Health Ombudsman v Bobbermien
[2022] QCAT 180
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- Health Ombudsman v Bobbermien[2022] QCAT 180
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Health Ombudsman v Bobbermien[2022] QCAT 180
Health Ombudsman v Bobbermien[2022] QCAT 180
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Bobbermien [2022] QCAT 180 |
PARTIES: | Director of proceedings on behalf of the health ombudsman (applicant) v Mia bobbermien (respondent) |
APPLICATION NO/S: | OCR270-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 17 May 2022 (ex tempore) |
HEARING DATE: | 17 May 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member R Robertson Assisted by: L Dyer J McNab M Ridley |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PRACTITIONERS – NURSES – DISCIPLINARY PROCEEDINGS – where respondent was an enrolled nurse on duty during a night shift at a private acute mental health unit – where patient was in a high risk category in accordance with the policy of the owner of the clinic – where policy required the patient to be sighted every 15 minutes throughout the entire shift – where respondent and/or her supervising registered nurse colleague were required to complete a sighting sheet with the times noted – where respondent only undertook some sightings and signed for sightings she did not make – where supervising registered nurse conducted a sighting of patient at 4:34am and discovered she was not in her bed – where patient was found hanging in the bathroom – where respondent and her colleague conducted resuscitation efforts – where patient was in a coma for some days but recovered with no evidence of permanent harm – where respondent alleged and the uncontested evidence suggested that the sighting and recording practices in the clinic were not strictly followed – where contrary to the policy and not as a result of the decision of the respondent or her colleague the patient was able to retain personal items from which she was able to obtain a ligature SANCTION – where the respondent resigned from the clinic and had taken time away from nursing – where the respondent now works at the Gold Coast University Hospital assisting Mothers who have significant mental health difficulties and young babies – where the respondent has commenced a University Degree in Nursing – whether the respondent has demonstrated insight and remorse – where general deterrence is important – whether a suspension is not required to protect the health and safety of the public Health Ombudsman Act 2013 (Qld) 107 Craig v Medical Board of South Australia [2001] 79 SASR 545 Health Care Complaints Commission v Brown [2021] NSWCATOD 57 Health Care Complaints Commission v Dudhela [2021] NSWCATOD 59 Health Care Complaints Commission v Egbufor [2021] NSWCATOD 60 Health Care Complaints Commission v Sloane; Health Care Complaints Commission v Hayles [2018] NSWCATOD 37 Health Care Complaints Commission v Watkins [2021] NSWCATOD 61 Health Care Complaints Commission v Cooper; Health Care Complaints Commission v Higgins [2018] NSWCATOD 17 Health Care Complaints Commission v Thomas, Hayden, Rumble [2017] NSWNMPSC 1 Health Ombudsman v HSK [2018] QCAT 419 Health Ombudsman v Jolley [2019] QCAT 173 Health Ombudsman v Mberi [2022] QCAT 179 Medical Practitioners Board of Victoria v Grolaux (No 2) (Occupational and Business Regulation) [2009] VCAT 978 Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Templeton, instructed by the Office of the Health Ombudsman |
Respondent: | RJ Leahy, Partner at Cochrane Leahy Litigation |
REASONS FOR DECISION
- [1]On the 31st of August 2020, the applicant referred a health services complaint against the respondent to the Tribunal.
- [2]The referral contains three allegations. Allegations 1 and 2 relate to the respondent’s conduct as an enrolled nurse employed by the New Farm Clinic (NFC) on the night shift of 11/12 July 2018, during which a high-risk patient (Patient A), attempted suicide. It is alleged that, during the shift, the respondent failed to complete the required visual observations every 15 minutes of the patient (allegation 1) and initialled the sighting chart for Patient A on seven occasions when she did not sight Patient A. The applicant alleges that this conduct amounts to unprofessional conduct.
- [3]The same allegations were the subject of a related referral, OCR295-20, which was heard and determined yesterday by the Tribunal. It is common ground that the respondent in those proceedings, Jean Chifo Mberi, a registered nurse, was casually employed at the time at NFC, and was the senior nurse on the shift on that evening with the respondent.[1]
- [4]Allegation 3 is that, commencing in November/December 2017, the respondent failed to maintain professional boundaries with another patient, Patient X, with whom she was in a professional treating relationship, by entering into and then maintaining a personal and romantic relationship with her. In the applicant’s submission filed with the Tribunal on the 8th of November 2021, it accepts the respondent’s position (articulated in her response to the referral) that the relationship with Patient X commenced in late January 2018, and the referral proceeds on that basis. That is, it is alleged and admitted that it commenced after the end of the therapeutic relationship.
Background Facts
- [5]The respondent was born on the 2nd of March 1994, so she is now 28. She was 25 at the time of the incident on 11/12 July 2018 and 24 at the time she commenced the relationship the subject of allegation 3 in January 2018.
- [6]She is a registered enrolled nurse (EN) with the Nursing and Midwifery Board of Australia (the Board), being first registered on the 13th of April 2016. She completed a Diploma of Nursing and Health Skills Australia in 2015. At the relevant time, she was employed by NFC. She commenced employment at NFC on the 7th of September 2015 as a casual assistant in nursing. She commenced a permanent part-time role as an EN on the 30th of May 2016.
- [7]Following the events the subject of this referral, namely, those contained in allegations 1 and 2, the respondent resigned from NFC on the 16th of July 2018.
- [8]Following a notification received from the CEO of NFC, Mr Ken Craig, on the 23rd of July 2018, in relation to the respondent and her colleague, RN Mberi, the Health Ombudsman commenced an investigation, and, as noted, the matter was referred to the Tribunal after an investigation, on the 31st of August 2020.
- [9]Until this morning, the Tribunal was unaware of the employment status of the respondent now, or indeed what she had done in the almost four years that have elapsed since July of 2018. Thankfully, Mr Templeton asked for her to be available for cross-examination, and she gave evidence after being affirmed, which is very relevant to some of the issues, particularly those relating to sanction.
- [10]She told the Tribunal that from the time of her resignation from NFC in July 2018, she did not work for six months. She then worked as a support worker with a body called Open Minds, and then in retail – as she put it, for less stress – commencing in early 2019. At the start of 2020, she returned to nursing as an agency employed EN with RNS Nursing agency, and she worked shifts in the Ipswich Mental Health Unit, which is part of the Ipswich Hospital service and part of Queensland Health.
- [11]In answer to questions from one of the professional assessors, she recalled induction training at the Ipswich Hospital as part of procedures common throughout Queensland Health institutions. Her memory of that training was vague, and she could not recall training in record keeping or clinical record taking. Only three weeks ago, she commenced working part time (seven shifts per fortnight) at the Lavender unit at the Gold Coast University Hospital. The professional assessors, in consultation with me, speak very highly of the professionalism in this unit and its value to the community. The unit concentrates on the mental health of mothers with babies. The assessors told me that the unit is known in the nursing profession for its highly supportive workplace culture.
- [12]The respondent also told the Tribunal this morning that she wishes to advance her career in nursing to become a registered nurse, and, to that end, has commenced a degree in nursing at Central Queensland University. She completed one term, before deferring pending the outcome of these proceedings. As an EN, she is able to commence the degree course in second year. It is not until the third year of the course that health law and ethics are a compulsory part of the course. She frankly admits that she has not undertaken any course in professional boundaries, and, indeed as part of its submission, the applicant did not ask for such condition.
The Relevant Conduct
- [13]NFC is an acute mental health service and part of Ramsay Health Care. The facility is comprised of five units. Relevant to these proceedings, unit 3 is the eating disorder unit of the clinic, but there are also patients in that unit with general mental health issues. Relevantly, on night shifts, each unit at NFC is staffed by two nurses, one of whom must be a registered or clinical nurse. There is also a night duty manager (a clinical nurse) who is situated on the ground floor of the facility.
- [14]Patients at NFC are categorised from category 1 to 5 on the basis of risk assessment. Patient observation requirements are based on this categorisation.
- [15]The relevant policy and guidelines in relation to category 4 patients (of which Patient A was one) include the following requirements:
- (a)face-to-face sighting with the patient at intervals of 15 minutes, combined with frequent irregular checks. If sleeping, patients should be observed to be breathing and respiratory rate within normal range;
- (b)documentation of the interaction/sighting must be recorded on the category sighting chart;
- (c)patients considered to be at high risk of self-harm require “belts, shoelaces, plastic bags, or any other articles that they may be able to harm themselves with, removed and placed into safekeeping”; and
- (d)“Sighting” a patient requires staff to “physically sight the patient and observe the patient’s mental/physical presentation. Staff must have a clear visual view of the patient, with nothing obscuring their observation; for example, door, bedside curtain, or blanket. If sleeping, a patient should be observed to be breathing with respiratory rate within normal range”.
- (a)
- [16]At the relevant time, the observation policy was an online document. The NFC observation policy was implemented in June 2013.
- [17]Patient A had been diagnosed with anorexia nervosa associated with complex symptoms of PTSD relating to childhood sexual abuse and sexual assault when she was a teenager. She had been an inpatient at NFC on several previous occasions.
- [18]As recorded in her patient records, leading up to the night in question, Patient A had expressed strong suicidal ideation. On the day of 11 July 2018, she had reported, inter alia, attempted suicide by hanging the previous day, self-harm, and that she was “enjoying the feeling of attempting suicide due to the relief of ‘escaping’”.
- [19]As noted above, she was categorised as a category 4 patient. As set out in the policy, that categorisation required her to be observed at intervals of 15 minutes. Those observations were, in accordance with the relevant NFC policy and guidelines, to be recorded in the patient sighting chart.
- [20]In addition to Patient A, there were approximately five to six patients in unit 3 also categorised as category 4 on the basis that they were undertaking nasogastric feeding overnight
- [21]The respondent, in her affidavit filed in the Tribunal, referred to another patient, who she described as a minor, who was also in the unit that night and in the category 4 categorisation.
- [22]From 9.30 pm on the 11th of July 2018 until 4.30 am on the 12th of July 2018, Patient A was required to be observed on 29 occasions, at 15-minute intervals, in accordance with the policy. The sighting chart was completed to show all 29 observations had been completed. The respondent initialled for 13 of these observations, and RN Mberi the other 16.
- [23]In fact, Patient A was observed on 11 occasions. The respondent completed six observations over the period. RN Mberi completed five observations.
- [24]The gaps between actual visual observations of Patient A ranged from 10 minutes to one hour and 10 minutes. On two occasions during the night, she was not observed for at least one hour. At some time between 3.57 am and approximately 4.34 am, during which time no observation was undertaken, Patient A attempted to commit suicide by hanging herself from the bathroom door of her room, using a ligature in the form of a cord taken from a hoodie that was in her possession.
Allegation 3
- [25]Allegation 3 concerns the respondent’s personal and romantic relationship with a former patient at NFC, Patient X. Patient X was admitted to NFC from October 2017 to December 2017 (having been admitted on three previous occasions). She had been diagnosed with anorexia, depression, anxiety and PTSD.
- [26]The respondent was part of Patient X’s treating team at NFC in November and December 2017. The respondent agrees that a personal and romantic relationship with Patient X commenced in January 2018, after Patient X had been discharged in December 2017 from NFC. They moved in together in April 2018 and became engaged to be married in February 2019.
- [27]In relation to the respondent’s interactions with Patient X during the November and December period, when she was part of the treating team – annexed to the set of agreed facts are the details of those interactions and indicate what could be described as an unremarkable therapeutic interaction for a quite junior enrolled nurse; although the interactions recorded on the night shift at 0:45 on 29 November, and at 4:50 on 14 December 2017 show that the respondent was well aware of the patient’s highly vulnerable mental state at that time and would have been so aware at the time she commenced the relationship some short time later.
- [28]As noted earlier, the applicant now accepts that the personal and romantic relationship commenced, as Patient A has always maintained, in January 2018, when Patient X responded to an advertisement placed by the respondent in her name on Facebook Marketplace looking for a roommate for her residence. She says in her affidavit that Patient X responded in January 2018, and, although they commenced a personal and romantic relationship from late 2018, they did not share a residence until April 2018. In her submission filed on the 4th of January 2022, she says that the relationship was ended by Patient X in September 2021.
- [29]Until this morning, there was a factual dispute between the parties relating to alleged conversations that the respondent said she had with a senior nurse duty manager at NFC prior to the incident concerning the need to comply strictly with the policy requirements relating to 15-minute observations of patients whilst on night duty, and the recording of sightings in the sighting chart. That evidence is disputed by the senior nurse in question, who filed an affidavit in these proceedings.
- [30]This morning, Mr Templeton indicated to the Tribunal that he no longer required the respondent for cross-examination on this issue, not because he was conceding that such things were said as asserted by her, but because, on the evidence before the Tribunal, particularly the records of interview between investigators from the Health Ombudsman and both nurses on duty that night (the respondent and RN Mberi), show that strict adherence to the 15-minute sighting, and the recording of it immediately in the sighting chart, was not adhered to at NFC.
- [31]In other words, there was a culture of non-compliance (my words, not Mr Templeton’s) that existed, which does not excuse either nurse from the fundamental requirement that (despite the culture of a particular workplace) the primary focus of a nurse should always be on the patient, and a nurse is required, under his or her professional obligations, to put the needs of a patient first and take responsibility, and be accountable for their actions.
- [32]There is support for the applicant’s position in the sighting chart itself, where every entry (many of which are false) under the heading “Exact Time” merely mirrors the time set to the very right of the sighting, that is, every 15 minutes, which, as a matter of logic and common-sense, and in the real world of an acute mental health ward, could never be achieved. There is also support for the sensible position now taken by the parties in another aspect of the NFC’s policy that I have referred to above, relating to the requirement of category 4 patients to (a) not leave the ward and (b) not have any objects in their possession with which that they could harm themselves.
- [33]In the case of Patient A, the evidence established that her psychiatrist had permitted her to retain her belongings – which seems to be in conflict with the policy – when she was placed into the category 4 risk class. She had a belt, and, as a ligature, she used a cord from her hoodie. Self-evidently, if NFC had complied with its own policy on this issue, Patient A would not have had the means to hang herself and attempt suicide.
Characterisation
Allegations 1 and 2
- [34]The applicant’s position, as articulated in Mr Templeton’s written submission, is that, the respondent’s misconduct, as the quite inexperienced junior nurse on duty that night, in relation to allegations 1 and 2, amounts to “unprofessional conduct”, and that her admitted conduct, in relation to allegation 3, amounts to professional misconduct as defined in (a) of the definition of that concept in section 5 of the National Law.
The respondent accepts that she is subject to a number of Codes, Standards and Guidelines, which are admissible as evidence of what constitutes appropriate professional conduct and practice for her profession in these proceedings, pursuant to section 41 of the National Law.
- [35]At the relevant time, she was subject to the Board’s Code of Professional Conduct for Nurses in Australia and Code of Conduct for Nurses, which set out the professional conduct expected in all nurses in Australia over the relevant period. Specific professional standards for enrolled nurses are set out in the Board’s Enrolled Nurse Standards for Practice, a copy of which appears in the hearing brief. These Codes and Standards are read in conjunction with the Board’s Nurse’s Guide to Professional Boundaries (Professional Boundaries Guide), the Code of Ethics for Nurses in Australia (Code of Ethics), and The ICN Code of Ethics for Nurses (ICN Code of Ethics).
- [36]The Code of Ethics contains a number of values statements to be used as a guide for practitioners when reflecting on their practice. Not surprisingly, a number of these values statements require that nurses take responsibility to question and report what they consider on reasonable grounds to be unethical behaviour and treatment, and nurses have a number of fundamental responsibilities, primarily focused upon the health of their patients.
- [37]The Code of Conduct for Nurses contains provisions that focus on the need for nurses to embody integrity, honesty and respect, and compassion.
- [38]The introduction to the Standards for Practice describes the particular role of the enrolled nurse (EN):
- [39]The EN works with the registered nurse (RN) as part of the health care team and demonstrates competence in the provision of person-centred care. Core practice generally requires the EN to work under the direct or indirect supervision of the RN. At all times, the EN retains responsibility for his/her actions, and remains accountable in providing delegated nursing care. The need for the EN to have a named and accessible RN at all times and in all contexts of care for support and guidance is critical for patient safety.
- [40]In these proceedings, the applicant obtained an opinion from an experienced nurse who is an expert in mental health care, and her opinions and her expertise are not challenged. Ms Muller addressed the professional obligations for ENs in her report, concluding: The primary role of the EN is on direct patient care under the direct and indirect supervision of the RN. Other responsibilities and tasks are secondary, as the patient is always the primary focus of care.
- [41]Neither party has been able to locate any Tribunal decisions in relation to analogous factual circumstances in Queensland, however, there have been a number of cases in comparable disciplinary tribunals in New South Wales and Victoria.
- [42]As Mr Templeton quite properly acknowledges, each case turns on its own facts, however, like the present matter, the decisions he refers to in his written submission essentially concern failures by nurses in acute mental health settings to undertake patient observations with associated false or misleading entries in patient charts. The referrals are often in the context of the death or suicide or serious injury of a patient under care. They involve some common themes in terms of asserted culture and entrenched practices at the relevant units and also consideration of the varying levels of responsibility of different staff on duty.
- [43]He refers to a series of cases decided in the New South Wales Civil and Administrative Tribunal early in 2021, which considered the conduct of five nurses following the suicide of a patient in the Acute Mental Health Unit of a large Sydney hospital in May 2017. The matters were heard together with evidence in one being evidence in the other, however, they are reported as separate decisions. One of the nurses was found not to have engaged in any form of unethical or improper behaviour. The relevant decisions are Health Care Complaints Commission (HCCC) v Brown [2021] NSWCATOD 57; HCCC v Dudhela [2021] NSWCATOD 59; HCCC v Egbufor [2021] NSWCATOD 60; and HCCC v Watkins [2021] NSWCATOD 61, referred in bulk by Mr Templeton in his submission as Brown et al, a description I will adopt.
- [44]The patient in that case had a recent history of suicide attempts and depression. In the preceding days during his admission, he had expressed suicidal ideation. He was on level 3 (30 minute) observations.
- [45]All of the relevant cases are objectively much more serious than the present case. Because of equivocal medical evidence, the time of death of the patient was estimated at being between two and seven hours. The most analogous of the four cases is the case involving Nurse Watkins. She was the most junior of the five nurses on duty but had been a nurse for 15 years and a registered nurse since 2015. On three separate occasions during the night shift, she made entries indicating observations which had not taken place, and on two occasions, she failed to record significant information about the patient’s behaviour (aggressive behaviour and aggressive comments) which related to his mental state.
- [46]Mr Templeton also refers to HCCC v Sloane and HCCC v Hayles [2018] NSWCATOD 37. This case concerned Nurse Sloane who was in charge during a night shift and a registered nurse, Nurse Hayles, in an Acute Mental Health Ward of a hospital. The conduct involved failing to complete required patient observations, falsely recording that they had been done, and, for Sloane, failing to properly supervise the observations and conduct of his colleague.
- [47]The CCTV evidence indicated that each practitioner had only completed three observations over their allocated three hour periods in circumstances where observations every 10 minutes were required. One of the patients was found by day shift nurses lying on the floor, lying in a puddle of urine with pressure marks on his face, arm, and hip, and on his right side.
- [48]The Tribunal found that the conduct (cumulatively and also on the particulars individually) constituted professional misconduct on the basis of the serious nature of the conduct, endangerment of patients, and intentional dishonesty. Sloane had allowed a fellow practitioner to engage in conduct that was likely to endanger patients.
- [49]With respect to Sloane, the Tribunal noted her adoption of lesser frequency observation was in part following unit culture, and in part not wanting to disturb sleeping patients. The Tribunal noted that she subsequently accepted that approach was flawed and unacceptable, and had accepted the particulars of the complaint.
- [50]Mr Templeton also refers to Health Care Complaints Commission v Cooper; Health Care Complaints Commission v Higgins [2018] NSWCATOD 17 (Cooper and Higgins), which concerned conduct of a nurse-in-charge (Nurse Cooper) and clinical nurse specialist Higgins during a night shift at the Mental Health Inpatient Unit of a regional New South Wales hospital, and in particular their failures to undertake required 15 minute observations in accordance with the relevant policy, and the making of misleading entries in the patient’s chart in relation to observations that were not conducted. One of the patients died during the night of natural causes.
- [51]Cooper was found to have engaged in unsatisfactory professional conduct on the basis he had signed observation charts on three occasions when those observations were not undertaken, and had failed to adequately supervise staff to ensure the 15 minute observations were completed. Cumulatively, his conduct was characterised as professional misconduct.
- [52]Higgins was found to have engaged in unsatisfactory professional conduct on the basis that he had not undertaken observations properly (giving only a cursory glance), had failed to undertake all of the required 15 minute observations, leaving the patient unobserved for periods ranging from 30 minutes to one hour and 20 minutes, and had signed observation charts on some 15 occasions through the shift when observations were not undertaken. Cumulatively, his conduct was characterised as professional misconduct.
- [53]Finally, he refers to Health Care Complaints Commission v Thomas, Hayden, Rumble [2017] NSWNMPSC 1, ( Hayden Thomas and Rumble) a decision of the Nursing and Midwifery Professional Standards Committee of New South Wales, concerning the suicide of a patient in a Mental Health Unit in a regional hospital in New South Wales, in circumstances where nursing staff had failed to complete observations of the patient at 15 minute intervals and had falsified entries that those observations had taken place. Thomas and Hayden were registered nurses while Rumble was an enrolled nurse. Each of the practitioners was found to have engaged in unsatisfactory professional conduct.
- [54]Relevantly to the practices and/or culture identified by the nurses involved both in today’s proceeding and yesterday’s proceeding, the Tribunal wrote (at [193]):
Nursing cultures may be better in some facilities or units than others. That does not allow the individual nurse to slip to a level of conduct that is below the professionalism and clinical excellence required. It is never an answer to unsatisfactory professional conduct that “everyone was doing it”.
- [55]Based on those decisions, the applicant submits, and I accept, that relevant considerations include the breach of fundamental and professional and ethical responsibilities, the serious and evident harm to patients in acute mental health settings to which such failures may potentially give rise; the dishonesty and impropriety involved in making false records of observations; the limited excuse provided by a culture of similar failures and entrenched relaxed standards, and the preservation of individual accountability and responsibility; and the fact that such regular patient observations are required by doctors and protocols is for a reason - they are put in place to ameliorate serious risk to the patients in acute mental health circumstances; and the relevance of a practitioner’s level of experience and seniority and their specific level of responsibility towards the particular patient.
- [56]These conclusions also accord with Ms Muller’s expert opinion. In her report she opines that the respondent was a reasonably junior and inexperienced EN, although she notes that she was a full-time member of staff at NFC and had three years experience as an AIN and EN. She also notes her lack of experience and seniority may have made challenging people in more senior positions difficult, though she did not escalate any concerns to management. While she had experienced working in a Specialist Mental Health Unit and had previously indicated she understood risk assessments, she did not have any specialist training in mental health nursing.
- [57]The respondent was aware of her observation and recording requirements and that her failures were wrong and in breach of the policy, and given her relevantly limited experience, her youth and lack of specialist qualification in mental health nursing, Ms Muller is nevertheless critical of the respondent’s conduct, but considers it in keeping with her experience and qualification and consistent with unsatisfactory professional performance.
- [58]I accept the applicant’s conduct as proved in relation to allegations 1 and 2 was unprofessional conduct in that it was of a lesser standard than that which might reasonably be expected of an enrolled nurse by the public or by her professional peers.
Allegation 3
- [59]The Code of Conduct for Nurses in Australia, in particular in Conduct Statement 8, deals with the issue of boundary violations. The Code refers to the obvious inherent power imbalance that exists between health care providers and vulnerable patients in their care, and the potential for exploitation. In particular, at clause 5, the Code states: 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.
- [60]Mr Templeton in his submission has directed the Tribunal’s attention to a number of helpful cases that are comparable, in particular the case of Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77. It involved a registered nurse who formed a personal and then sexual relationship with a patient who he had met when he was part of her mental health treating team. The personal relationship commenced within weeks of the patient’s last admission when Mr Evans had formed part of the treating team. The sexual relationship commenced about four months later.
- [61]In Health Ombudsman v HSK [2018] QCAT 419, a young nurse in a mental health setting engaged in boundary violations with two former patients over a period of three days immediately following the discharge of one of the patients. She had been involved in the care and treatment of one patient sporadically over a three month period, and with the other over a three week period. After chatting with two of the patients at the hospital, the practitioner was invited to one of the patients’ homes for drinks. She accepted the invitation, consumed drinks with both that evening, and had sexual intercourse with one of the patients. She then spent the next day and night with the patient, and no further sexual conduct was alleged.
- [62]The Tribunal said (at 24):
Of particular relevance is the fact that both patients were patients of the Acute Mental Health Ward, which, it was submitted, places the patients in a particularly vulnerable class. Reference was made to the fact that Patient AB had been released from hospital on the same day the boundary violation occurred. The Tribunal accepts that the patients were vulnerable patients, and that the breach of professional boundaries was particularly serious in those circumstances.
- [63]Also relevant to this issue is the opinion of the expert who opined that there was a clear power imbalance, regardless of whether the relationship commenced in November/December 2017 as previously alleged, or January 2018 as is now accepted, and that the relationship represented a clear breach of professional boundaries and the Code of Conduct for Nurses. Although I agree with that opinion, in the case of such a young practitioner who had not had any training in professional boundaries at NFC, it would have been even more serious if the relationship had commenced while she was part of the treating team for Patient X.
- [64]I agreed with the submission made by Mr Templeton and, as I understood, not contested by the respondent and consistent with the authorities and the opinion of the expert, that the proved conduct amounts to unprofessional conduct that was substantially below the standard expected of a practitioner with the level of training and experience of the respondent. Although the evidence is that it was Patient X who first contacted the respondent in January 2018 in answer to an advertisement, the respondent was clearly aware of her vulnerability, and should not have allowed the relationship to develop despite her inexperience. She should have understood the power imbalance, and the potential for harm with such a significantly vulnerable patient. It is common ground that Patient X was not harmed and that the relationship developed into a loving domestic relationship which persisted for some time. As noted earlier, the respondent’s uncontested evidence is that Patient X terminated their relationship in early September 2021, and they have had no contact since.
Sanction
- [65]As is well established, the purpose of disciplinary proceedings such as these is to protect and not to punish. The main principle for administering the Health Ombudsman Act and consideration for the tribunal when deciding the matter of sanction in a particular case, is that the health and safety of the public are paramount.
- [66]As established in a number of authorities referenced in Mr Templeton’s written outline, in deciding the appropriate sanction of particular case, the Tribunal will consider factors, including the nature and seriousness of the practitioner’s conduct; insight and remorse shown by the practitioner; the need for specific deterrence or general deterrence; evidence of rehabilitation and/or steps taken by the practitioner to prevent reoccurrence of the conduct; matters giving context to and/or explanation for the conduct, for example, mental health issues; and other matters including past disciplinary history, character evidence, periods of preclusion or non-practice, delay and effluxion of time, and cooperation during the disciplinary proceedings.
Again, as set out in the relevant case law, for example, see The Health Ombudsman v Jolley [2019] QCAT 173 at [78], any sanction then may serve one or more various purposes, depending on the circumstances of the particular case, including preventing practitioners who are unfit for practice from practicing; securing maintenance of professional standards; assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct or unprofessional conduct will not be tolerated; bringing home to the practitioner the seriousness of his or her conduct; deterring the practitioner from any future departures from appropriate standards; deterring other members of the profession who might be minded to act in a similar way; and imposing restrictions on the practitioner’s right to practice so as to ensure that the public is protected.
- [67]I agree that the respondent’s conduct referred to in allegations 1 and 2 was serious. The potential consequences and significant risks of harm to a vulnerable patient in an acute mental health setting are self-evident. Fortunately, because RN Mberi conducted an actual observation of patient A at 4.34 am, ultimately her attempted suicide was thwarted, and it is not suggested that she has suffered permanent harm.
- [68]The character of the respondent, despite her admitted failings, is demonstrated in my opinion by her coolheaded response when patient A was discovered by both nurses with the ligature tightly around her neck and apparently deceased, which effectively saved the patient’s life. When she was interviewed by four senior members of NFC staff about the incident on the 13th of July 2018, the CEO described her response to the incident as “fantastic”.
- [69]The respondent’s failures that night, however, were multiple and ongoing. They contributed to a situation where patient A was left unobserved for periods of at least one hour on two occasions.
- [70]As against that, and in the context of the NFC culture around these issues at the time, it was not during these longer periods patient A attempted to take her own life. As noted earlier, that occurred at some time between 3.57 am after she had visited RN Mberi in the nurses station and returned to her room, and 4.34 am where RN Mberi discovered she was not in bed. Her first reaction was to think patient A had gone out of the ward to have a smoke, another practice apparently in place in NFC, particularly during the day shifts, despite, in terms of the policy, category 4 patients being not allowed to leave the ward.
- [71]The respondent’s culpability was reduced in part by her position as an enrolled nurse acting under the direct and indirect supervision of the registered nurse, with whom ultimately the main responsibility rested.
- [72]However, as the expert also notes, the respondent had been employed at NFC for a number years. She would have been fully cognisant of her obligations under the risk and observation policies and guidelines, those being fundamental to her role. It does not appear on the evidence before the Tribunal that the respondent ever did have any direct training about these issues, despite being aware of the parts of the policy that she admits in these proceedings to breaching.
- [73]As set out in the relevant Codes of Conduct and Standards of Practice and reiterated in the decisions referred to by Mr Tembleton in his written outline, practitioners retain individual responsibility and accountability for their conduct. Following a “culture” of noncompliance with policies and procedures is not an acceptable excuse for a practitioner. However, in my opinion, the effect of these so-called noncompliance practices are not entirely irrelevant to the issue of sanction. Although it is clearly the responsibility of practitioners to retain individual responsibility and accountability for their actions and to be patient-focused, the existence of such practice has to (at least in the circumstances here) act to reduce somewhat the moral culpability of such a very junior nurse, who had only ever worked in this workplace and not been exposed to other workplaces where senior practitioners might have given her mentorship and guidance in relation to such issues.
- [74]As Brown et al makes clear, the recording of patient observations which had not, in fact, been undertaken, is improper and unethical. In relation to allegation 3, the respondent failed to adhere to her fundamental responsibilities as a nursing practitioner to maintain professional boundaries with an ex-patient; responsibilities which are particularly important given that patient X was extremely vulnerable and the respondent was aware of her vulnerabilities.
- [75]A practitioner’s insight is fundamental to the consideration of sanctions. As was stated in Medical Practitioners Board of Victoria v Grolaux (No 2) (Occupational and Business Regulation) [2009] VCAT 978, at [8]:…’insight’ might be reflected in a variety of ways, such as an understanding of the nature of the conduct, an acceptance that the conduct was seriously wrong, an appreciation of why the practitioner engaged in such conduct, empathy with the consequences, and /or a willingness to take measures to identify risk factors and to avoid similar behaviour.
- [76]The respondent has cooperated with the investigation by the Health Ombudsman and in these proceedings before the Tribunal. She has agreed to the essential factual circumstances in the agreed facts.
- [77]At the time of writing of his original submission, Mr Templeton was, of course, not aware of the evidence to be given by the respondent today. He also did not have the brief outline filed on the 4th of January 2022, which contains expressions of remorse.
- [78]Although the respondent has not undertaken any specific course in professional boundaries in the almost four-year period since the incidents, probably because she was never advised as to the importance of this, she is prepared to comply with such conditions now, even though the applicant did not seek such conditions, nor did the Health Ombudsman in the nearly four years that have elapsed since July 2018 seek to impose such conditions by way of immediate registration action.
- [79]Her evidence today convinces me, and all the assessors, that her experiences since leaving NFC have had an extremely positive effect on her, such that she now does demonstrate both remorse and genuine insight. She has recently commenced employment in an important area of mental health care and has taken steps to advance her career in nursing.
- [80]For these reasons, I do not accept that specific deterrence now is particularly significant. Clearly, general deterrence is an important factor, particularly in relation to allegation 3.
- [81]In my view, all the cases noted by the applicant as being relevant to sanction, and in relation to allegations 1 and 2 are more serious. Most concern misconduct by experienced registered nurses. In any event, the sanctions imposed do not support a period of suspension in the circumstances of this particular case where the Tribunal has characterised the conduct as “unprofessional conduct” and not the more serious “professional misconduct”.
- [82]I agree with Mr Templeton for the reasons articulated in his written submission by reference to the authorities noted above, and by his considered application of the relevant principles to this case at paragraphs 135 to 142 of his written submission, that ordinarily a short period of suspension would be warranted, particularly in relation to allegation 3. He submits three months and the respondent in her January 2022 submissions submits that one month is appropriate.
- [83]I have decided with the full support of all three assessors for the following reasons and for the reasons expressed above, that a suspension is not necessary here to reflect principles of general deterrence and uphold public confidence in the profession.
- [84]Indeed, in the light of the evidence this morning, to suspend her registration now for a short period could contribute nothing to the protection of the health and safety of the public.
- [85]In summary, my reasons are as follows:
- (a)her age and significant inexperienced at the time;
- (b)a period of approximately 18 months when she had voluntarily withdrawn from nursing of her own volition;
- (c)her obvious developing understanding of her ethical responsibilities as a nurse in relation to her patients since her gradual return to workplaces with different cultures and probably more support;
- (d)her employment for the past three weeks in a vital area of mental healthcare need at Lavender House; and
- (e)her genuine expression of remorse and developing insight.
- (a)
- [86]The public will also be protected, and general deterrence properly recognised by her willingness to adhere to conditions on her registration, which will no doubt be quite challenging for her.
- [87]As has often been said in this Tribunal and other Tribunals, a reprimand is not a trivial penalty. It serves as a public denouncement of her admitted misconduct.
Orders
- [88]The findings and orders of the tribunal are as follows:
- (a)in respect of allegations 1 and 2, the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct pursuant to section 107(2)(b)(ii) of the HO Act;
- (b)in respect of allegation 3, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the HO Act;
- (c)pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
- (d)pursuant to section 107(3)(b) of the HO Act, conditions are imposed on the respondent’s registration in terms of exhibit A; and
- (e)each party must bear their own costs of the proceedings.
- (a)
Footnotes
[1] Health Ombudsman v Mberi [2022] QCAT 179.