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- Unreported Judgment
Health Ombudsman v Tatti QCAT 110
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Tatti  QCAT 110
Occupational regulation matters
22 March 2022 (ex tempore)
22 March 2022
Judicial Member J Robertson
Ms Harriet Barker
Ms Laura Dyer
Dr Peter Glazebrook
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where registered nurse commenced an inappropriate relationship with a female patient to whom he had previously provided care – where the relationship commenced after she was discharged – where the respondent admits the allegations and co-operated with the disciplinary proceedings – what sanction should be imposed
Health Ombudsman Act 2013 (Qld) s 62, 107
Health Practitioner Regulation National Law (Queensland) s 269
Briginshaw v Briginshaw (1938) 60 CLR 336
Health Ombudsman v Obet  QCAT 338
Medical Board of Australia v Jansz  VCAT 1026
Nursing and Midwifery Board of Australia v Bellato (Review and Regulations)  VCAT 248
Nursing and Midwifery Board of Australia v Welsh (No. 2) (Review and Regulations)  VCAT 728
Tran, J (Principal Legal Officer at the Office of the Health Ombudsman)
REASONS FOR DECISION
- On 28 June 2021, the Director of Proceedings on behalf of the Health Ombudsman (the applicant) referred a health complaint against Giovanni Tatti (the respondent), seeking a finding that he had behaved in a manner that constitutes professional misconduct, and orders that he be sanctioned. The referral contains one allegation, that between 9 June 2020 and 11 August 2020 the respondent, a registered nurse, maintained an inappropriate relationship with a female patient who he knew to be a vulnerable person and to whom he had provided health services when she was an inpatient at the Royal Women’s Hospital – Hospital Alcohol and Drug Service (HADS), between 2 June 2020 and 9 June 2020.
- In his response filed on 20 August 2021, the respondent admitted “the allegations”. He represented himself throughout these proceedings. He has fully cooperated with the Tribunal and with the Health Ombudsman. The parties have filed a statement of agreed facts. Although the respondent has not filed a formal submission, he sent an email to the Tribunal which he copied to the applicant on 16 January 2022, which I regard as a submission, which is directed primarily at sanction and not so much at characterisation.
- The respondent was born on 12 February 1970. He is 52 years of age now and was aged 50 at the time of the conduct. He is qualified in accordance with section 269 of the Health Practitioner Regulation National Law (Queensland) (National Law). He was first registered with the Nursing and Midwifery Board of Australia (the Board) on 15 August 2008. At the relevant time, he was registered as an enrolled nurse (division 2) with the Board pursuant to the National Law. His registration is currently subject to conditions imposed by the Health Ombudsman on 24 September 2020.
- At the relevant time, he was employed at HADS and had been working in that unit for approximately six to seven years.
- His current employment status is as follows:
- (a)Since 12 October 2020 to now, he has been working employed by QSSS Disability Support, supporting a man with an acquired brain injury with daily living chores and community access.
- (b)Since 12 February 2021 to now, he has been working for a family whose son lives at Stafford every fourth weekend a month, starting at 2:00 pm and finishing Sunday at 12:00 pm. His duties include daily living chores and community access.
- On 11 August 2021, the Office of the Health Ombudsman received a mandatory notification from the relevant Director of Nursing about the respondent’s alleged conduct in sending lewd text messages and explicit photographs to a former inpatient of HADS (patient A).
- The Health Ombudsman served a notice of proposed immediate registration action on the respondent, to which he responded. He admitted the alleged conduct and repeatedly expressed his remorse.
- On 23 September 2020, the Health Ombudsman decided to take immediate registration action and impose conditions on the respondent’s registration. The conditions prohibited him from having contact with female patients. He could only practice as a registered health practitioner in employment and at practice locations approved by the Health Ombudsman. Those conditions remain on his registration.
- As a result of information received by the nurse unit manager at HADS on 10 August 2020, an investigation was commenced by the hospital service. On 11 August 2020, the respondent was suspended from his duties at HADS. On 16 September 2020, he was interviewed and admitted to contacting patient A and sending naked photographs of himself to her mobile phone.
- Show cause proceedings were then commenced, and that culminated on 11 December 2020 when the respondent advised the health service of his resignation.
The Relevant Conduct
- At the time of the alleged conduct, patient A was 44 years of age. Between 2 June 2020 and 9 June 2020, patient A was a patient at HADS, and during that period the respondent provided health services to her.
- Patient A was admitted to the unit for alcohol-related issues and had a history of alcohol abuse disorder. She had been an inpatient on four occasions in 2014 and 2019 and in April and June 2020.
- Her medical records indicate that during the period of her admission between 2 June 2020 and 9 June 2020, she was experiencing significant physical health issues, and the records note that she was provided with medication to help her alcohol withdrawal symptoms and that she was experiencing tremors.
- The respondent had known patient A for many years and knew that she was a vulnerable person. On or about 9 June 2020, patient A was discharged from HADS. On or about 9 June 2020 and prior to her discharge from HADS, the respondent provided her with his personal email address so they could stay in contact. She provided her mobile telephone number to the respondent.
- It is admitted by the respondent that he maintained an inappropriate personal relationship with patient A as follows:
- (a)Following her discharge from HADS, the respondent and patient A commenced sending text messages on a regular basis which were not for a therapeutic purpose.
- (b)On or about 11 July 2020, the respondent sent a naked photograph of himself to patient A by text message with the words, “Here you go. I tried to take a cum pic but didn’t work.”
- (c)On an unknown date, the respondent sent a photo of his penis to patient A by text message.
- (d)On 22 July 2020, the respondent sent a photograph of his penis to patient A by text message with the words, “How’s the birthday girl going?”
- (e)At the time she received these lewd photographs, patient A was residing at Logan House, a residential drug and alcohol rehabilitation facility.
- It was not the respondent who brought the inappropriate relationship to a conclusion. One of patient A’s friends became aware of at least one of the lewd text messages and advised another person, who in turn informed the nurse unit manager at HADS, and as a consequence there was no further communication between the respondent and patient A. From all the material, patient A was distressed that her friend had disclosed the contact.
Characterisation of the Conduct
- It is accepted that the applicant bears the onus of establishing that the respondent’s conduct amounts to professional misconduct as defined by the National Law. It must satisfy the Tribunal of the relevant facts and matters on the balance of probabilities, having regard to the sliding scale identified by Dixon J (as his Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336.
- The matter proceeds with the respondent making full admissions to the allegations in the disciplinary referral and via way of a statement of agreed facts filed on behalf of the parties in the Tribunal on 17 September 2021. There are no factual issues in dispute. It follows that the Tribunal is satisfied to the relevant standard of the facts and matters the subject of the allegation in the referral.
- The Board’s Code of Conduct for Nurses (the Code of Conduct) provides that adhering to professional boundaries, promotes person-centred practice and protects both parties. To maintain professional boundaries, nurses must:
- (a)recognise the inherent power imbalance that exists between nurses, people in their care and significant others, and establish and maintain professional boundaries;
- (b)actively manage the person’s expectations, and be clear about professional boundaries that must exist in professional relationships for objectivity in care and prepare the person for when the episode of care ends; and
- (c)avoid sexual relationships with persons with whom they have 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.
- The relevant extracts from the Code of Conduct are admissible in proceedings such as this to determine appropriate practice as a healthcare provider as a consequence of section 41 of the National Law. The Tribunal is satisfied that the proved conduct in failing to maintain professional boundaries with a very vulnerable patient was a serious departure from the professional standards and codes expected of a nurse, and it was conduct that is substantially below that reasonably expected of an enrolled nurse of a similar training and experience. The Tribunal is satisfied that the conduct is captured by all three limbs of the definition of professional misconduct in section 5 of the National Law.
- The purposes of these proceedings are protective in nature and not punitive. The protection of the health and safety of the public is paramount, and that principle underpins the jurisdiction of this Tribunal to sanction health service providers who have engaged in professional misconduct.
- The relevant principles which come into play in relation to the issue of sanction are captured in the often-quoted case of Medical Board of Australia v Jansz  VCAT 1026 at 362, 366, 367, 368 and 370.
- Relevantly, the principles that arise in this case include the need to maintain proper ethical and professional standards, the need to maintain the dignity and reputation of the profession in the mind of the public, which can be relevant to issues such as specific and general deterrence; the need to assess ongoing risk as an aspect of protection of the public; this in turn may require an assessment of the level of remorse for, an insight into the misconduct on the part of the practitioner, and other relevant matters.
- The respondent’s conduct here was serious for the following reasons. His conduct in commencing an inappropriate personal relationship by sending lewd text messages and three naked photographs of himself to patient A, shortly after her discharge, demonstrated a serious breach of professional boundaries and a significant lack of judgment, care, ethical and moral behaviour in the practice of his profession.
- The fact that he gave his personal address to her prior to his discharge, so that they could stay in contact, is also a concerning feature of his conduct. The respondent in one of his earlier responses to the hospital service stated that patient A had been an inpatient “in and out” of HADS for many years and admitted that they had slowly developed a good friendship.
- It is particularly serious that the respondent sent the sexually explicit photographs and lewd messages to patient A while she was residing at Logan House. Patient A has a history of alcohol abuse and has been admitted to HADS on four occasions. She was suffering from anxiety and depression, has had a problematic drinking issue for eight years following a divorce, and had a history of hypertension. Patient A is particularly vulnerable, which the respondent has consistently acknowledged and accepted.
- He was aware that she was trying to “get hold of her life again” and that she struggles with addiction. He was being relied upon by her as part of her support group during the rehabilitation process. She relapsed and started drinking again two weeks after he sent the last photograph on 26 July 2020. She was subsequently “kicked out” of Lucinda House, as a result of her drinking, where she attended after Logan House, which was a continuation of her rehabilitation process. Patient A stated that it would have been good for her recovery to go back to HADS but she “can’t face that place now, as I did not want any conflict with “John” or face the other nurses there who know him”. Patient A has also been “upset over the whole incident”, and as noted earlier, her relationship with her friend who activated the complaint to the nurse unit manager has suffered as a result.
- It is clear from the evidence, particularly from his interviews with the hospital service and the Office of the Health Ombudsman investigator, that leading up to the inappropriate relationship, and while patient A was still under his care, that he lacked insight and understanding about her vulnerability, particularly when she made comments to him (as he alleges) that she was interested in more than a friendship.
- There is an inherent power imbalance between a nurse and a patient, which the respondent has frankly admitted. He held a position of power over her in that he provided health services to her during her admissions at HADS for alcohol addiction. His conduct constitutes a significant breach of the fundamental requirements of the nurse-person professional relationship.
- Patient A trusted him to provide her with safe and competent nursing care during her admission to HADS. The consequences and damage caused by his conduct were significant. She was reluctant to return to HADS to seek the necessary care and support for her ongoing problems with alcohol addiction. It’s also adversely affected her relationship with her friend. There is clear evidence of the harm to the patient as a result of his conduct, which, in particular, has eroded her trust and confidence in the nursing profession.
- The respondent has demonstrated ongoing insight into and remorse for his conduct. The inappropriate relationship occurred over a fairly short period, but as noted earlier, only ended as a result of actions taken by patient A’s friend and not actions taken by the respondent. He has no prior or subsequent regulatory history.
- He has repeatedly (in interviews with the health service and in response to show-cause notices and the interview with OHO) expressed his remorse and has accepted that he breached professional boundaries with a patient who he knew to be vulnerable.
- He has also expressed insight and remorse by cooperating with the Tribunal proceedings and facilitating an agreed statement of facts. He cooperated fully in relation to both interviews referred to earlier.
- The respondent indicated early on that he intended to consult his GP for a mental health plan to allow him to obtain some counselling to address the issues which contributed to his conduct. He told me today that he didn’t go down that path but has continued to read about boundary violations and appropriate behaviours as between nurses and particularly vulnerable patients.
- He has provided copies of certificates of completion for a number of modules which he completed on 16 December 2020. He is also provided PowerPoint slides on disability and legal and ethical frameworks.
- I agree with the applicant that the respondent needs to complete further education to address the nature of his conduct, and that what he has done to date is inadequate and does not sufficiently address the underlying issues of the boundary violation. This in turn impacts on the level of his insight and remorse in a practitioner with no apparent impairment.
- In his submission filed in the Tribunal, he states, “I’ve always accepted that my actions were wrong. I have always been cooperative throughout this process. My conduct was disrespectful and lacked maturity.”
- In that submission he also refers to the consequences to him as a result of his conduct. He maintains that he is unable to obtain employment as an enrolled nurse because of the conditions imposed by the Health Ombudsman.
- In addition to the imposition of further conditions and a reprimand, the applicant seeks a short period of suspension of between three to six months. In his submission, the respondent states:
I’ve not been able to work as a nurse for the past 18 months. Essentially, the restriction put in place was a suspension of my registration. No employer wants to employ a nurse with that restriction. I have kept my registration valid.
- In response to questions from me and from one of the assessors, the respondent has fairly stated today that he has not attempted to obtain employment, for example, as an enrolled nurse in a male prison where he would not have contact with female patients.
- The applicant has referred to a number of decisions of this Tribunal and the Victorian Tribunal in support of the contention that a short period of suspension between three and six months is called for to reflect particularly specific and general deterrence in this case.
- Health Ombudsman v Obet  QCAT 338 involved a registered nurse exchanging telephone numbers with a patient prior to her discharge from an emergency department. On a number of occasions between 17 August to 3 September 2017, the practitioner contacted the patient via Facebook Messenger.
- A number of the messages contained explicitly sexual conduct. For example, the practitioner sent the patient two naked photographs of himself, including his penis, with messages such as, “Fuck I’m horny as fuck for ya,” then another word, “Aye, your ass and tits and OMG I bet your pussy would feel great wrapped around my hard cock.” The practitioner also attended the patient’s house on a number of occasions after he was instructed by his employer not to contact her.
- He initially denied sending the sexual messages and photographs to the patient but later admitted to the misconduct. He apologised for his behaviour and offered to apologise to the patient.
- He had not worked as a nurse since December 2017 as a result of immediate registration action taken by the Health Ombudsman with the imposition of conditions. He did not renew his registration, and his name was removed from the register on 2 July 2019 prior to the Tribunal hearing. It followed therefore that the Tribunal’s jurisdiction to make orders by way of suspension and cancellation were not available. Relevantly, the Tribunal made a number of comments which note that the conduct was directed at a vulnerable patient with a long history of mental illness. That practitioner had completed a number of courses addressing boundary issues, including online courses with the National Council of States Boards of Nursing.
- The applicant also refers to Nursing and Midwifery Board of Australia v Welsh (No. 2) (Review and Regulations)  VCAT 728. That practitioner had engaged in a sexually explicit conversation on 12 August 2017 via Facebook Messenger with a male patient who, in the hours leading up to the conversation, had been a patient at the hospital where the practitioner worked. Importantly, the Tribunal made a number of comments which are very relevant here. At  the Tribunal wrote:
This case is yet another illustration of the dangers for health practitioners using modern and informal technologies to engage in communications with patients. In this regard, we respectfully adopt the warning in Nursing and Midwifery Board of Australia v Bellato (Review and Regulations)  VCAT 248.
- At :
The ease and availability of text messaging, and the casual or familiar style of communication we associate with text messages, can quickly blur the line and mean that professional boundaries have been crossed, almost without noticing. It certainly facilitated the inappropriate conversations between [the nurse and patient] in this case. It also created a record of them. But it is the communication itself that is the problem and constitutes professional misconduct. These are conversations that should never have taken place in any format or mode of communication.
- Those comments are apposite in this case.
- In Obet, the fact that the practitioner had not worked since December 2017 as a result of immediate action and not renewing his registration and the completion of courses were relevant factors in the Tribunal’s decision not to impose a further period of disqualification from reapplying for registration.
- In Bellato, it was considered that a short period of suspension, together with the reprimand, was necessary in the interests of general deterrence and to signal to the profession that the conduct is condemned. The Tribunal noted that the period of suspension would be longer than one month, if not for a long period of suspension already served by the practitioner since July 2017 as a result of the immediate action decision.
- In Obet and Bellato, the periods out of practice were significant, being nearly three years and over two and a half years respectively.
- In my view, Bellato is the most helpful of the comparable decisions to which the applicant has helpfully referred the Tribunal. In this case, particularly having regard to issues of general deterrence, to a lesser extent specific deterrence, and the need to maintain public confidence in the profession by reinforcing high standards and sending a clear message to practitioners who might otherwise be minded to engage in like conduct, a short period of suspension between three and six months is appropriate, having regard to the serious nature of the conduct and the factors outlined above.
- It is also necessary, in my view, that upon completion of the period of the suspension, the respondent undertake education programs in ethics and professional boundaries as approved by the Board, including a reflective practice report to address what the Tribunal regards as an inadequate response in that regard at the present time. I agree with the applicant that the conditions that are proposed are not onerous, and that the respondent would benefit from undertaking an education program and hopefully this would assist him in returning to the profession in due course. In those circumstances, the orders and findings of the Tribunal are as follows:
- Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), in respect of allegation 1, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
- Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
- Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the immediate registration action is set aside.
- Pursuant to section 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is suspended for a period of three months.
- Pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the condition in the attached “schedule of conditions” be imposed on the respondent’s registration.
- Each party much bear their own costs of the proceedings.
- Published Case Name:
Health Ombudsman v Tatti
- Shortened Case Name:
Health Ombudsman v Tatti
 QCAT 110
Member J Robertson
22 Mar 2022