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Health Ombudsman v Wood[2019] QCAT 35

Health Ombudsman v Wood[2019] QCAT 35

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Wood [2019] QCAT 35

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

GORDON CLIVE MACLEOD WOOD

(respondent)

APPLICATION NO.:

OCR165-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 March 2019

HEARING DATE:

7 February 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms C Ashcroft

Dr K Forrester

Mr J McNab

ORDERS:

  1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
  3. Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of 12 months.
  4. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – ENROLLED NURSE – DISCIPLINARY PROCEEDINGS – SANCTION - where the practitioner was an enrolled nurse – where the practitioner admitted a boundary violation with respect to his relationship with an adult patient under his care – where the respondent admitted engaging in professional misconduct – where the respondent declined to provide written submissions on sanction – whether the sanction proposed by the applicant is appropriate

PROFESSIONS AND TRADE – HEALTH CARE PROFESSIONALS – ENROLLED NURSE – DISCIPLINARY PROCEEDINGS – PRACTITIONER’S KNOWLEDGE OF OBLIGATIONS REGARDING PROFESSIONAL BOUNDARIES  - where the applicant and the respondent submitted separately and in the Statement of Agreed and Disputed Facts that the respondent was not aware of his obligations with respect to maintaining appropriate boundaries with patients – where the respondent was an enrolled nurse with over 30 years’ experience - where the respondent admitted the boundary violation – whether the respondent knew of his obligations regarding professional boundaries

PROFESSIONS AND TRADE – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – EFFECT OF BOUNDARY VIOLATION ON PATIENT – where the applicant submits that the patient suffered actual harm as a result of the boundary violation – where the respondent denies that the patient suffered actual harm as a result of the boundary violation – where the patient provided a statement in support of the respondent – where the applicant put expert opinion before the Tribunal as to the likely effect of the respondent’s conduct on a patient in similar circumstances to the subject patient – whether the patient suffered actual harm

Health Ombudsman Act 2013 (Qld) s 4, s 104, s 107

Health Practitioner Regulation National Law (Queensland)

Nguyen v R [2015] NSWCCA 268, cited

Nursing and Midwifery Board of Australia v Barnes [2017] SAHPT 1, cited
Nursing and Midwifery Board of Australia v McMahon [2011] SAHPT 22, cited
Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161, cited

APPEARANCES & REPRESENTATION:

 

Applicant:

L Nixon (sol) Lander & Rogers Lawyers

Respondent:

No appearance

REASONS FOR DECISION

  1. [1]
    The applicant has referred disciplinary proceedings against the respondent to the Tribunal pursuant to s 104 of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).  The applicant seeks a finding that the respondent has engaged in professional misconduct by reason of his failure to maintain professional boundaries with a patient and, if such a finding is made, orders for sanction.  The respondent has participated in the proceedings before the Tribunal to the extent of filing a Response, reaching agreement with the applicant as to the terms of a Statement of Agreed and Disputed Facts and an agreed bundle of documents and filing statements of himself and the patient.  Despite being given every opportunity, the respondent chose to not further involve himself in the proceedings and in particular chose not to appear personally or otherwise at the hearing of the matter.
  2. [2]
    The respondent was born on 22 January 1968, and was first registered as an enrolled nurse on 6 April 1988.  He has not been the subject of disciplinary proceedings prior to this referral.
  3. [3]
    Patient X had a long history of depressive illness and suffered from alcohol abuse disorder, struggling to maintain long periods of abstinence from alcohol and making multiple suicide attempts associated with her alcohol use.  Patient X was a patient at the Cairns Clinic during 2017.  The respondent was employed as a nurse at the Cairns Clinic during times when Patient X was admitted to the clinic, and was involved in her care.
  4. [4]
    Patient X was admitted to the Cairns Clinic between 15 February 2017 and 14 March 2017 for alcohol detoxification. During that admission, the respondent was involved in Patient X’s care and part of her treatment team.
  5. [5]
    Patient X was admitted to the Cairns Clinic from 25 May 2017 to 26 June 2017 after suffering a relapse of her alcohol abuse disorder, and was treated for alcohol detoxification.  During that admission, the respondent was involved in Patient X’s care and part of her treatment team.
  6. [6]
    During that admission, a relationship developed between Patient X and the respondent that went beyond the appropriate therapeutic nurse-patient relationship.  In addition to their interactions at the Cairns Clinic, the respondent and Patient X would communicate outside the respondent’s working hours by phone conversations and text messages.  The relationship included physical intimacy by way of hugging and kissing.  The relationship continued after Patient X’s discharge from the Cairns Clinic on 26 June 2017.  By August, the respondent and Patient X had formed the intention to marry.
  7. [7]
    On 4 August 2017, Patient X was admitted to the Cains Clinic after suffering a relapse of her alcohol abuse disorder, depressed mood and suicidal ideation.  During Patient X’s admission to the Cairns Clinic between 4 August 2017 and about 9 August 2017, the respondent was involved in Patient X’s admission, care and part of her treatment team. 
  8. [8]
    On about 9 August 2017, staff of the Cairns Clinic became aware that Patient X and the respondent were in a relationship.  On 10 August 2017, the respondent was suspended on pay while an investigation proceeded into the nature of his relationship with Patient X. 
  9. [9]
    On 16 August 2017, the respondent met with the Assistant Director, Clinical Services and Clinical Nurse of the Cairns Clinic. The respondent made admissions that the professional boundaries between himself and Patient X had been compromised.  He stated that his relationship with Patient X was mutual and admitted that what he had done was “very wrong”.  He was advised that his employment would be terminated but given the option to resign, and on 17 August 2017 resigned from his employment at the Cairns Clinic.
  10. [10]
    By letter dated 28 February 2018, the respondent surrendered his registration and such surrender of registration took effect on 19 March 2018.  
  11. [11]
    The preceding facts are not in dispute between the applicant and the respondent.  Neither is it in dispute that Patient X was a vulnerable person and that the respondent was aware she was vulnerable by reason of his personal relationship with her, his involvement in her care and by reason of his training as a nurse.
  12. [12]
    The respondent admits that his conduct was in breach of the Code of Professional Conduct for Nurses which require that nurses maintain professional boundaries with patients.  Further, the respondent admits that his conduct in failing to maintain professional boundaries with Patient X constitutes professional misconduct.  In all the circumstances, the Tribunal accepts the joint submissions of the parties as to the characterisation of the respondent’s conduct and makes a finding that the respondent has engaged in professional misconduct as defined by the Health Practitioner Regulation National Law (Queensland) (‘National Law’). 
  13. [13]
    Notwithstanding such ultimate finding, there are some subsidiary matters upon which it is appropriate that the Tribunal make findings. Such findings have informed the Tribunal’s finding of professional misconduct and will inform the Tribunal’s consideration of an appropriate sanction.
  14. [14]
    The applicant alleges in paragraph 19 of the Referral as follows:

The Respondent was not aware of his obligation that he must maintain professional boundaries with patients.

  1. [15]
    It is also alleged that such a matter is one of those relied upon by the applicant in alleging professional misconduct.[1]
  2. [16]
    The respondent has admitted such allegation in the Response, and a statement in identical terms to paragraph 19 of the Referral is contained in paragraph 28 of the Statement of Agreed and Disputed Facts.
  3. [17]
    The Tribunal is not bound to accept and act upon a fact agreed by the parties.[2] In circumstances where such fact is inherently unlikely and inconsistent with other evidence, the Tribunal does not accept such fact. 
  4. [18]
    It is inherently unlikely that an enrolled nurse of some 30 years’ experience with currency of practice and having obtained in recent years further qualifications in mental health nursing[3] would be unaware of his obligation that he must maintain professional boundaries with patients. 
  5. [19]
    Further, such fact is inconsistent with other evidence before the Tribunal, including the following:
    1. (a)
      the respondent’s admissions during his meeting with the Assistant Director, Clinical Services and Clinical Nurse of the Cairns Clinic on 16 August 2017;
    2. (b)
      the terms of the interview between investigators of the Office of the Health Ombudsman and the respondent on 18 October 2017, during which:
      1. the respondent expressed no dissent from statements of the investigators that they were investigating “boundary violations”;[4]
      2. the respondent’s own admissions to crossing the “boundary line”;[5]
      3. the respondent’s admissions in the following terms:

Investigator: Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for.  And we spoke about that I think we talked around that point but I think that’s really central to obviously …

Respondent: Mmm.  Mmm.  Mmm.  And I’ve.  And I’ve admitted to that.  Yeah you know. 

Investigator:  Yeah um and why do you think in your own words that boundary is necessary?  From a caring point of view or a professional point.

Respondent:  So the nurse doesn’t take disadvantage of the patient.

Investigator:  OK well I would suggest that despite may be how (X) feels as a professional nurse it would be entirely inappropriate for you to.  To get involved with the patient.

Respondent:  I.  I’ve already admitted to this.

Respondent:  So yes I did overstep the boundaries.  I did that.

Investigator:  You acknowledge the boundaries are necessary though.

Respondent:  Yes.  Yes.  Yes.  So you don’t take advantage of the other person;[6]

  1. (c)
    the respondent’s admission in an email to legal representatives of the applicant on 13 November 2018, “I have acknowledged what I did as a nurse was wrong.” 
  1. [20]
    The Tribunal finds that the respondent was in fact aware of his obligation to maintain professional boundaries with patients.
  2. [21]
    A matter in dispute between the parties concerns the effect of the respondent’s misconduct on the health and welfare of Patient X. 
  3. [22]
    The applicant contends that by reason of the respondent’s behaviour towards Patient X, between about 9 August 2017 and 17 August 2017:
    1. (a)
      Patient X’s mental health was adversely affected;
    2. (b)
      Patient X’s vulnerability was increased;
    3. (c)
      Patient X’s emotions were unstable;
    4. (d)
      Patient X may have been vulnerable to increased alcohol intake and suffering a relapse of her alcoholism;
    5. (e)
      Patient X expressed emotions of anger and frustration; and
    6. (f)
      Patient X suffered emotional dysregulation.
  4. [23]
    The respondent disputes such contention and instead contends that his support and relationship with Patient X outside of normal treatment was positive to her recovery.
  5. [24]
    The applicant relies upon the expert opinion of Dr Matthews, consultant psychiatrist. Dr Matthews was briefed with, among other things, the clinical records of Patient X covering the relevant periods of her admission to the Cairns Clinic in 2017 and asked to advise, relevantly, about “the potential consequences for a patient like (X) of a boundary violation and relationship with a health professional involved in her care”.  Dr Matthews was not asked to advise as to any actual consequences to Patient X of the respondent’s conduct and he was not briefed with the statement of Patient X which will be referred to later in these reasons.  The contents of Dr Matthews’ expert report include:

2. The potential consequences for a patient like (X) of a boundary violation and relationship with a health professional involved in her care.

As is mentioned above, patient (X) has a significant history of prejudicial experiences in her development and had a past history of an emotionally abusive marriage.  It is vital for such patients that they are able to develop trusting therapeutic relationships that have appropriate boundaries, such that there is no risk of boundary transgression resulting in possible further damage to this patient’s self-esteem and future interpersonal relationships.  It is also important that boundaries are protected, to allow an ongoing capacity to form trusting relationships with mental health professionals in the future.

Hence, the consequences of a boundary violation for such a patient has not only the potential to instil additional feelings of rejection, remorse and guilt in the context of the relationship with the treating health professional himself, but also the potential substantial negative impact on her ability to develop trusting relationships with mental health professionals in the future.

  1. [25]
    The Tribunal unreservedly accepts the expert opinion of Dr Matthews in such terms.  Dr Matthews expresses an opinion, as sought, on the potential consequences to a patient like Patient X of a boundary violation, not whether Patient X in fact suffered adverse consequences by reason of the respondent’s conduct as contended by the applicant. 
  2. [26]
    Other evidence before the Tribunal relevant to such issue includes the medical records of Patient X from the Cairns Clinic and a statement of Patient X. 
  3. [27]
    The patient records do not support the applicant’s contention of adverse consequences to Patient X between about 9 and 17 August 2017 as a result of the respondent’s conduct. 
  4. [28]
    A progress note made by Patient X’s treating psychiatrist on 8 August 2017 records Patient X reporting dysregulated emotions that day in a group meeting.  A nursing note later that same day reports Patient X becoming teary in the evening, feeling triggered by a co-client and ruminating on multiple stressors.  Her specific description of stressors do not include any reference to her relationship with the respondent. 
  5. [29]
    On 9 August 2017, a nursing note records Patient X having been involved in an incident resulting in a co-client smashing a plate.  Patient X reported struggling with the morning patient group and stating that she does not like being challenged in group.  On 9 August 2017, Patient X was seen by her treating psychiatrist and her psychiatrist’s entry in the progress notes records a consultation between 18:30 and 19:30.  It may be inferred from the contents, consistent with other evidence before the Tribunal, that by this time staff at the Cairns Clinic, including the treating psychiatrist, had become aware of the personal relationship between Patient X and the respondent.  The notes include the following:

R/V.  Attended to I/V patient to monitor mental state and address boundary issues.

Time allowed/given to ventilate feelings (frustration/anger).

Discussed at length the impact on mental state, current vulnerability for emotions to be unstable.

Expressed frustration around her friend, reminded [Patient X] that when in angry emotions people make irrational decisions.  Hence to be mindful of her action towards others as this may have consequences.

Stated she does not want any contact with friends at present.

[Patient X] stated she may be vulnerable for alcohol intake > reassurance provided that support from nursing staff will always be there to help her deal with emotions.

Nil thoughts of self-harms or suicide.

“I’m angry and upset about the whole thing”.

….

IMP: emotional dysregulation due to current stressors.”

  1. [30]
    The Tribunal has considered subsequent progress notes up to 17 August 2017 and beyond.  They do not provide further support for the contention of the applicant.
  2. [31]
    The Tribunal has in evidence a statement of Patient X most likely prepared in late 2018.  Patient X provides a detailed account of her thoughts of her psychiatric, psychological and nursing treatment and her psychological and emotional states during the periods of her admissions to the Cairns Clinic in 2017.  Whilst critical of a particular psychologist, Patient X has nothing but praise for the respondent:

Mr Wood was very supportive (together with the two other nurses mentioned from the first visit) throughout this entire period of my emotional upheaval and I am forever grateful to him, (treating psychiatrist) and a nursing staff of the Clinic who helped me get through that traumatic time.

Mr Wood and myself have tried to deal with the consequences of our actions to the best of our abilities over the last 18 months or so.

Speaking for myself, I do not regret my relationship with Mr Wood.

He is a good man with a kind and sincere heart and I am very happy to be able to call him my dear friend.  Whilst we are no longer involved romantically, I still hold very fond feelings and memories of him and our time together.

We decided to end the relationship on a mutual basis and I don’t believe it is necessary to provide any further details as I believe it is a private matter between Mr Wood and myself and does not concern anyone else.

As for me being in a vulnerable position and him taking advantage of that when I was at the Clinic:

I can only repeat what I said above; Mr Wood provided sound professional advice to me that I could apply in my everyday life.  It made so much sense to me.

My Psychiatrist… could also see that we had a connection and would often refer to him for advice about me as to what he thought on certain matters pertaining to my treatment.

(My treating psychiatrist) has always commented that I am a “strong-willed” and determined person and that I am also very capable and intuitive.  So, whilst what has transpired over the last 18 months or so has not been “ideal” in terms of my mental health, I look at it as a time when I was able to feel love for someone and to feel that love being returned.  I can honestly say that I have learnt so much from Mr Wood and our relationship and I feel that I am a much better person because of this.

  1. [32]
    Patient X then goes on to describe the circumstances in which her relationship with the respondent came to light.  She describes telling a friend in confidence but that information then being disclosed to the head of the psychiatric department of the Cairns Clinic and then her treating psychiatrist.  She describes being confronted by her treating psychiatrist on the topic and then states as follows:

When she left, I felt sick to my stomach as I was worried about the consequences for Mr Wood.

I then realised that my friend was the only one that could have divulged this information to the Clinic so I sent him a text asking him whether this was so.

When I found out it was, I was devastated.  I could not believe that someone I trusted implicitly would betray me like this.  I forgave him, because I knew his heart was in the right place but I was so upset that he didn’t have the decency to talk to me first about his intentions.

Over the course of the ensuing days, I was given extra medication for my anxiety and stress levels and allowed to stay in my room.  I wished to state clearly here that Mr Wood was not the cause of my mental state at that time.   I have been betrayed by my good friend and he had put me in a terrible position where I felt so much guilt for causing Mr Wood to lose his job.

I felt as if I couldn’t talk to anyone, other than (my treating psychiatrist), about what was happening, because I didn’t know if any of the nurses knew what was going on and no one was telling me anything.

So if you think Mr Wood was taking advantage of my vulnerability you would be very mistaken.  The only reason I felt vulnerable was because I felt very alone in that clinic with no one to talk to about this horrible situation.  Throughout this time, Mr Wood devoted his time to supporting me and making sure I was okay and I am extremely grateful to him.

So, in conclusion I would like to plead with you, to please consider my statement when you are looking into the career and life of Mr Wood.

  1. [33]
    The Tribunal does not accept that the contentions of the applicant are made out.  The Tribunal does not find that the respondent’s conduct in fact impacted adversely upon Patient X’s health and wellbeing, except to the extent that it did so indirectly in the way described by Patient X in that she suffered distress as a consequence of the relationship coming to light in a way that she perceived to be a betrayal by a confidante and because of the concern she felt for the respondent.
  2. [34]
    Unfortunately the respondent has failed to show full insight into the seriousness of his boundary violation and the potential for Patient X suffering harm as a consequence.  During his interview by investigators of the Office of the Health Ombudsman on 18 October 2017, the respondent did not accept that there was a power imbalance between himself and Patient X.[7] The respondent expressed the belief that professional boundaries were needed to prevent a practitioner taking advantage of a patient or compromising their treatment and that he did neither.[8]  In a written statement addressed to the Tribunal the respondent complained of being victimised by the process of investigation by the applicant, and referral to the Tribunal.  He expressed no remorse for his misconduct. 
  3. [35]
    When determining sanction the protection of the health and safety of the public is paramount.[9]  The options available to the Tribunal under the HO Act are limited given the respondent is no longer a registered health practitioner.
  4. [36]
    The applicant referred to the following decisions by way of assistance in determining an appropriate sanction.
  5. [37]
    In Nursing and Midwifery Board of Australia v Barnes,[10] a patient had been admitted to hospital for treatment and rehabilitation for serious traumatic spine and brain injuries that had rendered him a paraplegic.  The enrolled nurse engaged in a sexual relationship with the patient’s spouse for a period of approximately 15 months before the spouse moved in to live with the enrolled nurse.  The enrolled nurse admitted giving false and misleading information to the Australian Health Practitioners Regulation Agency during the course of an investigation.  The Tribunal found that the conduct amounted to professional misconduct.  The enrolled nurse was reprimanded, his registration cancelled and he was disqualified from applying for registration for a period of two years and required to pay the Board’s costs.
  6. [38]
    In Nursing and Midwifery Board of Australia v McMahon,[11] the patient was admitted to hospital for mental health treatment.  The patient discharged herself from hospital against advice.  The nurse had a lengthy conversation with the patient during which the patient confided personal information that included she had a separate persona who would engage in various sexual activities in exchange for money.  The nurse was aware the patient was a sexually vulnerable person.  The nurse inappropriately gained access to hospital records to obtain the patient’s contact details.  The nurse had sexual intercourse with the patient on a number of occasions.  When the patient tried to cease the relationship the nurse continued to send her text messages asking to see her.  The Tribunal ordered that the nurse’s registration be cancelled and that he be disqualified from being registered as a nurse for four years.
  7. [39]
    In Nursing and Midwifery Board of Australia v Tainton,[12] the practitioner was a nurse employed by Queensland Health at the Woodford Correctional Centre.  The patient was a prisoner serving a term of life imprisonment.  The nurse and patient exchanged five letters by post and made a number of telephone calls to each other.  There was never a physical relationship between the nurse and the patient and no benefits were exchanged or offered to the prisoner.  The nurse had surrendered her registration and had shown genuine remorse and insight. More than two years had passed between the surrender of registration and the Tribunal decision. The Tribunal found that the practitioner had engaged in professional misconduct.  The respondent was reprimanded and disqualified from applying for registration as a registered nurse for a period of three months.
  8. [40]
    The Tribunal considers both Barnes and McMahon to be much more serious examples of misconduct.  Of the three decisions, Tainton is the most comparable to the circumstances of this case.  A point of distinction, however, is the genuine remorse and insight shown by the practitioner in Tainton as compared to the lack of remorse and limited insight of the respondent.
  9. [41]
    In determining sanction the Tribunal has taken into account mitigating considerations including:
    1. (a)
      The relationship was mutual and the respondent’s conduct cannot properly be described as predatory;
    2. (b)
      The physical intimacy was limited and the respondent did not engage in the conduct for sexual gratification;
    3. (c)
      The respondent has already suffered some consequences of his conduct by way of his loss of employment and the surrender of his registration;
    4. (d)
      The respondent co-operated with the investigation of the matter and made frank admissions during the course of a lengthy interview by investigators of the Office of the Health Ombudsman;
    5. (e)
      The lack of any prior notification history;
    6. (f)
      The respondent has not sought to contest a finding of professional misconduct or the sanction sought by the applicant; and
    7. (g)
      Despite the potential for harm as a result of the respondent’s misconduct, Patient X in fact suffered no adverse consequences other than her distress as to the circumstances in which her relationship with the respondent came to light and her concern for the consequences to the respondent.
  10. [42]
    The applicant sought the following orders by way of sanction:
    1. (a)
      a period of disqualification for two years;
    2. (b)
      the period of disqualification to commence from the date of the decision; and
    3. (c)
      no orders as to costs.
  11. [43]
    Having regard to the comparative decisions and all the circumstances of this case, including the period of 12 months since the surrender of the respondent’s registration, the Tribunal considers that a period of disqualification of 12 months meets the protective purposes of sanction.  It is also appropriate that there be a public denunciation of the respondent’s conduct by way of a reprimand.
  12. [44]
    Accordingly, the Tribunal orders that:
    1. (a)
      Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct;
    2. (b)
      Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;
    3. (c)
      Pursuant to s 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration for a period of 12 months; and
    4. (d)
      No order as to costs.

Footnotes

[1] Referral, [21].

[2] Nguyen v R [2015] NSWCCA 268 at [45]-[46].

[3] Transcript of interview between the investigators of the Office of the Health Ombudsman and the respondent (18 October 2017) 34 (‘the Interview’).

[4] See for example pages 2 and 6 of the Interview.

[5] See for example pages 17, 36 and 47 of the Interview.

[6] At pages 153-155 of the Interview.

[7] Page 56 of the Interview. 

[8] Page 58 of the Interview. 

[9] Section 4 of the HO Act.

[10] [2017] SAHPT 1.

[11] [2011] SAHPT 22.

[12] [2014] QCAT 161.

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Wood

  • Shortened Case Name:

    Health Ombudsman v Wood

  • MNC:

    [2019] QCAT 35

  • Court:

    QCAT

  • Judge(s):

    Judge Allen QC, Deputy President

  • Date:

    05 Mar 2019

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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