Health Ombudsman v Manabat[2022] QCAT 322

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Before the Tribunal is a disciplinary referral filed by the Director of Proceedings on behalf of the Health Ombudsman (The applicant) on the 23rd of December 2021.  The respondent is a registered nurse, having first being registered with the Nursing and Midwifery Board of Australia (The Board) on 29 February 2008. 
2. [2]
   He is 46 years of age.  The referral contains two interrelated allegations; the first relating to certain criminal convictions, and the other relating to boundary violations with a patient.  The parties agree that the conduct which is admitted in the statement of agreed facts filed with the Tribunal^[1] amounts to professional misconduct as defined in section 5 of the National Law.

Background

3. [3]
   The allegations concern the respondent’s inappropriate relationship with Patient A, which conduct was serious and multifaceted.  She was an in-patient at the Psychiatric Intensive Care Unit at a Queensland Hospital from the 25th of January 2020 until the 30th of January 2020.
4. [4]
   She was admitted to the unit, having experienced a psychotic episode in a public place which had involved her exhibiting paranoid, aggressive, and sexualised behaviour on that particular day. 
5. [5]
   At that time, the respondent worked as a registered nurse at the Secure Mental Health Rehabilitation Unit in the relevant Hospital.
6. [6]
   He was involved in the care and treatment of Patient A during her admission, during which time the respondent and Patient A developed a close relationship which included flirtatious behaviour. 
7. [7]
   After her discharge, the respondent and Patient A engaged in a consensual relationship.  They exchanged messages on Facebook and met on approximately six occasions.  They had sexual intercourse on one occasion, or about the 1st of February 2020, at Patient A’s home.
8. [8]
   The content of the Facebook messages included references to the respondent and Patient A using illegal and prescription drugs (cannabis, ‘ice’, and ‘oxy’), and on three occasions, the respondent offering to provide Patient A with methylamphetamine and gamma-Hydroxybutyric.
9. [9]
   On the 15th of February 2020 while the respondent and Patient A were at the shops, police arrived at her home in relation to another matter. Soon after, the respondent and Patient A returned to her home.  She provided a false name to police and was placed under arrest and obstructed and actually bit police. 
10. [10]
    Patient A was found to have three pregabalin tablets in her handbag which the respondent had given her during the visit.  He signed a police statement setting out falsely that he had met Patient A at a local hotel a few days earlier.
11. [11]
    Following Patient A’s arrest on the 15th of February 2020, the respondent accessed Patient A’s hospital records on multiple occasions, checking for updates on her whereabouts. 
12. [12]
    On the 10th of July 2020, the respondent was suspended from his position as a registered nurse at the Secure Mental Health Rehabilitation Unit at the relevant Hospital.  On the 14th of July 2020, his employer notified the Health Ombudsman of the respondent’s then alleged sexual misconduct with Patient A, and on the 30th of October 2020, the Health Ombudsman took immediate action and suspended the respondent’s registration as a registered nurse.  The respondent did not seek to review this action and the suspension of his registration remains in place.
13. [13]
    On the 27th of July 2021, the respondent pleaded guilty in the District Court of Brisbane to: 

    1. (a)
       three counts of supplying schedule 1 dangerous drugs, contrary to section 6(1)(c) of the Drugs Misuse Act 1986 (Qld); 
    2. (b)
       one count of discharge of or dispose of or use restricted drugs in a way that gives access to someone not endorsed to possess it, an offence pursuant to section 219(e)(c) of the Health (Drugs and Poisons) Regulation 1996 (Qld) (the restricted drug offence); and
    3. (c)
       one count of false declarations pursuant to section 194(1) of the Criminal Code. 
14. [14]
    The respondent was sentenced to three 80 hour community service orders in respect of the supplying offences, and to a two year probation order in respect of the restricted drug offence and false declaration offence.
15. [15]
    At sentence, the court observed that it was not clear whether the respondent had supplied any of the drugs to Patient A, and noted the submissions on his behalf that he did not have access to the drugs, but was rather trying to impress Patient A.
16. [16]
    The respondent has not previously been the subject of any notifications regarding his professional conduct and he has no other criminal history. 

Characterisation

17. [17]
    The respondent admits that his conduct constitutes professional misconduct.  His admission is clearly supported by the authorities referred to by Mr Dupree in his submission on behalf of the applicant. 
18. [18]
    It is unusual to find a case involving such multifaceted conduct.  However, Mr Dupree in his submission has referred the Tribunal to Nursing and Midwifery Board of Australia v Bethune (Review and Regulation RR) [2021] VCAT 1476 (Bethune), which was a disciplinary hearing involving an enrolled nurse working in a community care unit who failed to maintain professional boundaries with a vulnerable patient in an inpatient facility, including allowing him to stay at his home, making sexual advances towards him, supplying him with drug paraphernalia and illicit substances, mainly crystal meth, methylamphetamine, and offering to obtain escorts for himself and the patient, and consuming illicit substances in the patient’s presence.  The practitioner also drove a group of patients from the unit when he had consumed illicit substances the prior evening. 
19. [19]
    The Tribunal found the practitioner’s conduct constituted professional misconduct under subparagraphs (a) and (c) of section 5 of the definition of that concept in the National Law. The Tribunal said at [18]:

Mr Bethune’s conduct, especially in providing illicit substances to the patient XY, was directed towards a particularly vulnerable patient under his direct clinical care, putting the patient at risk of harm.  The patient was vulnerable due to his age, mental health status, and admission to a facility where he was being treated for substance dependency.  Mr Bethune’s conduct was unethical, exploitative, and reckless as to XY’s health.  There was a grave breach of trust.  The conduct demonstrated that Mr Bethune lacked integrity and insight into the responsibilities of the profession of nursing.  Mr Bethune put the safety of the patients at risk and he drove them within hours of having taken illicit substances.  Mr Bethune’s conduct, if made known to the public, would be apt to undermine public confidence in the profession. 

20. [20]
    The respondent’s admitted conduct clearly breaches many of the provisions of the Board’s Code of Conduct of Nurses (Code of Conduct) and the International Council of Nurses Code of Ethics for Nurses (ICN Code of Ethics), which provisions are admissible in these proceedings as evidence as to what constitutes appropriate professional conduct or practice for members of the nursing profession.^[2]
21. [21]
    Both Codes contain provisions which focus on the need for nurses to comply with the law, and to behave honestly and ethically.  Both emphasise that nursing is patient-centred, and preferring one’s own interests over that of a patient is contrary to the spirit of many provisions in both Codes.  Both emphasise the essential need for nurses to maintain professional boundaries, given the power imbalance between a nurse and a patient.
22. [22]
    The Tribunal has no hesitation in finding the facts as admitted proved to the appropriate standard, and that the conduct constitutes professional misconduct as defined in (a) and (b) of the section 5 definition of that concept in the National Law. 

Sanction

23. [23]
    The parties agree that the respondent should be reprimanded.  The applicant submits essentially for reasons of general deterrence and the seriousness of the misconduct, and the need to uphold the reputation of the profession, that a period of an additional three to six months suspension is appropriate in this case.
24. [24]
    Ms Robb, on behalf of the respondent, submits that a further short period of a suspension in this case would lack utility and not contribute at all to general deterrence, given the lengthy period that her client has been either out of practice or formally suspended as a result of the immediate registration action. For the reasons expressed, I agree with that submission.
25. [25]
    The respondent has been suspended from practising his profession since the immediate registration sanction by the Health Ombudsman on the 13th of October 2020, which is a period of 23 months.  Essentially, Ms Robb submits that because of his level of insight and remorse and the steps taken by him to address the underlying causes of his misconduct, no further period of suspension is called for in this case.
26. [26]
    The Occupational Regulation Jurisdiction exercised by this Tribunal as it relates to health practitioners is protective, rather than punitive.  The health and safety of the public is the paramount consideration in determining the appropriate sanction in a particular case.  The sanction should be no more severe than is required to adequately meet the protective purposes of sanctions. 
27. [27]
    An essential consideration is whether the practitioner presents an ongoing risk, to which the degree of insight required by the practitioner and any evidence of rehabilitation is relevant. 
28. [28]
    It follows that the fitness of the practitioner to practice at the time of the hearing is a relevant matter, more so than the fitness at the time of the impugned conduct.
29. [29]
    The sanction imposed should act to ensure the maintenance of accepted standards and professional confidence, and to maintain confidence in the nursing profession.
30. [30]
    While making findings and orders under sections 107(2)(b), and 107(3) of the Health Ombudsman Act 2013 (Qld) (the HO Act), requires an exercise of the Tribunal’s discretion, where the parties jointly propose findings and orders, the Tribunal would not readily depart from the shared joint position of the parties unless the proposed sanction falls outside the permissible range.
31. [31]
    The respondent has no prior notifications or criminal history.  He is a mature practitioner.  He has cooperated fully with the disciplinary process and with the criminal justice system.
32. [32]
    He has filed an affidavit in these proceedings.^[3]  Relevantly, he states that he has performed the 240 hours of community service imposed by the District Court at a Salvation Army Opportunity Shop every Saturday for a period of eight hours.  That work and the people he has met have made him more aware of the significant privilege that he holds being a registered nurse.
33. [33]
    He also worked as a cleaner five days a week to provide for his family until March 2022, when he accepted employment in an organisation that provides services for people with disabilities through the NDIS.  As at the date of his affidavit and presently, he has not commenced that employment and was awaiting results of NDIS screening.
34. [34]
    Ms Robb explained to me today that the outstanding disciplinary proceedings have, not surprisingly, caused difficulties in that area, but that he is been working with Alzheimer’s Queensland as a community health worker at the present time.
35. [35]
    The respondent deposes to having the support of his family, who have both forgiven him and held him to account.  He deposes to being very active in his church.
36. [36]
    He notes that he has completed a course with Davaar Consultancy, in professional boundaries, and commenced another in nursing ethics.
37. [37]
    With respect to the remorse that he has expressed the respondent states:

1. [10]
   I am deeply ashamed by my actions in this matter.  I am deeply disgusted by how I abused my position of privilege, and how I took advantage of a vulnerable person whom I am supposed to advocate for.

1. [11]
   I cannot explain my actions.  I have no excuse to offer. This act was entirely out of character for me, but I did it.  I cannot believe my selfishness and deceit.  I am so extremely sorry for what I have done to someone who was relying on me to care for them, and whose trust I abused.

1. [12]
   I cannot take back what I have done.  I can only try to improve myself moving forward.  I have struggled to understand my behaviour, I have no excuse of any value to offer in these circumstances.

1. [13]
   I have enjoyed completing community service.  I feel that it has provided me with grounding, and I feel very humble working with such giving people.

1. [14]
   I have spoken with a psychologist about feelings of isolation, low self-esteem, and worthlessness.  I understand that these factors contributed to my behaviour, and that I felt a sense of being wanted and valued. I was not wanted and valued, I manipulated someone to fill a hole I didn’t realise was there.  I also obtained a mental health care plan from my general practitioner so that I can continue to attend my psychologist, as I want to ensure that I unpack all the factors that contributed to my poor decision-making.

1. [15]
   I will accept the decision of the Board.  I understand that although I have worked very hard to improve myself and my relationships, and now have a good support system, I also undermined the very values of my profession, and for that I will accept the consequences. 

38. [38]
    There is no doubt that the respondent’s conduct was very serious.  As an experienced nurse, he contacted a vulnerable patient immediately following her discharge from intensive psychiatric care and engaged in an intimate and sexual relationship with her.  It is also relevant that during her time in the in-patient facility, he was directly responsible for her care on three occasions.  It is also relevant to note that her admission was as a result of a psychotic episode at a public place, which included sexualised behaviour.
39. [39]
    It is also relevant that during their contact in the facility, they engaged in flirtatious behaviour.  In the context of that highly inappropriate relationship, he offered to supply her dangerous drugs, and did supply her with a restricted drug, and advised her on how to avoid future mental health care. 
40. [40]
    He made false declarations to police regarding how he met and knew Patient A, and accessed her confidential personal records for his own purposes. 
41. [41]
    In summary, in an acute mental health context, he failed, significantly, to adhere to his professional and ethical obligations as a nurse.  He not only put a vulnerable patient at risk of harm, but his conduct had potential to undermine the reputation of, and the public’s trust in, the nursing profession which stands at the centre of our healthcare system.
42. [42]
    It is accepted by the respondent that when interviewed by his employer on the 8th of September 2020, he was not entirely truthful, denying sending her Facebook messages, saying he had met her at the Caboolture Club, and denying any sexual relationship with her.  He also accepts that he made a false declaration to police for which he was charged and sentenced.
43. [43]
    However, as noted above, and as is fairly acknowledged by the applicant, he has acknowledged his misconduct and fully cooperated with both the disciplinary process and the criminal justice system.
44. [44]
    He has shown very significant insight into, and remorse for his serious misconduct, and has taken positive steps to ensure it is not repeated.  Because from all the material that the respondent presents as a very low risk of reoffending, and personal deterrence does not loom large as a relevant principle.
45. [45]
    In the case of Bethune referred to earlier, the practitioner was reprimanded and his registration was cancelled, and he was disqualified from reapplying for three years amounting to a total of eight years out of practice.  His conduct was objectively much more serious, as the applicant fairly acknowledges, and as is noted in the judgment, he had “actively contested the allegations by disparaging a vulnerable patient and attacking the patient’s credit”.^[4]
46. [46]
    He did not provide evidence to enable the Tribunal to be satisfied that he had developed genuine insight and remorse for his actions with a focus on himself, rather than on his patients, and there was a lack of evidence to show that he was not a risk of reoffending at the time of the Tribunal hearing.
47. [47]
    Bethune is the only case cited by either party in which boundary violations and drug offending have been combined in relation to one vulnerable patient.  In this particular case, although the behaviour of the respondent was opportunistic and exploitative, it could not be described as predatory in all the circumstances.
48. [48]
    The other cases cited by the parties, such as Nursing and Midwifery Board of Australia v Gharie [2019] SAHPT 4;  Health Ombudsman v HSK [2018] QCAT 419;  Health Ombudsman v ADV [2020] QCAT 364;  and Medical Board of Australia v DEL [2019] QCAT 63, involved either boundary violations or drug offending but not in combination.
49. [49]
    Comparable or analogous cases can, of course, be of great assistance to assist the Tribunal in exercising its discretion to impose a sanction that is appropriate in the circumstances.  Consistency is an important object of the exercise of that discretionary power.  However, the sanction imposed must always be determined on the particular facts of the case. 
50. [50]
    Here, the respondent was suspended from his employment on the 10th of July and suspended as a result of the immediate registration action on the 13th of October 2020.  He has therefore either been out of practice or formally suspended for a period of 26 months. 
51. [51]
    Both parties acknowledge that general deterrence is important in this case because of the serious nature of the conduct.  On the evidence, the respondent presents as an extremely low risk of behaving like this again.  He is an experienced nurse with an otherwise unblemished reputation.  He presents now as no risk to the health and safety of the public. 
52. [52]
    The reputation of his profession can be upheld and enhanced, by what has been effectively been a period of non-practice or suspension of well over two years, coupled with a reprimand which in itself, is a significant protective sanction, as it represents a public denouncement of his conduct.

Orders

53. [53]
    In those circumstances, the orders of the Tribunal will be as follows: 

    1. (a)
       pursuant to section 107(2)(b)(iii) of the HO Act, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct; 
    2. (b)
       pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded; 
    3. (c)
       pursuant to section 62(2)(a)(ii) of the HO Act, the decision of the Health Ombudsman to spend the respondent’s registration dated the 13th of October 2020 is set aside;  and
    4. (d)
       each party must bear their own costs of the proceedings.