Health Ombudsman v Obet[2020] QCAT 338

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   These disciplinary proceedings were referred to the Tribunal by the applicant on 25 March 2019, pursuant to sections 103 and 104 of the Health Ombudsman Act 2013 (the Act). The referral contains two allegations, one of professional misconduct in that as a registered nurse he engaged in boundary violations with a patient in 2017; and the second of unprofessional conduct based on the same allegations of fact. I assume that the allegations in fact compromise one only and allegation two is expressed as an alternative to allegation 1.
2. [2]
   In his response to the referral,^[1] the respondent admits the conduct alleged in allegation 1 and he accepts that the conduct amounts to professional misconduct.
3. [3]
   It is common ground that at all relevant times, the respondent was registered as a registered nurse with the Nursing and Midwifery Board (the Board); a health service provider within the meaning of section 8 of the Act; subject to registration standards and codes and guidelines approved by the Board as to what constitutes appropriate professional conduct by a registered nurse; and employed as a registered nurse at Logan Hospital from 3 February 2014 to 20 September 2017.

The Relevant Conduct

4. [4]
   The parties have agreed to a statement of agreed facts. The following is a summary of those agreed facts. Patient X^[2] attended the Logan Hospital Emergency Department on the 22 July 2017. She presented with short term memory loss and was diagnosed with amnesia. She had a complex medical background with a left frontal craniotomy at the age of 13, epilepsy, borderline personality disorder and PTSD. At that time the patient was 45 and the respondent was 25 years of age.
5. [5]
   Patient X was assessed and discharged for ongoing care and treatment with her GP. At the conclusion of the ED attendance, the respondent exchanged telephone numbers with Patient X and agreed to accept a mobile phone from her for no payment. The relevant records do not reveal any contact between the respondent and the patient in the ED but he later admitted that he was involved in taking her vital signs at the time.
6. [6]
   On a number of occasions, the respondent attended the patient’s home,^[3] including on 11 September after an internal meeting with his employer during which he was instructed not to contact her.
7. [7]
   On a number of occasions from 17 August to 3 September, he contacted her via Facebook Messenger. A number of his messages contained explicitly sexual content. For example, on 30 August he sent her two naked photos of himself including his penis with messages such as “fuck Im horny as fuck for ya aye your ass and tits and omg i bet your pussy would feel great wrapped around my hard cock.”^[4]
8. [8]
   The patient complained to the hospital on 10 September and a workplace investigation was commenced. On 11 September, the respondent denied any misconduct and denied sending sexual messages and pornographic photos to the patient.
9. [9]
   On 13 September, he was interviewed by a staff integrity officer from the hospital. Initially he denied any misconduct, but then admitted he had been lying and wanted to make amends.
10. [10]
    On 14 September, in another interview, he again admitted his misconduct and apologized for his behaviour and offered to apologize to the patient.
11. [11]
    He had been suspended on full pay on 11 September. On 20 September, before the investigation had been completed, the respondent resigned.
12. [12]
    He has not worked as a registered nurse since December 2017.

Classification of the Conduct

13. [13]
    Relevantly, professional misconduct is defined as:

Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of equivalent level of training or experience.^[5]

14. [14]
    The Code of Professional Conduct for Nurses in Australia and the Code of Ethics for Nurses are admissible as evidence of what constitutes appropriate professional conduct for the profession.
15. [15]
    To behave in such a manner towards a vulnerable patient clearly breaches a number of the provisions of those Codes, which are admissible as evidence of what constitutes appropriate professional conduct for the health profession, in this case the nursing profession.^[6]
16. [16]
    In any event the respondent appropriately admits that his conduct constitutes professional misconduct as defined above.^[7]
17. [17]
    The applicant has the onus of proving that the admitted conduct amounts to professional misconduct. I am satisfied that the applicant has satisfied that onus.

Sanction

18. [18]
    The purpose of these proceedings is protective and not punitive. The paramount principle is the health and safety of the public.^[8]
19. [19]
    In the exercise of its protective jurisdiction, it is appropriate for the Tribunal to consider the maintenance of proper professional standards of the profession, and to consider issues of general and personal deterrence.^[9] In so doing, the proportionate response of the Tribunal to admitted misconduct is apt to uphold public confidence in a vital profession.^[10]
20. [20]
    An assessment of any on-going risk to the public posed by the practitioner is essential to any determination of sanction.^[11] Such an assessment will consider the degree to which the respondent has gained insight into his conduct and the steps he has taken to address the underlying reasons for his behaviour.

Discussion

21. [21]
    The respondent’s conduct is serious and aggravated by the fact that it was directed at a vulnerable patient with a long history of mental illness. He initially lied to investigators and, contrary to a specific direction, attended the patient’s home and encouraged her to lie to protect him.
22. [22]
    On the other hand, the respondent told the truth early in the investigation and has fully co-operated in these proceedings and with the regulator. He has demonstrated remorse through his engagement with his general practitioner who established a mental health plan and referred him to clinical psychologist Dr Suzanne Drake, who notes in her report,^[12] that the respondent completed a cognitive-behaviour treatment program that included some psycho-education on depression, and which focussed on developing his low self-esteem. During her six consultations with him in 2017-2018, Dr Drake notes that the respondent had expressed high levels of remorse and regret for his conduct. In her opinion, he did not represent any foreseeable risk to patients if permitted to return to nursing.
23. [23]
    In 2017 and 2018 he also completed a number of courses addressing boundary issues and ethics, including on-line courses with the National Council of State Boards of Nursing.
24. [24]
    As a result of his actions and immediate registration action taken in December by the Health Ombudsman, the respondent has been unable to work as a registered nurse.
25. [25]
    The cases referred to by the applicant in its submission^[13] are not as serious as this case, however the applicant properly concedes that, in reality, the respondent has been unable to work as a registered nurse since December 2017. The respondent did not renew his registration by 31 May 2019 and his name was removed from the register on 2 July 2019.
26. [26]
    In those circumstances and taking into account the steps taken by the respondent to address his conduct, it would be punitive to order that he be prohibited from applying for re-registration for a further period.
27. [27]
    The respondent had no previous notifications prior to these serious boundary violations. A reprimand is not a trivial penalty and has the potential for serious implications.^[14]
28. [28]
    The Tribunal orders:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, the respondent has behaved in a way that constitutes professional misconduct;
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded;
3. Each party bear their own costs.