Blair v Health Care Complaints Commission

Relevant legislation

1. The powers of the Tribunal on a review under s 163B of the National Law are as follows: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order - (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
2. These proceedings are not a re-hearing of the decision of 14 May 2020 to cancel Mr Blair's registration as a nurse, or the prohibition order, or the order that he not seek re-registration for a period of 2 years. In conducting this review, the Tribunal cannot review the original decision, or any findings made in connection with the making of that decision: National Law, s 163C(2). The task of this Tribunal is to determine the appropriateness, at the time of the review, of the order concerned: s 163C(1).
3. The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16, the Tribunal stated (at [12]) the principles in the following terms: "We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance[:] Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34];"
4. In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 ("Ng") the Tribunal stated at [30]-[31]: "In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: '[A]n applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness.' In that case, the Medical Tribunal also stated at [42]: '[T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession.'"
5. We note that the fixing of the non-review period of 2 years by the Tribunal in 2020 does not necessarily mean that the Tribunal had at that time formed a fixed view that things would have changed by the end of that period. The purpose of such an order is to indicate the minimum period within which the Tribunal considers the person should not be able to practise his or her profession, while holding open the possibility that an application for re-registration thereafter will at least be considered: Chen v Health Care Complaints Commission [2017] NSWCA 186.
6. As noted in Ng at [29], the standard of proof is the civil standard, on the balance of probabilities. In making its findings, the Tribunal is required to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order: Forster v Hunter New England Area Health Service [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170.
7. The role of the HCCC in these proceedings is to act as contradictor to test the evidence, to bring evidence itself where appropriate, and to assist the Tribunal with submissions: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155. The HCCC opposes this application. The HCCC submits that the application is premature. Based on the material filed by Mr Blair, it submitted that there is not sufficient evidence available for the Tribunal to be satisfied that Mr Blair demonstrates reformation, any education and treatment to satisfy the Tribunal that he has made a serious attempt to rehabilitate himself, all of which are required should reinstatement be appropriate. The HCCC contends that a further two-year non-review period is needed to protect the public and allow the Applicant sufficient time to complete relevant education, demonstrate insight and fully appreciate that a registered nurse must demonstrate professional values including respect, trustworthiness, and integrity. For the reasons set out below, we agree, except as to the duration of the non-review period, which we have fixed at 18 months.

Tribunal proceedings

1. The hearing of Mr Blair's application was listed on 10 October 2022 for two days, giving Mr Blair two days to present his application. At the commencement of the hearing, he requested that the hearing conclude by 4pm as he had a meeting to attend that evening. He also advised that he did not expect the hearing to go for more than a day.
2. Mr Blair relied upon a bundle of documents which he filed on 23 September 2022 (A1), a further bundle consisting of 16 pages (A2), and email exchanges between himself and the HCCC (A3).
3. The HCCC filed and served its documents on 19 September 2022 (R1), including documents relating to the original proceedings in the Tribunal, and the applicable registration standards and Code of Conduct.
4. Mr Blair appeared in person at the Tribunal's hearing rooms at Parramatta, as did Ms Bayley for the HCCC.

Mr Blair's evidence

1. In his statement of 4 August 2022, which Mr Blair adopted under oath at the hearing, he sets out his employment history since his de-registration. Mr Blair has undertaken work as an Uber driver and attests to his compliance with all rules and regulations and the position of trust he has as a driver. Mr Blair also undertook a security training course and acquired a security licence in 2019 in order to work as a contracted security guard. He chose not to renew this license after it expired.
2. Mr Blair sets out the community related work he is involved in with the RSL. He said that he has not come to the attention of the police or other law enforcement agencies for any reason since his suspension. Mr Blair states that he has consulted Dr Gordon Davies ("Dr Davies"), a forensic psychiatrist in Wollongong for counselling sessions over "several months". Dr Davies apparently told Mr Blair that he does not provide reports concerning his treatment but could be contacted by telephone. Despite efforts made by Mr Blair, Dr Davies did not give evidence in support of his application either in writing or orally.
3. Mr Blair said he has not breached the May 2020 order and that the two-year period has passed where he has demonstrated that he has maintained "good standing" in his local community and proved his ability to "adhere to 'professional standards' in other industry employment (security & ride share)".
4. Mr Blair did not address his failing to adhere to professional boundaries or the benefit he obtained from any treatment or counselling with Dr Davies in his written material.
5. Mr Blair stated that he has not worked in any health-related roles since his registration as a nurse was cancelled, in compliance with the May 2020 order.
6. In the bundle (A1), Mr Blair included and adopted the statement which he relied upon in the May 2020 proceedings. The statement sets out the various admissions and denials which he relies on in this application.
7. In oral evidence, Mr Blair said at the time he was involved with Patient A in 2018, his "emotional state was less than optimal". His marriage had broken down and he was a lonely person. At the time of the interaction with Patient A, Mr Blair said he wrote down his feelings and sent that to his supervising manager, Rebecca Sherriff (Ms Sherriff), at 3:30am. He contends that he was not thinking straight and had been drinking.
8. During the last four years, Mr Blair said he has "reviewed the situation in my mind. I am a person who does not respond to counselling. I am immune to counselling, I see it as a way to ventilate. In past counselling it has not done me any good, it is me speaking. No benefit." This attitude does not assist Mr Blair in his application for re-instatement.
9. He did not seek any professional counselling until retaining Dr Davies early in 2022. He said, "…it was the same Dr Davies who allowed me to ventilate and discuss what is happening now. I think he would find me as a reasonable person."
10. Mr Blair said he has personally reflected on the Master of Science course he undertook in 2011 and the 2013 Master of Mental Health Nursing degree. He said he made a "very serious error of judgement" in not returning Patient A to the hospital when she told him that leave had been denied for Patient A. He said, "I relied upon my own needs and wants at that time. Here is a woman who was attractive. I did not have any idea that it was going to be so significant and life changing."
11. Reflecting on his behaviour he said, "I have gone over it and over it, I didn't understand the difference of not being at work. I was not on duty, I was not working, I was on my day off and I could do what I wanted. I justified that to myself. I now know that these reasons were wrong."
12. In answer to the Tribunal's question about why he thought his reasons were wrong, Mr Blair replied, "All the written material, legislation, code of conduct, peer reviewer, the collected material against me stands as evidence, which shows I was totally wrong. My thoughts were faulty."
13. After having read the HCCC's file, Mr Blair said he reviewed his previous statement he relied on in the 2020 proceedings. He said, "I was giving an explanation, putting in writing what I was thinking. It may come across as a feeble attempt to justify what I was doing. In writing to Ms Sherriff, I was explaining what had happened. There was an allegation of a sexual assault, I wanted to explain that."
14. Mr Blair said that he was advised not to attend the May 2020 hearing and in retrospect he should have attended to explain his conduct. Mr Blair believes he is a fit and proper person to be re-registered as a nurse. He said he recognises the imbalance of power between a nurse and patient and "[i]n the future, it is highly unlikely to ever occur again. The dishonour reflected upon myself I will never forget."
15. Mr Blair said in conducting himself now, he would be "seeing the flag, stepping back, speaking to somebody else. Often the "in-charge" is not the most experienced person. I would contact the unit manager and have [a] conversation about what the issue is."
16. However, he then said, "The employer at the time, Cumberland Hospital, did not provide a performance appraisal, nor three or twelve-month review. The hospital did not provide supervision, it was not encouraged and it was not an ongoing requirement to hold an ongoing position. This was not the workplace culture at Cumberland Hospital. I had the conversation about Patient A, nothing was directed to me. No verbal warning. It was a matter of keeping out of the way, don't let it happen again. I am not relinquishing responsibility. There was something the workplace could have done to reduce the incident of the relationship with patient A occurring." Mr Blair's comments in this regard, in our view, do not demonstrate true remorse or reformation for his conduct. To some degree, he continues to lay blame on the administration of Cumberland Hospital for his conduct. This counts against Mr Blair in this application.
17. He went on to say, "The enquiry by the HCCC or Cumberland Hospital was selective, it was ignored. I raise these matters to demonstrate the significance of the circumstances and situations. I would take action should those matters occur again. I should have taken more steps at the time to take myself away from the situation. I sincerely say that I would not ever be engaging in that type of behaviour again".
18. In cross examination, Mr Blair said it was wrong for him to be thinking about having a relationship with Patient A. He did not seek guidance from a colleague because "I thought it was sufficiently under control. I was aware of boundaries in the workplace on the ward."
19. Mr Blair agreed that he had himself researched professional boundaries and interpreted what he researched to mean that when Patient A had moved to a different ward to the one he was working on (such as a move from the Yaralla Ward to the Paringa Ward), then the patient was "no longer under my care [and] the guidelines did not apply." Mr Blair said this is how he justified his conduct at the time.
20. He was asked whether accessing Patient A's medical file after she moved to the Paringa Ward was permissible, referring to his previous explanation that "other staff did". He replied, "yes it was part of the workplace culture."
21. Mr Blair still maintains that when he received a hug from Patient A after buying her KFC and placing it in the fridge on the Paringa Ward that it was an impromptu action and did not breach professional boundaries. He said, "I left KFC in the fridge … she stood up and gave me a brief hug. In the context of the patient environment, it is not unique attracting attention. The staff at Paringa were there. Nobody said anything. I told staff the KFC was for Patient A."
22. Mr Blair still maintains that in his view it remained permissible to meet Patient A at the boom gate on 8 April 2018 because "she was outside of the hospital." Mr Blair said when Patient A mentioned in the car something about her "going AWOL" (absent without official leave), and whether he thought it was okay to take her for a drive the following exchange took place: "A: I needed to think, I drove away so I was not sitting in front of the Hospital. I said do you want another packet of cigarettes. She said I am not going back, she said I don't feel safe I want to go somewhere to talk. Q: At Tab 30 p7 you wrote … Her statement intending to go AWOL was concerning, and I felt it required investigative questions. I responded to her request to 'go somewhere quiet' where we could talk without thinking of my own professional reputation. My thoughts at the time, were for 'Patient A's welfare. Did you think going on a drive would be good for her? A: Yes, she had been locked up for 2 months."
23. Mr Blair agreed that at the time Patient A was in his car she was capable of making her own decision. This is despite Patient A remaining a scheduled patient. He was asked if he disputed the Tribunal's finding in 2020 that his behaviour was a gross breach of professional boundaries and predatory. Mr Blair answered, "Yes, I dispute it was predatory."
24. The following further questioning took place: "Q: Do you agree that your behaviour was self-serving and inappropriate and showed a lack of insight into Patient A's mental health? A: Yes, I disagree. I made an assessment of her mental health. On one occasion she said to me "I am playing them as a fool". She did not have accommodation, she was acting out and attracting attention to get a bed for the night. Her behaviours were not related to a long-standing Mental Health diagnosis. Q: Please look at Tab 29 - page 1 an email from yourself to the HCCC dated 25 February 2020. A: Yes Q: You say in that email: 'I've previously attempted to state, that there are multiple inaccuracies in the 'evidence.' It's all too late now. I've been found guilty, and I'm not going to stress over it. Every time I read the so-called evidence, I just shake my head in disbelief. Patient A is a victim…she has been deemed a mental retard…vulnerable and open to abuse. No. She is a skilled manipulating disordered individual. She targeted me, and unfortunately, I was depressed and lonely. She is a street wise survivor, and knew how to influence me while I WAS VULNERABLE. She has lied…but carefully, not under Oath. …' What did you mean by 'street wise survivor … I was vulnerable'? A: She manipulates the system and comes in when she has no accommodation. She links up with the wrong people and is vulnerable to DV. Patient A described to me that she is tertiary educated, certificate in fine arts. She has an affiliation with the gay community and volunteers with Mardi Gras. She spoke about taking street drugs at parties. I deemed her to be a street wise survivor and could manipulate situations. Q: What do you mean by "she manipulated me and I was vulnerable"? A: She would target me to get extra privileges. Ask for food, to go to the laundry. There was a structure to the ward. A patient did not have free access to laundry. Some staff would refuse to do it. The patients would move to another staff member to meet their needs. Going to laundry room to get clothes. Why was I vulnerable, my own needs and wants, I admit I needed a friend, I needed to be liked by someone, here was a woman half my age who seemed to like me. Not out of a predatory intent, I got pleasure from assisting her stay to be more comfortable. More than what other staff would do in a custodial sense. I looked in between the lines. For example, if she missed out on dinner, there was no reason to deny her food. Q: In the Tribunal's decision, it found that you failed to recognise her vulnerability. What do you say? A: I disagree overall. It needs to be put into a situation, if she could not feed or dress herself, a female staff member would meet her needs. She was vulnerable to the point where she had needs or wants. The fact she wanted a sandwich meant she had a need."
25. Mr Blair agreed he had not undertaken any formal education or training in ethics since his registration was cancelled. He said he had refreshed his memory from the ethics subject he completed as part of his Masters degree course which he considered "… was enough. It prompted my reflective practice of looking at how did this happen and why, what should I do, how would I see the flags next time. To sit through another course, I did not think I needed to do that. My own research was sufficient enough to get the reflective action."
26. In answer to a question about whether he has demonstrated rehabilitation and reformation as of today, Mr Blair replied: "What I have demonstrated and the actual case are two different things. I have made statements of what I was thinking and feeling myself at the time which are different today. I have reviewed all of the events, re-reading over things, not believing I said or did things, most of the statements were made under duress of heightened emotions that my future was at risk. I was considering at times finishing everything. It was only because of my children [that] I am still here today. The emotion of recounting where I was four, four and a half years ago, I believe I have moved on. I care what the outcome is, working a reasonable job, I have waited and served the two years. It is four and a half years to date. It is sufficient time to be removed for the circumstances of where I was at that time. Yes, I was I of the regulations. I looked at it in black and white. I believed it was ok to meet her outside the hospital grounds. Nothing happened on the ward in the workplace. I did nothing to her. She acted out, things were managed correctly at the time as I believed. I wrote in the notes what occurred. The senior professionals did not say you have to go, the culture was these things happen. The nature of the patient[s] in the Yaralla ward is that these things happen."
27. Mr Blair said he is safe to work as a mental health nurse. He considers that he has a set of skills greater than the average mental health nurse. This is because "separate to a Masters degree in mental health, my experience in security work and emergency is above and beyond a usual mental health nurse."
28. Mr Blair was given some time to address any matters that arose in cross-examination. He said that he sees the events were an isolated incident and it is extremely unlikely for them to ever occur again. In addressing the protection of the public, he said he had been working as a rideshare driver. In that role, Mr Blair is unsupervised. He is entrusted with maintaining a safe environment for the passengers, often driving single women. In completing over 11,000 rides, there have been no adverse incidents which should, in his view, translate to him being allowed to return to nursing.
29. During the luncheon adjournment, Mr Blair attempted to call Dr Davies to give evidence. He was unsuccessful in doing so.

The 2020 findings

1. As noted above, this review is not a rehearing of the decisions made in 2020 or the findings made in connection with the making of those decisions. However, in order to determine whether Mr Blair has discharged the onus of demonstrating the reformation of character referred to in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448; [1967] 1 NSWR 357, so that the Tribunal can be satisfied that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, the Tribunal notes the following findings from the 2020 Decision at [45]-[48]: "In her report dated 1 March 2019 Ms Muller [expert reviewer] referred to the Nurses and Midwifery Board of Australia Code of Conduct (the Code of Conduct) provisions defining a professional relationship, professional boundaries, and over-involvement, and the requirement in Principle 4.1(d) that acting with professional integrity included avoiding sexual relationships with a person with whom the nurse currently or previously had a professional relationship. Ms Muller's opinion was that the practitioner's behaviour was significantly below the standard reasonably expected of a registered nurse with equivalent experience and qualification, in each of the following respects: (1) Assuming the practitioner's version of events on 25 March 2018, he had failed to recognise that Patient A's over familiar and disinhibited behaviour could be a symptom of her illness, and he did not act in a manner appropriate to manage the risk of harm to her. He should have limited the inappropriate behaviour and removed himself from close proximity, and should have documented her behaviour in her clinical record; (2) The practitioner's statements to the Magistrate in the AVO hearing and to NSW Police during his interview that he was developing a fondness for Patient A, and that she was displaying playful behaviour, and that she was deliberately making false allegations to attract attention, did not demonstrate an understanding of the nature of Patient A's illness, and were grossly inappropriate; (3) The practitioner's behaviour in phoning Patient A on 8 April 2018 while off duty and asking her to meet him so he could give her some cigarettes was a breach of the Code of Conduct, and grossly inappropriate; (4) The practitioner's behaviour in taking Patient A in his private vehicle, while off duty, away from the Hospital grounds for approximately 6 hours in circumstances where Patient A had been refused extended leave and he was aware of that, and she had stated she was going AWOL, was in breach of the Code of Conduct, and demonstrated over-involvement and a breach of professional boundaries; (5) Based on the practitioner's version of events, his physical contact with Patient A on 8 April 2018 including kissing passionately while seated in the car and touching each other's legs, holding her hand while walking in the park, and placing his arm around her waist as they walked, was not in keeping with the Code of Conduct, demonstrated a breach of professional boundaries and over-involvement, and he was not acting with professional integrity. The behaviour was self-serving and predatory in nature and demonstrated lack of insight into the nature of Patient A's mental health problem. Ms Muller expressed the same opinion, considering Patient A's version of those events; (6) The practitioner's conduct on 8 April 2018 in talking to Patient A about moving in together, paying for their travel to London, discussing whether he had engaged in sexual intercourse in his car, and agreeing to undertake testing for sexually transmitted infections, demonstrated a clear lack of insight regarding her mental health problems and vulnerabilities, was not in keeping with the Code of Conduct, and was self-serving and predatory; (7) The practitioner was in breach of the Code of Conduct when he phoned Patient A on 9 April 2018 and his behaviour demonstrated a breach of professional boundaries, and over-involvement, and he was not acting with professional integrity; (8) The practitioner's decision to access Patient A's health record when he was off duty and not directly involved in her care was a breach of the Code of Conduct; (9) The practitioner's claims that he was overwhelmed by his attraction to Patient A and powerless to resist her demonstrated a clear lack of understanding of his role as a senior mental health nurse, ethical practice, and professional boundaries, and in trying to hide his inappropriate contact with Patient A he was aware that his feelings and behaviour were wrong but did nothing to address that. His behaviour was grossly inappropriate; (10) The practitioner's assertion that he was not in a therapeutic relationship with Patient A because she was in a different ward was naive and inappropriate: she had previously been admitted to the Hospital on several occasions, and due to the chronic and relapsing nature of her illness it is likely that all mental health nurses that had been involved with her care continue to have a therapeutic relationship with her and thus the relationship had a clear imbalance of power. It is inappropriate to consider that a mental health nurse could have a personal relationship with any patient to whom they have provided clinical care, and that assertion was grossly inappropriate; and (11) The practitioner's claims that Patient A exhibited no signs of mental illness during their outing on 8 April 2018 and that she appeared normal and knew what she was doing were fundamentally flawed. His failure to recognise disinhibited, over familiar behaviour, delusional ideation and poor judgment was significantly below the standard reasonably expected of a registered nurse with equivalent experience and qualification. In a supplementary report provided on 10 November 2019 Ms Muller addressed the practitioner's conduct in accessing Patient A's health record after she was transferred to Paringa Unit, and commented that his decision to do so when he was not directly involved in her care was a breach of NSW Health Privacy Policy, and was significantly below the standard reasonably expected of a registered nurse with equivalent experience and qualification. Ms Muller considered the practitioner's email to Ms Sherriff of 10 April 2018, his complaint to the HCCC, and his letter to the Magistrate in the AVO proceedings, and commented that on the basis of his statements in those documents she was of the opinion that he was aware that his conduct in visiting Patient A in Paringa Unit to give her some food, drinks and toiletries was inappropriate. On that basis, Ms Muller was also of the opinion that he was aware that it was inappropriate to allow Patient A to hug him and ask him to provide her with cigarettes. Those actions were significantly below the standard reasonably expected of a registered nurse with equivalent experience and qualification. In oral evidence Ms Muller stated that her opinions as expressed in her reports had not changed after reading the practitioner's Statement of 19 December 2019. In her opinion the practitioner should have known of the appropriate professional boundaries, and there was no sign of any insight or remorse, or how to manage a situation in which he had feelings for Patient A."
2. The Tribunal accepted Ms Muller's evidence and found that Mr Blair's conduct was significantly below the standard that would reasonably be expected of a registered nurse with equivalent experience and qualification. The Tribunal found at [56], [59]: "… The practitioner failed to observe proper professional boundaries in his actions on 25 March 2018 and 8 April 2018. He failed to properly manage issues arising from that failure, in particular in not recognising and taking steps to manage his over-involvement, including by failing to inform Patient A that his inappropriate contact with her was a breach of professional boundaries and that she should consult her treatment team, and by failing to inform Patient A's treatment team of the inappropriate contact. The practitioner's response to particular 12(a), that the Hospital management were aware of the interactions between himself and Patient A and of her exhibited behaviours and that there was no action taken or pending against him, may be responsive to the events of 25 March 2018, but not the later conduct between 6 to 9 April 2018. His acknowledgment in his statement of 19 December 2019 that Patient A was still under the effects of a drug-induced psychosis contradicts his expressed view that on 8 April 2018 she was behaving normally and there were no signs of mental health issues. In the circumstances the practitioner failed as required by Principle 4.1(e) of the Code of Conduct to recognise and disclose his over-involvement. Further, in accessing Patient A's records in the circumstances of particulars 2 and 11, the practitioner breached the requirements of the Code of Conduct and NSW Health Privacy Policy. … The Tribunal finds that even when Patient A was not a patient on the ward on which he was working, as a mental health nurse who had been involved in her care the practitioner continued to have a professional relationship with her. As such, his obligation to maintain professional boundaries continued. His failure to do so, and his failure to recognise and manage his over-involvement with Patient A, was a breach of his obligations under the Code of Conduct. …"
3. The Tribunal considered at [77] that the following factors necessitate the need for protective orders to be made: "(1) The practitioner's conduct was serious, involving a series of breaches of professional boundaries, with a vulnerable involuntary patient with a significant mental health history of which he was aware; (2) The practitioner was aware that his actions were wrong, including in arranging to meet Patient A at the Hospital boom gates on 8 April and in using a false name and disguising his voice so he would not be recognised in the phone call on 8 April 2018; and (3) The practitioner has not acknowledged that he behaved in an inappropriate manner, instead blaming Patient A for what happened, stating in his email to Ms Sherriff that "she has destroyed me" and he had lost his job and his car, and stating in his interview with NSW Police that he was the victim, and the vulnerable one."
4. In relation to Mr Blair's insight into his conduct, the Tribunal found at [78]-[79]: "Of most concern is that there is no indication in any of the practitioner's statements or submissions of insight into the inappropriateness of his conduct, in deciding to embark on a relationship with a patient under his care, and in failing to recognise her vulnerability. The practitioner has provided no indication that he understands or has reflected on his professional responsibilities, including his ethical responsibilities, as a registered nurse. Instead, the practitioner's communications with the HCCC by email on 12 March 2019 (tab 45) and to the Tribunal in his submissions of 10 March 2020 reflect a position that he has "served his time" and should be permitted to re-register. The Tribunal is satisfied that in the interests of protecting the public from the apprehended harm that might be caused, and the general deterrence and maintenance of public confidence in the profession, the order sought by the HCCC for cancellation of the practitioner's registration should be made. In the absence of any demonstrated steps towards remediation, or reflection, the Tribunal agrees that the practitioner should be precluded from applying for re-registration for a period of two years. That period is a minimum period within which he should not be able to practise his profession, thus sending a message to him, the profession and the public about the seriousness of his breach of professional standards; it also holds open to the practitioner the possibility that he may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time: Chen v Health Care Complaints Commission [2017] NSWCA 186."
5. The Tribunal concluded at [83]: "In the context of the practitioner's demonstrated lack of insight or acknowledgement of his serious breaches of professional standards, the Tribunal considers that the practitioner poses a substantial risk if working in any caregiving role, including provision of personal or health services in the community sector, involving potentially vulnerable people. In his letter to the Council for the s 150 proceedings the practitioner stated that he would be making inquiries into obtaining an Assistant in Nursing position at a private mental health facility when able to do so; it appears from his submission of 10 March 2020 that he has not done so yet. He has previously worked as a child protection case officer, and for a mental health NGO. The statement in the submission of 10 March 2020 that he wants to return to work in a non-mental health environment and later a mental health environment causes concern to the Tribunal that the practitioner may seek employment in a health services field, such as youth work or aged care or other roles similar to those he has been engaged in in the past, in which he would have contact with vulnerable clients. The Tribunal is satisfied that a prohibition order is required, stated in the broadest possible terms to cover all health services. Such an order should remain in place until such time as the practitioner can demonstrate sufficient rehabilitation to warrant an order under s 163B of the National Law so as to permit him to be re-registered and he is re-registered as a nurse."

Applicant's submissions

1. Mr Blair said he had read the submissions provided by the HCCC. He contends that he has insight into his prior conduct and contends that there is no evidence that he is not capable of working in the profession. He suggested that he could be subject to professional supervision should there be any concerns about him practising as a nurse.
2. Mr Blair maintains that some of the information considered by the Tribunal in 2020 was "taken out of context and is not true. There is a timeline that goes through each of the events and makes assumptions from 8 April 2018 onwards, contacting the patient A, attempting to contact the patient when I was not to is incorrect." Despite reminding Mr Blair that this hearing was not to re-argue the matters that were canvassed by the previous Tribunal, he continued to identify parts of the evidence in the previous Tribunal's findings which he disputes.
3. Mr Blair submitted that a further period of cancellation will not make any difference, because in "another 2 years, where will I be? Back here doing the same thing. The HCCC appears they will object now and again in the future." Mr Blair disagrees that he is a risk to the public. He said it is a false premise to suggest that he will look for a similar situation with patients in the same way in the future. He gave an example that it is preposterous to suggest that he would have a relationship with a 90-year-old woman, if he worked as a nurse in aged care. If there was a concern that he has not demonstrated sufficient insight, he could be supervised by his peers.
4. Mr Blair submitted that he now recognises that he has professional obligations even outside of working on a ward. This is something he did not believe or pay attention to in 2018.

Submissions of the HCCC

1. The HCCC does not suggest that Mr Blair can never be reinstated. However, as at the date of the hearing, Mr Blair has not satisfied the onus that he should be re-registered.
2. The HCCC submits that the application should be dismissed because the Applicant's evidence does not sufficiently address the following concerns: "(a) Protection - Given the seriousness of the proven conduct in relation to a vulnerable patient, the cancellation order remains appropriate to protect the public; (b) Reformation - Given steps the applicant took to conceal the relationship and his denials of aspects of the proven conduct, the Tribunal cannot be confident that the applicant's character is reformed and he would be candid with his colleagues, employer and regulatory bodies in future; (c) Rehabilitation - The applicant has not taken the opportunity to complete suitable courses to understand his ethical obligations so the Tribunal cannot be confident that he would comply with his professional obligations in future; (d) Insight - Given the applicant's lengthy lack of insight and insufficient evidence, the Tribunal cannot be satisfied that he has accepted full responsibility for his conduct, demonstrated genuine insight and gained a proper appreciation of the importance of the role as a registered nurse."
3. The HCCC criticised Mr Blair's reliance on the statement tendered in the 2020 proceedings as this is not a statement which reflects his current conduct. In his oral evidence, Mr Blair continues to deny some of the findings made by the Tribunal and he disagrees with the inappropriateness of contacting Patient A's family members. He continues to attribute some blame to Patient A, particularly when he refers to her as be being 'street wise and manipulative'. He denied seeing her as vulnerable and he shifts blame on his colleagues, for example Ms Sherriff, for giving him no warning or communicating to him the seriousness of his conduct. Mr Blair blames a poor culture or system at the hospital, saying that other people checked patient notes and there was a culture of bringing in food for patients.
4. In terms of the seriousness of Mr Blair's offending, he is yet to develop an understanding of his conduct. He continued to see bringing in KFC for Patient A as doing her a favour and when asked about what ethics course he had completed since 2018, he said he did not see the need to do one. The HCCC contends that Mr Blair was implying that it was his empathy that got him into trouble.
5. Overall, Mr Blair has interpreted rules and boundaries to meet his personal needs. He has looked at guidelines and policies to justify his actions. However, his submissions are inconsistent. For example, he said that if he received a formal warning he would have acted differently. The HCCC submits that this should be of concern to the Tribunal. Mr Blair when researching professional boundaries prior to his actions, should have recognised that engaging in a relationship with Patent A was a serious breach. He said he would not have needed a warning to know that his conduct was wrong.
6. Mr Blair's statements such as "I have served my 2 years" when referring to the Tribunal's 2020 orders does not give confidence that now is the time to reinstate his registration. Carrying out employment as a rideshare driver is not comparable to nursing. In nursing, there are other matters to consider, such as state of dress/undress, personal information, sickness, and a need to balance the power between the nurse and the patient. Mr Blair has not demonstrated that there is sufficient evidence of reformation, rehabilitation and that he has true insight into his previous conduct.
7. The HCCC submits that the application be dismissed with a further period of two years before Mr Blair can make a further application for re-instatement.
8. The HCCC, correctly, brought to our attention other complaints concerning Mr Blair in 2004 and 2008 which were reported to the HCCC pursuant to s 163(c)(3). The complaints happened a long time ago and there is little to no verification as to the accuracy of the allegations against him. We have attributed no weight to those complaints.

Whether the cancellation order is now the appropriate order

1. The central question for the Tribunal is whether Mr Blair has demonstrated that he can be trusted now to practise in a way that conforms to the professional standards expected of a health practitioner. That would require both recognition of appropriate professional boundaries and avoidance of boundary violations in his work with patients, and compliance with any conditions on his registration.
2. The Tribunal acknowledges that Mr Blair has expressed remorse for his conduct. However, he continues to attempt to shift blame and minimise his conduct. This is evident when he refers to not having received a warning from management and that other staff members would access patients' files. He places some blame on Patient A for the events leading up to his de-registration by referring to her as being "manipulative", "street wise", and that he was vulnerable she took advantage of him. This is not evidence in our view of Mr Blair truly accepting that his conduct was in breach of professional boundaries. Mr Blair's attitude casts doubt in our minds on whether he is truly remorseful and accepting of his wrongdoing and the imbalance of power between a mentally ill patient and a nurse.
3. It is also of concern that Mr Blair had himself assessed Patient A as 'not having a mental illness' when Patient A was in his car. This is extraordinary and concerning that Mr Blair himself would assert that he has the experience to make such a diagnosis in these circumstances. It is more concerning that he relied on this evidence to justify his decision to continue to encourage Patient A to leave the hospital in his car to discuss, amongst other things, a possible relationship between them.
4. Mr Blair's response as to how he might avoid problems in future was to state that he might seek ongoing psychotherapy. However, we are not confident that he would do so. This is because he does not believe psychotherapy will assist him. Mr Blair suggests that further treatment is an avenue to vent his feelings and discuss his action, but otherwise he would achieve no further benefit. Mr Blair's attitude in this regard is of concern.
5. The Tribunal was not provided with any expert evidence from a psychiatrist or psychologist with respect to Mr Blair developing a good level of insight into his conduct. Despite Mr Blair apparently consulting with Dr Davies, he did not adduce any evidence from the expert.
6. While accepting that Mr Blair has demonstrated some level of insight into the conduct that led to cancellation of his registration, the issue for the Tribunal is whether we can now be confident that Mr Blair has demonstrated that he has the capacity to maintain appropriate professional boundaries if placed in a position like that with Patient A. We are not so confident. This is because Mr Blair continues to shift blame to others, in particular to Patient A who is a victim, he minimises some of his conduct, and he sees no benefit in any formal treatment.
7. We have considered the character reference provided to the Tribunal by Mr Blair. While the referees speak to his involvement in the community, particularly the RSL, and his general good character, they do not in our minds satisfy us that Mr Blair should have his registration reinstated.
8. The Tribunal acknowledges that Mr Blair accepts that if he is re-registered there could be conditions placed on his registration, such as the requirement to be subject to professional supervision. However, the Tribunal remains concerned that Mr Blair has not accepted his wrongdoing, he does not see the benefit in undergoing any ethics course or training and he has not demonstrated reformation or sufficient insight into his conduct. The Tribunal is not satisfied that Mr Blair has demonstrated that the public can be protected by ensuring that he is suitably trained and qualified to practise in a competent and ethical manner as a registered nurse.
9. The non-review period imposed in 2020 was not an indication that the Tribunal had formed a view that things would have changed by the end of that period. The Tribunal accepts that with time and the appropriate psychotherapy and education, Mr Blair has the potential to be re-registered at some time in the future. However, for the reasons given above, we are not satisfied that he has discharged his burden of proof at this review. The application for a reinstatement order should be dismissed.
10. We are not satisfied Mr Blair has demonstrated a significantly different position in terms of his level of insight and reformation since the May 2020 hearing. In those circumstances, the Tribunal has decided that any review application should not be made for a further 18 months. Hopefully, within this time Mr Blair will undertake satisfactory psychotherapy or other treatment and appropriate professional education in order to discharge his burden of proof.

Costs

1. The HCCC seeks an order that Mr Blair pay its costs of these proceedings. Mr Blair opposes such an order. The Tribunal's power to order costs, as conferred by Sch 5D cl 13 of the National Law, in the context of an application for a reinstatement order and given the role of the HCCC in such proceedings, was discussed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. At [87] of that decision, the Tribunal concluded: "… A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused."
2. Mr Blair said a costs order would be pointless because he does not have any assets. He would have to go bankrupt again in similar circumstances to him being unable to meet the previous costs order made in 2020.
3. As was the case in Ristevski, in this application the HCCC proceeded in an appropriate way. The Tribunal concludes that an order that Mr Blair pay the costs of the HCCC should be made.

Orders

1. The orders of the Tribunal are: 1. The application is dismissed. 2. Pursuant to s 163B(5) of the Health Practitioner Regulation National Law, the Applicant is not to make any application for review of the cancellation of his registration for a period of 18 months from the date of this decision. 3. The Applicant is to pay the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2023