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Health Ombudsman v Kimpton[2018] QCAT 405

Health Ombudsman v Kimpton[2018] QCAT 405

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Kimpton [2018] QCAT 405

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

DAVID PAUL KIMPTON

(respondent)

APPLICATION NO/S:

OCR020-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 December 2018

HEARING DATE:

15 February 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan, Deputy President

Assisted by:

N Brook

J McNab

W Sanderson

ORDERS:

  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Mr Kimpton has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), Mr Kimpton is reprimanded.
  3. The parties must pay their own costs of these proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – where respondent enrolled nurse engaged in a boundary violation with a vulnerable patient – where respondent admitted professional misconduct – whether the boundary violation occurred during or after the therapeutic relationship – whether the respondent should be subject to a period of suspension – where the applicant seeks its costs – whether the interests of justice require the tribunal to make an order for costs

Health Ombudsman Act 2013 (Qld), s 103(1)(a), s 104, s 107(2)(b)(iii), s 107(3)(a)

Health Practitioner Regulation National Law (Queensland), s 5, s 225

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(1), s 102(3)

Health Ombudsman v Antley [2016] QCAT 472

Medical Board of Australia v Wong [2017] QCA 42

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

Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423

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

Psychology Board of Australia v Wakelin [2014] QCAT 516

APPEARANCES & REPRESENTATION:

 

Applicant:

S L Lane of the Office of the Health Ombudsman

Respondent:

S Robb instructed by Roberts & Kane Solicitors

REASONS FOR DECISION

The proceedings

  1. [1]
    On 24 December 2014, the applicant Health Ombudsman received a notification regarding the professional conduct of the respondent enrolled nurse, Mr David Kimpton.  On 31 July 2015, the respondent was advised that the applicant was investigating his conduct.  As a result of that investigation, on 23 January 2017, the applicant referred to the Queensland Civil and Administrative Tribunal (the Tribunal) disciplinary proceedings against the respondent.  The referral was made pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act).

Background circumstances

  1. [2]
    Mr Kimpton obtained registration as an enrolled nurse in 1985, and has worked as an enrolled nurse now for some 33 years.  In 1989, Mr Kimpton became employed at The Park – Centre for Mental Health Research, Treatment and Education (the Park), a specialist secure mental health facility, forming part of the West Moreton Hospital and Health Service (WMHHS). 
  2. [3]
    On 7 December 2011, the patient was transferred from the Townsville Womens Correctional Centre (TWCC) to the Park under an Involuntary Treatment Order (ITO).[1]  It was at this point in time that the patient met Mr Kimpton, who was working on the ward.  Mr Kimpton was 54 years old when he met the patient.  The patient was 27 years old.
  3. [4]
    Upon her admission to the Park, the patient was experiencing severe mental health problems; her principal diagnosis at the time was schizophrenia.  She had also been diagnosed with post-traumatic stress disorder and a major depressive episode with psychotic features and psychotic illness.[2] 
  4. [5]
    One week prior to her admission to the Park, on 30 November 2011, the patient had been arrested and charged with one count of torture, and two further counts of assault occasioning bodily harm to her eight-year old daughter.[3]  Her daughter subsequently died.  The patient had three other daughters and gave birth to another child whilst in the Park.  Her relationship with her husband was described as “unstable”.  The patient had expressed a desire to divorce her husband and ultimately did so. 
  5. [6]
    The statement of agreed facts provides that the patient was often subject to constant observation at the Park during periods where she began to hear voices and experience thoughts involving self-harm.[4]  During the periods when she was placed on constant observation, Mr Kimpton was, from time to time, assigned to observe her.[5]  As an enrolled nurse, Mr Kimpton was not involved in the management of the patient’s treatment, nor was he responsible for administering medication to the patient as he did not hold an endorsement to administer medication.[6]
  6. [7]
    Mr Kimpton’s role required that he contribute to aspects of patient care which were delegated to him by the registered nurses, provided such tasks were within his scope of practice.
  7. [8]
    The patient was discharged from the Park to Brisbane Womens Correction Centre on 3 July 2012, the patient’s treating psychiatrist having revoked the patient’s ITO on 2 July 2012.  The patient was transferred back to the TWCC on 11 July 2012.
  8. [9]
    Upon her return to TWCC, the patient’s file was updated to record that Mr Kimpton was the patient’s primary contact.
  9. [10]
    On 12 July 2012, the patient telephoned Mr Kimpton’s mobile telephone.  The records of the conversations between the patient and Mr Kimpton were tendered in evidence before the Tribunal.  In the period between 12 July 2012 to 16 November 2015, 1137 phone calls were made by the patient to Mr Kimpton, averaging just under one phone call per day.[7]  No phone records were placed before the Tribunal relating to the period between 16 November 2015 and 18 September 2016, at which time the patient was released from custody.[8] 
  10. [11]
    In addition to the phone calls, the patient and Mr Kimpton often wrote letters to one another.  While the patient was in prison, the respondent had sent to the patient approximately $150 per fortnight for her use while in prison.
  11. [12]
    The patient was convicted of manslaughter in relation to the death of her child and sentenced to seven years imprisonment.[9]  On 1 June 2015, the patient’s visa was cancelled.  The respondent provided a total of $14,000.00 in legal fees to the patient’s lawyers in relation to the immigration proceedings.[10] 
  12. [13]
    Upon the patient’s release from custody, the patient lived in the Cairns area, and reported to the local parole office there until 5 October 2016.  Mr Kimpton did not visit the patient in Cairns, nor did he visit her when she was in prison.[11]
  13. [14]
    The patient was ultimately deported to New Zealand.  Mr Kimpton states that he has not contacted the patient in New Zealand.[12]
  14. [15]
    It was in the course of processing an application by the patient for parole on 24 November 2014 that a senior case manager at the Department of Correctional Services contacted Mr Kimpton to assess his suitability to provide accommodation to the patient upon her potential transfer back into the community.  It was during that phone call that Mr Kimpton advised that the patient was his partner and that they had met while he was a nurse and she was a patient, and that he would support her upon her release from prison even if the relationship did not work out.[13]  This conversation led to a notification being made to Mr Kimpton’s employer, and subsequently to the Health Ombudsman.  

The referral

  1. [16]
    The referral alleges that Mr Kimpton engaged in a breach of professional boundary between himself and the patient between 30 May 2012 and 9 April 2016.  The particulars of the referral provide details of the factual matrix but fail to provide details of the commencement of the relationship and to describe the nature of the relationship.
  2. [17]
    The parties filed a statement of agreed facts dated 22 May 2017, as well as an agreed bundle of documents.  The Health Ombudsman filed submissions on 20 July 2017, stating that there were no factual issues in dispute.[14]  It became apparent, upon the filing of Mr Kimpton’s submissions on 4 August 2017, however, that there was a factual dispute between the parties as to when the relationship with the patient commenced, and, in particular, whether the personal relationship began during or upon the cessation of the therapeutic relationship.  Mr Kimpton also disputes the nature of the impugned relationship and aspects of his alleged conduct in his dealings with the patient regarding her discussions with the regulator.

The commencement of the relationship

  1. [18]
    The Health Ombudsman submitted that the Tribunal should find that the boundary violation started on 1 June 2012, being about a month prior to the patient being transferred out of the Park.  This was the date on which a note was made by the patient’s care co-ordinator that the patient had said she was “seeing” a male staff member named Dave”.[15]  The Health Ombudsman stated at the hearing that this was the “best approximation that [it] could come to on the evidence” given that there is no direct evidence of any date for the start of the relationship.[16]  The Health Ombudsman further referred to the fact that Mr Kimpton, in his response to the referral, had never sought to amend the date associated with the charge, which placed the beginning of the relationship as 30 May 2012.  The Health Ombudsman also suggested that the statement of agreed facts placed the beginning of the relationship as 1 June 2012.[17] 
  2. [19]
    There is no express reference in the statement of agreed facts, nor in the referral or the response, however, as to the precise date on which the relationship commenced.  Both documents state that a nursing entry was made on either 30 May 2012[18] or 1 June 2012[19] in the terms outlined above.  At that time, the patient was also recorded as saying that she felt “confused about whether the relationship with the staff member is ‘in her head or is real’”.[20]  Indeed, the Health Ombudsman conceded that the filing of the statement of agreed facts could be an acceptance of the fact that an entry was made by a nurse in the terms stated above, and does not necessarily signify acceptance of the truth of the contents of the record.[21]  This was the position adopted on behalf of Mr Kimpton at hearing.[22]
  3. [20]
    The entry in the patient’s records on 1 June 2012 was not the first entry recording statements made by the patient referring to a male staff member.  The statement of agreed facts refers to an entry made on 21 February 2012.  The entry records that the patient had told the registered nurse that she “has a ‘crush’ on a staff member (male)” but that the patient did not disclose their identity.  The notes of the nurse state “she admitted that ‘it is not real’”.  The patient was also recorded as saying the same things to her father-in-law during a phone conversation from the Park on the same day.[23] 
  4. [21]
    It is further stated in the statement of agreed facts that on a date unknown the patient asked Mr Kimpton out.  It is agreed that Mr Kimpton “advised her that he was not allowed to go out with her as she was a patient and he was a staff member”.[24]
  5. [22]
    The notes made by her treating psychiatrist in relation to a consultation which took place on 27 February 2012 support Mr Kimpton, recording that the patient “has a ‘crush’ on one of the staff ‘over it now’ … Confirmed she had approached the nurse involved, discussed issues of boundaries with patient/staff relationship.  Reviewed rules about relationships with patients”.[25]  
  6. [23]
    On 1 June 2012 the patient was reviewed by her treating psychiatrist and the psychiatric registrar and Mr Kimpton was assigned to another ward from 4 to 7 June 2012 pending an investigation of the statement made by the patient.  Management explained to Mr Kimpton the reason for his removal from the ward to an all-male ward and was reminded about being careful about boundaries with patients.[26]  Mr Kimpton was allowed to return to work in the ward on 10 June 2012.[27] 
  7. [24]
    Mr Kimpton accepts that he gave the patient his personal mobile number prior to her transfer from the Park on 3 July 2012.[28]  His last shift on the ward before the patient’s transfer was the late shift on 1 July 2012.
  8. [25]
    On 12 July 2012, the patient named Mr Kimpton as her primary contact and described her relationship with him as “de facto”.[29]   The patient submitted a transfer application to BWCC on 15 July 2012 on the basis that she wished to be “close to family and partner” and listed the respondent as her partner.[30]  Mr Kimpton was unaware of the statements made in these applications at the relevant time.
  9. [26]
    Counsel for Mr Kimpton, at the oral hearing, conceded the fact that a boundary violation had occurred.  Counsel submitted that “determining the start of an interpersonal relationship based around caring for someone that doesn’t involve physical intimacy”[31] is a difficult task, but that, on the material filed, the date of 1 July 2012 seemed the most likely date given that “that was the first positive step taken by Mr Kimpton that could be said to characterise conduct consistent with an inappropriate relationship”;  there was no other material that went to his conduct before that date.[32] 
  10. [27]
    In response to that submission, the Health Ombudsman’s view was that this was simply one of the events which happened during the course of their relationship, and that the relationship was likely to have started before the mobile telephone number was given.[33]  The Health Ombudsman says that the position adopted by Mr Kimpton was convenient for him, as it absolves him of the more serious conduct of “having entered into a personal relationship whilst the patient was in his care”.[34]
  11. [28]
    In submissions, counsel for Mr Kimpton described the “continuum” of the relationship;  based on the material, it is evident that the patient had a “crush” on the respondent at a certain point in time and that she then asked him out when she was still a patient to which he told her that that was inappropriate.  It was submitted on behalf of Mr Kimpton that the patient and Mr Kimpton were known to one another, and that there may have been discussions as to the nature of her feelings for him.  However, Mr Kimpton stated that the provision of his phone number was the “crystallisation” of the commencement of the personal relationship, and that this could only have happened on his last shift at the Park whilst she was still a patient, being 1 July 2012. 
  12. [29]
    The Health Ombudsman further submitted that the date proposed by Mr Kimpton does not accord with evidence obtained through the phone calls between Mr Kimpton and the patient.  It was submitted that the phone calls demonstrated a level of intimacy consistent with their having been in a relationship which had begun whilst the patient was at the Park, which was “very likely” to have been “as early as 1 June 2012” when the patient had said she was “seeing a staff member”.[35]
  13. [30]
    In support of that submission, the Health Ombudsman referred to the first phone call which occurred between Mr Kimpton and the patient on 12 July 2012.  Reference was made to statements made in that phone call.  In particular, emphasis was placed on the fact that Mr Kimpton began the phone call with “hey baby” and also that the words “I love you” and “I miss you” were exchanged. 
  14. [31]
    The Health Ombudsman also relied on several other conversations which took place on 12 and 13 July 2012, during which the patient and Mr Kimpton spoke about:  the patient having applied for a transfer to Brisbane; whether Mr Kimpton could pick up some of her things from the BWCC and keep them for her, and Mr Kimpton’s son and his girlfriend.  During these conversations, Mr Kimpton had told the patient to keep their relationship “a little bit low key” because he “got into trouble a little while ago”.[36]  The Health Ombudsman submitted that these discussions indicated a pre-established relationship.[37]
  15. [32]
    It is the important to view the phone calls in the context in which they occurred; it is not in dispute that, at the time the phone calls were made, a personal relationship had commenced between the respondent and the patient.  The Tribunal considers that it is difficult to draw any inferences as to the start date of the relationship based on the content of the telephone discussions. 
  16. [33]
    In disciplinary proceedings, it is well established that the regulator bears the civil onus of proof, on the Briginshaw standard.[38]  As Dixon J said, “…‘reasonable satisfaction’, should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[39]
  17. [34]
    The Tribunal does not accept that the comments made during the telephone discussions prove, of themselves, that a personal relationship had commenced at any stage during the therapeutic relationship.
  18. [35]
    There is nothing in the content of the discussions themselves to which the Health Ombudsman has referred which satisfies the Tribunal to the requisite civil standard that the relationship began prior to July 2012. 
  19. [36]
    The Tribunal finds that the boundary violation occurred on or around 1 July 2012, when Mr Kimpton provided his personal contact details to the patient. 

The OHO’s investigation

  1. [37]
    On 31 July 2015, the patient and Mr Kimpton were notified separately that an investigation was being undertaken in relation to Mr Kimpton’s personal relationship with the patient.  They were each required to provide them with certain information.
  2. [38]
    The patient provided a written response on 14 August 2015 in relation to an Information Requirement Notice (the Notice) issued under the HO Act, and participated in a record of interview with two investigators from the Office of the Health Ombudsman (OHO) on 23 December 2015. 
  3. [39]
    Her response to the Notice provides that she met Mr Kimpton at the Park when he was a nurse;  that she was currently in a personal relationship with him, and that she had never engaged in a sexual relationship with him.  She stated that she had maintained contact with him since being transferred to TWCC, and that he deposited money into her trust account at the facility.
  4. [40]
    After providing her response to the Notice, and upon being requested to attend at a further interview with investigators, the patient expressed a view to Mr Kimpton that “she had already told [the OHO] everything and that she didn’t want to do it”.[40]  Mr Kimpton stated that he couldn’t give her advice, that she might be able to get advice from Legal Aid, that he couldn’t tell her what to do and if she didn’t want to do it to tell the OHO that she didn’t want to do it.[41]
  5. [41]
    In a phone call four days later, Mr Kimpton says he had changed his mind and felt he could give her advice, he told her that he thought the OHO was trying to intimidate her with the threat of a $10,000 fine and that she should not help them.  Mr Kimpton had said he thought it was “sort of bullying tactic” and he agreed with her when she said she would just ignore it. The patient participated in a further interview with the OHO two days later.
  6. [42]
    The Health Ombudsman refers to those discussions between the patient and Mr Kimpton and says that Mr Kimpton had told the patient not to help the Health Ombudsman and “it was inappropriate for him to have done it”. The Health Ombudsman submitted that the tribunal should find that this is evidence of Mr Kimpton’s failure to fully accept the extent of his conduct and is further evidence of his lack of insight and remorse.
  7. [43]
    On behalf of Mr Kimpton it is said that these statements to the patient must be viewed in the context of the whole of the conversations, and should be interpreted as him giving support to the patient, rather than as telling her not to help the regulator.  In the context of the whole conversations, it was submitted it could not be said that Mr Kimpton was attempting to pressure her.
  8. [44]
    In the context of their relationship and discussions as a whole, the Tribunal does not accept the Health Ombudsman’s position that Mr Kimpton had improper motives, nor that the conversations are evidence of lack of insight and remorse. 

Categorisation of the conduct

  1. [45]
    In respect of the charge, it was said that Mr Kimpton’s conduct amounted to
    “professional misconduct”.  In the referral, it was alleged that the conduct in respect of the charge fell within sub-paragraphs (a) and (c) of the definition under s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law), being:

(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. (c)
    conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
  1. [46]
    In the alternative, it was said that the conduct fell within the meaning of “unprofessional conduct” under s 5 of the National Law, which is defined as:

professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peer.

  1. [47]
    In the separate submissions filed by each party, it was accepted by each that the Tribunal would find professional misconduct in respect of the charge.
  2. [48]
    Whilst the relationship never became physically intimate, given the vulnerability of the patient, there remained a power imbalance.  The Tribunal accepts the importance of strictly enforcing ethical professional rules.  Whilst the relationship was clearly a supportive one and there is no evidence of the patient being adversely affected by the conduct, the Tribunal accepts such conduct cannot be condoned.
  3. [49]
    Given the circumstances and the parties’ agreed position, the Tribunal accepts the conduct could be labelled professional misconduct but the conduct must be regarded as being at the lower end of the spectrum of professional misconduct.

Sanction

  1. [50]
    Given the finding that Mr Kimpton’s conduct amounts to professional misconduct, the Tribunal must determine the appropriate sanction to be imposed.
  2. [51]
    The Health Ombudsman submitted that the appropriate sanction was suspension for a period of between 12 to 18 months.   On behalf of Mr Kimpton, it was submitted that the imposition of a suspension does not necessarily flow from a finding of professional misconduct and would have the effect of being punitive, not protective.
  3. [52]
    The submissions on behalf of the Health Ombudsman assumed the factual disputes would be determined against Mr Kimpton.  The position of the Health Ombudsman was that, if the Tribunal found that the relationship started after the treating relationship had finished, Mr Kimpton should still be subject to a suspension but for a lesser period.

Submissions by the Health Ombudsman 

  1. [53]
    The Health Ombudsman submitted that Mr Kimpton was a mature and experienced mental health nurse with some 23 years of practical experience in dealing with vulnerable patients, and should have known better than to commence a personal relationship with a patient.  This, the Health Ombudsman stated, was particularly so given that Mr Kimpton had been reminded, during his care of this patient, to be mindful of professional boundaries with patients. 
  2. [54]
    The Health Ombudsman submitted that Mr Kimpton ignored that warning completely, and that the Tribunal should view this as “nothing less than a deliberate and ongoing breach of his professional responsibilities”.[42] It was further submitted by the Health Ombudsman that specific deterrence was a relevant consideration for the tribunal, given that Mr Kimpton had entered into the relationship despite this warning.
  3. [55]
    The Health Ombudsman also stated that Mr Kimpton failed to terminate the relationship upon it being investigated, and that the lack of physical intimacy in the relationship was a result of the circumstances which Mr Kimpton and the patient found themselves, rather than “any particular restraint on the part of the respondent”.[43]
  4. [56]
    The Health Ombudsman referred to the patient’s vulnerabilities, as well as the power imbalance between the patient and Mr Kimpton, as aggravating features of the conduct. 
  5. [57]
    The Health Ombudsman submitted that insight on the part of Mr Kimpton was completely lacking, given that the relationship had continued for a significant period and continued after the investigation by the Health Ombudsman had started and only ended when the patient was deported. 

Submissions for Mr Kimpton

  1. [58]
    Mr Kimpton’s counsel made submissions that Mr Kimpton had demonstrated real insight into his conduct in his preparedness to resolve the matter without a contested hearing on the facts and in his voluntary attendance and completion of a professional boundary course.
  2. [59]
    Counsel referred to the fact that Mr Kimpton accepted the patient was vulnerable, that there was a power differential and that differential continued after the therapeutic relationship ended.  Mr Kimpton conceded that this element rendered the relationship inappropriate.  It was acknowledged by both parties that in his role at WHHS he had not previously received any training in relation to issues as to professional boundaries.
  3. [60]
    Counsel for Mr Kimpton emphasised the supportive nature of the relationship, the fact that the patient was not the complainant and that there had never been any suggestion the patient had been adversely affected.  Counsel referred to the nature of the relationship absent any allegation of physical contact and said it must be treated at the lowest, less serious end.
  4. [61]
    In terms of Mr Kimpton’s level of co-operation, the Health Ombudsman submitted in reply, that Mr Kimpton’s position was “somewhat disingenuous”[44] given that there had been a factual dispute that the Health Ombudsman seemed unaware of until the matter was due to be heard.  The Health Ombudsman stated that Mr Kimpton had not conducted the proceedings “in a way that could be described as completely cooperative”.[45] 
  5. [62]
    The Health Ombudsman also submitted that, whilst it was a factor which ought to weigh in Mr Kimpton’s favour, the completion of the professional boundaries course had occurred “at too late a stage to be a genuine indication of insight or remorse by the respondent”.[46]  The course had been completed over two days on 29 and 30 June 2017.

Comparative cases

  1. [63]
    In support of its submission, the Health Ombudsman referred to the cases of Nursing and Midwifery Board of Australia v Clydesdale,[47] Nursing and Midwifery Board of Australia v Tainton[48] and Nursing and Midwifery Board of Australia v Heather.[49]
  2. [64]
    In Clydesdale, the practitioner was a registered nurse in a psychiatric emergency department at a hospital.  The patient involved had reported to the hospital in a suicidal state, but was released by the psychiatric registrar on the same date of his admission.  The practitioner gave the patient his mobile number prior to his discharge and they formed a personal relationship which lasted approximately six months.  They telephoned and met up with one another on several occasions, with the practitioner often giving the patient gifts.  The practitioner and patient went away on weekends together, and the practitioner also supplied prescription medication to the patient which he had taken from his employers. 
  3. [65]
    The patient had given evidence in relation to criminal proceedings involving Mr Clydesdale that there had never been any sexual advances made by Mr Clydesdale, and the tribunal rejected any suggestion that the practitioner was grooming the patient with a view to a sexual relationship.  There was, however, medical evidence of unresolved psychological issues, including a suggestion of a possible diagnosis of personality disorder and the existence of countertransference issues between the practitioner and the patient which stemmed from Mr Clydesdale’s identification of the patient with his deceased brother.    
  4. [66]
    The practitioner had been suspended for over five years at the time the tribunal’s decision was handed down.  He was reprimanded and precluded from re-applying for registration for 12 months and until he had satisfied a number of conditions imposed.  The decision was impacted by the evidence before the tribunal regarding the health of the practitioner.  The circumstances are so different that the Tribunal considers little useful guidance can be found from the decision in Clydesdale.
  5. [67]
    Tainton is a case involving a boundary violation, characterised as a platonic relationship, between a registered nurse and a patient where a finding of professional misconduct was made.  The nurse worked in the medical centre at a correctional centre and the patient involved was an inmate who had been sentenced to life imprisonment for murder.[50]  He presented at the medical centre on a day where the prison psychologist was unavailable, and it was arranged between the practitioner and the prisoner that the prisoner would call her on a friend’s phone and refer to her by a different name.[51]  Over the course of a month, the practitioner and the prisoner spoke 31 times over the phone and exchanged five letters.  The relationship was described as “a subdued one” and “platonic”.[52]  Despite the absence of physical intimacy between them, there were expressions of affection and love.
  6. [68]
    Of relevance in that case was the practitioner’s vulnerable state at the time of the conduct, as she was separating from a difficult personal relationship spanning some 12 years.  She also accepted that a finding of professional misconduct was appropriate.  The tribunal reprimanded the practitioner and precluded her from re-applying for registration for three months from the date of the order. 
  7. [69]
    Mr Kimpton’s counsel sought to distinguish the circumstances of Tainton and those of Mr Kimpton by stating that the inappropriate relationship in Tainton occurred while the nurse and patient were located at the same place.  It was said that this involved a “high level of subterfuge” on behalf of the practitioner, thereby rendering the conduct more serious. 
  8. [70]
    At the time of the decision, Ms Tainton was not a registered practitioner and there are no statements in the decision as to her current circumstances.  There is reference to the Board seeking conditions requiring the submissions of records as to her fitness to practice.  The circumstances surrounding the voluntary surrender of her registration, after the Board brought the conduct to her attention, are unclear with the tribunal commenting that the “nature and effect of this procedure was not elaborated”.  There was reference to her being in an “abnormal state” at the time of the misconduct. 
  9. [71]
    In those circumstances, it is difficult to draw any real analogy between the two cases.
  10. [72]
    Heather involved a sexual boundary violation between a registered nurse who worked within a mental health unit of a hospital and a patient of that mental health unit.  The practitioner, as well as the staff who worked in his unit, had been warned of the need to maintain professional boundaries with that patient;  the patient had a background of sustained eating disorder and depression, she had been the victim of incest and been diagnosed as suffering from a borderline personality disorder which led her to believe that relationships must be sexualised in order for her to feel self-worth.[53] 
  11. [73]
    The practitioner commenced an unauthorised counselling relationship with the patient, taking care that the relationship was not discovered.  He was further personally warned to observe professional boundaries upon it being noted that he had formed a close connection with her.  The relationship became personal, and eventually, physical.  The practitioner also attempted to persuade the patient to give false evidence to those investigating the conduct.  The relationship occurred entirely within the bounds of the nurse-patient relationship.[54]
  12. [74]
    The tribunal found that the conduct of Mr Heather brought discredit on him as a nurse, and had the capacity to lower public confidence in the profession as a whole.  It was stated that: “Mr Heather’s conduct places him outside the company of practitioners who can be trusted to care for the especially vulnerable.”[55] The practitioner was precluded from re-applying for registration for a period of 2.5 years, with the requirement also that he complete a course on maintaining professional boundaries.  There were also conditions imposed on his future registration prohibiting the practitioner from working as a nurse in a mental health setting. 
  13. [75]
    The Health Ombudsman relies on this case as an example of conduct exhibiting a “lack of judgment and care in nursing practice”[56] in circumstances where the practitioner had disregarded specific warnings about the need to observe boundaries with a patient.
  14. [76]
    Counsel for Mr Kimpton submitted that Heather can be distinguished from Mr Kimpton’s circumstances.  Mr Heather had exploited the nurse-patient relationship, and further, was treating the patient at the time he commenced a sexual relationship with her.  It was submitted that the particular vulnerabilities of the patient in Heather and the practitioner’s conduct in that case were more serious than Mr Kimpton’s impugned conduct.[57]  The Tribunal accepts the circumstances are very different.
  15. [77]
    In addition to the three cases referred to by the Health Ombudsman, on behalf of Mr Kimpton reference was made to Psychology Board of Australia v Wakelin.[58]  In Wakelin, a psychologist commenced a sexual relationship with a former patient upon the cessation of the therapeutic relationship.  The practitioner also denied the existence of the relationship to investigators, and made false statements.  It was proposed by both parties in Wakelin that the appropriate sanction was a suspension from practice for 18 months.  The Hon J B Thomas stated that a suspension of six to 12 months might have been suitable, but that the additional deceptive conduct justified a suspension in the vicinity of 18 months, and an order was made in those terms. 
  16. [78]
    This case is distinguishable on the basis, as submitted on behalf of Mr Kimpton, that the practitioner in Wakelin was a psychologist who had been in a one-on-one treating relationship with the patient, with greater influence and decision-making power over that patient.  There was also a level of deception in Wakelin which has not been found by the Tribunal on the facts here.

Discussion

  1. [79]
    In imposing any sanction, the guiding principle for the Tribunal is that the health and safety of the public are paramount.[59]  The jurisdiction is protective, not punitive.[60]  The Tribunal must consider issues of personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence in the profession.[61]
  2. [80]
    The Health Ombudsman, in contending for a period of suspension of Mr Kimpton’s registration, referred to there being a need for both specific and general deterrence.  The Health Ombudsman does not consider Mr Kimpton to have shown insight or remorse.
  3. [81]
    The Tribunal does not accept the submissions of the Health Ombudsman that Mr Kimpton lacks insight and of there being a continuing need for specific deterrence.  Mr Kimpton has accepted that “there was a power differential in his favour that survived the woman ceasing to be a patient at the Park”.[62]  Mr Kimpton has accepted that rendered the relationship inappropriate and accepted in these proceedings a finding of “professional misconduct”.
  4. [82]
    It is the Tribunal’s view that Mr Kimpton should be regarded as having co-operated throughout the investigation and these proceedings.  His admissions have enabled the matter to proceed without a contested hearing on the facts.  The Tribunal does not accept any adverse inferences are permitted arising from the factual dispute which remained as to the commencement date of the relationship.  The Tribunal does not accept that it could be said Mr Kimpton in disputing the commencement date of the relationship had resiled from a position previously agreed.  In any event, that dispute has been determined in his favour.
  5. [83]
    The Tribunal considers that it is unfair to submit that “Mr Kimpton has not conducted the proceeding in a way that could be described as completely co-operative”.[63]
  6. [84]
    Mr Kimpton has had no prior adverse disciplinary appearances or orders over his now 30-year nursing career, and there have been no further incidents since this offending conduct.  Whilst Mr Kimpton had received no specific training from his employer in relation to ethics and professional boundaries, since this offending, he has taken steps to reinforce and improve his understanding of professional boundaries.  In June 2017, he completed a two-day educational program on the maintenance of professional boundaries.
  7. [85]
    Notwithstanding the accepted 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 the relationship was a completely supportive one.  In the interview with officers of the OHO, the patient in referring to the expressions of love, referred to the fact that “we actually care for each other”.  In the interview, in describing the thought of spending time with Mr Kimpton, the patient said it made her “happy”.  When asked why, the patient responded, “Because someone actually cares”.
  8. [86]
    The personal relationship was not a sexual one and Mr Kimpton’s conduct could not be described as exploitative.  The Tribunal has found that the personal relationship commenced after the treating relationship had ceased.  In those circumstances, the Tribunal does not accept the continuance of that relationship after the investigation by the Health Ombudsman commenced, which was some two years after the personal relationship started, can be said to be evidence of Mr Kimpton’s complete lack of insight.
  9. [87]
    Mr Kimpton’s conduct in these proceedings, otherwise unblemished career, insight together with the nature of the relationship are all mitigating factors to which the Tribunal must appropriately have regard.  They remove the need for specific deterrence and, in all the circumstances, the Tribunal does not consider that the need for general deterrence could justify suspension.  The Tribunal considers that the finding of professional misconduct together with a reprimand amounts to a public denunciation of Mr Kimpton’s conduct.  As the Tribunal has previously commented, a reprimand is not a trivial sanction.[64]  The making of a reprimand of a practitioner by the Tribunal is recorded on the public register of practitioners.[65]
  10. [88]
    The Tribunal is satisfied the making of a finding of professional misconduct and the giving of a public reprimand of Mr Kimpton satisfies the applicable disciplinary objectives and, in particular, the necessary aim of deterrence.

Costs

  1. [89]
    Pursuant to s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the starting position is that each party must bear its own costs.  Section 102(1) of the QCAT Act provides that the Tribunal may make a costs order if required in the interests of justice.  Section 102(3) sets out the matters to which the Tribunal may have regard in considering whether the interests of justice require an order for costs, including conduct unnecessarily disadvantaging another party, the nature and complexity of the dispute, the relative strengths of the claims made by each party, the financial circumstances of the parties and anything else the Tribunal considers relevant.
  2. [90]
    The question for the Tribunal has been formulated as:

whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.[66]

  1. [91]
    In Medical Board of Australia v Wong, the Court of Appeal framed the question as whether there is “a basis for departing from the default position”.[67] 
  2. [92]
    In making an application for costs, the Health Ombudsman submitted that the nature and objectives of the disciplinary jurisdiction favour an award of costs to a regulator.  The Health Ombudsman submits that the costs of disciplinary proceedings brought by the Health Ombudsman, like that of the professional boards, remain funded by registrants.  It is said the objective of the proceedings are the protection of the public and the maintenance of confidence in the profession.  Given that the proceedings were properly brought against an erring practitioner, it is said the objective favours the making of a costs order.  Further, the Health Ombudsman maintains that Mr Kimpton has not conducted the proceeding in a way that could be described as completely cooperative.
  3. [93]
    In response to the submissions made by the Health Ombudsman, on behalf of Mr Kimpton, it was submitted that the ordinary position of costs in Tribunal proceedings is not altered by the interests of justice in this case and each party should bear their own costs.
  4. [94]
    On behalf of Mr Kimpton, relying on the decision of the Tribunal in the Health Ombudsman v Antley,[68] it was submitted that the Health Ombudsman is not entitled to costs by virtue of his identity and that the interests of justice must be discretely considered in each matter.  It was said it is unreasonable, as was submitted by the Health Ombudsman, to suggest that Mr Kimpton’s conduct disentitles him to the ordinary position on costs and entitles the Health Ombudsman to its costs.
  5. [95]
    The Tribunal is not satisfied that on the facts of this case the interests of justice require the making of an order for costs.  The Tribunal rejects the submission that because the Health Ombudsman is a regulatory authority and must bring the proceedings, it is entitled to its costs.  Such a submission is inconsistent with s 102 and the reasons and decision of the Court of Appeal in Wong.[69] 
  6. [96]
    The Tribunal accepts that the position of the Health Ombudsman is obviously a factor to be considered by the Tribunal in the exercise of its discretion, but it can be put no higher than that.  Further, the Tribunal does not accept the conduct of Mr Kimpton can be viewed as a factor in favour of the making of an award.  The Tribunal does not consider that Mr Kimpton’s conduct should be viewed as other than completely cooperative, particularly where the Tribunal has found in his favour in respect of the factual dispute.
  7. [97]
    Given the making of an application for costs, it is appropriate that an order be made that the parties must each bear their own costs for the proceedings so as to signify the application has been determined.

Orders

  1. [98]
    The Tribunal makes the following orders:
  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds Mr Kimpton has behaved in a way that constitutes professional misconduct.
  1. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), Mr Kimpton is reprimanded.
  2. The parties must pay their own costs of these proceedings.

Footnotes

[1] Statement of agreed facts, [14].

[2] Statement of agreed facts, [12].

[3] Statement of agreed facts, [10].

[4] Statement of agreed facts, [18].

[5] Statement of agreed facts, [18]; Respondent’s submissions, [7].

[6] Statement of agreed facts, [17].

[7] Statement of agreed facts, [43].

[8] Applicant’s submissions, [31].

[9] Agreed bundle of documents, Notification form dated 24 December 2014.

[10] Statement of agreed facts, [73].

[11] Applicant’s submissions, [31];  Transcript of Proceedings, Health Ombudsman v Kimpton (Queensland Civil and Administrative Tribunal, OCR020-17, Judge Sheridan, 15 February 2018) T1-17, l44 (Transcript of Proceedings).

[12] Applicant’s submissions, [24].

[13] Statement of agreed facts, [49].

[14] Applicant’s submissions, [15].

[15] Statement of agreed facts, [34]; Referral, [1.2].

[16] Transcript of Proceedings, T1-3, ll31.

[17] Applicant’s submissions in reply, [3]-[4].

[18] Statement of agreed facts, [34].

[19] Referral, [1.2].

[20] Statement of agreed facts, [34].

[21] Transcript of Proceedings, T1-8, ll21.

[22] Transcript of Proceedings, T1-18, l11.

[23] Statement of agreed facts, [26].

[24] Statement of agreed facts, [27].

[25] Statement of agreed facts, [30]. 

[26] Statement of agreed facts, [35].

[27] Statement of agreed facts, [36].

[28] Statement of agreed facts, [38].

[29] Statement of agreed facts, [40]. 

[30] Statement of agreed facts, [45]-[46].

[31] Transcript of Proceedings, T1-17, l3-5

[32] Transcript of Proceedings, T1-16, l42

[33] Transcript of Proceedings, T1-4, ll35-38.

[34] Applicant’s submissions in reply, [8(b)].

[35] Applicant’s submissions in reply, [10]. 

[36] Applicant’s submissions in reply, [12].

[37] Transcript of Proceedings, T1-13, ll25ff.

[38] Briginshaw v Briginshaw (1938) 60 CLR 336.

[39] Ibid, 362. 

[40] Statement of agreed facts, [65].

[41] Ibid.

[42] Applicant’s submissions, [29].

[43] Applicant’s submissions, [31].

[44] Applicant’s submissions in reply, [23].

[45] Applicant’s submissions in reply, [42].

[46] Applicant’s submissions, [50].

[47] [2013] QCAT 191 (Clydesdale).

[48] [2014] QCAT 161 (Tainton).

[49] [2010] QCAT 423 (Heather).

[50] [2014] QCAT 161, [11].

[51] [2014] QCAT 161, [12].

[52] [2014] QCAT 161, [22].

[53] [2010] QCAT 423, [6].

[54] [2010] QCAT 423, [26].

[55] [2010] QCAT 423, [29].

[56] [2010] QCAT 423, [19]; Applicant’s submissions [40].

[57] Respondent’s submissions, [23].

[58] [2014] QCAT 516 (Wakelin).

[59] HO Act, s 4(1). 

[60] Clyne v NSW Bar Association (1960) 104 CLR 116; NSW Bar Association v Evatt (1968) 117 CLR 177, 183; Medical Board of Australia v Dolar [2012] QCAT 271, [30].   

[61] HCCC v King [2013] NSWMT 9, [33].

[62] Respondent’s submissions, [15].

[63] Applicant’s submissions in reply, [42].

[64] Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria Practice Court, Marks J, 19 January 1994); Medical Board of Australia v Jones [2012] QCAT 362, [14]. 

[65] National Law, s 225.

[66] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [29].

[67] [2017] QCA 42, [35] (Wong).

[68] [2016] QCAT 472.

[69] [2017] QCA 42.

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v David Paul Kimpton

  • Shortened Case Name:

    Health Ombudsman v Kimpton

  • MNC:

    [2018] QCAT 405

  • Court:

    QCAT

  • Judge(s):

    Sheridan DCJ

  • Date:

    07 Dec 2018

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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