Health Care Complaints Commission v Andrews

Complaint

1. Complaint One of the Amended Complaint is that Ms Andrews is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. The particulars of Complaint One are: 1. Between May 2016 and September 2017 the practitioner failed to observe professional boundaries with Patient A in circumstances where she: 1. Formed a close personal relationship with Patient A; 2. Contacted Patient A by telephone several times a week with no clinical purpose; 3. Regularly conducted home visits with Patient A without clinical indication; 1. The practitioner inappropriately accessed Patient A's Electronic Medical Record (EMR) at the ISLHD without a proper therapeutic or clinical reason to do so on the following dates: 1. 4 April 2018, at 13.19hrs; 2. 1 September 2018 at 08.16hrs, and 13.15hrs; 3. 2 September 2018 at 08.08hrs, 09.44hrs, and 12.08hrs; 4. 5 December 2018 at 13.09hrs; 5. 31 July 2019 at 07.47hrs; 6. 12 October 2019 at 19.08hrs; 1. In May 2018 the practitioner failed to observe proper professional boundaries by: 1. Continuing a close personal relationship with Patient A; 2. Attending Patient A's birthday celebration during which she socialised with Patient A, Person B and Patient A's stepfather; 1. From October 2018 to October 2019 the practitioner failed to observe proper professional boundaries when she: 1. Continued a close personal relationship with Patient A; 2. Shared a rental accommodation and cohabited with Patient A in Kiama (Kiama property); 3. Financially benefitted from sharing the Kiama property with Patient A; 4. Consumed alcohol with Patient A at the Kiama property; 1. The practitioner should have informed her employer of her close personal relationship with Patient A, including when: 1. On 8 July 2019 Patient A attempted to self-harm at the Kiama property; 2. On 24 July 2019 the practitioner had consumed alcohol with Patient A at the Kiama property in circumstances where Patient A later attempted to self-harm; 3. On 29 August 2019 the practitioner had consumed alcohol with Patient A at the Kiama property in circumstances where Patient A later attempted to self-harm and Police attended following an argument between the practitioner and Patient A during which he verbally threatened the practitioner, her children and grandchildren; 1. Between September and October 2019 the practitioner failed to observe proper professional boundaries when she: 1. Exchanged approximately 40 text messages with Patient A's mother, Person B; 2. Person B told the practitioner that Patient A wanted to be left alone; 3. The practitioner repeatedly asked Person B for Patient A's whereabouts and stated that she still cared for him; 4. Person B arranged for a removalist to attend the Kiama property on 2 October 2019 to pick up Patient A's furniture and personal belongings.
2. Complaint Two is that Ms Andrews is guilty of professional misconduct under s 139E of the National Law, relying on Complaint One and the particulars of that complaint, both individually and cumulatively.

Reply

1. Ms Andrews filed a Reply to the application on 15 June 2021, stating: 1. I accept complaint one. 2. I accept complaint two. 3. I do not wish to further participate in these proceedings. 4. I have not felt heard or listened to during these proceedings. At the time, I thought that I was helping this person. I realise that I should not have tried to help this person in the way I did. My life is ruined by what I have done. I have lost my profession, my health and my financial stability due to what has occurred. 5. I am still a protected person under an AVO relating to Patient A. I ask that my personal contact details and address not be published as I continue to fear for my safety.
2. The Reply was signed by Ms Haider, Legal Officer, NSW Nurses and Midwives' Association, and dated 20 May 2021. Ms Haider had represented Ms Andrews at the directions hearing on 26 March 2021, when she advised that Ms Andrews was unable to and did not wish to participate in the proceedings. On 20 May 2021 Ms Haider filed a Notice of Representation that she was ceasing to act in the matter.
3. Ms Haider had forwarded documents served by the HCCC to Ms Andrews, and confirmed on 25 June 2021 that she had permission from Ms Andrews to continue to accept service of documents on her behalf.
4. In her email of 20 May 2021 Ms Haider noted that Ms Andrews remains a protected person under an AVO against Patient A, and requested that the Tribunal make a direction under cl 7 of Sch 5D to the National Law or an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) that her contact details including her home address not be disclosed.
5. The Tribunal has made an order under s 64(1)(c) of the NCAT Act prohibiting the publication of contact details for Ms Andrews, including her home address, included in documents lodged with the Tribunal or in evidence.

Stage 1 hearing

1. The HCCC requested that in circumstances where Ms Andrews is self represented and has not meaningfully participated in the proceedings, the hearing of the matter should be conducted in two separate hearings. The HCCC had informed Ms Andrews of that view.
2. The Tribunal agreed that in the circumstances it was appropriate for the matter to proceeding in two stages, to provide an opportunity for Ms Andrews to participate in consideration of what disciplinary orders if any should be made once findings are made as to her conduct as alleged in the Complaint. Accordingly, the hearing on 25 June 2021 addressed the evidence, and heard submissions from the HCCC representative as to what findings should be made in response to the allegations made in the Complaint, and the characterisation of Ms Andrews' conduct.
3. Ms Andrews did not appear at the hearing. The HCCC submitted that it was appropriate for the Stage 1 hearing to proceed ex parte, for the following reasons. Ms Andrews' representative had indicated at the first directions hearing that she did not wish to attend, and in her Reply Ms Andrews had confirmed that she did not wish to participate. Ms Andrews has not engaged with the HCCC since she became self represented, and has not served any documents or expressed a willingness or interest in serving any material. The HCCC has served on Ms Andrews all the material on which it seeks to rely.
4. Section 165J of the National Law provides that a practitioner is entitled to appear and to be represented at the hearing, and provides that the Tribunal is not prevented from proceeding in the absence of the practitioner as long as the practitioner has been given notice.
5. The Tribunal was satisfied that Ms Andrews had been served with all the documents on which the HCCC intends to rely in Stage 1, including its written submissions, by service on Ms Haider. The Tribunal file confirms that notice of the hearing was sent to Ms Andrews, again through Ms Haider. The Tribunal was satisfied that Ms Andrews had been given notice, and that it was appropriate to proceed with the Stage 1 hearing in her absence.

Evidence

1. The HCCC relied on the following documents: 1. Bundle of documents (ex A1), including: 1. Correspondence with Ms Andrews; 2. ISLHD documents including transcript of an interview between ISLHD Professional Practice Unit and Ms Andrews; 3. Transcript and reasons for decision for s 150 proceedings; 4. Clinical records for Patient A; 5. NSW Police Force documents; 6. Expert report by Ms Maria Marabong; and 7. Applicable Codes of Conduct and guidelines.
2. Ms Marabong gave oral evidence.
3. Ms Andrews did not provide any documents or other material to the Tribunal. The transcript of her interview with the ISLHD Professional Practice Unit on 28 October 2019, and the Council s 150 hearing on 25 November 2019, are in evidence (ex A1, tab 10, tab 7). On both occasions Ms Andrews was accompanied by a representative of the NSW Nurses and Midwives' Association.
4. Ms Andrews provided a statement dated 19 November 2019 headed "Response to Allegations" (ex A1, tab 16). Also in evidence is a response to questions put to Ms Andrews by the HCCC in the course of its investigation, dated 11 May 2020, and provided by a representative from the Nurses and Midwives' Association (ex A1, tab 19).

Expert evidence

1. Ms Marabong graduated with a Bachelor of Nursing in 2006, and completed an MBA in Health Management in 2014. She has primarily practised in acute mental health settings for approximately 13 years, working in adult high acuity, child and adolescent, and psychogeriatric units in Sydney and overseas. She worked in Clinical Nurse Consultant roles in 2012 to 2013, and since then in an acute youth mental health inpatient ward at Campbelltown Hospital.
2. Ms Marabong was asked by the HCCC to consider and comment on the adequacy and appropriateness of Ms Andrews' treatment and care of Patient A in her capacity as his case manager; whether she observed appropriate professional boundaries in her therapeutic relationship with him; the appropriateness of her decision to co-habit with Patient A in October 2018; the appropriateness of Ms Andrews consuming alcohol with Patient A while co-habiting with him at the Kiama property; whether she should have disclosed her personal relationship to her employer; her conduct in not ending her personal relationship with Patient A, and whether she should have referred him to an alternative health care provider, following his suicide attempts in July 2019; and the appropriateness of her accessing his medical records when he was no longer a patient of ISLHD.
3. In her written report Ms Marabong referred to relevant provisions of the Nursing and Midwifery Board of Australia Code of Conduct for Nurses (2018) concerning the importance of maintaining professional boundaries with patients, particularly in mental health, where patients often already have attachment and boundary issues or severely impaired insight and judgment; the need for nurses to recognise the inherent power imbalance that exists between nurses and people in their care, and to recognise when over-involvement has occurred and to disclose that to an appropriate person; and the requirement that nurses not become financially involved with a person who is or has been in their care. She referred to the NSW Health Code of Conduct (2015) provisions for expected ethical and professional conduct standards, including the requirement for staff to maintain professional relationships. Ms Marabong also referred to the Nursing and Midwifery Board Registered Nurses Standards for Practice (2016) and the International Council of Nurses ICN Code of Ethics for Nurses, adopted in 2018, which provides that Ms Andrews still had a duty, after she ceased to be Patient A's case manager, to promote his safety.
4. Ms Marabong stated that she had not worked as a case manager, and had informed herself by speaking to two mental health nurses currently performing case management roles, in particular concerning the average frequency of home visits to clients and the usual supports they provide. Weekly to fortnightly visits were common practice, and patients who required more frequent visits were generally those who had significant risks in the community often related to self-harming or suicidal behaviour. Ms Marabong stated that in her opinion Ms Andrews' contact several times per week, often visiting Patient A at home, appeared excessive, irregular and not in keeping with Patient A's presentation and level of risks. It was difficult to deduce that the frequency of visits to him was reasonable practice and related to clinical indication, and in her opinion that conduct fell significantly below what is reasonably expected of a practitioner with equivalent training or experience.
5. Ms Marabong considered that Ms Andrews' practice of taking Patient A out shopping, to the post office, and the pharmacy, and assisting with daily activities of living appeared reasonable and appropriate to help him in his everyday life and to remain safe and well. Incorporating small social outings such as going for coffees into her engagements with him, likely to have been to heighten his community participation and engagement, was also reasonable, and was in keeping with what is reasonably expected of a practitioner.
6. Ms Marabong considered that the text message communications between Ms Andrews and Patient A's mother relating to organising a removalist for Patient A's belongings and Ms Andrews' inquiries about his current whereabouts exhibited a clear association that was personal in nature. In her opinion the affiliation between Ms Andrews and Patient A bore no resemblance to a therapeutic nurse-patient relationship, and Ms Andrews' conduct fell significantly below what is reasonably expected.
7. Ms Marabong stated that based on the frequency of contacts and Patient A's mother's concerns, Ms Andrews' engagement with Patient A was in excess of his clinical needs and gave rise to concerns about overfamiliarity. In her opinion Ms Andrews began to form a personal attachment to Patient A at some point and failed to acknowledge this, and her conduct fell significantly below what is reasonably expected.
8. Ms Marabong stated that Ms Andews' co-habitation with Patient A after her role as his case manager ceased evidenced that she had failed to uphold expected professional boundaries and had developed a close personal relationship with Patient A. Her explanation that she was attempting to help him as he might otherwise be homeless was inadequate, and was not an acceptable manner of managing a patient's accommodation issues. In her opinion there is no clinical scenario where a nurse and patient should co-habit during or after the therapeutic relationship, and Ms Andrews' failure to distinguish the professional boundaries that are inherent and rudimental in nursing fell significantly below what is reasonably expected. Considering Ms Andrews' conduct in attending the birthday lunch with Patient A's mother and stepfather, Ms Marabong stated that there was no clinical scenario where it would be considered appropriate for a nurse or case manager to have social gatherings with a patient or previous patient and their family, and that conduct was highly improper and demonstrated a serious lack of professionalism, and as such fell below what is reasonably expected.
9. Ms Marabong considered that as a mental health nurse Ms Andrews would be mindful that alcohol use in general is discouraged to mental health patients. She was privy to Patient A's longstanding struggle with drug and alcohol abuse and was aware of his history of self harming and suicidal behaviour particularly in the context of drug and/or alcohol intoxication. By encouraging Patient A to consume alcohol and participating in that behaviour herself Ms Andrews thoughtlessly deserted any consideration for Patient A's safety. Consuming alcohol with her former patient was improper and that behaviour compromised the reputation not only of her employer but the nursing profession in general. There was no clinical context in which that behaviour would be considered befitting of a health professional and her conduct fell significantly below that reasonably expected.
10. Ms Marabong was of the opinion that Ms Andrews should have recognised her growing personal attachment to Patient A while she was still his case manager and disclosed her concerns to her line manager, and ideally detached herself as his case manager. Ms Andrews' failure to divulge her connection to Patient A was conduct that fell significantly below what is reasonably expected. By the time of Patient A's suicide attempts in July 2019 Ms Andrews and Patient A no longer had a professional relationship and their attachment was of an entirely personal kind. Although she no longer had responsibility as his case manager Ms Andrews had a duty to promote the safety of Patient A. As his behaviour escalated and his risks surrounding alcohol use and suicidal behaviour increased it would have been appropriate for Ms Andrews to end her relationship with Patient A; she should have recognised that her judgment was grossly impaired and that her efforts to ensure his safety were ineffective. Ms Andrews continued to entrench herself with Patient A, which demonstrated a complete lack of insight into her conduct and its detrimental effect on him, and as such her conduct fell significantly below what is reasonably expected.
11. Ms Marabong did not consider that Ms Andrews was required to take steps to refer Patient A to an alternative health provider after the suicide attempts in July 2019 or the incident requiring Police intervention in September 2019. At that time Patient A had been discharged from the mental health service and had declined any drug or alcohol support, and any further engagement with any service at that stage was dependent on him. Ultimately it would be up to Patient A to engage and commit to any support or therapy. After the incident requiring Police intervention when Ms Andrews procured an AVO against Patient A they ceased to live together and Ms Andrews appeared to have had no further contact with him; there was no need or opportunity for Ms Andrews to refer Patient A to any service or treatment, and once the AVO was in place it would have been inappropriate for her to involve herself further.
12. Ms Marabong considered that there was no clinical justification for Ms Andrews' misuse of her access to Patient A's records, and that conduct fell significantly below what is reasonably expected. Her acknowledgment and apologies throughout her interviews and written statements that her conduct in that regard was unacceptable and breached patient confidentiality demonstrated insight that her behaviour was improper.
13. In oral evidence Ms Marabong was asked about the continuation of the relationship between Ms Andrews and Patient A after her role as case manager ended. Ms Marabong's opinion was that that is inappropriate in a general sense, and not acceptable practice. The nurse/patient relationship has a beginning and end. There is no definite timeline for when it may be appropriate in a nursing context to have a personal relationship with a former patient, maybe several years. In her opinion Ms Andrews' breaches of expected standards were fundamental, and she should have known that, and she had plenty of opportunity to step back and talk to colleagues. Asked about the frequency of visits Ms Marabong stated that her concern was that while there are no clear guidelines for frequency, at the time Patient A was not particularly suicidal. The texts to Patient A's mother reinforced that the relationship had become personal, and after the AVO was issued it was inappropriate and unacceptable. While acknowledging that that came from a caring place, ultimately it would do more harm than good, which is why there are professional boundaries. Ms Marabong considered that Ms Andrews had demonstrated limited insight in her comments in interviews.
14. Ms Marabong is an experienced nurse in a variety of mental health settings. While she acknowledged that she has not worked in a case management role, for the purposes of her report she spoke to two different RNs working in mental health case management roles about their experiences and practice, without sharing any identifying or specific information. Her report reflects that understanding with appropriate qualifications. The Tribunal accepts Ms Marabong's evidence as a statement of standards expected of an experienced practitioner in practice as a registered nurse, in particular as guided by the principles provided in the applicable practice standards and codes of conduct for the nursing profession.

Discussion and findings

1. Ms Andrews has accepted both Complaints. Based on the evidence before the Tribunal, as discussed below the Tribunal is satisfied that the allegations as particularised in Complaint One are established.
2. The records from ISLHD Mental Health (ex A1, tab 25) confirm that Patient A was an inpatient and outpatient at ISLHD for treatment of longstanding mental health issues including ongoing treatment for chronic paranoid schizophrenia. In her statement dated 18 March 2020 (ex A1, tab 8) Person B, Patient A's mother, stated that Patient A has had mental health issues since he was 14 years old, and has attempted suicide many times. She stated that he thinks that he has scabies and is worried he will infect others, which affects his ability to get close to other people.
3. Ms Andrews acknowledged in her Response to Allegations dated 19 November 2019 that she and Patient A "had a platonic friendship". She denied a romantic or sexual relationship. The HCCC is not alleging that Ms Andrews engaged in a romantic or sexual relationship with Patient A, however submits that the relationship, as a close personal relationship, demonstrated a failure by Ms Andrews to observe professional boundaries.

Complaint One - Particular 1

1. Particular 1 of Complaint One relates to the period between May 2016 to September 2017 when Ms Andrews was Patient A's case manager.
2. The ISLHD records confirm that during the period that Ms Andrews was Patient A's case manager she made several home visits to Patient A's home. The HCCC submits that there were approximately 68 such visits, at a timing and frequency disproportionate to the level of associated risk at the time. An example is the period 1 July 2016 to 14 July 2016, in which there were 5 home visits, at a time when Patient A was staying at his mother's place. The clinical notes in evidence (ex A1, tab 25) confirm that in that period one visit was recorded as being to administer depot injection, the others being to assess his mental state. The notes do not reflect any specific clinical reason, and record a low overall assessment of risks. The notes include a record of Ms Andrews taking Patient A to the shops and to the pharmacy, and for a coffee.
3. In her statement dated 18 March 2020 Person B stated that as his case worker Ms Andrews was supposed to see Patient A once a week, but it was a lot more than that. Ms Marabong commented that the frequency of home visits appeared excessive and irregular and not in keeping with Patient A's presentation and level of risks. While she was not critical of Ms Andrews incorporating small social activities in her engagement with him, in light of the frequency of visits Ms Marabong considered that Ms Andrews' conduct fell significantly below what is reasonably expected.
4. The Code of Conduct for Nurses (2018) states that professional boundaries allow a nurse and a person to engage safely and effectively in a therapeutic and/or professional relationship, and refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of people and behaviour which serves a nurse's own personal views, feelings and relationships, that are not relevant to the professional relationship. The Code states that to maintain professional boundaries, nurses must recognise the inherent power imbalance that exists between nurses and persons in their care and significant others, and recognise when over-involvement has occurred and disclose that concern. That Code came into effect on 1 March 2018; the previously applicable Code of Professional Conduct for Nurses in Australia makes similar provision, in Conduct Statement 8. The Registered Nurses Standards for Practice (2016) provides that a registered nurse "establishes, maintains and concludes relationships" in a way that differentiates the boundaries between professional and personal relationships.
5. The Tribunal agrees with Ms Marabong that the frequency of home visits for little or no apparent clinical reason while Ms Andrews was Patient A's case manager is an indication that she had formed a personal relationship that did not maintain the professional boundaries expected of a registered nurse. Ms Andrews has admitted that she had a platonic friendship with Patient A, and even in the absence of any romantic or sexual relationship, that was a failure to observe professional boundaries. The Tribunal finds that particular 1 is established.
6. Particulars 2 to 6 concern the period after September 2017 when Ms Andrews ceased to be Patient A's case manager. Ms Andrews continued to be employed as a RN with ISLHD. The Tribunal agrees with Ms Marabong that Ms Andrews' professional obligations, in particular for Patient A's safety, continued even though she was not directly involved in Patient A's care.

Particular 2

1. Particular 2 relates to Ms Andrews accessing Patient A's EMRs, between April 2018 to October 2019. While she was still employed by ISLHD she no longer had responsibility for the care and treatment of Patient A. The investigation conducted by ISLHD confirmed that Ms Andrews' log in was used on the 9 occasions specified in particular 2 (ex A1, tab 12).
2. Ms Andrews admitted in her Response to Allegations of 19 November 2019 (ex A1, tab 16), and in her interview with ISLHD Professional Practice Unit on 28 October 2019 (ex A1, tab 10) that she accessed Patient A's records. She agreed in that interview that she was aware that she was not meant to look at the records. Particular 2 is established.

Particular 3

1. Ms Andrews stated in her response to the HCCC dated 11 May 2020 (ex A1, tab 19) that once in May 2018 she took Patient A to have lunch with his mother and stepfather as it was his birthday, and she was present at the lunch. In her statement dated 18 March 2020 (ex A1, tab 8) Person B stated that Ms Andrews "would often take out [Patient A] on special occasions, like his birthday", and that she actually met Ms Andrews at a birthday lunch she arranged for him. The Tribunal agrees with Ms Marabong that it was highly improper and inappropriate for Ms Andrews to have social gatherings with a patient or former patient and their family, and that was an indication that Ms Andrews had allowed a personal relationship to continue after her tenure as case manager had ended. That was a failure to maintain professional boundaries. Particular 3 is established.

Particular 4

1. Particular 4 concerns the period between October 2018 to October 2019 when Ms Andrews shared rental accommodation with Patient A in Kiama. The evidence before the Tribunal includes a copy of part of a residential tenancy agreement for a 3 bedroom 2 bathroom townhouse in Kiama from 3 October 2018, at a rental $520 per week, in which Ms Andrews and Patient A were both named as tenants (ex A1, tab 19). In her response to the HCCC's questions dated 11 May 2020 (ex A1, tab 19) Ms Andrews confirmed that Patient A began residing with her in about October 2018, stating that Patient A was homeless and he asked to stay with Ms Andrews for a while to get accommodation and finances sorted out, and that he ceased residing with her in September 2019. In that response Ms Andrews stated that Patient A had his own living space which was separate to hers, and that they were flatmates and friends only. In her interview with the ISLHD Professional Practice Unit Ms Andrews stated that Patient A paid half the rent, and she described the relationship as a friend (ex A1, tab 10).
2. Ms Andrews stated in her response dated 11 May 2020 that she "occasionally" consumed alcohol at home from October 2018, and Patient A was present on occasion. Evidence from NSW Police (ex A1, tab 29) confirms that on 29 August 2019 there was an incident following a verbal argument after Ms Andrews and Patient A had been consuming alcohol all afternoon. In a further incident on 15 September 2019 when they had both consumed alcohol there was a verbal argument in which Patient A made threats to kill her, and her children and grandchildren.
3. The Tribunal agrees with and accepts the evidence of Ms Marabong that Ms Andrews' decision to share accommodation with Patient A demonstrated a failure to uphold the boundaries between the therapeutic and personal relationships. In sharing accommodation and rent, Ms Andrews enjoyed a financial benefit. Her conduct in consuming alcohol with Patient A, in circumstances where she was aware of his longstanding issues with drug and alcohol abuse and his history of self-harm and suicidal behaviour was both a failure to uphold professional boundaries and a neglect of the most elementary facet of nursing care, namely safety. The Tribunal finds that particular 4 is established.

Particular 5

1. The evidence provided by NSW Police (ex A1, tab 29) confirms that on 8 July 2019 Patient A attempted to self-harm by hanging himself in the garage, and that ambulance officers treated him before taking him to hospital; that on 24 July 2019, after he and Ms Andrews had been consuming alcohol, Patient A again attempted self-harm, and Ms Andrews contacted Police; and that on 29 August 2019, after consuming alcohol, Patient A called Police, and both he and Ms Andrews confirmed they had argued. In her Response to Allegations dated 19 November 2019 (ex A1, tab 16) Ms Andrews confirmed that while Patient A was living in their shared accommodation he attempted suicide twice, on 8 July 2019 and again two weeks later. In her interview with ISLHD Professional Practice Unit on 28 October 2019 Ms Andrews confirmed that she did not tell her managers that he was living with her, stating that at the time she was "more concerned about him, I was trying to get him help". Ms Andrews confirmed in the Council's s 150 hearing (ex A1, tab 7) that she did not tell anyone at work that she was living with Patient A, stating that there was "no trust".
2. The Tribunal agrees with the assessment of Ms Marabong that Ms Andrews should have recognised that over-involvement had occurred, and disclosed her concerns about Patient A, if not to her manager then to another colleague, as required under the Code of Conduct. Particular 5 is established.

Particular 6

1. Particular 6 concerns an exchange of text messages with Person B between September to October 2019. Patient A had left the Kiama accommodation following the incident on 15 September 2019 when Police had charged Patient A. Particular 6(a) contends that Ms Andrews exchanged "approximately 40 text messages" with Person B. Person B's statement dated 18 March 2020 refers to continual attempts by Ms Andrews to contact her after the AVO, and that on one occasion she "sent me over 60 text messages".
2. The text messages in evidence (ex A, tab 16) from late September to October 2019 include references to arrangements for removalists for collection of Patient A's belongings, as particularised in 6(d); a request from Ms Andrews to know where he was and a statement that she still worried about him "and wish him peace" (particular 6(c)); and a response by Person B that he wanted to be left alone (particular 6(b)). The Tribunal is unable to ascertain how many text messages Ms Andrews may have sent to Person B: even on the limited number in evidence, the Tribunal agrees with Ms Marabong that that contact with a member of Patient A's family was inappropriate and a failure to uphold professional boundaries. Subject to the qualification as to the number of text messages exchanged, the Tribunal finds that particular 6 is established.

Whether Ms Andrews' conduct was unsatisfactory professional conduct

1. Section 139B of the National Law relevantly defines "unsatisfactory professional conduct": 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. …
2. The HCCC submits that at the time the earliest conduct alleged occurred, Ms Andrews had been registered as a nurse for over 30 years. The vulnerability of Patient A was pronounced, having regard to his acute mental illness and social isolation.
3. The HCCC submits that Ms Andrews' conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and so was unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law. The principles expressed in the various codes of conduct provide guidance as to expectations concerning the relationship between a nurse and patient, the central thread being the importance of maintaining professional boundaries, for the protection of people such as Patient A. The obligation was on Ms Andrews to enforce professional boundaries and she repeatedly failed to do so.
4. The HCCC submits that Conduct Statement 8 of the Code of Professional Conduct for Nurses in Australia, in effect from May 2013 to 29 February 2018 and in force during the period while Ms Andrews was case manager for Patient A, imposed a responsibility on her to maintain a professional boundary between herself and Patient A, acknowledging the inherent power imbalance that existed.
5. The Code of Conduct for Nurses (2018) was in force during the period covered by particulars 2, 3, 4, 5, and 6 of Complaint One, after Ms Andrews ceased to be Patient A's case manager. The HCCC submits that accessing the EMR records of Patient A when she had no clinical reason to do so was a significant departure of ethical standards expected of any nurse and particularly of one with decades of experience, in disregard of the obligation to protect privacy and confidentiality under Principle 3.5. The HCCC submits that Ms Andrews' conduct in having a social gathering with Patient A and his family, in sharing accommodation and drinking alcohol with Patient A, and in not recognising and reporting her over-involvement, breached Principle 4.1 of the Code of Conduct which requires that professional boundaries be adhered to, extending to the patient's family and friends.
6. The relevant codes of conduct and practice standards to which Ms Marabong referred and on which the HCCC relied inform the understanding of the standards required and obligations imposed on a registered nurse: Attia v Health Care Complaints Commission [2017] NSWSC 1066 (Attia) at [151]. Those codes and practice standards are evidence of what constitutes appropriate professional conduct or practice for the health profession, under s 41 of the National Law.
7. The Tribunal agrees with Ms Marabong that the conduct of Ms Andrews fell significantly below what is reasonably expected of a registered nurse, particularly one of Ms Andrews' experience. She failed to observe the fundamental obligation on any registered health practitioner to maintain professional boundaries, adherence to which as stated in Principle 4.1 of the Code of Conduct "promotes person-centred practice and protects both parties". She allowed a personal relationship to develop while she was Patient A's case manager, and allowed that to continue after she ceased to be his case manager, and failed to recognise her over-involvement or disclose that to an appropriate person. The Tribunal agrees with Ms Marabong that while there may come a time when it is appropriate for a health professional to have a personal relationship with a former patient, in a nursing context, and in particular in the context of care of a mental health patient with particular vulnerabilities, some period of time may be required; and that is not evident in Ms Andrews' behaviour.
8. The Tribunal concludes that Ms Andrews is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law.
9. In the alternative the HCCC alleges that Ms Andrews is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. As held in Attia at [160], and in the Tribunal decision in Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 (Achurch) at [31], by reason of the opening words "any other…", if conduct falls within s 139B(1)(a), there is no work for subsection (1)(l) to do. Having found that s 139B(1)(a) applies, s 139B(1)(l) would not apply. However, in case the conclusion on s 139B(1)(a) is wrong, the Tribunal makes the following findings on s 139B(1)(l) of the National Law.
10. The terms "improper" and "unethical" are not defined in the National Law, and so their ordinary meaning applies. In Achurch the Tribunal stated: 41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]).
11. As discussed above, the provisions of the Code of Conduct for Nurses (2018), the predecessor Code of Professional Conduct for Nurses in Australia (2016), and the Registered Nurses Standards for Practice (2016) state the principles for professional behaviour and conduct expectations for nurses in all practice settings. The NSW Health Code of Conduct applied to Ms Andrews in her capacity as an employee of ISLHD, including after she ceased to be Patient A's case manager, and required her to observe all professional codes of conduct and ethics relating to her profession, and to maintain professional relationships with patients. Ms Andrews failed to observe the standards of ethical conduct expected of a person in her position, and as such her conduct was both improper and unethical, and was unsatisfactory professional conduct under s 139B(1)(l) of the National Law.

Whether Ms Andrews is guilty of professional misconduct

1. The HCCC alleges in Complaint Two that Ms Andrews' conduct as particularised in Complaint One amounts to professional misconduct, as defined in s 139E of the National Law: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
2. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
3. The definition of "professional misconduct" is focused on the nature of the conduct, which must have the capacity to justify an order to suspend or cancel a practitioner's registration, whether or not such an order should be made in the particular circumstances: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], Basten JA. In deciding whether conduct found to constitute unsatisfactory professional conduct is sufficiently serious to justify suspension or cancellation of a practitioner's registration, the Tribunal must take into account the circumstances relevant to an objective assessment of the conduct, including the nature and duration of the conduct, the existence of any mitigating factors, and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct: Health Care Complaints Commission v Attia [2016] NSWCATOD 167.
4. The Tribunal regards the conduct in particulars 2 and 4 of Complaint One, and found to constitute unsatisfactory professional conduct, as being particularly serious. For an experienced nurse in the position of Ms Andrews, who was at the time no longer Patient A's case manager, to access his EMR records when there was no clinical justification for doing so was a breach of her obligation under the Code of Conduct (2018) to protect Patient A's privacy and to access records only when professionally involved in his care, and a breach of her obligation under the NSW Health Code of Conduct (2015) to maintain security of confidential and sensitive material. For her to share accommodation with Patient A, even after her role as his case manager had ended, was a failure to comply with her obligation under the NSW Health Code of Conduct to maintain a professional relationship with her former patient and to avoid becoming financially involved with someone who had been in her care. Compounding that was Ms Andrews consuming alcohol with Patient A while they were living in Kiama, in circumstances where Ms Andrews was aware of his longstanding struggle with drug and alcohol abuse and his background of self-harming and suicidal behaviour particularly in the context of drug or alcohol intoxication. While Ms Andrews stated that she was trying to help Patient A in assisting him with accommodation, her consumption of alcohol with him was, as Ms Marabong considered, in disregard for any consideration for his safety. That conduct was, as confirmed in the letter dated 16 January 2020 from ISLHD to Ms Andrews (ex A1, tab 12), of such seriousness as to have warranted termination of her employment with ISLHD.
5. The Tribunal concludes that Ms Andrews' conduct in either of those two respects was unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, and thus professional misconduct. The Tribunal also concludes that when considered together, the instances of unsatisfactory professional conduct found to have occurred in Complaint One, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Ms Andrews' registration, and accordingly are professional misconduct.

Conclusion

1. The Tribunal has found that Complaints One and Two are proven. Ms Andrews is guilty of unsatisfactory professional conduct, and professional misconduct.
2. The Tribunal makes the following directions for the provision of evidence and submissions as to what if any protective orders are appropriate as a consequence of these findings.
3. The orders of the Tribunal are: 1. The respondent is guilty of unsatisfactory professional conduct and professional misconduct; 2. The following directions are made: 1. The HCCC is to provide to the Tribunal and to the respondent a statement as to the protective orders it is seeking as a consequence of the finding of unsatisfactory professional conduct and professional misconduct, together with the evidence on which it intends to rely, and submissions, on or before 29 September 2021; 2. The respondent is to provide to the Tribunal and to the HCCC any evidence and submissions in response, on or before 14 October 2021; 3. The HCCC is to provide to the Tribunal and to the respondent any material in reply, on or before 21 October 2021; 4. The parties are to advise the Tribunal, no later than close of business 21 September 2021, of their availability for a Stage 2 hearing to commence at 10.00am on Friday 29 October 2021 for one day by AVL; or provide a range of alternative dates in November 2021.

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: 21 September 2021