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- Unreported Judgment
Health Ombudsman v HSK QCAT 419
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v HSK  QCAT 419
Occupational regulation matters
19 December 2018
12 December 2018
Judge Sheridan, Deputy President
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – where the respondent nurse engaged in boundary violations with two former patients – where the respondent was suffering from an unmanaged mental health condition at the time of the misconduct – where the respondent made full admissions and fully cooperated in the investigation and proceedings – where the respondent admitted professional misconduct – where the respondent was subject to conditions following immediate action imposed by the Health Ombudsman and subsequent investigations by the Nursing and Midwifery Board – where further ethical training and psychotherapy undertaken voluntarily by the respondent – where the parties have an agreed position on sanction – whether the sanction proposed is appropriate
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
Nursing and Midwifery Board of Australia v Evans  QCAT 77
Peeke v Medical Board of Victoria  VicSC 7
APPEARANCES & REPRESENTATION:
M Price for the Office of the Health Ombudsman
J Allen QC instructed by Hall Payne Lawyers
REASONS FOR DECISION
- On 31 January 2018, the Health Ombudsman referred to the Queensland Civil and Administrative Tribunal disciplinary proceedings against the respondent pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) (the referral proceedings).
- These proceedings progressed through the tribunal with related review proceedings (the review proceedings) filed in the tribunal by the respondent on 20 July 2018. In those proceedings, the respondent had applied for review of a decision of the Nursing and Midwifery Board of Australia (Board) to impose conditions on her registration after she was assessed as having a health impairment. An order was sought to set aside the decision of the Board.
- The tribunal in these proceedings is asked only to deal with the conduct aspect of the matter.
- The primary offending conduct relates to boundary violations which occurred over the space of three days in relation to two former patients of the respondent.
- There are no factual issues in dispute between the parties, and the matter proceeded before the tribunal by way of a statement of agreed facts and joint submissions on sanction.
- The referral alleges that the respondent engaged in two instances of conduct constituting a breach of professional boundaries between herself and two patients (patient AB and patient BC) between 18 November 2016 and 20 to 21 November 2016. It was the background circumstances relating to the conduct the subject of those charges which ultimately led to a finding of impairment by the Board and the subsequent imposition of conditions on her registration.
- The Tribunal gave its reasons in the review proceedings on 19 December 2019, and relies on the factual narrative as set out in that decision insofar as it is outlines the relevant personal circumstances of the respondent which led to the offending conduct.
- Patient BC was a patient of the acute mental health unit (the unit) at the hospital in which the respondent worked as a registered nurse. The respondent’s therapeutic relationship with Patient BC spanned from 20 September 2016 to 13 October 2016.
- Patient AB was also a patient in the unit on various occasions between August 2016 and November 2016. He had been admitted to the unit after a siege situation, in which he attempted to self-harm and expressed suicidal ideations. On at least six occasions during this time, the respondent was assigned to the care of Patient AB.
- On or before 18 November 2016, the respondent obtained Patient BC’s telephone number.
- On 18 November 2016, the respondent saw patients AB and BC in a smoking area at the hospital. Patient AB had been released from hospital that day, and Patient BC had been at the hospital visiting him. A conversation occurred between the three of them, during which the respondent was invited to Patient BC’s house that evening for a drink. Later that evening, the respondent went to Patient BC’s house, where Patient AB was also present. They all consumed drinks together.
- On 19 November 2016, the respondent went back to Patient BC’s house, where she stayed for the day and night. Patient AB was also present. The respondent stayed overnight at Patient BC’s house and engaged in sexual intercourse with Patient AB.
- On 20 November 2016, Patient AB went back to the respondent’s house. They spent the day together, and in the evening went to bed together. It was not alleged that there was any sexual contact on this occasion. The respondent’s house mate called one of the nurses at the unit and advised that a patient of the unit was at her residence. A supervisor of the unit subsequently attended at the residence with the nurse who had been contacted by the respondent’s house mate to ensure that the patient was removed from the house.
- When the supervisor arrived at the house, the respondent admitted to her that Patient AB was in her room and that they had engaged in sexual intercourse.
- The relationship with Patient AB ended that night, and the respondent has not seen Patient AB since that time.
- The conduct insofar as it relates to Patient AB is the conduct the subject of charge 1, and the conduct insofar as it relates to Patient BC is the conduct the subject of charge 2.
Categorisation of conduct
- It was jointly submitted that the respondent’s conduct amounts to professional misconduct as defined under s 5 of the National Law.
- Conduct involving boundary violations between a health practitioner and a patient is completely unacceptable and satisfies the definition of professional misconduct in s 5 of the Health Practitioner Regulation National Law (Queensland). The respondent has admitted her conduct amounted to professional misconduct. That admission is appropriately made.
- Having found that the respondent’s conduct amounts to professional misconduct, the Tribunal must decide the appropriate sanction to be imposed in accordance with s 107 of the HO Act.
- The parties submit that the appropriate order is that the respondent be reprimanded.
- Where a proposed sanction is agreed by the parties, as in the present case, the tribunal should be slow to depart from the parties’ joint position, unless it falls outside of the permissible range of sanction for the conduct.
- The Tribunal must consider issues of personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence in the profession.
Approach to sanction
- In the parties’ joint submissions, the parties refer to the vulnerabilities of Patients AB and BC, and the power imbalance inherent in the therapeutic relationship between nurse and patient. Of particular relevance is the fact that both patients were patients of the acute mental health ward, which, it was submitted, places the patients in a particularly vulnerable class. Reference was made to the fact that Patient AB had been released from hospital on the same day the boundary violation occurred. The Tribunal accepts that the patients were vulnerable patients, and that the breach of professional boundaries was particularly serious in those circumstances.
- The conduct of the respondent cannot be viewed in a vacuum, and this is appropriately acknowledged in the parties’ joint submissions where the parties refer to the respondent’s longstanding mental health issues.
- The parties referred to the case of Nursing and Midwifery Board of Australia v Evans as an example of a case involving a boundary violation where the practitioner’s conduct was found by the tribunal to have occurred at a time when the practitioner’s judgment was impaired due to mental illness. The parties submitted that the conduct in Evans was similar to the respondent’s conduct, on the basis that Mr Evans had suffered from a mental illness that “severely impaired his insight and judgment at the time of offending”.
- It was submitted that this was similar to the respondent’s circumstances in that she had ceased her antidepressant medication within the two weeks prior to the boundary violations, and had experienced significant family and personal stressors at the time of the misconduct. This was not offered as an excuse for the behaviour of the respondent, nor was it submitted that the respondent was impaired at the time of the conduct. It was submitted, however, that those circumstances may in part have explained her own vulnerability and subsequent poor decision making resulting in the misconduct.
- The tribunal in Evans also noted that “the existence of a psychiatric disorder does not excuse conduct which takes on the character of unsatisfactory professional conduct or professional misconduct”, but that it may be taken into account in mitigation.
- The tribunal accepts that the respondent’s mental health conditions, on top of the stressors she was experiencing at the time, go some way in explaining the conduct, though do not excuse her conduct.
- The parties also referred to the fact that, in Evans, there was no evidence that the relationship caused emotional or psychological harm to the patient. It was submitted that, similarly, there is no evidence of harm of either Patients AB or BC in the current proceedings. It was also not submitted that the behaviour of the respondent could be described as predatory or exploitative.
- The parties submitted that the respondent has shown considerable insight, both in relation to her conduct and to the importance of the management and control of her mental health. From the very outset, the respondent entirely accepted that her conduct was unacceptable. She appropriately made full admissions. Almost immediately after the events the subject of the referral, she commenced private psychological counselling in relation to the boundary violation of her own volition, and in a report of her treating psychologist dated 17 January 2017, it was stated that:
…[the respondent] appears to take full responsibility for her behaviour and at no point has made excuses for herself or lay the blame elsewhere. She appears to have good insight into her behaviour and the actual and potential consequences for her actions for herself and others.
- The parties also submitted, and it is accepted by the tribunal, that she continues to manage her health condition with the appropriate medication and psychological support. This has included, relevantly, attending upon general practitioners and psychologists at regular intervals for the purpose of complying with the Board’s conditions on her registration.
- In relation to the respondent’s insight and remorse, it was further submitted that the respondent has “taken significant steps to undertake further education regarding professional boundaries and reflect on the importance of maintaining boundaries in her nursing practise”. On 16 and 17 February 2017, the respondent completed an education plan titled Professional Boundaries with Davaar Consultancy. The parties refer in their joint submissions to the fact that the respondent has been working as an assistant-in-nursing, and has been applying the skills she has learned in that setting. This further education and training has been undertaken at the respondent’s “own initiative and at considerable personal expense”.
- The parties refer to the fact that there has been a two-year delay between the occurrence of the boundary violations and the matter coming before the tribunal. It is submitted that the tribunal may benefit from this delay in being able to view the respondent’s conduct post the incident, and that, in the circumstances, the need for specific deterrence in relation to the respondent is diminished.
- Reference was made to the fact that the respondent has complied with the Board’s conditions on her registration as outlined above, and has had no further transgressions.
- A matter arose at the hearing of this matter in relation to the parties’ joint submissions as to the appropriateness of the imposition of a reprimand. It had been submitted that the sanction was sufficient for a number of reasons, one of which being that:
…the respondent continues to be subject to the conditions that the Board imposed on her registration about her health impairment and her fitness to practise, thereby ensuring that any risk that the practitioner’s health impairment may pose to the public, is managed.
- The applicant confirmed that it was their position that, if the tribunal found that the respondent did not have an impairment in the review proceedings, the risk referred to in that submission fell away and that the conditions referred to would not be required.
- The respondent has accepted that her conduct amounts to professional misconduct. She has shown honesty and cooperation throughout her interactions with the Health Ombudsman in relation to these disciplinary proceedings; she has cooperated with her employer, who commenced their own disciplinary action against the respondent, as well as with AHPRA in relation to their own investigations.
- Throughout this period, the respondent has shown herself to be a resilient and perseverant young woman with a strong passion for nursing. This passion has withstood the uncertainty surrounding her ability to practice in the future as a registered nurse. She has demonstrated insight into her conduct and a capacity to remain positive, recognise weaknesses and put in place appropriate strategies to work through and manage difficult situations.
- The parties submitted, and it is accepted, that the respondent was young, inexperienced and suffering from an unmanaged mental health condition at the time the misconduct occurred. These factors, and the practitioner’s lack of understanding of the importance of maintaining professional boundaries in a professional context, culminated in the unfortunate conduct the subject of these proceedings.
- Having regard to the level of insight demonstrated since the events the subject of this referral the tribunal is satisfied that the respondent is unlikely to make the same transgressions, and does not pose a risk to the health and safety of the public.
- The conduct involved in these proceedings is serious, and must be denounced. The respondent will be reprimanded. A reprimand is not a trivial penalty. As observed by Marks J in Peeke v Medical Board of Victoria, “a reprimand, to a professional person, has a potential for serious adverse implications”. It is a matter of public record affecting the reputation of the practitioner. It has been recognised that the reprimanding of a registrant is a public denunciation of the registrant’s conduct.
- The Tribunal is satisfied that the sanction proposed falls within an appropriate range, and serves the purpose of disciplinary proceedings.
- Accordingly, the Tribunal orders that:
- Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds HSK has behaved in a way that constitutes professional misconduct.
- Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), HSK is reprimanded.
- Each party bears their own costs.
 In relation to charge 1, the dates were between 18 November 2016 to 21 November 2016; in relation to charge 2, the dates were 18 November 2016 to 20 November 2016.
 Medical Board of Australia v Martin  QCAT 376, .
 HO Act, s 4(1).
 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  QCAT 271, .
 HCCC v King  NSWMT 9, .
  QCAT 77.
 Joint submissions, .
  QCAT 77, , citing Legal Services Commissioner v Yarwood  QCAT 208 at .
 Joint submissions, [38(e)].
 Joint submissions, .
 Joint submissions, .
 Joint submissions, .
 Peeke v Medical Board of Victoria  VicSC 7 at p. 6.
 Medical Board of Australia v Holding  QCAT 632, , quoting Medical Board of Australia v Grant  QCAT 285, .
 Medical Board of Australia v Jones  QCAT 362, .
- Published Case Name:
Health Ombudsman v HSK
- Shortened Case Name:
Health Ombudsman v HSK
 QCAT 419
19 Dec 2018