knew where he lived because she had seen him enter the residence from the shopping centre across the road.  She said that she had come to stay with friends in Caloundra, but they had thrown her out.  She said she did not want to stay on the streets, and so had come to Mr Evans’ house.
  2. [19]
    The events of 9 December 2012 remain in dispute between the parties.[5]  The Board submitted that Mr Evans’ account of the events should not be accepted because of the divergence between what he told the police and what he now says in his affidavit.  The Board chose not to cross-examine Mr Evans, and did not lead any evidence to contradict his account.  The explanation he provides in his affidavit is not inherently improbable and indeed has a ring of truth about it.
  3. [20]
    On 12 December 2012, the patient was again admitted to the Hospital.  The parties agree that at this time the patient suffered depression and alcohol dependence.[6]  In his letter to the Board dated 3 June 2014, Mr Evans suggested that the admission had “more to do with no accommodation, than anything actually wrong with her”.  The Board says the characterisation of that admission by Mr Evans is an example of deception.  It is, however, clear that the patient was homeless at this time and that the patient had ongoing substance abuse and mental health issues.  There is no necessary inconsistency in his statement.
  4. [21]
    As previously noted, it is agreed between the parties that Mr Evans did not provide direct nursing care to the patient during this period of hospitalisation.  In his affidavit, Mr Evans states that given his phone contact with the patient he felt uncomfortable having contact with her in a therapeutic capacity, and ensured he was not rostered as a duty nurse during this admission.  However, he did not disclose to his employer the fact he had had phone contact with the patient.  He says he had no contact with the patient while she was admitted to the Hospital during this period, except to sign her out of the Hospital on a day leave pass as the nurse at the nursing station at the time.[7]
  5. [22]
    On 19 December 2012, on the patient’s discharge from Hospital, she stayed overnight at Mr Evans’ house.  In his affidavit, Mr Evans states that after her discharge, the patient called him.  She told Mr Evans she had nowhere to stay that night. Mr Evans says the patient slept on the couch, and there was no sexual contact between them.[8]  The Board argued that the Tribunal should not accept his evidence but specifically declined to cross-examine him about it.  Again, Mr Evans’ evidence is not inherently improbable: it is not inconsistent that the patient on being discharged intended to request of Mr Evans that she be permitted to stay at his house and, knowing his address, gave it to the hospital as her place of residence.  The parties have agreed that at that time the patient was indeed homeless.  There is no basis to disbelieve Mr Evans’ sworn testimony on this point.
  6. [23]
    Mr Evans commenced a sexual relationship with the patient from in or about April 2013.  By about August 2014 the patient resided at Mr Evans’ residence.  The relationship continued until about mid-September 2014.
  7. [24]
    There are a number of other minor factual disputes between the parties, but nothing turns upon these.

Mr Evans’ mental illness

  1. [25]
    In written submissions filed 4 January 2016, counsel for Mr Evans contended that a “peculiar and distinguishing mitigating factor in the respondent’s case is the contribution of his then undiagnosed psychiatric illness to his offending behaviour”.[9]  There is substantial evidence before the Tribunal in respect of Mr Evans’ mental illness and its relationship with his offending conduct.
  2. [26]
    Psychologist Mr Greg Hanson has seen Mr Evans on 16 occasions.  In his report of 15 June 2015, Mr Hanson diagnosed Mr Evans as suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, unresolved grief and chronic post-traumatic stress disorder.  He opined Mr Evans had suffered from these various conditions during the years leading up to his wife’s death, through to the date of his report.
  3. [27]
    In terms of the offending conduct, Mr Hanson considered Mr Evans had “experienced a significant degree of countertransference for the patient and [that] his level of insight and judgment may have been impaired at the time.”[10]  Mr Hanson said:

The countertransference appears to relate to the patient at the centre of this complaint that evoked a sense of his now deceased wife who had suffered with alcohol abuse and substance abuse.  It may be posited that Mr Evans unknowingly and subconsciously thought that by rescuing the patient and keeping her safe he was somehow preventing the death of his wife.[11]

  1. [28]
    Mr Hanson considered it highly plausible that Mr Evans had not been able to process the grief from the loss of his wife until undertaking psychological counselling.  He believed that through psychological treatment, Mr Evans has now developed improved understanding and increased awareness, judgment and insight into his behaviour.
  2. [29]
    Psychiatrist Dr Alfred Chung examined Mr Evans on 29 June 2015 for the purposes of providing an independent medicolegal report.  Dr Chung opined Mr Evans had a period of adjustment disorder complicated with grief and depression after his wife’s death and during the period of time that he was involved with the patient.[12]  Dr Chung formed the view that:

Mr Evans’ judgment and conduct was significantly impaired and was affected by the consequences of his grief, depression and anxiety caused by the circumstances leading to the suicide of his wife, and his failure to address his grief and depression due to the intervening period.[13] 

  1. [30]
    Dr Chung gave evidence at the Tribunal hearing to the effect that Mr Evans had experienced countertransference because of the similarities between the experiences and health issues of his deceased wife and the patient.[14]
  2. [31]
    In its written submissions, the Board contends that Mr Evans was aware of the potential for countertransference, but notwithstanding, determined to maintain and further his relationship with the patient.[15]  It points to various parts of Mr Evans’ affidavit evidence to show that he had “thought about everything”, including the issue of transference and his unresolved issues arising from the death of his wife.[16]  This “thinking about everything” extended to Mr Evans reviewing various codes of practice and seeking assistance from lawyers.[17] The Board contends that in these circumstances, the impact of Mr Evans’ mental illness significantly, if not entirely, falls away.[18]
  3. [32]
    During cross-examination, Mr Campbell QC, counsel for the Board, drew Dr Chung’s attention to Mr Evans’ feelings of conflict.  He suggested to Dr Chung that these feelings of conflict from the time of first contact with the patient indicated an awareness on Mr Evans’ part of appropriate professional boundaries. Dr Chung accepted this.[19]
  4. [33]
    However, when Mr Campbell QC suggested to Dr Chung that Mr Evans “still was able and did understand the difference between the correctness of his actions as a professional and those he engaged in”, Dr Chung did not agree.  He said, “there was a difference in the level of insight, and … judgment and that’s where I think Mr Evans at the time was lacking”.[20]
  5. [34]
    Indeed, during re-examination Dr Chung was asked whether there is “any difference between intellectual knowledge and the ability to have insight into one’s condition or behaviour”, to which he responded, “Yes. … I think there is a big difference.”[21]  Mr Allen QC, counsel for Mr Evans, put to Dr Chung:

So, is one of the propositions you just expressed that intellectual knowledge of something may not lead to someone acting in accordance with such knowledge if their judgment is impaired by a psychiatric condition?[22]

To this, Dr Chung responded, “Yes. In a nutshell, yes.”

  1. [35]
    On the basis of this evidence, I do not accept the Board’s contention that Mr Evans was fully aware that what he was doing was wrong nor that he had full insight into the fact that he was in a position of conflict and had violated patient/health practitioner boundaries.  While the existence of a psychiatric disorder does not excuse conduct which takes on the character of unsatisfactory professional conduct or professional misconduct, it may nevertheless be taken into account in mitigation.[23]  Given the significant influence of Mr Evans’ mental illness upon his offending behaviour, the assessment of any appropriate sanction must be informed by these circumstances.

Dishonesty

  1. [36]
    In its written submissions filed on 4 January 2016, the Board contends that “the significant aggravating feature in the present matter … is the dishonest conduct”.[24]
  2. [37]
    According to the referral notice, Mr Evans “deliberately misled, or attempted to mislead, and/or provided false responses to [AHPRA] investigating officers during the investigation.”[25]  The relevant conduct is particularised in the referral as follows:

In a statement dated 29 July 2013, the registrant through his lawyers, Hall Payne, falsely stated that in late January or February 2013 he bumped into the patient on Mooloolaba beach and it was at this point that they exchanged phone numbers and became friends.[26]

  1. [38]
    Mr Evans has conceded the falsity of this account.[27]  Indeed, it was Mr Evans himself who originally, and of his own volition, brought the dishonesty to the attention of AHPRA.  In the letter to AHPRA dated 3 June 2014, Mr Evans said, “I want to begin by apologising sincerely to AHPRA, my initial statement did not contain the total truth”.  He set out a detailed history of his relationship with the patient, and voluntarily and frankly admitted that:

Out of that panic we [Mr Evans and the patient] were both in, we created what was a very stupid charade, something I am ashamed of doing.  We said we would say we had no contact until we met by chance on the beach in Mooloolaba, whilst we did meet by chance there, we of course were having contact prior.[28]

  1. [39]
    In its written submissions, the Board contends the current circumstances are comparable to those in Psychology Board of Australia v Wakelin.[29]  Wakelin’s case involved a psychologist who entered into a sexual relationship with a former patient immediately following the termination of the therapeutic relationship.  The psychologist provided false statements to AHPRA during the course of its investigation, denying the sexual relationship in its entirety. She admitted to her dishonesty some 11 months later.  The Board draws particular attention to the observation made by the presiding member, the Honourable James Thomas, that:

The respondent’s dishonest responses to AHPRA in the course of the investigation is in some respects an even more serious reflection on her character [than] the sexual transgression.  The character revealed by a practitioner’s actions is obviously a matter with which any disciplinary body must be concerned.[30]

  1. [40]
    The decision in Wakelin is clearly distinguishable.  In Wakelin, the psychologist made only limited admissions[31] in circumstances where AHPRA had already received information suggesting the falsity of her account.[32]  Conversely, there was nothing before the Board to suggest Mr Evans’ account was false.  Rather, Mr Evans voluntarily disclosed his dishonesty to the Board in significant detail because he felt his deception had “let myself down hugely, my profession down”, and was “profoundly sorry” for his actions.[33]
  2. [41]
    Furthermore, Wakelin’s case involved a significantly greater level of deception.  Mr Evans did not deny the existence of his relationship with the patient.  Rather, he moved the beginning of the relationship to January or February 2013 rather than December 2012, and characterised the initial contact as being a chance meeting on the beach.
  3. [42]
    Finally, the relationship between Mr Evans and the patient progressed to a sexual relationship some months after the cessation of the therapeutic relationship.  In Wakelin’s case, the sexual relationship commenced immediately upon cessation of the treating relationship.
  4. [43]
    The other decisions referred to by the Board involve significantly greater degrees of dishonesty, and are similarly distinguishable.
  5. [44]
    Furthermore, Mr Evans’ dishonesty must be viewed in the light of the medical evidence before the Tribunal.  In his report dated 16 July 2015, Dr Chung concluded that Mr Evans’ initial misleading response to AHPRA’s notification was “a reflection of his impaired judgment arising from his depression and the death of his wife”.[34]  He stated:

It is common knowledge that depression can affect one’s insight and judgment, and the decision making process can be severely impaired during periods of extreme stress and depression.  It is evident from the documents provided and from Mr Evans’ own recollection of the events, that he was not making decisions logically and insightfully.[35]

Sanction

  1. [45]
    The Tribunal finds that grounds exist for taking disciplinary action against Mr Evans.  Mr Evans’ conduct was clearly in contravention of the Code of Professional Conduct for Nurses in Australia.  Engaging in a personal and sexual relationship with the patient following an inappropriate interval after termination of their professional relationship constituted professional misconduct.[36]  This has been conceded by Mr Evans, and appropriately so.
  2. [46]
    The Board submits that Mr Evans’ conduct was such that the only appropriate order is a formal reprimand and a 2 year suspension of registration.[37]  The Board draws the Tribunal’s attention to a number of cases in support of this contention.
  3. [47]
    The Board submitted that questions of vulnerability were the reason why some care needs to be taken as to how the ethical professional rules are enforced and maintained.
  4. [48]
    An assessment of the appropriate sanction must be informed by the exceptional and unique mitigating circumstances of this case.  At the time of his offending conduct, Mr Evans was suffering from mental illness arising from the tragic death of his wife, which severely impaired his insight and judgment.  These unique circumstances significantly diminish the comparative utility of previous case authorities. 
  5. [49]
    There are a number of further mitigating factors to be taken into account. Mr Evans has had no prior adverse disciplinary appearances or orders over his almost 20 year nursing career, and there have been no further incidents since the offending conduct.  Mr Evans has provided many references attesting to his otherwise good conduct and the valuable contributions he makes as a nurse in a number of roles he fulfils, including as a preceptor to student nurses and a workplace equity and harassment officer.
  6. [50]
    Mr Evans’ conduct was not predatory or knowingly exploitative. Notwithstanding the inappropriateness of commencing the personal relationship, there is no evidence that the relationship caused any emotional or psychological harm to the patient.  In fact, the evidence before the Tribunal is that Mr Evans and the patient were in a loving, supportive and genuine long-term relationship.  The patient was not the complainant and had asked the complainant practitioner not to pursue the complaint.
  7. [51]
    Significantly, of his own initiative and at considerable personal expense, Mr Evans has taken steps to reinforce and improve his understanding of professional boundaries.  In November 2013, he participated in a two day educational program on the maintenance of professional boundaries. In May 2015, he completed a year long individual professional boundary education course. Furthermore, Mr Evans has sought ongoing psychological counselling since May 2014.  It is apparent on the evidence that this professional education and psychological treatment has led Mr Evans to develop significant insight into his offending conduct and the effects of his mental illness.
  8. [52]
    Mr Evans has admitted his conduct was improper, and accepted it amounts to professional misconduct.  With the exception of his false statement on 29 July 2013, he has been entirely frank, honest and cooperative with the Board throughout these disciplinary proceedings.  Mr Evans’ cooperation has allowed the parties to put before the Tribunal a comprehensive statement of agreed facts such as to obviate the need for a contested hearing of all the facts.
  9. [53]
    All of these matters bespeak remorse for, and insight into, his misconduct.
  10. [54]
    It is well established that disciplinary penalties are not imposed as punishment, but rather for the protection of the community.[38]  Orders imposed should be those that the Tribunal considers necessary to protect the public and the reputation of the profession.  Personal deterrence will often play a role.   If it is considered that a registrant may in the future engage in similar misconduct, orders deterring him or her from doing so will be appropriate.[39]
  11. [55]
    It is clear on the evidence that Mr Evans has now developed awareness and insight into his conduct and mental illness.  Through professional education and psychological counselling, he has developed appropriate coping mechanisms such that he no longer poses a risk to the public.[40]  Further, given the unique and tragic circumstances of this case, it is unlikely that other registrants will find themselves in the same situation as faced by Mr Evans.  In all the circumstances, suspension is not justified.  
  12. [56]
    Mr Evans will be reprimanded.[41]  This is not a trivial sanction.  It is a public denunciation of his conduct, which is recorded on the public register of practitioners.[42]  The Tribunal is satisfied the making of a public reprimand will sufficiently satisfy the applicable disciplinary objectives, while having regard to the relevant authorities, personal circumstances of the registrant and gravity of the offending conduct.  In the circumstances of this case, the Tribunal is satisfied that the necessary aim of deterrence will be achieved by publically reprimanding Mr Evans.
  13. [57]
    Given the lengthy history of this matter, it would seem to the Tribunal appropriate for such record to remain on the register for a period of 12 months, though ultimately that is a question for the Board.[43]

Conditions

  1. [58]
    In addition to suspension, the Board requested conditions be placed on Mr Evans’ registration upon his return to practice.  These conditions required Mr Evans to return to practise under supervision.  The supervision conditions included both consultation obligations between the supervisor and Mr Evans and reporting requirements to the Board for a period of 12 months.
  2. [59]
    On behalf of Mr Evans, it was submitted that he should be subject only to a condition requiring continuing psychological counselling for a period of 12 months.
  3. [60]
    Mr Evans has had onerous conditions on his registration since October 2014, including requirements to practise under supervision.  Those conditions were imposed by the Board pursuant to its immediate action power under s 156 of the National Law.  There is no suggestion from the Board that those conditions have not been satisfactorily met. 
  4. [61]
    The effect of the submissions made on behalf of each of the parties would be to vary the conditions currently imposed on the registration of Mr Evans.  The issue that arises is whether the Tribunal has power to vary conditions already on his registration on the basis of the referral currently before it.
  5. [62]
    Subsequently to the hearing of this matter before the Tribunal, the parties were requested to deliver further written submissions on this issue.   On behalf of the Board it was submitted that the Tribunal did have power, either derived by the combined operation of ss 159 and 205, or as an automatic consequence of the Tribunal deciding the matter before it.  In his submissions, counsel for Mr Evans agreed with the contents of the Board’s submissions. 
  6. [63]
    There is certainly merit in the submissions made on behalf of Mr Evans that the current conditions are no longer necessary. Those conditions were imposed over two years ago when this matter first came before the Board.  Since that time Mr Evans has undertaken boundary education courses, has participated in psychotherapy sessions and has been working under supervision.  The references from current and former colleagues, former supervisors and senior clinicians speak highly of Mr Evans’ professionalism in his work and his particular skills as a mental health nurse. Mr Evans is currently a peer support worker and a preceptor for undergraduates. There appears no justification for the continuation of the current conditions, or in fact any conditions requiring continuing supervision.
  7. [64]
    Both parties submitted that if the effect of the Tribunal’s decision was that the conditions imposed by immediate action were not required, then the Board was obliged under s 205 of the National Law to give effect to that decision.
  8. [65]
    There is merit in the logic that the hearing of a referral involving a disciplinary matter related to the taking of immediate action should be dealt with in one proceeding and that an order made on such a referral should also effect a decision made by way of immediate action.
  9. [66]
    This construction is reinforced by the submissions made on behalf of the Board that the taking of the immediate action should be understood as an interim measure pending further investigation and a disciplinary hearing.
  10. [67]
    Unfortunately, this construction conflicts with the very direct words of s 159 of the National Law, which says that the decision to take immediate action has effect until the earlier of the decision being set aside on appeal or the conditions being removed by the Board.  In this case, there was no appeal nor any decision of the Board to remove the conditions. 
  11. [68]
    On the present material, if there had been an appeal of the decision, or the practitioner had applied to the Board to change the conditions and the Board had refused to do so and the practitioner had appealed against that decision, I would have decided to remove the supervision conditions imposed by immediate action.
  12. [69]
    If the Board wishes to give effect to that view then they should do so, but that is a decision for the Board and unfortunately it is not one which I can order.
  13. [70]
    Given Mr Evans’ diagnosis of post-traumatic stress disorder and the resultant improvements in his mental state as a result of engaging in psychotherapy, it will be important to ensure the maintenance of his mental health.  In his affidavit sworn 9 November 2015, Mr Evans said he still had regular appointments with his treating psychologist and that he intended to continue with such treatment as long as he believed it was of benefit to him.  His counsel in oral submissions before the Tribunal confirmed this position. The Tribunal considers it is important that he continue such treatment as is recommended by his treating psychologist for the next 12 months.
  14. [71]
    It is appropriate that Mr Evans select his treating psychologist. Mr Evans has indicated to the Tribunal that person.
  15. [72]
    Having imposed the condition, it is appropriate the Tribunal make an order requiring the treating psychologist to report compliance with the condition to the Board.
  16. [73]
    In imposing the condition, the Tribunal has made it clear that it considers 12 months to be the appropriate period of the condition. Curiously, notwithstanding the view of the Tribunal as to the relevant period of operation of the condition, s 196(3) of the National Law requires the Tribunal on imposing any condition to also impose a review period for the condition.  Given the decision of the Tribunal was to impose a counselling condition for 12 months, the review period of the condition should also be 12 months.  It would be expected that, at the time of the review, the condition will be removed. 
  17. [74]
    So as to avoid the parties bringing a further application to this Tribunal at that time, it is necessary to make a further order permitting the Board to deal with the review of the condition.  An order should be made to allow that to occur.

Orders

  1. [75]
    Accordingly, the Tribunal orders that:
    1. Pursuant to s 196(1)(b)(iii) of the National Law, the Tribunal finds Mr Evans has behaved in a way that constitutes professional misconduct.
    2. Pursuant to s 196(2)(a) of the National Law, Mr Evans is reprimanded.
    3. Pursuant to s 196(2)(b)(i) of the National Law, Mr Evans’ registration shall be subject to the following conditions:
      1. (a)
        Mr Evans will undertake psychological counselling with Dr Elsa Germain (‘the treating psychologist’):
        1. for a period of 12 months commencing from 9 June 2016; and
        2. at a frequency considered appropriate and recommended by the treating psychologist.
      2. (b)
        The treating psychologist will provide reports to the Board, with respect to Mr Evans’ compliance with the conditions, on a 4-monthly basis (that is, at 4, 8 and 12 months post 9 June 2016).
      3. (c)
        Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions.
      4. (d)
        Pursuant to s 196(3) of the National Law, and for the purposes of Subdivision 2, Division 11, Part 7 of the National Law, the relevant review period for the conditions is 12 months, commencing from 9 June 2016.
      5. (e)
        The costs of compliance with the conditions are to be borne by Mr Evans.
    4. Each party is to make written submissions on costs within 14 days.

Footnotes

[1]Letter AHPRA to Mr Evans dated 10 October 2014.

[2]Statement of agreed and disputed facts, paras 37 to 40.

[3]Statement of agreed and disputed facts, para 31.

[4]Affidavit Philip Evans, para 166.

[5]Statement of agreed and disputed facts, para 3.

[6]Statement of agreed and disputed facts, para 27.

[7]Affidavit Philip Evans, paras 172-173.

[8]Affidavit Philip Evans, paras 177-179.

[9]Respondent’s submissions in reply on sanction, para 2.

[10]Report Mr Greg Hanson, p 4.

[11]Ibid.

[12]Report Dr Alfred Chung, p. 16.

[13]Report Dr Alfred Chung, p. 18.

[14]T1-29, LL 21-24.

[15]Applicant’s written submissions, para 32.

[16]Affidavit of Philip Evans, annexure PE4, p. 51.

[17]Affidavit of Philip Evans, annexure PE4, p. 48 and 50-51.

[18]Applicant’s written submissions, para 41.

[19]T1-30, LL 1-5.

[20]T1-30, LL 17-22.

[21]T1-32, LL19-20.

[22]T1-33, LL 22-24.

[23] Legal Services Commissioner v Yarwood [2015] QCAT 208 at [70].

[24]Applicant’s Submissions, para 20.

[25]Referral notice, para 40.

[26]Referral notice, para 40(a).

[27]Statement of agreed and disputed facts, para 39.

[28]Affidavit of Philip Evans, annexure PE4.

[29][2014] QCAT 516.

[30] Psychology Board of Australia v Wakelin [2014] QCAT 516 at [21].

[31]She admitted ‘I did not wait until 2 years had passed before considering my actions’, and acknowledged she had ‘not been completely forthcoming’ with the Board: ibid at [15].

[32]Ibid at [14].

[33]Exhibit PE4 to affidavit of Philip Evans.

[34]Report Dr Alfred Chung, p. 18.

[35]Ibid.

[36]Health Practitioner Regulation National Law (Queensland), s 5.

[37]Board’s written submissions on sanction, para 53.

[38]See, for example, Chinese Medicine Board of Australia v Garvin [2015] QCAT 244 at [9]; Medical Board of Australia v Jones [2012] QCAT 362 at [13]; and Nursing and Midwifery Board of Australia v Buckby [2015] WASAT 19 at 102.

[39] Chinese Medicine Board of Australia v Garvin [2015] QCAT 244 at [9].

[40]Report Mr Greg Hanson, p. 5; report Dr Alfred Chung, p. 19; report Dr Wendy McIntosh, p. 3.

[41]Health Practitioner Regulation National Law (Queensland), s 196(2)(a).

[42]Ibid, s 225.

[43]National Law, s 226.

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v Phillip Evans

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v Evans

  • MNC:

    [2016] QCAT 77

  • Court:

    QCAT

  • Judge(s):

    Sheridan DP

  • Date:

    09 Jun 2016

Appeal Status

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