Health Ombudsman v Bothwell[2020] QCAT 393

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant director has referred these disciplinary proceedings to the Tribunal by application filed on 21 December 2018 pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act).
2. [2]
   The parties have filed a statement of agreed facts and agree on the characterisation of the admitted conduct. They diverge only in relation to the applicant’s submission that, pursuant to s 107(3)(d) of the Act, the respondent’s nursing registration be suspended after a period of 12 months. The respondent submits that a suspension in all the circumstances would be in the nature of a punitive response but agrees to an order pursuant to s 107(3)(b)(i) of the Act that she be required to complete a Professional Boundaries course within 12 months of today’s date.

Background

3. [3]
   The respondent is an endorsed enrolled nurse registered with the Board at all relevant times. From 6 October 2005 until 19 August 2016 she was employed in that capacity at the Prince Charles Hospital (PCH). She resigned from her position on 19 August 2016.
4. [4]
   The respondent was born on 6 August 1973 and is presently 47 years of age. She was between 39 and 43 at the time of the conduct, the subject of the allegations in the referral.
5. [5]
   She has never otherwise been subject to any disciplinary action.
6. [6]
   On 19 April 2016 solicitors Hall Payne on behalf of the respondent made a notification of boundary violations with a patient of the respondent to the Office of the Health Ombudsman (OHO). She concedes that this notification contained falsehoods. On 19 August 2016, a further notification was made to OHO, in which the respondent admitted that the earlier notification contained untruths and gave a truthful summary of what had occurred between herself and the patient, and the other party involved.
7. [7]
   On 10 March 2017 OHO took immediate action, and imposed conditions on the respondent’s registration.
8. [8]
   In late 2016, the respondent had obtained employment as the endorsed enrolled nurse at RSL Caboolture which is an aged care facility. As a result of the immediate action, she was unable to continue in this work. This led to a period of unemployment and severe financial hardship culminating in personal bankruptcy in May 2017.
9. [9]
   On 16 April 2018 OHO removed the conditions imposed earlier.
10. [10]
    She was able to obtain work as an endorsed enrolled nurse in December 2018 with a number of organisations, and continues in that employment.

The relevant conduct

11. [11]
    The referral contains three allegations which are admitted and inter-related.
12. [12]
    Allegation 1 relates to a breach of professional boundaries involving a sexual relationship with a male patient who was of a similar age to the respondent.
13. [13]
    She first met the patient at the Thoracic Ward of the PCH when he was first admitted to the ward in July 2012. He suffered from cystic fibrosis which is a chronic illness, and was quite depressed as she knew.
14. [14]
    In the period 2012 to 2014 the patient received direct nursing care from the respondent.  Sometime in 2012, he gave her his mobile phone number and they began texting each other. This developed into a friendship, which involved meeting outside the hospital and ultimately developed into a consensual romantic and sexual relationship which continued from 2012 until the end of 2015.
15. [15]
    In March 2014 the patient received a lung transplant and was no longer required to stay on the ward. In late 2015 their relationship ceased.
16. [16]
    Allegation 2 relates to improper communications between the respondent and a female who had also been a patient in the Thoracic Ward at PCH and who also suffered from cystic fibrosis.
17. [17]
    In March 2016, the respondent learned that the male patient was in a relationship with that lady who he had met in the ward. That lady had never been under the therapeutic care of the respondent.
18. [18]
    Over a period of weeks commencing on 23 March 2016 the respondent contacted this lady through various Facebook accounts, including an account in the name of her daughter, and also including her own account, and after the patient effectively blocked her she texted her through various accounts. The messages could be generally described as immature, angry and at time obscene responses of a woman who was jealous and angry, and then worried about the consequences of her own unethical behaviour, however, some, particularly in the latter stages, were of a threatening nature leading to the female patient making a complaint to PCH.
19. [19]
    Allegation 3 relates to the provision of false and or misleading information to OHO.  I have referred earlier to the notification letter sent by her solicitors on her behalf in April and August 2016. The respondent admits that the notification on 19 April 2016 contained falsehoods, including a denial of any romantic or sexual relationship with the male patient, and meeting only in public places.

Characterisation of the Conduct

20. [20]
    The respondent admits that the proved conduct accepted by her and set out in the statement of agreed facts, and in the allegations 1 to 3, considered either separately or together, amounts to professional misconduct as defined in s 5 of the National Law.
21. [21]
    In my opinion the admitted conduct, the subject of the three allegations, satisfies at least the definition of professional misconduct in ss 5(a) and (b) of the Health Practitioner Regulation National Law (Qld) (National Law). It was unprofessional conduct that was substantially below the standard reasonably expected of a registered nurse with the equivalent level of training and experience. The conduct clearly offends the Board’s Code of Conduct for Nurses made admissible by s 41 of the National Law.
22. [22]
    Principle 4.1(d) of the Code provide that nurses must:

[A]void sexual relationships with persons with whom they are currently or had previously entered into a professional relationship. These relationships are inappropriate in most circumstances and could be considered unprofessional conduct or professional misconduct.

Sanction

23. [23]
    The purposes of these proceedings is protective and not punitive. The guiding and paramount principle is the health and safety of the public. This in turn involves sanctions that are apt to maintain professional standards and public confidence in a noble profession, and to protect the public.
24. [24]
    In Craig v Medical Board of South Australia [2001] 79 SASR 545 at [48], the Full Court of the South Australian Supreme Court wrote:

The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable.

25. [25]
    General and personal deterrence are important issues to be considered in the application of these principles. As a result of her conduct, the respondent lost a job she obviously valued, and ultimately, when the Regulator imposed conditions by way of immediate action, she was unable to work as an enrolled nurse for a period of 13 months and suffered severe financial hardship.
26. [26]
    The applicant has fairly referred in its submissions to a number of significant mitigating factors that pertain in this case. The sexual relationship with a patient, and or a former patient over a period of about three and a-half years is obviously serious professional misconduct, however, the parties were of a similar age, the relationship was consensual, and could not be described as predatory. Her original untruthfulness in her April 2016 solicitor’s letter was rectified by her in the notification in August 2016. It can be accepted that misleading the Regulator is contrary to the respondent’s fundamental obligation as a health practitioner to engage with OHO with diligence and honesty; however, her reasonably prompt retraction of the untruthfulness demonstrates

    1. (a)
       her then insight and remorse; and
    2. (b)
       the facilitation of the administration of justice and the avoidance of a contested disciplinary hearing.
27. [27]
    The unfortunate contact with the female patient was over a relatively short period of time and was in the context of her regret and anger over the end of the relationship with the male patient.
28. [28]
    The Tribunal accepts that from the date of her August 2016 notification she has recognised the complete inappropriateness of her conduct and has expressed remorse for her actions.
29. [29]
    One of the conditions imposed by OHO in March 2017 which led to her loss of her job at RSL Caboolture was that she attend a Professional Boundary Education course required by the Regulator, however, as she explains in her affidavit filed in these proceedings, as a consequence of losing her job she went bankrupt, and she was unable to complete that course. In her affidavit she refers to other steps she has taken to properly inform herself about matters that should be obvious to any professional health practitioner, and would have been the subject of her primary education in any event, however, she does agree with the imposition of a condition that will require her to undertake a Professional Boundaries course within the next 12 months.
30. [30]
    The respondent filed an affidavit in these proceedings which she affirmed on 31 October 2019. The applicant has not required her for cross-examination. At paragraphs 22 to 31 she refers to her relationship with the male patient. It suggests that the relationship had elements of coercive control and verbal abuse by the patient directed towards her and or her children. In her interview with the Regulator she did not make these allegations, and painted the relationship as being a good relationship, and a healthy relationship from both their perspectives.
31. [31]
    Clearly, he has had no opportunity to respond to these allegations. He was also interviewed by the Regulator. The date of the interview is not clear, but I infer that it was prior to March 2017 when OHO took immediate action. He admits clearly that the respondent was initially resistant, both with the provision of his mobile telephone number and having contact outside the hospital setting, and a therapeutic relationship and he admits that he pursued her. He regarded his contact with her, particularly before the transplant, as being of great assistance to him, particularly having regard to his degraded mental health. He described her to the investigators as “A very empathetic person, ... a caring person.” In that interview, he said very uncomplimentary things about the female patient with whom he was no longer in a relationship. He purported then to still have feelings for the respondent as she did in her interview with the Regulator but she also indicated that she recognised the professional boundaries that she should have understood at the time that she engaged in the conduct.
32. [32]
    The only conclusion that the Tribunal can really draw from these matters is that this was not a relationship initiated by the respondent. It was not predatory in any sense.  It was unprofessional for the reasons set out above.
33. [33]
    Each party in their submissions has referred to a number of Tribunal decisions, both from this State and interstate, involving boundary violations between health practitioners and patients including sexual boundary violations both during and after the cessation of the therapeutic relationship.
34. [34]
    As is often observed, recourse to previous decisions can persist in ensuring consistency of outcome in similar cases, however, rarely, if ever, are cases truly comparable, and the Tribunal is required to consider the individual and unique circumstances they pertain in the particular case before it.
35. [35]
    In Health Ombudsman v Wood [2019] QCAT 35, the Deputy President of QCAT, his Honour Judge Allen QC discussed the other cases (along with Wood) relied upon by the applicant. These are Nursing and Midwifery Board of Australia v Barnes [2017] SAHPT 11; Nursing and Midwifery Board of Australia v McMahon [2011] SAHPT 22 and Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161. I respectfully adopt the analysis and comments made by the Deputy President in Health Ombudsman v Wood [2019] QCAT 35 at paragraphs [37] to [40].
36. [36]
    The respondent, in her submission, points to obvious distinguishing features in these cases, and relies specifically on Health Ombudsman v Jolley [2019] QCAT 173.
37. [37]
    In Health Ombudsman v Jolley [2019] QCAT 173 the then Deputy President of QCAT, her Honour Judge Sheridan, referred to Health Ombudsman v Evans [2016] QCAT 77, a case involving sexual boundary violations between a registered nurse with 20 years’ experience in the mental health field, and a female patient who he had treated during five of her six admissions to the hospital. The sexual relationship commenced some months after the therapeutic relationship ceased but then continued for approximately 17 months. In the proceedings before the Tribunal the Board questioned the truthfulness of various statements made by Mr Evans in his affidavit but elected not to cross-examine him.
38. [38]
    The practitioner, Mr Evans, in that case had suffered himself and was still suffering at the time of the disciplinary proceedings from a mental illness with some very complex features.
39. [39]
    A fair analysis of these various cases does not support the proposition that in every case where a health practitioner engages in sexual boundary violations with a patient, during or after the cessation of the therapeutic relationship, a cancellation or a suspension should always follow.
40. [40]
    In the view of the Tribunal, the circumstances here identified above, do not require a suspension of the respondent’s registration to give proper effect to the protected function, or for other reasons relating to the purposes of imposing a disciplinary sanction. To do so in this case would intrude into punitive action on behalf of the Tribunal in my opinion.
41. [41]
    In those circumstances the orders of the Tribunal will be as follows:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013, the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded.
3. Pursuant to s 107(3)(b)(i) of the Health Ombudsman Act 2013, the respondent must complete a Professional Boundaries course within 12 months from the date of this order.
4. Each party bear their own costs.