Health Ombudsman v Eggerling[2022] QCAT 80

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 29 September 2020, the Director of Proceedings on behalf of the Health Ombudsman (the applicant) referred these disciplinary proceedings to the Tribunal. The referral contains one allegation; that over a period from 1 May 2019 until approximately 28 June 2019, the respondent, a registered nurse then employed at a medical centre in Morayfield, failed to maintain professional boundaries with a female patient (patient A).

The relevant conduct and background

2. [2]
   On 1 May 2019, patient A attended the practice for medical treatment in relation to an injury to her foot. During this attendance the respondent provided clinical care and treatment to patient A, including administering pain relief and saline. On 9 May 2019, patient A attended the practice, and the respondent applied a cast to patient A’s lower leg.
3. [3]
   On a date in early May 2019, the respondent gave patient A his phone number and/or patient A gave the respondent her phone number. Commencing on a date in early May 2019 until at or around the end of May 2019, the respondent and patient A exchanged text messages of a personal nature.
4. [4]
   At around the end of May 2019, the respondent and patient A arranged by text message to meet to have sexual intercourse. At around the end of May 2019, the respondent and patient A meet at the respondent’s home and had sexual intercourse.
5. [5]
   On 14 June 2019, patient A attended the clinic after having surgery on her foot and the respondent reviewed and cleaned wounds on patient A’s foot. At or around the end of June 2019, the respondent received a text message he believed was from patient A whereupon he started to arrange a further sexual encounter with her. During this exchange, the respondent came to realise the person he was communicating with was not patient A but her partner. The respondent and patient A did not engage in any further sexual encounters.
6. [6]
   In his response to the referral filed on 10 February 2021, the respondent admitted allegation 1 “inclusive of all particulars”.^[1]
7. [7]
   A statement of agreed facts was filed by both parties on 29 April 2021.^[2] In relation to the alleged conduct, the statement follows the admitted particulars in the referral.
8. [8]
   The respondent’s employer made a notification to the Health Ombudsman on 30 July 2019.
9. [9]
   The Health Ombudsman considered immediate registration action, but after investigation, which included receiving a submission from the respondent, determined not to take such action.
10. [10]
    The respondent’s employment with the relevant medical centre was terminated on 31 July 2019, but he has worked from around August 2019 as a registered nurse in various capacities until the present time.
11. [11]
    He is engaged with these proceedings as noted above. The matter is listed to be heard on the papers.
12. [12]
    The respondent was born on 14 May 1993. He was therefore 26 at the time of the admitted conduct. He completed a Bachelor of Nursing Degree at Queensland university of Technology in 2017 and has held general registration division 1 since 31 January 2018.
13. [13]
    Patient A was 32 at the relevant time.
14. [14]
    The respondent filed a statement in this proceeding on 25 June 2021 but has not filed submissions.
15. [15]
    In those circumstances, in determining both how his admitted conduct is to be characterised and sanctioned, the Tribunal should be careful to confine itself to the statement of agreed of facts and in particular the admitted facts in allegation 1.
16. [16]
    In the agreed bundle of documents, there are a number of documents e.g., the notice of immediate registration action from the Health Ombudsman to the respondent dated 11 September 2019, that contained allegations of fact that are not pursued by the applicant in the referral e.g., that he had sexual intercourse with a patient more than once, and at least once in a procedure room at the practice where he was employed.
17. [17]
    The applicant does not suggest that the patient suffered any actual harm. That same letter from the Health Ombudsman to the respondent suggests that the patient was on medication for depression and anxiety, whereas the medical records provided to the Health Ombudsman suggest that she had been treated for anxiety only. It is not alleged (either in the referral or in the applicant’s submissions) that the patient was vulnerable.
18. [18]
    These proceedings will proceed on the basis of the admitted allegations in the referral as supplemented in the statement of agreed facts.

Characterisation of the conduct

19. [19]
    At the relevant time the respondent was subject to the Code of Conduct for Nurses (the Code) and the ICN Code of Ethics for Nurses (the ICN), both in effect from 1 March 2018.
20. [20]
    As a consequence of section 41 of the Health Practitioner Regulation National Law (Queensland) (National Law), to the extent that the provisions of these Codes are relevant, they are admissible as evidence of what constitutes appropriate professional conduct for health professionals.
21. [21]
    Principle 4.1 of the Code deals with professional boundaries. It recognises the power imbalance that exists between nurses and their patients. Clearly the respondent’s behaviour was contrary to this principle, but given that he was not the primary care giver, they were of similar age, and the conduct was consensual, his conduct was at the lower end of moral culpability in this regard.
22. [22]
    His conduct also involves a clear breach of principle 4.1(d) of the Code, however it has to be considered that he had intercourse with her once – at his home, although he has admitted that conduct in texting as set out above has to be considered as part of the inappropriate relationship.
23. [23]
    Principle 4.1(f) refers to reflections on the circumstances (of the failure to maintain boundaries), “and engage in management to rectify or manage the situation”.
24. [24]
    Once the male partner of patient A discovered the relationship at the end of June 2019, it was inevitable that the respondent’s conduct would be exposed, given the character of the partner as exposed in the context of many of his later messages to the respondent which were threating and disturbing.^[3]
25. [25]
    It can be accepted that initially when confronted by his employer, the respondent denied any inappropriate conduct, however he soon admitted it and lost his employment as a result. The response to the Health Ombudsman from his lawyer suggests without dispute that he subsequently found it difficult to obtain employment, but ultimately did so.
26. [26]
    He managed his ethical failings (to use the terminology of the Code) by voluntarily completing a course with Davaar Consulting called “Maintaining professional boundaries”.
27. [27]
    His conduct also breached equivalent provisions of the ICN.
28. [28]
    The applicant’s referral pleads that proof of allegation 1 constitutes professional misconduct and/or unprofessional conduct as defined in section 5 of the National Law.
29. [29]
    In the applicant’s submission, it argues that the proved conduct falls within the definition of professional misconduct in both (a) and (b) of section 5. In this case, it is inappropriate in my view, to characterise the conduct other than as one course of conduct. That is because it occurred over a period of around 6 to 7 weeks, involved only one consensual act of sexual intercourse, and involved two people of around the same age.
30. [30]
    Nevertheless, the jurisprudence does suggest that ordinarily a health practitioner who engages in a sexual relationship with a patient or a former patient, can expect that a finding of professional misconduct would follow.
31. [31]
    The applicant relies on a number of decisions in support of its contention that the admitted and proved conduct constitutes professional misconduct under both limbs of the definition in section 5 of the National Law.
32. [32]
    In his letter filed in the Tribunal on 25 June 2021, the respondent admits that he “acted unprofessionally and I fully regret breaking a professional boundary”.
33. [33]
    Health Ombudsman v Wood [2019] QCAT 35, involved an enrolled nurse of over 30 years’ experience who developed a personal relationship that involved kissing and hugging an extremely vulnerable patient with whom he was closely involved with professionally as part of a mental health team. The patient had a long history of depressive illness, alcohol abuse disorder, and multiple suicide attempts. The relationship continued after the patient was discharged from the clinic, and the respondent and the patient had expressed their intention to marry. The respondent admitted that his conduct amounted to professional misconduct.
34. [34]
    In Health Ombudsman v Bothwell [2020] QCAT 393, the respondent was an older and much more experienced enrolled nurse than the present respondent. The patient concerned was a similar age to the respondent. The respondent was involved in management of his case in a Thoracic Ward where he had been admitted with a chronic life threating lung disease. They begun texting each other, developed a friendship which involved meeting outside the hospital, and ultimately developed into a consensual romantic sexual relationship which continued from 2012 to 2013.
35. [35]
    Bothwell also admitted to allegations of inappropriately contacting another woman with whom the patient was later in a relationship and providing false and misleading information to the Health Ombudsman. She admitted that the conduct constituted professional misconduct when viewed separately or as a whole.
36. [36]
    Health Ombudsman v HSK [2018] QCAT 419, involved a young nurse who had been involved in the treatment of two very vulnerable male patients in an acute mental health ward. The allegations, admitted by the respondent nurse, were that while chatting with the patients at the hospital, she was invited back to the house by one, consumed alcohol with both of them, and had sexual intercourse with one. She spent the day and night with the patient, but no further sexual conduct took place.
37. [37]
    I am satisfied to the requisite standard that the conduct here does constitute professional misconduct in that it was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

Sanction

38. [38]
    These proceedings are protective in nature and not punitive. The underlining principle that informs the Tribunal’s jurisdiction to sanction health practitioners who engage in professional misconduct is that the health and safety of the public is paramount.
39. [39]
    In additional to a reprimand, the applicant seeks an order that the respondent’s registration be suspended for a period of three months.
40. [40]
    The reasons for so submitting are summarised as follows.
41. [41]
    The conduct constituted a serious breach of the respondent’s fundamental professional and ethical obligations as a nurse.
42. [42]
    The personal and sexual relationship with patient A did not end because the respondent decided to end it. To the contrary, he expressed interest in it continuing. The respondent has not been precluded from practice, nor restrictions imposed upon his registration, but either the Health Ombudsman or National Board as a result of his misconduct.
43. [43]
    There is no evidence patient A was harmed as a result of the respondent’s conduct, though the potential for harm remains an important consideration in the context of a breach of professional boundaries.
44. [44]
    The respondent’s inappropriate conduct was of brief duration and could not be described as exploitive or predatory. The circumstances of the treating relationship, that the respondent had with patient A, did not suggest any particular vulnerability on her part.
45. [45]
    Both professional and personal consequences have flowed from the respondent’s conduct in terms of his employment and in the form of personal repercussions.
46. [46]
    The respondent has acknowledged his misconduct, recognised its inappropriateness, completed a course in professional boundaries and cooperated with the Health Ombudsman’s investigation in these proceedings.
47. [47]
    The Health Ombudsman gave notice of immediate registration action but after investigations did not pursue it.
48. [48]
    As a result, the respondent seems to have got his life on track and is now back working as a registered nurse in general practice. In my opinion this factor is neutral in relation to the issue of sanction.
49. [49]
    The respondent expressed remorse at an early stage and admitted his conduct. Although it is true that he has not produced any evidence that he was seeing a psychologist at the relevant time, there is no reason to doubt that he has had some professional help. He does not suggest that he suffers from or suffered from any mental illness at the relevant time.
50. [50]
    On 29 April 2020 in his response to Ahpra, the respondent stated that at the time of the boundary violation he had split with his partner and that his decision (to have a relationship with a patient) was wrong, but that he and his partner had repaired the relationship and now have a child. As a matter of common sense, it would seem natural that all the events that followed from his misconduct - loss of employment, damage to reputation, shame, being subject to threats of violence of quite an extreme nature, involving such a young man of otherwise impeccable background would adversely affect his mental health.
51. [51]
    Bothwell is subjectively a much more serious case then this. The respondent there was reprimanded and ordered to undertake a professional boundaries course. After referring to Wood, and the cases analysed in that decision by His Honour Judge Allen QC (some of which are discussed above), and by reference to Health Ombudsman v Jolley [2019] QCAT 173 and Health Ombudsman v Evans [2016] QCAT 77 I observed at [39]:

A fair analysis of these various cases does not support the proposition that in every case where a health practitioner engages in sexual boundary violations with a patient, during or after the cessation of the therapeutic relationship, a cancellation or a suspension should always follow.

52. [52]
    In relation to the matters relied upon by the applicant referred to above, I add that although the period of time that has elapsed since the misconduct is not relevant to the issue of sanction, it does demonstrate that his early expressed remorse is genuine, and that he has been able to take steps to address the causes of his misconduct and put in place mechanisms to ensure that it will not happen again. In my opinion the very short period of suspension now would be punitive and would not add anything to the protection of the health and safety of the public.
53. [53]
    As has often been said by this and other Tribunals in other States, a reprimand is not a trivial penalty. It counts as a public denouncement of the respondent’s misconduct. It is apt to protect the reputation of the profession, and to deter others to succumb to temptation and engage in boundary violations with patients in their care.

Orders

54. [54]
    The findings and orders of the Tribunal are as follows:

1. A finding that the conduct of the Respondent constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld) that the Respondent be reprimanded.
3. Each party must bear their own costs for the proceedings.