Health Ombudsman v Hastie[2021] QCAT 59

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Kelly Emily Hastie (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 respondent is aged 39 years and was in her mid-30’s at the time of the conduct the subject of the referral. The respondent was employed as a medical technician in the Australian Defence Force from 2006. She was first registered as an endorsed enrolled nurse in 2011 and continued her employment as a medical technician. The respondent has not previously been the subject of disciplinary proceedings and has no history of conditions on her registration.
3. [3]
   After a period of maternity leave, the respondent commenced employment in January 2016 in two casual endorsed enrolled nurse positions, splitting her working hours equally between employment in a private mental health hospital (PMHH) and a public hospital (PH) in a Queensland regional city. The respondent had not previously worked in a mental health facility. In May 2016, the respondent’s employment at the PMHH changed from casual to part-time. She continued her employment with the PH. In October 2016 the respondent’s employment at the PMHH changed from part-time to full-time and she ceased her employment at the PH. The respondent resigned her employment at the PMHH on 3 March 2017.
4. [4]
   The referral alleges that the respondent engaged in professional misconduct by, between 2 January 2016 and 1 March 2017, breaching professional boundaries by engaging in an inappropriate relationship with a former patient of the PMHH (P).
5. [5]
   The parties are agreed as to the facts of the conduct and its characterisation as professional misconduct. They differ as to appropriate orders by way of sanction.

Conduct

6. [6]
   The respondent commenced employment at the PMHH on 2 January 2016. The PMHH is an acute mental health facility.
7. [7]
   P was in her mid-30’s at the time of the conduct the subject of the referral. P was admitted to the PMHH for a period in early 2016 and then from 4 April 2016 to 19 June 2016, 4 October 2016 to 11 November 2016, and 1 March 2017 to 1 April 2017, for post-traumatic stress disorder, chronic dysthymia, depression and alcohol misuse disorder.
8. [8]
   P was an in-patient housed on level 1 of the PMHH. The respondent worked mainly on level 2 of the PMHH. With the exception of two instances that will be referred to in these reasons, the respondent did not provide treatment to P during her admissions to the PMHH.
9. [9]
   In the first half of 2016, the respondent and P exchanged mobile telephone numbers after the respondent offered to provide personal training sessions to P on her discharge from the PMHH.
10. [10]
    On 16 June 2016, the respondent answered a call to the room of P who was complaining of pain and provided her with two Panadeine Forte tablets and Ibuprofen.
11. [11]
    In around August or September 2016, the respondent invited P to move into the respondent’s house with the respondent and her partner, and P moved into their home.
12. [12]
    On an occasion in around October 2016, the respondent and P kissed each other on the lips.
13. [13]
    On 4 October 2016, P was re-admitted to the PMHH.
14. [14]
    On 26 October 2016, the respondent emailed her Nurse Unit Manager (NUM) and declared she had a friendship with P. The respondent said she had met P through her (the respondent’s) partner and stated (with redactions):

I have socialised with P after her discharge from PMHH a couple of months ago, on her re admission to undergo TMS, I have remained on level 2 each shift, I have maintained a professional boundary thus far and will continue to do so for the rest of her admission. If I am to work on level 1 I will ask to not be allocated as P’s nurse.

15. [15]
    On 31 October 2016, whilst an in-patient of the PMHH, P had a dissociative episode. P sent a text message to the respondent asking her to come to P’s room. The respondent attended P’s room and provided her some assistance.
16. [16]
    On 31 October 2016, the respondent sent an email to  her NUM, referring to the events earlier that day, stating that she had become aware that P was in a dissociative state, that the level 1 nurses were busy with other patients and (with redactions):

I have been around P on the last few occasions when she has dissociatied [sic] I am aware of what to do to help her in her state.

I entered her room. Helped her come back and then returned to level 2.

L was not happy and told C who was in charge on level 2 that she will take it further.

17. [17]
    The NUM advised the respondent by email that she needed to be aware of boundaries and friendships and to allow for other nurses to attend to P’s needs.
18. [18]
    On 11 November 2016, P was discharged from the PMHH.
19. [19]
    On 17 November 2016, the respondent and P travelled overseas together.
20. [20]
    During the latter part of 2016, a romantic relationship between the respondent and P developed into a sexual relationship.
21. [21]
    On 16 January 2017, the respondent attended the home of a PMHH treating psychologist on a personal errand accompanied by P.
22. [22]
    On 19 January 2017, the psychologist notified the respondent’s NUM of her concerns that the respondent had attended her home in the company of P.
23. [23]
    As a result of the psychologist’s notification, the NUM confronted the respondent about the visit to the psychologist’s home with P.
24. [24]
    On 23 January 2017, the respondent emailed her NUM and admitted to attending the psychologist’s home with P. The respondent referred to P as an ex-patient she had previously declared a friendship with. The respondent apologised for her actions and stated that she had “read the policies and procedures regarding nurse/patient relationship and boundaries involving patients.”
25. [25]
    On 1 March 2017, P sent a picture of cuts to her arms to an in-patient of the PMHH, stating that the respondent had broken up with her and communicating her distress. The in-patient was shaken and distressed. The in-patient told a nurse about the text message from P and the nurse reported this matter to the NUM.
26. [26]
    On 1 March 2017, P was re-admitted to the PMHH and told a nurse about her relationship with the respondent.
27. [27]
    On 2 March 2017, the PMHH sent a letter to the respondent seeking a disciplinary meeting.
28. [28]
    On 3 March 2017, the respondent sent a letter of resignation to the PMHH in which she admitted to being “involved romantically” with P. She stated:

I would like to stress that at the time she was not a patient at (PMHH), nor was I ever directly involved in her care.

…

I never continued a relationship with (P) and I tried to remain professional at work, leaving my personal matters at home.

29. [29]
    P’s hospital records include the following:

    1. (a)
       Notes of a consultant psychiatrist on 3 March 2017 (with expansion of abbreviations and anonymisation):

Review of P

Looks tired, dysphoric +++

…

P not sure what happening with partner → no contact. P very distressed, feels relationship is over. Overwhelmed with loss. P states she has lost all her friends over the relationship (friends did not agree with relationship).

P feels she was very vulnerable when relationship started. “Struggling”. Feels very let down that partner would end relationship when she was aware P was not coping. Feels partner’s recommendation not to come into PMHH was further evidence of disregard for P and her safety (ie: risk of deliberate self-harm / suicide at home).

2. (b)
   Notes of the consultant psychiatrist on 6 March 2017 (with expansion of abbreviations and anonymisation):

Review of P

Looks flat, tired

Expresses frustration at current situation – partner texts intermittently

Believes partner has not been staying at her home. Worries she has returned to ex-partner. P would like to know as currently frustrated. Feels like there is “game playing”.

Noted extensive superficial deliberate self-harm to both forearms / dorsum of forearms → did it with a pen. Helped “a little” → red, swollen. “Let’s me know I can feel things, not numb to everything”.

Feels like she is “disconnecting” again – dissociating, losing interest in things

Feels socially isolated+++ - lost many friends with relationship; others too busy.

…

Has urge to “take a bottle of pills” “to end things”

30. [30]
    On 15 March 2017, the Office of the Health Ombudsman (OHO) received a notification from the PMHH about the respondent.
31. [31]
    On 10 April 2017, in a written response to an OHO notice requiring information, the respondent stated:

    1. (a)
       She had first met P in February/March 2016;
    2. (b)
       She became aware that P was a patient of the PMHH in February/March 2016;
    3. (c)
       She met P when P visited level 2 of the PMHH to visit another patient;
    4. (d)
       She initially interacted with P on a social level;
    5. (e)
       Her romantic involvement with P commenced in approximately December 2016;
    6. (f)
       The nature of the romantic involvement was one of an emotional connection;
    7. (g)
       The romantic involvement ended in approximately January 2017;
    8. (h)
       Prior to the romantic relationship with P commencing, she saw P occasionally;
    9. (i)
       During the romantic relationship, she saw P most days;
    10. (j)
        She was not properly trained in mental health and was unaware of the extent of P’s  mental health issues;
    11. (k)
        She had never had P as a patient and therefore had not read her medical records; and
    12. (l)
        “As I have received no mental health training, I had no idea that the relationship that I had with (P) could possibly lead to any adverse implication.”
32. [32]
    P told OHO investigators that:

    1. (a)
       She met the respondent during her first admission to the PMHH;
    2. (b)
       The respondent gave P her phone number;
    3. (c)
       The respondent and P started communicating and a friendship developed;
    4. (d)
       P would discuss her mental health state with the respondent and the respondent’s partner, including her suicidal tendencies;
    5. (e)
       The respondent treated P when she was an in-patient of the PMHH on one occasion in October 2016 to assist P to come out of a dissociative state;
    6. (f)
       P continued to discuss her mental health state with the respondent while they were in a sexual relationship;
    7. (g)
       The respondent told P of the need to keep the relationship a secret as it would be considered by the PMHH to be inappropriate;
    8. (h)
       P’s mental health was on a “downward spiral” and she made arrangements to attend the PMHH;
    9. (i)
       The respondent tried to talk P out of attending the PMHH;
    10. (j)
        The relationship ended in late January or early February 2017; and
    11. (k)
        P did not believe she was in a sound state of mind during the time of her relationship with the respondent.
33. [33]
    The Code of Professional Conduct for Nurses was displayed on noticeboards at the PMHH and emailed to staff. The respondent signed a position description referring to the Code of Professional Conduct for Nurses upon commencing employment.

Evidence of the respondent

34. [34]
    The respondent affirmed an affidavit in which she deposed as follows:

I do not have specific training or qualifications in mental health nursing. Before my work at the (PMHH), I had not previously worked in a mental health facility. I was not provided with information or training regarding professional boundaries, and the unique challenges faced by mental health nurses with respect to the maintenance of professional boundaries, prior to commencing work with the (PMHH).^[1]

35. [35]
    The respondent further deposed that her less than frank disclosures to the PMHH as to the extent of her relationship with P were influenced by her wanting to conceal the nature of the relationship from her long-term partner and further as follows:

I was able to convince myself that:

1. (a)
   because I was not involved in (P)’s day-to-day care and I had not treated (P) (with the exception of the incident on 16 June described above) I did not have therapeutic relationship with (P) that created the kind of dependency or vulnerability that exists in an ordinary nurse-patient relationship; and
2. (b)
   (P) had the capacity to distinguish between my role as a nurse and my role as her friend/romantic interest, such that there was minimal risk to her as a result of her relationship.

I realise now that this belief reflected my incomplete or shallow understanding of the nature of professional boundaries. I now understand, where I didn’t at the time, that even in the absence of an established therapeutic relationship with (P), I was still in a position of power over her as a result of my status as an EN in the facility in which she was being treated.^[2]

36. [36]
    With reference to the events of 31 October 2016, the respondent provided the following background information:

I had been around (P) when she had experienced dissociative states on 4-5 occasions in the past. The techniques that I had developed to assist (P) when she entered those states was not based on any training I had received through the (PMHH) or through my nursing education – it was the result of trial and error during the course of our personal relationship.^[3]

37. [37]
    The respondent deposed to since remedying deficiencies in her knowledge of professional boundaries by reading a Nursing and Midwifery Board publication, “A nurse’s guide to professional boundaries”, and completing a course focusing on professional boundaries.^[4] She deposed in detailed terms as to her increased insight into the consequences of a boundary violation on a patient.^[5] The credibility of the respondent’s affidavit evidence on this topic was adversely affected by her description of the circumstances of P that did not correspond to P’s actual circumstances – the respondent referred to P by the wrong gender and to circumstances not relevant to P.^[6] I infer that an error was made by whomever prepared the respondent’s affidavit, probably by cutting and pasting contents from another client’s affidavit in an unrelated matter. The respondent’s failure to advert to such error prior to a challenge in cross-examination adversely affected her credit and the weight to be attached to this part of her affidavit evidence.
38. [38]
    The respondent deposed further as to her remorse for her conduct and as to her confidence that she would never again behave in a similar way.^[7]
39. [39]
    The respondent was cross-examined during the hearing. Her evidence raised further doubts as to the true extent of the respondent’s professed increased insight as to professional boundaries. The respondent initially denied continuing to discuss P’s mental health with her.^[8] The respondent then conceded that she had conversations with P when P was living at her home when she assisted P in dissociative episodes:

… but as a – an effort as a friend to help. Yeah, it wasn’t treating her – in any way.

… I guess I would say, “How are you feeling?” and – and – and, “What happened?” and, yeah, if she felt she wanted to talk about it, she did, but if she didn’t, she then wouldn’t.

Did she ever tell you about any mental symptoms she was experiencing? --- Only the fact that she was sad a lot, and a lot of, I guess, feelings that she had.

So she would talk about flashbacks? --- Yeah, she did discuss her time in Defence.

Right. And experiencing flashbacks? --- Yes, sir.

All right. Well, can I ask you again, when the patient was living with you, did you, at times, discuss her mental health state? --- As far as my nursing side, no, but as far as a friend to friend, that – that I would discuss with any other friend … I would.

And did that continue after you were in a sexual relationship? --- Once again, not in a – in a nursing way but just in a relationship way.^[9]

40. [40]
    The respondent’s evidence also raised doubt as to the true extent of her insight into the effect of her boundary crossing on P:

In your affidavit … you say your action had a detrimental impact on the patient’s health. Do you see that? --- Yes, sir.

Can you just explain to us your understanding of what that detrimental impact was? And that can be in hindsight? --- Yep.

I’m not asking about an understanding at any particular time, and it can be based upon your consideration of material that’s before the tribunal now, but what’s your understanding of the detrimental impact you had on her health? --- I just believe now that crossing that – crossing that boundary, it may have definitely confused her for future – future times, whether she have a therapeutic relationship with another nurse and – yeah, like that’s where I was going with that. Like, more she may not trust a nurse again, I guess.

Right? --- And, therefore, yeah, if that has an effect on her ongoing health.

So that’s a future potential impact on future therapeutic relationships? --- Yes, sir.

Do you have any understanding as to whether there was any actual harm to her health which has already occurred? --- No, sir, I don’t know anything.

Were you taken – did your solicitors take you through material such as the progress notes for the patient, including her admission in March 2017? --- Yes, sir.

All right. But you still didn’t perceive that your actions had caused any actual harm to the patient? --- No, sir.^[10]

Characterisation of conduct

41. [41]
    Section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) defines “professional misconduct” as follows:

professional misconduct, of a registered health practitioner, includes—

1. (a)
   unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
2. (b)
   more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
3. (c)
   conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

42. [42]
    The definition incorporates the definition of “unprofessional conduct” in section 5 of the National Law which relevantly includes “professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner’s professional peers”.
43. [43]
    The parties both submit that the conduct of the respondent should be characterised as professional misconduct as defined in limb (a) of the definition in section 5 of the National Law. The Tribunal accepts such submissions.
44. [44]
    The contents of the Nursing and Midwifery Board of Australia publication, Code of Professional Conduct for Nurses in Australia, is admissible as evidence of what constitutes appropriate professional conduct for the nursing profession.^[11] The Code relevantly provides as follows:

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… This vulnerability creates a power differential in the relationship between nurses and persons in their care that must be recognised and managed.^[12]

…

Nurses recognise that vulnerable people, including… people with mental illness… must be protected from sexual exploitation and harm.^[13]

Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for…^[14]

Nurses fulfil roles outside the professional role, including those as family members, friends and community members. Nurses are aware that dual relationships may compromise care outcomes and always conduct professional relationships with the primary intent of benefit for the person receiving care. Nurses take care when giving professional advice to people with whom they have a dual relationship (e.g. a family member or friend) and advise them to seek independent advice due to the existence of actual or potential conflicts of interest.^[15]

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.^[16]

45. [45]
    Although the conduct of the respondent was not predatory and was not calculated to sexually exploit P, it is nevertheless a serious instance of a boundary violation. P was obviously a very vulnerable person during the course of her relationship with the respondent. The boundary violation not only had the potential to seriously compromise P’s mental health but clearly, ultimately, caused actual harm to P’s mental health. It is concerning that the respondent, in her evidence, denied any appreciation of having caused actual harm to P.
46. [46]
    The respondent sought to mitigate her blameworthiness by reference to a lack of training and experience in mental health nursing. The respondent had a professional responsibility to be aware of the standards of conduct required of her. It should have been obvious to the respondent that her behaviour was seriously inappropriate and her lack of frankness in her disclosures to her employer of the extent of her relationship with P suggest she was so aware.
47. [47]
    The fact that the respondent only had very limited nursing care of P at the PMHH must be balanced against the fact that the respondent was providing assistance to P of the nature of mental health nursing whilst they were together at home. That, and the consequent nursing intervention by the respondent on 31 October 2016, demonstrates the serious blurring of boundaries between the nurse-patient and personal relationships of the respondent and P. It is concerning that the respondent in her evidence demonstrated an ignorance of these matters.
48. [48]
    The conduct of the respondent was conduct substantially below the standard reasonably expected of an enrolled nurse of an equivalent level of training or experience.  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.

Sanction

49. [49]
    In considering the matter of sanction, the Tribunal must be mindful that the main principle for administrating the HO Act is that the health and the safety of the public are paramount.  Purposes of sanction are protective, not punitive.  As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,^[17] the imposition of 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 practise so as to ensure that the public is protected. 

50. [50]
    In considering the need for personal deterrence, the extent of insight of the practitioner as to the wrongness of their conduct will often be relevant. I accept that the respondent is truly remorseful for her conduct and has developed some, albeit limited, insight into the wrongness of her conduct.
51. [51]
    The respondent resigned her employment with the PMHH upon the commencement of the investigation of her conduct. She soon after returned to employment with the PH. She resigned from that employment so she could move with her family interstate. She has since worked as an Assistant in Nursing at an aged care facility. Registration as an enrolled nurse is not required to hold such employment. The respondent has retained unconditional registration as an enrolled nurse. The respondent should not be regarded as having suffered any preclusion from or restriction on her practise as an enrolled nurse that serves to mitigate sanction.
52. [52]
    Mitigating factors include the respondent’s lack of prior disciplinary history, her undertaking of education on professional boundaries and her co-operation with the proceedings before the Tribunal.
53. [53]
    Both parties agree that the respondent should be reprimanded. Her conduct requires denunciation and the consequence of public recording of such for such time as the Nursing and Midwifery Board of Australia determines appropriate.^[18] Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
54. [54]
    The parties differ as to whether a suspension of the respondent’s registration is required.
55. [55]
    The parties have referred to a number of tribunal decisions by way of comparative cases.^[19] I have also considered Health Ombudsman v Wood,^[20] Health Ombudsman v Flyger^[21]and Health Ombudsman v Bricknell.^[22] These decisions do not define a range of appropriate sanction, each case depending on its own unique circumstances, but are useful yardsticks when considering whether any, and if so, how long a, suspension is appropriate.
56. [56]
    I have been assisted in determining sanction by considering the views of the assessors. I have concluded that, in the circumstances of this case, the protective purposes of sanction require, pursuant to section 107(3)(d) of the Health Ombudsman Act 2013 (Qld), a suspension of the respondent’s registration for a period of 18 months.

Costs 

57. [57]
    The applicant did not seek any order for costs and there is no reason why the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) should not apply and be reflected in the orders of the Tribunal.