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- Unreported Judgment
Health Ombudsman v Flyger QCAT 329
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Flyger  QCAT 329
susan jane flyger
Occupational regulation matters
DATE OF DECISION:
23 October 2019
DATE OF REASONS:
14 November 2019
On the papers
Judge Allen QC, Deputy President
Ms M Barnett
Mr B Dixon
MS S Harrop
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the applicant instituted disciplinary proceedings against the respondent in relation to conduct that involved the respondent engaging in an intimate relationship with a prisoner of the prison at which she was employed as a registered nurse – where the prisoner was the respondent’s patient from time to time – where the respondent persisted with the relationship despite warnings from colleagues – where the applicant submits that the appropriate sanction ought to involve a period of preclusion from practice for up to two and a half years – where the conduct is so serious as to potentially warrant a lengthier period of suspension – where the respondent surrendered her registration – whether the period since surrender ought to be treated as a de facto suspension – whether the sanction proposed is appropriate
Health Ombudsman Act 2013 (Qld), s 103, 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100
Briginshaw v Briginshaw (1938) 60 CLR 336
Craig v Medical Board of South Australia (2001) 79 SASR 545
Healthcare Complaints Commissioner v Flynn  NSWNMT 1
Healthcare Complaints Commission v Turner  NSWCATOD 163
Health Ombudsman v Riek  QCAT 173
Medical Board of Australia v Davis  QCAT 215
Medical Board of Australia v Holding  QCAT 632
Nursing and Midwifery Board of Australia v Mahon  VCAT 403
Psychology Board of Australia v Cameron  QCAT 227
V Dutta (sol) of the Office of the Health Ombudsman
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- The Director of Proceedings on behalf of the Health Ombudsman (“the applicant”) referred a health service complaint against Susan Jane Flyger (“the respondent”) to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”). At the request of the parties, the matter was heard and determined on the papers and on 23 October 2019 the Tribunal made the above orders. These are the reasons for the Tribunal’s decision.
- The applicant sought a finding that the respondent registered nurse had engaged in professional misconduct and consequent orders by way of sanction. The respondent did not seek to argue against a finding of professional misconduct. The parties were in agreement as to the following facts.
- The respondent was born on [redacted], is aged 57 and was about 51 when the conduct commenced. The respondent entered the profession at an advanced stage of her working life, first obtaining registration as an enrolled nurse on 14 July 2009 and then obtaining registration as a registered nurse on 12 July 2012.
- On 26 November 2012 the respondent commenced employment as a registered nurse at Lotus Glen Health Service Medical Clinic (“the Clinic”) at the Lotus Glen Correctional Centre (“LGCC”). Upon commencing employment at the Clinic, the respondent completed a three day induction course with LGCC. She also completed a one day custodial awareness course with the Department of Corrective Services which covered topics including working professionally in a noncustodial role in a prison, professional boundaries and grooming.
- The respondent’s duties at the clinic included managing prisoner medication, the assessment and management of health complaints of prisoners, and providing dialysis services to two or three prisoners. The Clinic comprised four consultation rooms which had no security cameras, three interview rooms which did have security cameras, and a dialysis room. The dialysis area was located through interlocking doors and was isolated and private. When prisoners had a medical issue, the only practitioners they had access to, in the first instance, would be the nursing staff employed by Queensland Health who were stationed at the Clinic and doctors when they attend.
- On 2 November 2013 Patient X was transferred from the Brisbane Correctional Centre to LGCC. He was serving a sentence of life imprisonment for an offence of murder. He was approximately 45 years of age when the conduct commenced.
- On 3 May 2014, the respondent commenced treating Patient X’s health concerns as part of a therapeutic nurse/patient relationship. On 12 June 2014, Patient X was given duties as a cleaner in the dialysis area of the clinic where the respondent worked. After Patient X commenced working in the clinic, the respondent entered into and maintained an inappropriate sexual relationship with him. The relationship included intimate physical sexual acts. The respondent spent time with Patient X when they were both on shift at the clinic. The respondent arranged for Patient X to attend the clinic. The respondent reassigned casual staff to another work area so that she could see Patient X in an area of the clinic where there were no cameras. On at least one occasion the respondent covered a closed circuit television security camera in the clinic office near the dialysis room so that corrective services officers could not see her with Patient X.
- The respondent opened a personal post office box, told Patient X that she would write to him and began writing letters to Patient X. The respondent and Patient X wrote at least 62 letters, two Valentine’s day cards and one Christmas card to each other in which the respondent used a pseudonym as the signatory to her letters, Patient X addressed his letters to the pseudonym at the post office box address and they discussed, among other things, their sexual encounters with each other at the clinic, their sexual desires and fantasies in respect of each other, their sexual encounters with their respective previous partners and their desire to continue their relationship when Patient X was granted parole.
- Corrective Services staff and Queensland Health staff became concerned about the closeness of the relationship between the respondent and Patient X. The relationship between the respondent and Patient X continued other staff speaking to the respondent to remind her about the need for professional boundaries and raising concerns about security issues, the respondent’s safety, and concerns about the behaviour of Patient X and that he may be grooming the respondent.
- On 10 November 2014, Patient X was moved from his job as a cleaner at the clinic to work in another part of LGCC.
- In November 2015, the respondent’s supervisor spoke to the respondent, advising her that Patient X was “getting out soon and if she was to start a relationship with him when he got out, it would not look good for her professionally”. The respondent advised him that there was no relationship. The respondent’s reaction to the conversation sufficiently concerned her supervisor that he informed LGCC Intel about his concerns with respect to the respondent.
- In or around December 2015, due to continuing concerns about the respondent and Patient X, Patient X’s incoming and outgoing mail was monitored leading to the discovery of letters between the respondent and the patient.
- Between May 2014 and January 2016, the respondent treated Patient X on at least 11 occasions.
- On 15 February 2016, the respondent attended a meeting at Mareeba Hospital about allegations relating to her professional conduct and inappropriate contact with Patient X. The respondent was advised that she would be transferred to Mareeba Hospital pending inquiries into the allegations.
- The respondent continued her inappropriate correspondence with Patient X.
- On 23 February 2016, the respondent was transferred to Mareeba Hospital. The respondent still continued her inappropriate correspondence with Patient X.
- On 10 March 2016, the Office of the Health Ombudsman was notified about the respondent’s conduct. On 15 April 2016, the respondent was interviewed by Office of the Health Ombudsman investigations officers and said relevantly:
- (a)“He wasn’t a patient. He was the cleaner.”
- (b)“I know I’ve breached rules and regulations as far as corrections are concerned, yeah.”
- (c)“No, in those instances [when I treated him], it was my job. I didn’t do… there was no sexual contact. There was just my job.”
- (d)“The only thing I could have done differently was to say somebody else see this patient because I’ve already developed a relationship with him.”
- (e)“No [I wasn’t being groomed by the patient]… because I think he feels about me the way I feel about him.”
- (f)“I haven’t decided [whether to inform the patient about the investigation]. I figure I’m already in trouble, so if it’s going to get him into trouble I probably won’t. If it doesn’t, I probably will.”
- (g)“I don’t regret the relationship but I regret that I didn’t believe the prison… when the first complaint was put in… like, when the first warning was there, I should’ve just left work there, then, and just kept writing to him. That’s what I wish I had done.”
- (h)“… I’m guilty of having had an inappropriate relationship with [Patient X]. I realise that. That is all I’ve done. I haven’t taken any contraband into the prison. I haven’t done any of those things. It’s just the relationship with [Patient X].”
- (i)that the patient’s sexualised letters did not cause her concern;
- (j)that she used the pseudonym in her correspondence with Patient X because “I wouldn’t [want] all the officers out there to know because that would put him at more risk of getting into trouble or, I don’t know, put him in a position that would be uncomfortable”;
- (k)that she planned to visit Patient X once he was out of prison and would like to continue to write to Patient X;
- (l)“I don’t know [if I love the patient] until I get to spend more time with him.”
- (m)that she still had strong emotional feelings for the patient;
- (n)“Am I still allowed to write to him?”
- On 17 June 2016, the Health Ombudsman proposed to impose conditions on the respondent’s registration seeking to prevent the respondent from treating male patients unless there was a chaperone present. On 8 July 2016, in submissions to the Health Ombudsman about the proposed immediate registration action, the respondent’s legal representatives advised, amongst other things that:
We submit that it is inaccurate to describe the patient as a patient at the time when Ms Flyger and the patient first met. Ms Flyger instructs that she first knew the patient as a cleaner employed at Lotus Glen Health Centre, not as a patient.
- On 29 June 2016, the respondent saw a counsellor who noted in her records the respondent’s comment, “I like [Patient X] and would like to still communicate with him”.
- On 18 July 2016, the Cairns and Hinterland Hospital and Health Service (“the Health Service”) issued a show cause notice to the respondent in respect of her conduct with the patient. On 4 August 2016, in response to the show cause notice, the respondent’s legal representatives advised that:
- (a)“Without admitting or denying any of the specific particulars contained within either Allegation O1 or Allegation T2, Mr Flyger accepts that there are grounds for her to be disciplined pursuant to the Public Service Act, and that her actions constituted inappropriate and/or improper conduct in an official capacity and in respect of allegation 2, were in contravention of clause 1.5 of the Code of Conduct of the Queensland Public Service”; and
- (b)“Ms Flyger is deeply remorseful for her actions and is willing to accept responsibility by way of disciplinary action…”
- On 26 August 2016, the Health Ombudsman imposed conditions on the respondent’s registration preventing her from treating any male patients without a chaperone and requiring her to complete an education program.
- On 29 August 2016, the respondent provided a submission in respect of the Health Service proposal to terminate her employment. In her submissions, the respondent noted amongst other things:
- (a)“the extreme degree of remorse, regret and contrition I have demonstrated from my actions”;
- (b)“that my actions occurred during a time of, and as a direct result of significant emotional vulnerability and I do not believe that I was fully aware of the implications of my actions at the time. With the benefit of hindsight and after considerable reflection, I can now appreciate the seriousness of my actions, and the professional and personal cost”;
- (c)“I reject the claim that I showed a disregard for the safety of my colleagues…”; and
- (d)“I asked a prison officer about prisoners receiving letters, and was advised that ‘anyone can write to a prisoner’. I took this literally, and I believe that it was a case of confirmation bias, and that I heard what I wanted to hear and then may have subconsciously blocked out or dismissed any other warnings or thoughts which would prevent me continuing my contact with him.”
- On 31 August 2016, the Health Service terminated the respondent’s employment.
- On 23 September 2016, the Health Ombudsman amended the chaperone condition on the respondent’s registration so that she only required a chaperone to be present when treating male patients aged 18 years and older.
- On 15 November 2016, Patient X was granted parole and released from LGCC. The respondent’s relationship with Patient X ended in April 2017.
- In January 2017, the respondent commenced work as a youth worker, later progressing to a senior youth worker and training towards a community services diploma and case manager position.
- On 31 May 2017, the respondent’s registration lapsed after she failed to renew it.
- On 31 July 2017, the respondent’s legal representatives advised the Health Ombudsman that:
- (a)the respondent had allowed her registration to lapse;
- (b)the respondent was currently working as a youth worker with children under the age of 18; and
- (c)the respondent was undertaking further education and community work.
- On 21 August 2017, the Health Ombudsman advised the respondent that he did not consider the respondent posed a serious risks to persons and that it was no longer necessary to take action or issue an order to protect public safety on the basis that:
- (a)the respondent was not currently registered and therefore not lawfully able to practice as a nurse;
- (b)the respondent no longer held any type of nursing registration and did not intend to seek any type of nursing registration in the future;
- (c)the respondent was currently working outside of the health sector and undertaking further education to develop her professional skills outside of the health sector;
and removed the conditions imposed on the respondent’s registration.
Characterisation of conduct
- The respondent’s boundary violation was a particularly serious example of a failure to maintain proper professional standards. The respondent’s conduct in engaging in a personal and sexual relationship with a patient was entirely inappropriate. The respondent actively sought to conceal the relationship from her employer, her colleagues at the clinic and Corrective Services officers. The respondent deceived her employer in order to establish unauthorised contact with Patient X. She betrayed the significant trust placed in her by her employer and her colleagues at the Clinic. The respondent failed to uphold an important expectation of staff working in a prison that they not engage in any type of inappropriate relationship with a prisoner. As an employee within a prison, the respondent betrayed the trust placed on her by Corrective Services officers who were tasked with ensuring not only her safety but the safety of everyone in the prison. A prisoner who has an inappropriate relationship with a prison employee may choose to take advantage of that relationship. Such a relationship may pose a risk to the employee or other staff within the prison. The respondent continued her inappropriate relationship with the prisoner notwithstanding concerns raised by her supervisor and other colleagues.
- The Tribunal had no hesitation in deciding that the respondent had behaved in a way that constitutes “professional misconduct” as defined in section 5 of the Health Practitioner Regulation National Law (Queensland).
- The main principle for administering the HO Act is that the health and safety of the public are paramount. Purposes of sanction are protective, not punitive. Considerations of denunciation and general and personal deterrence are relevant in this context. Purposes of sanction include assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated, bringing home to the practitioner the seriousness of their conduct, and deterring the practitioner and any other members of the profession from future departures from appropriate standards.
- The considerations as to whether the practitioner presents any ongoing risk will be important. The degree of insight and evidence of rehabilitation will be relevant.
- The respondent has filed an affidavit which provides some evidence of belated insight and remorse. She deposes to her emotional vulnerability at the time of the conduct, leading to her perceiving the trust and friendliness offered by Patient X as being love which she was then greatly lacking in her life. She deposes to having made a mistake in believing that such a relationship could be lasting and fulfilling. The respondent deposes that she is extremely remorseful for her conduct, both because Patient X was a prisoner and a patient. She apologises for her breach of professional standards and states that she would never mix work and professional relationships again.
- In her affidavit, the respondent confirms her studies towards becoming a case manager in the community services field. She exhibits reports from a clinical psychologist which evidence that the respondent has taken appropriate steps to address health issues which contributed to her conduct. The report from the clinical psychologist also supports the conclusion that the respondent has developed real insight into her behaviour and is extremely remorseful. A character reference from a long-term friend also supports a finding that the respondent is remorseful for her conduct. It, and a reference from her current employer, suggests that the respondent has the potential to become a valuable practitioner in the community services field.
- The aggravating features of the respondent’s professional misconduct include:
- (a)the fact that the respondent continued the relationship despite being discouraged from doing so;
- (b)the high degree of physical sexual intimacy;
- (c)the fact that the boundary violation occurred with a prisoner in the setting of a prison with the consequent risks to the safety of the respondent and other staff; and
- (d)the extent of deception and the lengths to which the respondent went to keep the relationship secret.
- The applicant has submitted that another aggravating factor is the vulnerability of the patient because of the nature of the therapeutic relationship between nurse and patient and that the patient’s vulnerability was compounded by the fact that he was a prisoner with a limited choice in health practitioners. Whilst that may be true in a general sense, on all the material before it the Tribunal was not satisfied that Patient X was in fact vulnerable or exploited in the course of the relationship between him and the respondent. Indeed, if any party of the relationship was vulnerable it was the respondent and the material strongly suggests that Patient X exploited that vulnerability.
- Mitigating factors include:
- (a)the belated insight and remorse on the part of the respondent;
- (b)the respondent’s cooperation with the investigation of the matter by the Office of the Health Ombudsman and the conduct of these proceedings;
- (c)the steps subsequently taken by the respondent towards her rehabilitation; and
- (d)the consequences already suffered by the respondent as a result of her conduct in that she has not worked as a nurse for about three years since the termination of her employment and has not held registration for a period of two years, three months since the surrender of her registration.
- The applicant referred to a number of comparative cases in support of its submissions as to appropriate orders for sanction, the most relevant being:
- (a)Nursing and Midwifery Board of Australia v Tainton  QCAT 161; and
- (b)Nursing and Midwifery Board of Australia v Dyason  QCAT 423.
- In written submissions dated 18 April 2019, the applicant submitted that, taking into account the period subsequent to the respondent’s surrender of registration as equivalent to a de facto suspension of registration, an order should be made that the respondent be disqualified from applying for registration for a further period of six to twelve months. Factoring in the six months between the time such submission was made and the date of hearing, that equated to a submission that the respondent be disqualified from applying for registration for a period of up to six months from the date of hearing. That would result in an effective preclusion period, taking into account the preceding period of non-registration, of up to two years, nine months.
- The Tribunal was of the view that an even lengthier period of preclusion might be appropriate in the circumstances of the case. However, considerations of procedural fairness should constrain the Tribunal from making orders more severe than sought by the applicant in the context of a hearing on the papers. The Tribunal concluded that no less a period than the higher end of the range sought by the applicant would appropriately meet the purposes of sanction in this matter.
- The conduct of the respondent requires denunciation and the respondent was accordingly reprimanded.
- The applicant did not seek any order as to costs and accordingly there was no question that the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) should not apply and that was reflected in the orders of the Tribunal.
- Published Case Name:
Health Ombudsman v Susan Jane Flyger
- Shortened Case Name:
Health Ombudsman v Flyger
 QCAT 329
23 Oct 2019