Nursing and Midwifery Board of Australia v Munoz
[2025] QCAT 164
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- Nursing and Midwifery Board of Australia v Munoz[2025] QCAT 164
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Nursing and Midwifery Board of Australia v Munoz[2025] QCAT 164
Nursing and Midwifery Board of Australia v Munoz[2025] QCAT 164
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Nursing and Midwifery Board of Australia v Munoz [2025] QCAT 164 |
PARTIES: | nursing and midwifery board of australia (applicant) v princess francesca johnson munoz (respondent) |
APPLICATION NO/S: | OCR038-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 11 June 2025 |
HEARING DATE: | 23 April 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Robertson Assisted by: Mr P Davies Dr J Jauncey-Cooke Mr S Lewis |
ORDERS: | IT IS THE DECISION OF THE TRIBUNAL THAT:
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PRACTITIONERS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent is a registered nurse – where the respondent was, at the time, an enrolled nurse – where the respondent accessed a patient’s clinical records without clinical justification or authorisation - where the respondent commenced a relationship with a former patient after the therapeutic relationship ceased – where the respondent continues to be in that relationship – where the respondent misled her employer and the Regulator about the nature and extent of that relationship – whether the individual grounds of conduct should be viewed as a course of conduct – whether the conduct constitutes professional misconduct – whether the respondent has shown contrition and remorse – whether the respondent’s registration should be suspended Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Nursing and Midwifery Board of Australia v Stratton [2022] VACT 727 Craig v Medical Board of South Australia [2001] SASR 545 at 553-555 Nursing and Midwifery Board of Australia v Middleton (Review and Regulation) [2020] VCAT 744 Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77 Health Ombudsman v Bobbermien [2022] QCAT 180 Health Ombudsman v Bothwell [2020] QCAT 393 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Bowman instructed by Clayton Utz |
Respondent: | S Robb KC instructed by QNMU Law |
REASONS FOR DECISION
- [1]The respondent is a registered nurse (‘RN’). She is presently 38 years of age.[1] She is responding to a disciplinary referral filed in the Tribunal on 22 February 2024. The referral contains three grounds.
- [2]In 2019, the respondent was working as an enrolled nurse (‘EN’) in the secure mental health unit at a regional hospital in Queensland. She had then been registered as an EN with the Nursing and Midwifery Board of Australia (‘Board’) since 13 September 2017.
- [3]After completing a degree in nursing which she did externally while working full-time, she attained registration as a RN on 10 August 2021.
- [4]At all relevant times, the respondent was subject to a number of Codes[2] and in particular, the Board’s Code of Conduct for Nurses (effective from 1 March 2018) (‘Code of Conduct’).
- [5]The parties have filed a Statement of Agreed Facts and Findings (‘SAFF’). There are no factual disputes. The parties agree that the admitted conduct constitutes professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). They agree that the respondent should be reprimanded and have conditions that require her to undertake certain further education sessions imposed on her registration. The Board contends that a twelve- month suspension is appropriate and the respondent submits that a suspension is not required in all the circumstances.
Factual circumstances
- [6]The agreed facts are succinctly summarised in the written submissions of Ms Robb KC, counsel for the respondent.
- [7]EM was a patient in the secure mental health rehabilitation facility relevantly between August 2018 and his discharge on 27 May 2019. The respondent commenced working as an EN at the hospital, and she met EM when she worked in the facility from 20 March 2019 to 27 May 2019.
- [8]On nine separate occasions between 28 May and 3 July 2019, without any clinical reason, the respondent accessed the clinical records of EM in breach of 3.5 of the Code of Conduct (‘Ground 2’).
- [9]On a number of occasions after EM’s discharge from the unit, commencing 31 May 2019, the respondent and EM exchanged text messages and on two occasions met for coffee. It is common ground that the respondent and EM are in a continuing personal and sexual relationship and were married on 29 July 2022. The respondent admits that she breached professional boundaries which is contrary to principle 4.1 of the Code of Conduct (‘Ground 1’).
- [10]On 23 July 2019, in the context of an investigation by her employer, the hospital, the respondent submitted a signed statement which detailed her relations and interactions with EM. That statement contained a number of falsehoods whereby she indicated that she had no personal romantic and/or sexual feelings towards EM. On 18 June 2020, she instructed her then lawyer to make submissions to the Board consistent with her earlier statement to the hospital, and again on 13 October 2020 a similar submission was made to the Board by her lawyer which she knew contained falsehoods concerning her then ongoing relationship with EM (‘Ground 3’).
- [11]The respondent resigned from her role as an EN at the hospital on 29 September 2020.
- [12]By December 2021, Ahpra investigators knew of postings made by the respondent on her Facebook page of photographs of she and EM described by an investigator as being suggestive of “an intimate relationship”.[3]
- [13]In a letter to her dated 3 December 2021, Ahpra (inter alia) invited her to comment on her previous statements/submissions to the effect that she had had no further contact with EM after a text on 4 July 2019. Her lawyer replied on 15 December 2021 to the effect that she did not wish to comment at that stage. In the interview with Ahpra over a year later, she claimed privilege.
- [14]I infer that after the interview on 27 January 2023, the respondent must have known that her misleading and false statements to her employer and the Board concerning her relationship with EM, the subject of Ground 3, were known, or at least readily ascertainable, and ultimately, she instructed her lawyers to send her statement dated 19 May 2023.[4]
- [15]In that statement she explains that after initially having coffee with EM in July 2019, they reconnected about a year later and the relationship developed from there. She says that “parole” approved the relationship. This is a reference to the fact that EM’s admission to the secure mental health facility was a condition of an order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The relevant entries from EM’s Corrective Services file are in the Hearing Brief. It appears that EM was not frank about his contact with the respondent however neither party pursued this issue. She asserts in that statement that EM moved in with her in December 2021. They married in July 2022 and remain in a committed relationship.
- [16]The respondent admits to providing both her employer and the Board with misleading and/or inaccurate information concerning her relationship with EM contrary to Principle 4 of the Code of Conduct.[5]
Characterisation
- [17]I agree with Ms Robb KC that it is appropriate to consider the grounds as part of a course of conduct. For reasons I will disclose, I think the facts proved in relation to Ground 3 are objectively the most serious in the circumstances here. That is because integrity, honesty and trustworthiness are fundamental characteristics of a nurse.[6] The conduct when considered as a whole clearly satisfies the section 5 definition of professional misconduct in the National Law.
Sanction
- [18]The relevant principles are well known and need not be repeated.[7]
- [19]I agree with Mr Bowman, counsel for the Board, that in this case the expressions of remorse by the respondent in her statement dated 19 May 2023, must be considered in light of her expressions of remorse in the earlier communications with the hospital and the Board which contained falsehoods. For example, in her statement sent by her lawyers to the hospital, she made guarded admissions to having contact with EM (by text and meeting) after his discharge from the secure unit, but denied having a personal relationship with him at any time. She also admitted to accessing his clinical records, and expressed regret, then referred to her “embarrassment and shame” and to the fact that she had undertaken some further education in relation to the Code of Conduct and had “completed an Ethics, Integrity and Accountability” learning module provided by the employer. The flavour of her admissions in that statement is that she was inexperienced and ignorant of the need to maintain professional boundaries, and, in relation to accessing confidential clinical information, she asserted that until she was told otherwise, it was permissible for her to do that.
- [20]With her lawyer’s submission to Ahpra dated 20 December 2019, were included 18 “references” from registered or enrolled nurse colleagues of the respondent. The references are in a pro forma format and collectively provide a picture of a nurse who makes sure of professional boundaries, follows the Code of Conduct and works ethically. This occurred in the context of the fact that the respondent had not informed these colleagues of the true situation in relation to EM.
- [21]It follows that ground 3 is the most serious example of professional misconduct in this case.
- [22]The respondent has not filed any material in these proceedings. She was not obliged to do so, but this leaves the Tribunal in the position where the depth of her remorse and insight cannot be determined in any meaningful way. It can be accepted that the relationship with EM has not caused him any harm. Her conduct in undertaking a personal relationship with a former patient cannot be characterised as predatory or exploitative.
- [23]She has co-operated with the disciplinary process in these proceedings by making early admissions. She has no disciplinary history before or since. It can be accepted that she was quite inexperienced as a nurse when she behaved unprofessionally in 2019 however, in some respects, her attempt to conceal the true nature of her relationship with EM, by providing misleading and false information to both her employer and the regulator, was quite elaborate, albeit certain to be detected.
- [24]From the bar table, and without objection from the Board, Ms Robb KC informed the Tribunal that her client was working as a RN in the private sector in the areas of the National Disability Insurance Scheme provision of services and in relation to the Department of Veterans’ Affairs. She has not been suspended from practice at any stage and she has not been subject to conditions on her registration.
- [25]I agree with the Board that Nursing and Midwifery Board of Australia v Stratton [2022] VACT 727 (‘Stratton’) is a closely analogous case. The respondent in that case was found to have engaged in professional misconduct in two respects. Firstly, over a period of approximately six months, she engaged in conduct described as an “inappropriate personal, intimate, and sexual relationship” with a patient who was under her personal care and continued that relationship after the professional care ceased. Secondly, she provided false and misleading information to her employer about the relationship such that the situation could not be appropriately managed and rectified. At [4] in an overview of the allegations, the Tribunal described her conduct in this regard thus:
In short, she lied about the nature, extent, and duration of the relationship, preventing (the employer) from taking urgently needed action to protect the welfare and best interests of a highly vulnerable patient.
- [26]The respondent was a nurse with roughly the same nursing experience as the respondent here when the conduct took place.
- [27]In that case, the parties had agreed that protection of the public did not require a period of suspension. I infer that the joint position was because there had been delay in prosecuting the disciplinary proceedings including COVD-19, and during the lengthy period between the conduct being detected and the hearing, the respondent had trained as a midwife and was no longer in a position to treat highly vulnerable patients. The Tribunal did not agree with the joint submission of the parties and instead suspended the registration of the respondent for 3 months.
- [28]The Board submits that the respondent’s conduct here is more serious than that in Stratton, for three reasons. It asserts that the respondent’s conduct as a whole was more serious because:
- it also has the component of accessing clinical records;
- she misled not only her employer but also the regulator; and
- the relationship escalated and continues.
- [29]I disagree with that submission. In this case, although unprofessional, the relationship commenced after the therapeutic relationship had finished, and there is no evidence that EM was vulnerable or that he was harmed as a result. In Stratton, the Tribunal had sworn uncontested expert evidence that the “highly vulnerable” patient was harmed, not only by the respondents conduct in commencing a relationship during and beyond the therapeutic relationship, but also by lying about it and thus preventing her employer from acting quickly to mitigate harm. This is surely a major difference between that case and this, bearing in mind the main guiding principes of the National Registration and Accreditation Scheme relating to protection of the public and maintaining public confidence in the safety of services provided by registered health practitioners.
- [30]As I noted in discussion with Counsel, this case, involving a patient who was not vulnerable and who was not harmed, involves conduct which could be viewed as self-protective, not at the expense of the patient’s needs (as was the case in Stratton),[8] but more to her own detriment in the sense of the aphorism – “O what a web we weave when first we practice to deceive”.
- [31]As I have noted, it can be accepted here that the respondent’s insight and remorse is difficult to assess, but in Stratton, as a result of the respondent giving evidence, the Tribunal noted:[9]
At the end of her evidence, we remained concerned about her insight, and what we saw as a tendency to deflect blame to others and see herself as naïve. While we accept that she deeply regrets her conduct we were troubled by the fact that she did not mention the impact of her breaches of professional ethics on the patient, until prompted.
- [32]The Board submits that Nursing and Midwifery Board of Australia v Middleton (Review and Regulation) [2020] VCAT 744 (‘Middleton’) is a “factually analogous case”. It also submits that the conduct was objectively more serious than the admitted conduct here. That submission can be accepted. The allegations accepted by the Tribunal related to the respondent commencing a personal and intimate sexual relationship with a vulnerable patient in the mental health care facility in which she then worked, accessed his medical records without authority, and she then had a personal and sexual relationship with a second patient in 2017 who suffered actual harm, and then provided misleading information to the Board in connection with proposed immediate action which lead to the suspension of her registration for about 3 years at the time of the hearing. For the same reasons articulated above in relation to Stratton, in my opinion, and bearing in mind the paramount principles which inform and underpin this Tribunal’s discretionary power to sanction, cases such as Middleton, involving vulnerable patients and actual harm, are readily distinguishable on that basis alone. The respondent here has not had any time out of practice as a result of immediate action by the Board.
- [33]Nursing and Midwifery Board of Australia v Evans [2016] QCAT 77 (‘Evans’), and Health Ombudsman v Bobbermien [2022] QCAT 180 (‘Bobbermien’), both involved inappropriate relationships between nurses and patients which had commenced after the cessation of the therapeutic relationship. Evans was an experienced nurse. The Tribunal noted (at [50]):
Mr Evans’ conduct was not predatory or knowingly exploitative. Notwithstanding the inappropriateness of commencing the personal relationship, there is no evidence that the relationship caused any emotional or psychological harm to the patient. In fact, the evidence before the Tribunal is that Mr Evans and the patient were in a loving, supportive and genuine long-term relationship.
- [34]Bobbermien was an inexperienced EN working in a mental health facility where she met the patient. The relationship commenced after the end of any therapeutic relationship and was characterised as loving and domestic, continued for over three and a half years and the patient was not harmed by it.
- [35]Neither respondent had spent any time out of practice. In each case, the applicant sought a period of actual suspension. The Tribunal in each case found that principles of general deterrence relating to discouraging similar conduct and upholding the reputation of the profession in the public mind did not require a period of suspension.
- [36]Health Ombudsman v Bothwell [2020] QCAT 393 (‘Bothwell’) involved an enrolled nurse who commenced and maintained an intimate and inappropriate relationship with a patient she had met in a medical ward. The relationship was over a period of three and a half years. It was not characterised as predatory nor was it suggested that the patient had suffered harm. Bothwell also accepted that she had instructed her solicitors to send a submission to the regulator which contained falsehoods concerning the nature of the relationship. In that case, a reprimand and conditions were imposed by way of sanction.
- [37]As is often noted, while other cases can assist in defining the appropriate disciplinary response, each case must depend on its own unique circumstances.
- [38]In this case, as noted, the Tribunal is not entirely convinced of the respondent’s insight and remorse. The Board has provided a form of condition for one-on-one education directed at the relevant Code principles which she has breached by her conduct. To appropriately address principles of general deterrence the Tribunal has determined that a period of suspension is called for in this case. Health practitioners should know that misleading a regulator will not be tolerated. In this case, her falsehoods have undoubtedly prolonged the investigation and increased costs to the Board which costs ultimately fall on other members of the profession.
Orders
- [39]For these reasons the orders of the Tribunal are as follows:
- Pursuant to s 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct.
- Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded.
- Pursuant to s 196(2)(b) of the National Law, conditions in the terms marked and attached (‘Annexure A’) to the Tribunal’s formal orders are imposed on the respondent’s registration.
- Pursuant to s 196(3) of the National Law, the review period for the conditions is three (3) months.
- Part 7, Division 11, Subdivision 2 of the National Law applies to the conditions.
- Pursuant to s 196(2)(d) of the National Law, the respondent’s registration is suspended for a period of three (3) months to commence 30 days from the date of these orders.
- There be no order as to costs.
Footnotes
[1]DOB 22 April 1987.
[2]The Statement of Agreed Facts and Findings filed 31 July 2024 (‘SAFF’) references: Board’s Code of Conduct for Nurses (effective from 1 March 2018) (‘Code of Conduct’); International Council of Nurses (‘ICN’) Code of Ethics (2012) (‘ICN Code of Ethics 2012’); ICN Code of Ethics (revised 2021) (‘ICN Code of Ethics 2021’); Enrolled Nurse Standards of Practice (1 January 2016) (‘EN Standards of Practice’); and Registered Nurse Standards for Practice (1 June 2016) (‘RN Standards of Practice’).
[3]Transcript of interview conducted on 27 January 2023; see also Hearing Brief filed 4 March 2025 pp 332-338 (‘Hearing Brief’) for examples of the photos referred to.
[4]Hearing Brief (n 3) p 375.
[5]SAFF (n 2) contained in the Hearing Brief (n 3) pp 21-22.
[6]Code of Conduct (n 2) principle 4; and Nursing and Midwifery Board of Australia v Stratton [2022] VACT 727 [54] (‘Stratton’).
[7]Craig v Medical Board of South Australia [2001] SASR 545, 553-555.
[8]See Stratton (n 6) [26].
[9]Ibid [33].