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Nursing and Midwifery Board of Australia v Carter[2025] QCAT 46

Nursing and Midwifery Board of Australia v Carter[2025] QCAT 46

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Nursing and Midwifery Board of Australia v Carter [2025] QCAT 46

PARTIES:

NURSING AND MIDWIFERY BOARD OF AUSTRALIA

(applicant)

v

EVAN CARTER

(respondent)

APPLICATION NO/S:

OCR140-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 March 2025

HEARING DATE:

18 February 2025

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson

Assisted by:

Ms C Ashcroft

Dr M Sidebotham

Mr S Simpson

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

  1. Pursuant to s 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct;
  2. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded; and
  3. There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was a nurse educator – where the respondent variously made suggestive statements towards, inappropriately touched, and/or harassed nursing students under his supervision – where there was a significant inherent power imbalance – whether the respondent has developed insight into his conduct – whether imposing a suspension by way of sanction would be punitive

Anti-Discrimination Act 1991 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Nursing and Midwifery Board of Australia v Lakicevic (Corrected) (Review and Regulation) [2020] VCAT 2

Nursing and Midwifery Board of Australia v LYS [2024] QCAT 209

Nursing and Midwifery Board of Australia v Quinney (Review and Regulation) [2022] VCAT 1125

Nursing and Midwifery Board of Australia v Sandhu (Review and Regulation) (Corrected) [2023] VCAT 488

Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147

APPEARANCES &

REPRESENTATION:

Applicant:

P Morreau KC instructed by McCullough Robertson

Respondent:

S Robb KC instructed by QNMU Law

REASONS FOR DECISION

  1. [1]
    Mr Evan Carter (‘respondent’) is a registered nurse (‘RN’).  He is now 60 years of age.  He obtained registration on 4 January 1994.  He graduated in the same year.  In the course of an interview with Ahpra investigators on 17 November 2021, he described his career after graduating as predominantly as a clinical educator and trainer for student nurses primarily in larger teaching hospitals.
  2. [2]
    As at 26 February 2021, the respondent had been employed as a Clinical Tutor/Educator at Mater Education within the Mater Hospital at South Brisbane for approximately 9 years.  In this capacity, he had had regular teaching and training interactions with student nurses undertaking a Diploma of Nursing. 
  3. [3]
    On that day he received a letter from his employer which outlined a series of allegations about his conduct towards and/or in the presence of students, many of whom were young women, in a period from September 2020 to February 2021.  He was suspended on full pay and given an opportunity to respond, which he did through his Union on 4 March 2021.
  4. [4]
    His employer investigated the allegations, and ultimately he was dismissed from his employment on 14 April 2021.  Mater Education made a notification to the Office of Health Ombudsman (‘OHO’) of this fact on 28 April 2021.  It is common ground that the respondent notified the OHO on 29 March 2021 that the allegations had been made against him.
  5. [5]
    The Nursing and Midwifery Board of Australia (‘Board’) became involved as a result of the OHO referring the matter to Ahpra.  On 13 May 2021, the Board advised the respondent that it held a reasonable belief that he was a serious risk to the public and proposed immediate registration action by way of suspension of his registration.  In its decision, the Board advised the respondent that:[1]

On 13 May 2021, the Board proposed to take immediate action in relation to [the respondent’s] registration under section 156 of the [Health Practitioner Regulation National Law (Queensland) (‘National Law’)].

Specifically, the Board is proposing to suspend [the respondent’s] registration.

The Board is proposing to take this action because it reasonably believes that because of [the respondent’s] conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

Reasons

The Board makes these decisions for the following reasons:

  1. In forming a reasonable belief that because of [the respondent’s] conduct he poses a serious risk to persons and it is necessary to take immediate action, weight is placed on the notification and the internal investigation documents provided by Mater Misericordiae, Brisbane, outlining that [the respondent] had been found to have sexually harassed a number of female students in his role as an educator during the period of September 2020 to February 2021.  The Mater investigation substantiated that [the respondent] had made unsolicited physical contact with female students, was unnecessarily familiar, made remarks with sexual connotations, made remarks about female students’ personal or sex lives, and made suggestive comments about female students’ physical appearance.
  2. By way of his responses during the internal investigation [the respondent] made admissions in relation to some of the allegations including that he told students he is a “touchy feely person”, that he told [student SB] she had beautiful hands, but stated that this conduct was in the context of clinical practice.  [The respondent] admits that he asked student LD whether she had anyone lovely in her life and whether she would demonstrate a cultural practice if he came over to her house.  Further [the respondent] concedes that when student MB said “sex” in relation to a patient’s gender he responded, “I thought you’d never ask”, and that when student NH said she was “hot” he responded “yeah, you are”.  However [the respondent] submits that the context in which his comments were made have been misunderstood.  [The respondent] repeatedly attempted to excuse his behaviour and minimise his personal accountability by stating that there was never any sexual intent and that the students did not tell him that he was making them feel uncomfortable.  [The respondent’s] responses demonstrate a lack of insight as to the emotional harm, and reported significant discomfort, caused to his students through his conduct.  The risk is heightened where the alleged conduct appears to be directed at female students, in which a significant power imbalance with [the respondent] exists due to his seniority and potential to be a supervisor.
  3. There is a recognised and significant risk of harm when practitioners engage in inappropriate and/or sexual behaviour towards colleagues and those under their supervision.  Engaging in such behaviour can place the public at risk as a result of the potential for deterioration in professional relationships amongst colleagues which may detrimentally impact the culture of a workplace and compromise the provision of safe and effective health care services to patients.  The risk is heightened where [the respondent’s] students also report his conduct to have extended to stating “post-menopausal women – yuck” in front of a female patient.  [The respondent’s] conduct is contrary to the standards expected of a registered nurse to act with integrity and professionalism.
  4. The current information suggests that [the respondent] has a lack of insight regarding the inappropriateness of his behaviour, in particular [the respondent] repeatedly submitted that he apologised “if the students were offended/felt uncomfortable.”  It is also noted that [the respondent’s] response did not indicate that he had, or would, make any changes to his practice, including his communication with female students.  Accordingly [the respondent] presents an ongoing risk of reoccurrence.  [The respondent’s] registration is unrestricted and any future employers are unlikely to be aware of the concerns arising from his conduct such that there is no information available to indicate that any organisational risk controls will be implemented to mitigate future risk to persons.
  5. Noting the Board’s paramount role of public protection, suspending [the respondent’s] registration is the minimum regulatory force necessary to mitigate the identified serious risk.  Lesser forms of action, such as supervision or other forms of restriction, would not be sufficient to address the identified serious risk in circumstances where the alleged conduct has occurred outside of the provision of patient care.
  1. [6]
    On 18 May 2021, the respondent conceded to the Board that his behaviour had fallen short of the expectations of a RN and offered a signed undertaking in response to the immediate action proposed by the Board, which included an undertaking that he would not practise as a nurse.
  2. [7]
    On 20 May 2021, the Board decided to take immediate action by way of accepting the respondent’s undertaking
  3. [8]
    On 6 April 2022, the respondent’s solicitors wrote to the Board, asking it to review the undertaking.
  4. [9]
    On 25 May 2022, the Board provided notice to the respondent of its proposed decision to refuse to remove the current immediate action undertaking.  The respondent advised the Board he did not wish to make any submissions in response to this proposal.
  5. [10]
    On 11 October 2022, the respondent’s solicitors wrote to the Board, asking it to review the undertaking, attaching evidence of the respondent’s completion of relevant education modules and a reflective practice report
  6. [11]
    On 7 December 2022, the Board provided notice to the respondent of its decision to end the period of immediate action and remove the undertaking from his registration. 
  7. [12]
    The undertaking not to practise accepted as part of the Board’s immediate action process prevented the respondent from practising as a nurse for almost 18 months.
  8. [13]
    The respondent did not practise as a nurse while suspended from his employment and then dismissed from 26 February 2021 to 14 April 2021, or in the period up to the acceptance of his undertaking.
  9. [14]
    The Board’s referral to the Tribunal was filed on 2 June 2023.[2]  The allegations of misconduct are particularised as follows:
  1. a.
    At all relevant times, [the respondent] was working as a Clinical Tutor at Mater Education, South Brisbane as part of the part of the graduate nurse program with responsibility for the training of nursing students, particularly in simulation lab.
  1. b.
    By virtue of his position, experience, age-differential and ability to dictate placements and progression through the program, a significant inherent power imbalance existed between [the respondent] and the nursing students.
  1. c.
    [The respondent] made, variously, suggestive statements towards, inappropriately touched, and/or harassed, nursing students under his supervision on the following occasions:
  1. in or about November 2020, whilst practising taking blood pressure, when student Ms SC was taking [the respondent’s] blood pressure, [the respondent] reached out, moved her hair from her face, tucked it behind her ears and asked “do you do something for your skin, it is beautiful” or words to this effect;
  2. in or about November 2020, when demonstrating how to hoist a patient, [the respondent] rolled student Ms SB over with his hands on her shoulder and upper thigh and left his hands on student SB longer that reasonably necessary in the circumstances, for, approximately a minute or greater;
  3. on a date unknown, following a Microsoft Teams simulation class session, [the respondent] did comment to student Ms LD words to the effect “your house is lovely, does your son live there with you, have you got someone lovely in your life Ms [LD]?”;
  4. on a further date unknown, but following an exam question given regarding a cultural event celebrated in one's family, when student Ms LD answered with words to the effect: “birthdays and when its your birthday your feet can't touch the ground until you have opened all your presents”, [the respondent] said words to the effect: “that's so sweet, if I come over will you do that for me?”;
  5. on a date unknown in or about mid-November 2020, following a simulation class session, [the respondent] did state to Ms LD words to the effect “you know you are my favourite student, we should go out for a drink”;
  6. on a date unknown in or about mid July 2021, during a simulation class session [the respondent] said words to the effect “not all patients are going to be as lovely as Miss [LD] over there” and further later in that same session placed his hand heavily on Ms LD's shoulder, pushed down and said words to the effect “I hope you don't think I was picking on you Miss [LD]";
  7. on or about 26 February 2021, prior to the commencement of a cohort exam at 8am, [the respondent] came up to Ms LD, put his hand on Ms LD's shoulder, pressed down and tapped three times hard on the shoulder, and then continued walking, in circumstances where this contact was unprompted and unwelcomed;
  8. on or about 22 January 2021, during a simulation session, when student Ms MB answered a clinical question with the word “sex” referring to the sex of a patient, [the respondent] replied “I'd thought you'd never ask” or words to this effect, implying that she was asking him for sex;
  9. on or about 5 February 2021, during a simulation session, when student Ms NH stated that she felt hot, [the respondent] replied, “yeah you are”, or words to this effect, implying that she was “hot” (in the vernacular, attractive looking);
  10. [The respondent] sent emails to student Ms MS which included statements:
  1. on 8 July 2020 – “… I remember the lovely girl with the funky glasses!  How are you Miss [M]… The worst thing is I didn’t get to see your lovely face, very sad!!  Have a fab weekend Miss [M], see you next week”; and
  2. On 22 July 2020 – “I am very sorry if I came across as a cranky poo yesterday.  I have always liked you… I like our little chats… I mean happy to have beers and chat!  No only joking, actually, I am not… Ev”;
    1. [The respondent] regularly called students “pretty” or “sweetie”, or words to this effect;
    2. [The respondent] stated in class words to the effect "I'm a touchy-feely person that's part of the way I communicate”; and
    3. [The respondent] engaged in intrusive personal questioning of students, including asking students "are you single?" and confirming that he was recently divorced and single, or words to this effect.
  1. Further, [the respondent’s] conduct in paragraph c above constituted sexual harassment as defined under, and contrary to, the Anti-Discrimination Act 1991 (Qld) [(‘Anti-Discrimination Act’)].
  2. [The respondent] made professionally inappropriate statements in the context of the teacher/student relationship in that:
    1. in or about September 2020 [the respondent] stated to a class, words to the effect "I don't believe in political correctness, if you do you can leave now”;
    2. in or around October 2020 [the respondent] stated to a class, words to the effect ''who wants to sleep with a patient hooked up to a CPAP machine", and ''post-menopausal women, yuck!" at the Breast Cancer Clinic;
    3. on a date unknown, [the respondent] stated in class to student Ms LD words to the effect "anyone who wears a stethoscope is a wanker";
    4. on a date unknown, [the respondent] stated in class in an aggressive tone, words to the effect "this place is in fucking damage control", referring to Mater Education;
    5. [the respondent] referred on multiple occasions to his ex-wife variously as a “cow” and a “bitch” (or words to that effect) to his student cohort; and
    6. on a date or dates unknown, [the respondent] expressed perceived favouritism towards certain students and said to them in front of the class 'you know you are my favourite student' (or words to this effect) especially in respect of student Ms LD.
  1. [15]
    The Board alleged that the respondent’s conduct was contrary to the Code of conduct for Nurses (effective 1 March 2018) (‘Board’s Code of Conduct’), specifically the domains to:
    1. practise legally: Principle 1.2;
    2. practise safely, effectively and collaboratively: Principles 3.2, 3.3 and 3.4;
    3. act with professional integrity: Principles 4.1, 5.1 and 5.2; and
    4. promote health and wellbeing: Principle 7.1.
  2. [16]
    Further, the Board alleged that the respondent’s conduct was contrary to the International Council of Nurses Code of Ethics for Nurses (effective 1 March 2018, and as adopted by the Board) (‘ICN’s Code of Conduct’), specifically:
    1. Category 1: nurses and patients or other people requiring care or services, particularly clauses 1.8 and 1.9;
    2. Category 2: nurses and practice, particularly clauses 2.1, 2.5 and 2.6; and
    3. Category 3: nurses and the profession, particularly clauses 3.3, 3.4 and 3.5.
  3. [17]
    In his response filed in the Tribunal on 1 December 2023, the respondent admitted that he engaged in:[3]
    1. professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct under s 5 of the National Law; and/or
    2. unprofessional conduct as that term is defined under s 5 of the National Law;

in that, from on or about September 2020 to February 2021, whilst employed as a Clinical Tutor/Educator at Mater Education, South Brisbane, he failed to demonstrate professionally appropriate standards of conduct expected of a [RN], and the particulars of the ways in which the respondent failed to demonstrate professionally appropriate standards of conduct will be contained in the statement of agreed and disputed facts.

  1. [18]
    The respondent admitted that his conduct was contrary to the Board’s Code of Conduct as alleged.
  2. [19]
    The respondent admitted that his conduct was contrary to the ICN’s Code of Conduct as alleged.

Conduct and Characterisation

  1. [20]
    The admitted conduct, as set out in the Statement of Agreed and Disputed Facts,[4] is as follows:
    1. At all relevant times, [the respondent] was working as a Clinical Tutor at Mater Education, South Brisbane as part of the part of the graduate nurse program with responsibility for the training of nursing students, particularly in simulation lab.
    2. By virtue of his position, experience, age-differential and ability to dictate placements and progression through the program, a significant inherent power imbalance existed between [the respondent] and the nursing students.
    3. [The respondent] made, variously, suggestive statements towards, inappropriately touched, and/or harassed, nursing students under his supervision on the following occasions:
      1. in or about November 2020, whilst practising taking blood pressure, when student Ms SC was taking [the respondent’s] blood pressure, [the respondent] reached out, moved her hair from her face, tucked it behind her ears and asked “do you do something for your skin, it is beautiful” or words to this effect;
      2. in or about November 2020, when demonstrating how to hoist a patient, [the respondent] rolled student Ms SB over with his hands on her shoulder and upper thigh and left his hands on student SB longer that reasonably necessary in the circumstances;
      3. on a date unknown, following a Microsoft Teams simulation class session, [the respondent] did comment to student Ms LD words to the effect “your house is lovely, does your son live there with you, have you got someone lovely in your life Ms [LD]?”;
      4. on a further date unknown, but following an exam question given regarding a cultural event celebrated in one's family, when student Ms LD answered with words to the effect: “birthdays and when its your birthday your feet can't touch the ground until you have opened all your presents”, [the respondent] said words to the effect: “that's so sweet, if I come over will you do that for me?”;
      5. on a date unknown in or about mid-November 2020, following a simulation class session, [the respondent] did state to Ms LD words to the effect “you know you are my favourite student, we should go out for a drink”;
      6. on a date unknown in or about mid July 2021, during a simulation class session [the respondent] said words to the effect “not all patients are going to be as lovely as Miss [LD] over there” and further later in that same session said words to the effect “I hope you don't think I was picking on you Miss [LD]”;
      7. on or about 22 January 2021, during a simulation session, when student Ms MB answered a clinical question with the word “sex” referring to the sex of a patient, [the respondent] replied “I'd thought you'd never ask” or words to this effect;
      8. on or about 5 February 2021, during a simulation session, when student Ms NH stated that she felt hot, [the respondent] replied, “yeah you are”, or words to this effect;
      9. [the respondent] sent emails to student Ms MS which included statements:
  1. on 8 July 2020 – “… I remember the lovely girl with the funky glasses!  How are you Miss [M]… The worst thing is I didn’t get to see your lovely face, very sad!!  Have a fab weekend Miss [M], see you next week”; and
  2. On 22 July 2020 – “I am very sorry if I came across as a cranky poo yesterday.  I have always liked you… I like our little chats… I mean happy to have beers and chat!  No only joking, actually, I am not… Ev”;
    1. [the respondent] regularly called students “sweetie”, or words to this effect;
    2. [the respondent] stated in class words to the effect “I'm a touchy-feely person that's part of the way I communicate”; and
    3. [the respondent] engaged in intrusive personal questioning of students, including asking students “are you single?” and confirming that he was recently divorced and single, or words to this effect.
  1. [The respondent] made professionally inappropriate statements in the context of the teacher/student relationship in that:
    1. on a date unknown, [the respondent] stated in class to student Ms LD words to the effect “anyone who wears a stethoscope around whilst working all shift is a wally”;
    2. [the respondent] referred on multiple occasions to his ex-wife variously as a “cow” and a “bitch” (or words to that effect) to his student cohort.
  1. [21]
    The respondent has accepted from his early interactions with the Board that his conduct amounts to ‘professional misconduct’ as defined in the National Law.[5]  He also accepted that his conduct was contrary to the Board’s Code of Conduct, specifically the domains and principles set out above at paragraph 15.
  2. [22]
    The respondent admits his conduct was contrary to the ICN’s Code of Conduct, specifically the categories and clauses set out above at paragraph 16.
  3. [23]
    Both of the Codes of Conduct are admissible in proceedings of this nature as evidence of what constitutes professional conduct or practice by a registered health professional.[6]
  4. [24]
    The factual matters that the respondent disputes are neatly summarised in the written submissions of his counsel, Ms Robb KC:[7]
    1. while he admits touching SB’s shoulder and upper thigh longer than reasonably necessary to demonstrate a practice in November 2020, the respondent disputes doing so for a minute or longer;
    2. the respondent disputes placing his hand heavily on LD’s shoulder, and pushing down on a date unknown in or about mid July 2021;
    3. on 26 February 2021, he pressed down and tapped three times hard on LD’s shoulder;
    4. on 22 January 2021, he took MB’s answer to a question out of context and by his response implied she was asking him for sex – she said “sex” and he said words to the effect of “I thought you’d never ask”;
    5. on 5 February 2021, he implied that NH was attractive;
    6. that he called students “pretty”;
    7. in September 2020, he said “I don’t believe in political correctness, if you do you can leave now”
    8. that he said that anyone who wears a stethoscope is a “wanker”, he says he used the word “wally”;
    9. that he said “this place is in fucking damage control”;
    10. that he said to some students that they were his favourite students.
  5. [25]
    The respondent also disputes the allegation that the accepted conduct was “offending” or that it was sexual harassment within the meaning of the Anti-Discrimination Act.
  6. [26]
    Both parties appear to agree that it is not necessary to resolve the disputed factual matters, although both maintain their positions as set out in the written submissions. Ms Morreau KC who appeared for the Board, made the point that in circumstances where the resolution of factual disputes which rely on credibility findings is required, the proper decision of the Board not to call any of the complainant women (so long after the event) means that it would be difficult for the Tribunal to do this fairly.
  7. [27]
    The respondent did not file any material in the proceeding.  He was not obliged to do so, and no adverse inference can be drawn against him for that reason alone.  The Board has the onus of proving both facts and characterisation of proved or accepted conduct.  As against that, statements from five of the affected students (SC, SB, LD, MB and NH) have been filed.  MS has not provided a statement, but the email exchange, which forms the basis of the allegations concerning her and the respondent’s improper comments to her, is in evidence.  Those emails,[8] suggest that the contact between the respondent and his student were highly improper (as he now accepts).  The email from the respondent to MS on 22 September 2020 at 2:56pm which contains the statement “I mean happy to have beers and chat!  No only joking, actually I am not”, coupled with his statement to LD to the effect of “you know you are my favourite student, we should go out for a drink” are particularly concerning, in the context of the power imbalance (one of the other students referred to the respondent’s power to pass them in tests), the age differential and his marital status, details of which he inappropriately shared with students, suggest a sexualized overtone which he now accepts.  He has moved on from the position he adopted quite passionately when interviewed by Ahpra on 17 November 2021 where he maintained that the only reason he asked “people out for drinks” was to “talk about work. I saw these students as people that I had to look after, and I don’t mean that in a sexual sense”.[9]
  8. [28]
    Ms Robb KC at the hearing conceded appropriately that conduct of this kind was objectively sexualised and “grooming in nature”.
  9. [29]
    Having seen the respondent at the hearing and after receiving certain information from Ms Robb KC based on his instructions, the Tribunal accepts, and the Board does not suggest, that he ever intended to act on these invitations for any sexual purpose.
  10. [30]
    Once it is accepted that the conduct over a period of five months had in some respects objectively sexualized connotations, it is difficult to see how the conduct does not fall within the definition of “sexual harassment” as defined in section 119 of the Anti-Discrimination Act.[10]  I accept the submission made by Ms Robb KC to the effect that the referral did not particularise under which part of that definition it alleged the conduct fell, however it did plead,[11] by reference to much of the conduct he now accepts, that his conduct was “sexual harassment” as defined in the Anti-Discrimination Act.  The respondent did not plead to that in his response.  However, he did accept, by reference to the Board’s Code of Conduct, that his conduct breached principle 1.2 of the Code.
  11. [31]
    The Board does not seek – nor could it – a finding from this Tribunal that the respondent has committed an offence under the Anti-Discrimination Act.  Rather it is submitted that the conduct he now accepts, was unlawful in the sense described elegantly by McCallum J (as the Chief Justice then was) in Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147, [125], where her Honour noted the argument:

... [that conduct] could not amount to sexual harassment because its sexualised message was not “explicit”.  The sexualisation of women in the workplace often isn’t.  Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome… In the nature of things, sexual implication is perhaps the most powerful of all.  The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries.

  1. [32]
    In that sense, I am satisfied that objectively, the conduct he now accepts does, in part, amount to unlawful behaviour.  Ms Robb KC, in making the concessions set out above at the hearing, made the point that the issue is one of semantics.  Given that it is not within the jurisdiction of this Tribunal to make findings that he has committed offences under the Anti-Discrimination Act, that may be so, however the overwhelming inference to be drawn from the conduct he accepts, is that it does amount to unlawful conduct and is contrary to principle 1.2 of the Board’s Code of Conduct.
  2. [33]
    The Tribunal is satisfied, to the requisite standard, that the conduct amounts to “professional misconduct” as defined in section 5 of the National Law.  It is conduct that clearly comes within limbs (a) and (b) of the section 5 definition in the National Law.

Sanction

  1. [34]
    The applicable principles are well established and were recently articulated by the Tribunal in Nursing and Midwifery Board of Australia v LYS [2024] QCAT 209 at [69]-[74].
  2. [35]
    In broad terms, the discretion to impose sanction is for the purpose of protecting the public and should not be for a punitive purpose.
  3. [36]
    In this case, the parties are not agreed as to the appropriate sanction, so it is for the Tribunal to determine the outcome by reference to the applicable principles.
  4. [37]
    Both agree that a reprimand is appropriate.  It is often said, because it is correct, that a reprimand is a significant sanction because it reflects the seriousness of the conduct and is publicly notified on the national register potentially for up to five years.
  5. [38]
    The Board in its written submissions, by reference to a number of cases discussed therein, submits that a suspension of the respondent’s registration for up to 18 months is appropriate to reflect general deterrence; i.e., to discourage similar behaviour by other registered nurses and to uphold in the public eye the important principle that the reputation of a profession at the epicentre of our health system should be upheld by a significant response to such conduct.
  6. [39]
    The respondent on the other hand, submits that any suspension after such a long period of time would be punitive.
  7. [40]
    At the hearing, the Board had altered its submission to the effect that a 12-month suspension was appropriate.
  8. [41]
    The respondent’s submissions can be expressed in simple terms as follows.
  9. [42]
    It is common ground that until this complaint and notification in 2021, the respondent who has been a RN since 1994, had not been the subject of any complaint or disciplinary action.
  10. [43]
    On 21 September 2022, the respondent completed professional education with Davaar Consultancy, and a successful completion report has been received from Dr Wendy McIntosh which indicates that the respondent “had great remorse for what he had done” and further noting:[12]

It was clear that [the respondent] had little understanding or knowledge about the nuances and complexities of boundaries prior to commencing this education with me.  The content has allowed [the respondent] to understand how his lack of understanding and the personal stress that he was experiencing at the time significantly impacted on his decision making that led to boundary transgressions.

I assess that [the respondent] has benefited from this education and will be much more conscious moving forward of the importance of boundaries and his responsibility to adhere to his professional Code of Conduct at all times, especially where there is a power-vulnerability dynamic.

  1. [44]
    On 7 December 2022, the Board removed the undertaking, so that by then, the respondent had been unable to practise for approximately 18 months as a direct consequence of his conduct.
  2. [45]
    The respondent’s registration has been without restrictions for some 20 months.
  3. [46]
    It can be properly inferred that it was the successful completion of the education program that influenced the Board to lift the immediate action on 7 December 2022.  The professional education involved approximately two hours of face-to-face professional education and the completion of approximately eight hours of online modules offered by Davaar.
  4. [47]
    It is common ground that the respondent has not been subject to any notifications since.  The Board (after that date) had no information on where the respondent was working or if he was working as a nurse in any capacity.  I mean no criticism of the Board, however, as a result of the lifting of its immediate action over two and a half years ago, the respondent has had an unrestricted right to practise as a nurse.  Importantly, there have been no complaints since that time, which lends support to the report of Dr McIntosh referred to above.
  5. [48]
    At the outset of the hearing and with the support of all the assessors, I asked Ms Robb KC if it was possible for the Tribunal to be given information about where her client had worked since December 2022.
  6. [49]
    At that point, the only information that was before the Tribunal came from the respondent’s interview with Ahpra investigators in November 2021 when he was still subject to his undertaking and not practising as a nurse.  He described then working in a training role but little detail was given.  Ms Robb KC took some time to get information from her client.
  7. [50]
    It is difficult to make any sort of assessment of a person who is sitting in the back of a hearing room in proceedings like these.  However, it is fair to say that the respondent appeared to be a broken man.  He was tearful at times and emotional.  That impression is supported by the information obtained by Ms Robb KC and relayed to the Tribunal.
  8. [51]
    Since the lifting of the restrictions imposed by the immediate action, he had worked in three roles as an ‘educator’:
    1. the first was with Arcare Aged Care for a short period following review of the undertaking;
    2. the second was with Centre Care from February 2023 to November 2023; and
    3. the final period was from January 2024 to September 2024 with the Institute of Health and Nursing Australia.  This organisation was described as an education institute for nurses including offering a Diploma of Nursing course.
  9. [52]
    Ms Robb KC told the Tribunal that in all his roles since having unrestricted registration, the respondent instructed her that he had issues in the workplace which relates to ongoing mental health issues.  He told her that he has not worked since September 2024.  Ms Robb KC told the Tribunal that she found it difficult to obtain precise dates and details from her client because of his emotional state.
  10. [53]
    Ms Robb KC offered to reduce this information to writing if required by the Tribunal.  Ms Moreau KC on behalf of the Board did not object to this material being placed before the Tribunal and did not require a statement.  The respondent also advised his counsel that he is presently being treated by both a general practitioner and a psychologist.
  11. [54]
    Given the conclusions of Dr McIntosh set out above, the issues raised by the respondent seem to relate more to the role of the Board.  As noted above, the assessors and I were of the view that the respondent appeared to be a completely broken man.  Although the weight to be attached to information provided in this way[13] is much less than if it was in affidavit form, nevertheless it demonstrates that the respondent is prepared to provide information which is not in his interests and to assist the Tribunal to conclude these proceedings.
  12. [55]
    Insight and remorse are difficult to assess in any case.  The Tribunal is satisfied that the respondent, in cooperating with the regulators and in these proceedings as well as making the admissions he has made, demonstrates both.
  13. [56]
    The sanction relates to the conduct proved.  The cases referred to by the parties are of assistance.  It is important that similar cases attract similar sanctions.  In this way, the profession and the public can have confidence generally in the system of regulation of the health profession.  The problem always is that there is often no really comparable case, the circumstances as to the nature of the conduct, its characterisation, time out of practice etc, vary often from case to case.
  14. [57]
    Probably the closest here is Nursing and Midwifery Board of Australia v Lakicevic (Corrected) (Review and Regulation) [2020] VCAT 2 which involved a practitioner who, between January 2018 and May 2018, made inappropriate sexualised comments to two graduate nurse colleagues under his supervision.  This behaviour caused the women psychological distress.  At hearing, the parties submitted by consent that the sanction should include a period of three months suspension.  However, the Tribunal imposed conditions in lieu, noting the lengthy period of a 16-month suspension which the practitioner had already been subjected to by way of immediate action.  The conditions imposed:
    1. required the practitioner to undertake and successfully complete a program of education on the ethics of professional relationships; and
    2. until such program of education was successfully completed, prohibited the practitioner from engaging in any formal program of supervision in relation to graduate nurses; and
    3. required the practitioner to undertake mentoring comprising a minimum of 12 sessions occurring over 12 months.
  15. [58]
    In this case, another important distinguishing feature was that the respondent had been cautioned a year before the impugned conduct the subject of the referral regarding anonymous complaints made by colleagues that he had engaged in sexual harassment which behaviour he had admitted.
  16. [59]
    Cases such as Nursing and Midwifery Board of Australia v Sandhu (Review and Regulation) (Corrected) [2023] VCAT 488 and Nursing and Midwifery Board of Australia v Quinney (Review and Regulation) [2022] VCAT 1125 (‘Quinney’) involved conduct described as predatory, although the comments made by the Tribunal in Quinney are apposite here (albeit for different factual reasons):[14]

We intend that the profession understand that engaging in disgraceful conduct of the kind before us is likely to lead to a period of several years (or more) out of the profession.

We also intend the profession to understand that all practitioners, whether senior or junior, are expected to demonstrate respect for their colleagues and all others they interact with in the workplace. Sexual misconduct and the exploitation of vulnerable people, whether colleagues or patients, will not be tolerated.

  1. [60]
    In all the circumstances of the case, it is my opinion, that to impose any further period of suspension now would be punitive.  If ever there was a case that demonstrates that this sort of conduct by health practitioners can be ruinous to both reputation and career; this is the one.  It took the respondent some time to really develop insight into how serious and harming his conduct towards his students actually was.  As Ms Morreau KC submitted, at the time of the interview with the investigators, although the respondent admitted a lot of the conduct, he was externalising the true nature of his behaviour and understating its severity both in terms of what he had done and the effect on his students.

Orders

  1. [61]
    It is the decision of the Tribunal that:
  1. Pursuant to s 196(1)(b)(iii) of the National Law, the respondent has behaved in a way that constitutes professional misconduct;
  2. Pursuant to s 196(2)(a) of the National Law, the respondent is reprimanded; and
  3. There be no order as to costs.

Footnotes

[1]  Hearing Brief filed in the Tribunal on 23 September 2024, pp 185-186 (‘Hearing Brief’).

[2]  Hearing Brief (n 1) p 27.

[3]  Hearing Brief (n 1) p 45.

[4]  Filed in the Tribunal on 3 April 2024 and contained in the Hearing Brief (n 1) pp 46-56.

[5] Health Practitioner Regulation National Law (Queensland) s 5 (definition of ‘professional misconduct’ limb (b)). 

[6]  National Law (n 5) s 41.

[7]  Submissions on behalf of the respondent (filed in the Tribunal on 23 August 2024), contained in the Hearing Brief (n 1) p 19 [8(a)-(j)].

[8]  Hearing Brief (n 1) p 364.

[9]  Ibid p 419.

[10]  Sexual harassment happens if a person—

a) subjects another person to an unsolicited act of physical intimacy; or

b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the

other person; or

c) makes a remark with sexual connotations relating to the other person; or

d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—

e) with the intention of offending, humiliating or intimidating the other person; or

f) in circumstances where a reasonable person would have anticipated the possibility that the other person

would be offended, humiliated or intimidated by the conduct.

[11]  Hearing Brief (n 1) p 35 (d).

[12]  Hearing Brief (n 1) pp 306, 308.

[13]  See Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3).

[14] Nursing and Midwifery Board of Australia v Quinney (Review and Regulation) [2022] VCAT 1125 [79]-[80].

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v Carter

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v Carter

  • MNC:

    [2025] QCAT 46

  • Court:

    QCAT

  • Judge(s):

    Member Robertson

  • Date:

    20 Mar 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Nursing and Midwifery Board of Australia v Lakicevic (Corrected) (Review and Regulation) [2020] VCAT 2
2 citations
Jump To
Cite 1 - [2020] VCAT 2
Cite 2 - [2020] VCAT 2
Nursing and Midwifery Board of Australia v LYS [2024] QCAT 209
2 citations
Jump To
Cite 1 - [2024] QCAT 209
Cite 2 - [2024] QCAT 209
Nursing and Midwifery Board of Australia v Quinney (Review and Regulation) [2022] VCAT 1125
3 citations
Jump To
Cite 1 - [2022] VCAT 1125
Cite 2 - [2022] VCAT 1125
Cite 3 - [2022] VCAT 1125
Nursing and Midwifery Board of Australia v Sandhu (Review and Regulation) (Corrected) [2023] VCAT 488
2 citations
Jump To
Cite 1 - [2023] VCAT 488
Cite 2 - [2023] VCAT 488
Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147
2 citations
Jump To
Cite 1 - [2021] NSWCA 147
Cite 2 - [2021] NSWCA 147

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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