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Health Ombudsman v Dower[2021] QCAT 177

Health Ombudsman v Dower[2021] QCAT 177

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Dower [2021] QCAT 177

PARTIES:

Health ombudsman

 

(applicant)

 

v

 

susane Marie dower

 

(respondent)

APPLICATION NO/S:

OCR326-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 May 2021 (ex tempore)

HEARING DATE:

25 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Mr Stephen Lewis

Mr James McNab

Ms Margaret Ridley

ORDERS:

  1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
  2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was registered as an endorsed enrolled nurse – where the respondent committed boundary violations by entering into a relationship with a former patient – whether such conduct should be characterised as professional misconduct – inordinate delay by Director of Proceedings of the Office of the Health Ombudsman in prosecution of health service complaint – what sanction should be imposed

Health Ombudsman Act 2013 (Qld), s 103, s 104

Health Practitioner Regulation National Law (Queensland), s 5

Craig v Medical Board of South Australia [2001] 79 SASR 54

Health Ombudsman v Bothwell [2020] QCAT 393

Health Ombudsman v Gascard [2020] QCAT 264

Health Ombudsman v Hastie [2021] QCAT 59

Health Ombudsman v Jolley [2019] QCAT 173

Nursing Administrative Board of Australia v Adam [2020] SACAT 48

APPEARANCES & REPRESENTATION:

 

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

No appearance

REASONS FOR DECISION

Introduction

  1. [1]
    This is a referral of a health service complaint against Susane Marie Dower (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant).
  2. [2]
    The applicant alleges, in the referral filed 30 September 2019, that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. The respondent has chosen not to engage in the proceedings. She has been served with all the material before the Tribunal after an order was made for substituted service upon the respondent. The respondent has not appeared at the hearing, either in person or by telephone or video link, despite being given notice of the hearing.
  3. [3]
    The respondent is 45 years old. She obtained a diploma of nursing in 2014, and was registered as an enrolled nurse on 14 May 2014. The respondent’s registration lapsed after she failed to renew her registration on or before 30 June 2020, and she is not currently registered as a health practitioner.
  4. [4]
    The respondent has no prior disciplinary history. At the time of the conduct the subject of the referral, the respondent was employed on both a contract and temporary casual basis as an endorsed enrolled nurse by West Moreton Hospital and Health Service at Ipswich Hospital and the Park Centre for Mental Health at Wacol, commencing such employment in or about September 2014.

Conduct

  1. [5]
    On 6 June 2016, a patient (the patient) presented to the emergency department of Ipswich Hospital after an overdose of medication with associated alcohol intoxication. He reported that he intended to hang himself. The patient was assessed by a psychiatric registrar who recorded an impression of adjustment disorder with depressed mood and psychological stress and the patient was admitted into the mental health unit as a voluntary health patient.
  2. [6]
    The respondent was rostered to work in the mental health unit of the hospital on 6, 7, and 8 June 2016.
  3. [7]
    On 7 June 2016, the respondent attended an interview between the patient and a psychiatrist which included a detailed discussion of his circumstances and mental health.
  4. [8]
    The only other nursing contact between the patient and the respondent occurred later that day at about 1.30 pm on 7 June 2016. The respondent recorded a nursing note, noting that the patient was pleasant and polite upon interaction, that she had given him a Thiamine injection, recording observations of blood pressure, and noting an episode of vomiting.
  5. [9]
    As it transpired, the respondent had met the patient some time prior to his admission in a social context. In a statement sent to her employer in late December 2016, the respondent stated that when she was allocated to be the patient’s contact nurse, she was not aware that she had met the patient previously until she had face to face contact with him in the mental health unit. She described her nursing contact with him as being limited to briefly sitting in a doctor’s review and giving the patient a Thiamine injection at the request of the doctor. She stated that their interaction with each other was minimal and brief.
  6. [10]
    During an interview by an investigator from the Office of the Health Ombudsman on 9 February 2018, the respondent was asked about her understanding of boundary violations and responded “it would be having a relationship with a patient.” She stated that she did not consider that her subsequent relationship with the patient fitted that description, because he had been discharged and was a voluntary patient:

Like, he had been well and truly discharged. So, how can, like – you know, how can they say that, like, I violated anything when I didn’t do anything or have any sort of relationship with him while he was at the hospital.

…I knew – like, I knew that I shouldn’t have treated him, but we were so busy, and it was, like, hectic, and the – like, I know this now.  I can’t take it back.  And trust me, I’ve learned my lesson.

…Look, at the time when I saw him, I was, like, crap, like – but we were just – we were just so busy.  We were understaffed and I just – and, like, when I said something, everyone was, like, “Well, is it an immediate family member?  Like is, you know – are you close to him?”  And I said, “No.  Like, we know each other but.”  And they said, “Well, is there going to be an issue,” and I said no, when I should have said yes.

  1. [11]
    It should be noted that the conduct the subject of the referral is not any alleged conflict of interest or boundary violation in the limited treatment given by the respondent to the patient, whom she had previously met, but rather the conduct of her subsequently entering into a relationship with the patient after his discharge, following such limited nursing care.
  2. [12]
    On 15 or 16 June 2016, the patient and the respondent exchanged messages on Facebook, and exchanged telephone numbers. On 17 June 2016, the patient and the respondent met at a tavern and over the next few weeks developed a closer personal relationship. In July 2016, the respondent and the patient commenced a sexual relationship.
  3. [13]
    In early July 2016, the respondent talked to a colleague about the developing relationship, who counselled her to remove herself from the relationship:

I confided in someone at work and told them, and then, yeah, they said, “Get out before you get yourself into, like, trouble.”  Because I said, like, you know, he’s been discharged, like – and they said, “It doesn’t matter.  Like, it’s a work thing.”  …when it was explained to me properly, and I saw it from that point of view, then I went, “Oh, okay.”

  1. [14]
    The relationship developed into one of periods of cohabitation. It proved to be a very unhappy relationship characterised by domestic violence.
  2. [15]
    The respondent suffered significant professional and personal losses because of the nature of the relationship, and as a consequence of her conduct the subject of the referral. As well as physical, psychological and emotional trauma, the respondent suffered the loss of her employment with the hospital and health service- her contract of employment not being extended on 29 January 2017- and financial consequences of a severe nature.
  3. [16]
    The relationship between the respondent and the patient appears to have finally terminated, after periods of separation, by late 2017.

Characterisation of conduct

  1. [17]
    The respondent has shown only a very limited understanding of the obligations upon health practitioners, including enrolled nurses, to maintain professional boundaries with patients. The conduct occurred within the first three years of her registration as an enrolled nurse.
  2. [18]
    As a registered enrolled nurse, the respondent was required to comply with the Code of Professional Conduct for Nurses in Australia, which includes the following: 

8.1.  An inherent power imbalance exists within the relationship between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation. Nurses actively preserve the dignity of people through practised kindness and respect for the vulnerability and powerlessness of people in their care. Significant vulnerability and powerlessness can arise from the experience of illness and the need to engage with the health care system. The power relativities between a person and a nurse can be significant, particularly where the person has limited knowledge; experiences pain and illness; needs assistance with personal care; belongs to a marginalised group; or experiences an unfamiliar loss of self-determination. This vulnerability creates a power differential in the relationship between nurses and persons in their care that must be recognised and managed.

8.3 Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for, and between themselves and others, such as the person’s partner and family and other people nominated by the person to be involved in their care.

8.5 Sexual relationships between nurses and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances. Such relationships automatically raise questions of integrity in relation to nurses exploiting the vulnerability of persons who are or who have been in their care. Consent is not an acceptable defence in the case of sexual or intimate behaviour within such relationships.

  1. [19]
    The respondent’s conduct in entering into a relationship with the patient contravenes the Code of Conduct, and that is a matter that is to be taken into account in determining whether or not such conduct constitutes professional misconduct.
  2. [20]
    There is no evidence of any particular education undertaken by the respondent during her Diploma of Nursing or at her workplace as to the obligations upon nurses to maintain professional boundaries with patients.
  3. [21]
    The relevant part of the definition of professional misconduct in limb (a) of the definition in section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) is an objective one, in that it directs attention to the failure to maintain standards reasonably expected of a registered health practitioner of an equivalent level of training or experience.
  4. [22]
    The obligation for health practitioners to maintain professional boundaries with patients is a fundamental one. Although her training and experience might be limited, the respondent ought to have been well aware as to the need to maintain such boundaries.
  5. [23]
    The Tribunal finds that the conduct of the respondent in entering into a relationship with the patient is unprofessional conduct by the respondent that amounts to conduct that is substantially below the standard reasonably expected of an endorsed nurse of the respondent’s training and experience.
  6. [24]
    Pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

  1. [25]
    The purpose of sanction is to protect the public, not punish the practitioner. As has been noted in many previous decisions often citing Craig v Medical Board of South Australia,[1]the imposition of a sanction may serve one or all of the following purposes:
    1. (a)
      preventing practitioners who are unfit to practise from practising;
    2. (b)
      securing maintenance of professional standards;
    3. (c)
      assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
      bringing home to the practitioner the seriousness of their conduct;
    5. (e)
      deterring the practitioner from any future departures from appropriate standards;
    6. (f)
      deterring other members of the profession that might be minded to act in a similar way; and
    7. (g)
      imposing restrictions on the practitioner’s right to practice so as to ensure the public is protected.
  2. [26]
    The applicant submits that the Tribunal would reprimand the respondent and would disqualify her from applying for reregistration as a registered health practitioner for a period of six months.
  3. [27]
    The applicant submits that the respondent’s conduct was serious, given that the respondent was involved in the patient’s direct care, and therefore had knowledge of the reasons for his admission to hospital, his particular vulnerabilities, and his personal and health circumstances.
  4. [28]
    The applicant refers also to the short period of time between the practitioner’s discharge from hospital and commencement of the relationship.
  5. [29]
    The applicant points to the respondent continuing the relationship, despite being counselled by a colleague to discontinue it, as well as the significant duration of the relationship.
  6. [30]
    The applicant, however, very fairly acknowledges that the particular dynamics of the relationship between the patient and the respondent were such that it was obviously very difficult for the respondent to extricate herself from that relationship and that her failure to do so must be viewed in those particular circumstances. The applicant fairly acknowledges that the failure to terminate the relationship, despite the advice from a colleague, and the duration of the relationship, in those circumstances, might not be seen as such an aggravating factor as in cases without such circumstances. The Tribunal agrees with that submission.
  7. [31]
    The applicant quite properly points to the failure by the respondent to engage in the proceedings, and the consequent absence of any evidence of insight of the respondent into the wrongness of her behaviour, and the limited evidence of any remorse on the part of the respondent for her misconduct. These circumstances limit the Tribunal’s ability to assess the degree to which the respondent might have developed insight into her conduct, and any evidence of rehabilitation, militating against any future risk she might pose.
  8. [32]
    The written submissions on behalf of the applicant refer to the relevance of personal deterrence in considering orders for sanction. In my view, the significant adverse consequences suffered by the respondent as a consequence of her conduct significantly diminish the importance of specific deterrence in considering appropriate orders of sanction. The same considerations tend to render the respondent an inappropriate subject of orders for sanction designed to address considerations of general deterrence.
  9. [33]
    The applicant has referred to a number of other Tribunal decisions in support of a submission that an appropriate total period of preclusion from practice would be one of 18 months and, taking into account the period of 12 months during which the respondent has been not registered as an enrolled nurse, that an appropriate order for disqualification from application for reregistration would be a period of six months.
  10. [34]
    The applicant refers to the Health Ombudsman v Jolley;[2] Health Ombudsman v Bothwell;[3] Health Ombudsman v Gascard;[4] and Nursing Administrative Board of Australia v Adam.[5] The applicant also refers to the recent decision of Health Ombudsman v Hastie[6] as of particular assistance in determining appropriate orders of sanction.
  11. [35]
    All of those decisions referred to note the significance of evidence of insight and rehabilitation in considering appropriate orders for sanction. The decisions show that any period of preclusion from practice prior to orders being made is a particularly important factor in determining whether any further preclusion from practice is required.
  12. [36]
    The cases referred to tend to support the submission on behalf of the applicant that, normally, a boundary violation of the type under consideration would attract a total preclusion of practice in the vicinity of 18 months. The applicant points to that being the effect of the orders of the Tribunal in Hastie.
  13. [37]
    Of course, each case depends upon its own circumstances and, notwithstanding some mitigating factors present in Hastie which are not present in the case of the respondent, I regard it as a more serious example of professional misconduct than the case of the respondent.
  14. [38]
    Particular circumstances which are of significance in the case of the respondent have already been touched upon. That is, the significant professional and personal losses subsequently suffered by the respondent as a consequence of her conduct in entering into a relationship with the patient. Those considerations not only diminish the relevance of considerations of general and personal deterrence, but also diminish considerations of denunciation in determining orders of sanction.
  15. [39]
    However, the respondent’s conduct still requires denunciation and that will be achieved by the order of a reprimand.
  16. [40]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person. It is a public denunciation of the respondent’s conduct, and if the respondent was to be reregistered, will be recorded on the public register until such time as the Nursing and Midwifery Board consider it appropriate to remove it.
  17. [41]
    Obviously, considerations of immediate protection of the public do not compel any order for further preclusion from practice. The respondent is not currently registered, and if she applies for reregistration, she would need to satisfy the Board of her fitness to practice. This Tribunal cannot place any conditions upon any subsequent reregistration, but in the circumstances, it would not be surprising if any reregistration was subject to conditions requiring education to address any deficiencies in the respondent’s knowledge of the need to maintain proper professional boundaries.
  18. [42]
    Another factor which should be taken into account is the inordinate delay in the investigation and prosecution of the health service complaint by the Office of the Health Ombudsman. The complaint was received on 9 November 2016 and the Health Ombudsman decided to commence an investigation on 16 November 2016. The respondent was not interviewed until 9 February 2018. On 28 February 2018, the Health Ombudsman referred the matter to the Director of Proceedings. It was not until 13 September 2019 that the referral was filed in the Tribunal. The proceedings subsequently took some time, mainly because of the lack of engagement by the respondent, and the need for the applicant to make an application for orders for substituted service.
  19. [43]
    The delay between the referral of the matter to the Director of Proceeding and the filing of the referral before the Tribunal is apparently because of the significant backlog of matters that were before the Director of Proceedings during that period of time. That is of no consolation to the respondent, who has had the matter hanging over her head for a significant period. I consider that the delay is a mitigating factor in the circumstances of this case.
  20. [44]
    If not for the factor of delay and those circumstances of the professional and personal consequences already suffered by the respondent as a consequence of her conduct, I would have accepted the submission on behalf of the applicant that a total period of preclusion from practice of 18 months was appropriate.
  21. [45]
    However, given those particular circumstances, I am of the view that the protective purposes of sanction do not require any further period of preclusion from practice and that the order of a reprimand adequately addresses the purposes of sanction.

Footnotes

[1]  [2001] 79 SASR 545 at 553-555.

[2]  [2019] QCAT 173.

[3]  [2020] QCAT 393.

[4]  [2020] QCAT 264.

[5]  [2020] SACAT 48.

[6]  [2021] QCAT 59.

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Dower

  • Shortened Case Name:

    Health Ombudsman v Dower

  • MNC:

    [2021] QCAT 177

  • Court:

    QCAT

  • Judge(s):

    Judge Allen QC

  • Date:

    25 May 2021

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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