Health Care Complaints Commission v Andrews

The Complaint

1. Complaint One was that Ms Andrews was guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law.
2. Particulars 1, 3, 4 and 6 of that complaint were that she failed to observe proper professional boundaries when she formed a close personal relationship with Patient A while his case manager, and in continuing a close personal relationship with Patient A after she ceased to be his case manager including attending his birthday celebration in May 2018 at which she socialised with his family, sharing rental accommodation with him from October 2018 to October 2019 and consuming alcohol with him at the shared rental property, and by sharing text messages with Person B between September and October 2019.
3. Particular 2 concerned Ms Andrews' inappropriate access to Patient A's Electronic Medical Record at the ISLHD on 9 occasions between April 2018 to October 2019; and Particular 5 concerned Ms Andrews' failure to inform her employer of her close personal relationship with Patient A, including when he attempted self-harm at the shared rental property on three occasions in 2019.
4. Complaint Two was that Ms Andrews was guilty of professional misconduct under s 139E of the National Law, relying on Complaint One and the particulars of that complaint.

Stage 1 findings

1. Ms Andrews did not participate in the Stage 1 hearing. She had provided a Reply to the application, in which she stated that she accepted Complaints One and Two.
2. As discussed in the earlier reasons at [40]-[57], the Tribunal was satisfied based on the evidence that the allegations as particularised in Complaint One were established. The Tribunal was satisfied that the conduct of Ms Andrews fell significantly below what is reasonably expected of a registered nurse, particularly one of her experience. She had failed to observe the fundamental obligation on any registered health practitioner to maintain professional boundaries; while there was no allegation that Ms Andrews had engaged in a romantic or sexual relationship with Patient A, she had allowed a personal relationship to develop while she was Patient A's case manager, had allowed that personal relationship to continue after she ceased to be his case manager, and had failed to recognise her over-involvement or disclose it to an appropriate person.
3. The Tribunal found that Ms Andrews is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law; and (as explained at [66]) in the alternative, that in failing to observe the standards of ethical conduct expected of a person in her position, her conduct was improper and unethical and was unsatisfactory professional conduct under s 139B(1)(l) of the National Law.
4. The Tribunal found Complaint Two, that Ms Andrews is guilty of professional misconduct, proven. Of particular concern to the Tribunal was Ms Andrews' conduct as alleged in particulars 2 and 4 of Complaint One, namely, her accessing Patient A's EMR records after she ceased to be his case manager when there was no clinical justification for doing so, and her conduct in consuming alcohol with Patient A while they were sharing accommodation, in circumstances where she was aware of his longstanding struggle with drug and alcohol abuse and his background of self-harming and suicidal behaviour in the context of drug or alcohol intoxication. The Tribunal concluded 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 was accordingly professional misconduct as defined in s 139E of the National Law. The Tribunal was also satisfied that when considered together, the instances of unsatisfactory professional behaviour found to have occurred in Complaint One amount to professional misconduct as defined in s 139E of the National Law.
5. The matter was listed for a Stage 2 hearing to consider what if any protective orders should be made as a consequence of those findings.

Stage 2 hearing

1. As noted in the earlier reasons, at the time the application was made to the Tribunal, and when she provided a Reply, Ms Andrews was represented by Ms Haider, Legal Officer, NSW Nurses and Midwives' Association. That representation ceased in May 2021, before the Stage 1 hearing.
2. Notwithstanding that she has ceased to act, Ms Haider has permission to accept service of documents on behalf of Ms Andrews, and has continued to forward to her documents served by the HCCC and Tribunal correspondence.
3. At the Stage 1 hearing on 25 June 2021 the Tribunal decided that it was satisfied that Ms Andrews had been given notice of the hearing, and that she had been served with all the documents on which the HCCC intended to rely by service on Ms Haider; and that it was appropriate to proceed with the Stage 1 hearing under s 165J of the National Law in the absence of Ms Andrews.
4. Ms Haider advised the Tribunal on 21 September 2021 that Ms Andrews had confirmed that she did not wish to participate in the Stage 2 hearing listed on 29 October 2021. On 6 October 2021 Ms Haider advised the Tribunal and the HCCC that Ms Andrews did not wish to provide written submissions. The HCCC provided Ms Haider with notice of the protective orders it would be seeking on 29 September 2021, and provided a copy of its written submissions for the Stage 2 hearing on 13 October 2021.
5. The Tribunal was satisfied that Ms Andrews had been given notice as required by s 165J(3) of the National Law, and that the Stage 2 hearing should proceed in her absence.
6. The Tribunal acknowledges and records its appreciation for the assistance provided by Ms Haider in keeping Ms Andrews informed of the progress of the matter and forwarding documents to her. At the hearing the HCCC representative expressed the Commission's appreciation for that assistance.

Protective Orders

1. The HCCC seeks the following orders: 1. Under s 149C(4)(b) of the National Law, that Ms Andrews is disqualified from the profession of nursing; 2. Under s 149C(7) of the National Law, an order that an application for review may not be made until after three years from the date of the Tribunal's decision; 3. Under s 149C(5) of the National Law, an order prohibiting Ms Andrews from providing the following health services, on a public, private or volunteer basis: in community health services, mental health services and/or welfare services for three years from the date of the Tribunal's decision; 4. An order under cl 13 of Sch 5D of the National Law that Ms Andrews pay the HCCC's costs as agreed or assessed.
2. Ms Andrews has admitted to the complaints in her Reply, and the Tribunal has found that the subject-matter of the complaints have been proven. Accordingly, the Tribunal may exercise any power conferred under Subdivision 6, Div 3 of Part 8 of the National Law in relation to her: National Law, s 149(a).
3. The Tribunal may, under s 149A(1) of the National Law: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
4. If a practitioner is no longer registered, an order or direction under s 149A may still be given but has effect only to prevent the practitioner being registered unless the order is complied with or to require conditions to be imposed when the practitioner is registered: National Law, s 149A(2).
5. As a consequence of the finding that Ms Andrews is guilty of professional misconduct, the Tribunal may suspend her registration for a specified period, or cancel her registration: National Law, s 149C(1)(b). If the Tribunal cancels her registration, it may specify the period before which she can seek review of the order, and apply for a reinstatement order under s 163B: National Law, s 149C(7).
6. Where, as in the present proceedings, the person is no longer registered, s 149C(4) of the National Law provides: (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
7. While the Tribunal has found that Ms Andrews is guilty of professional misconduct, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. Whether or not the misconduct is sufficiently serious to warrant cancellation or suspension depends on the circumstances of the individual case.
8. The power to make any of those orders is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: 20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
9. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s3. The most directly relevant of those principles is that in s 3(2)(a), to provide for 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. The protection of the health and safety of the public must be the paramount consideration: s3A.
10. In Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) the Court of Appeal said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
11. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [10] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the proper purposes of such an order".
12. The HCCC seeks an order under s 149C(4) of the National Law that Ms Andrews is disqualified from being registered in the profession of nursing. In considering whether or not the Tribunal would have cancelled or suspended Ms Andrews' registration as a registered nurse had she still been registered, so that such an order could be made, the seriousness of Ms Andrews' misconduct must be acknowledged.
13. Patient A was vulnerable, with severe mental health issues, unstable accommodation, social isolation, and longstanding issues with drug and alcohol abuse. Ms Andrews was an experienced mental health nurse, who had over 30 years' experience as a registered nurse. The relevant applicable codes of conduct and practice standards for the profession, as discussed in expert evidence before the Tribunal in the Stage 1 proceedings, emphasise 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 to recognise the inherent power imbalance that exists between nurses and the people in their care; and the duty imposed on Ms Andrews even after she ceased to be Patient A's case manager to promote his safety. The formation and continuation of the close personal relationship was prolonged, from 2016 through to October 2019, and not a one off event; and at all times, even after her role as case manager ceased, Ms Andrews was bound by her obligations as a registered health practitioner.
14. The Tribunal has limited evidence as to Ms Andrews' insight or understanding as to the seriousness of her conduct.
15. Ms Andrews participated in the hearing under s 150 of the National Law on 25 November 2019, and was asked by the Council delegates if it was Patient A's vulnerability or if there was something different about her case management style or her vulnerability at the time that led to the blurring of the professional boundaries. Ms Andrews is recorded as becoming tearful and stating "even I don't understand". She maintained she had never become involved with a patient previously.
16. In her Reply of June 2021, Ms Andrews stated: I have not felt heard or listened to in 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.
17. That response, at its highest, acknowledges some wrongdoing, however reflects more concern for the consequences to herself, rather than for her patient.
18. Other than providing a Reply, Ms Andrews has not engaged in these proceedings. The Tribunal has no evidence as to what if any steps Ms Andrews has taken to prevent the conduct from reoccurring, including any steps to address what may have been any vulnerabilities on her part that prompted the inappropriate relationship with Patient A.
19. As noted in Do, the objective of protecting the health and safety of the public is not confined to protecting patients or potential patients from the risk of misconduct by the particular practitioner, but includes protecting the public from similar misconduct of other practitioners and upholding public confidence in the standards of the profession. Ms Andrews' misconduct was serious, and denouncing such misconduct serves as a deterrent to her, and to the profession generally. In the absence of any evidence as to what steps may have been taken, or might be considered appropriate as conditions on registration, to mitigate the risk of a repetition of such serious misconduct, the Tribunal is satisfied that the appropriate course would be to cancel Ms Andrews' registration.
20. The Tribunal is satisfied that if Ms Andrews were still registered it would have cancelled her registration. The Tribunal is satisfied that the appropriate protective order is, under s 149C(4)(b) of the National Law, that Ms Andrews is disqualified from being registered as a registered nurse.
21. Section 149C(4)(b) enables the Tribunal to determine a specific period of disqualification, or specific conditions that must be complied with. The HCCC seeks an order under s 149C(7) of the National Law to impose a period of three years before an application for review and reinstatement order may be made.
22. The purpose of such an order is that it in setting a minimum period within which Ms Andrews should not be able to practise her profession it sends a message to her, to the profession, and to the public, about the seriousness of her conduct. It also holds open to the practitioner the possibility that she 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.
23. Ms Andrews is now aged in her 60s. She has had over 30 years' experience as a registered nurse, including in mental health nursing. The HCCC confirmed that there have been no previous complaints about her practice, or previous conditions on her registration. Two years have passed since the Council imposed the condition that she not work as a registered nurse until reviewed.
24. In the context of Ms Andrews' extensive experience, her age, and there being no previous issues with her practise as a registered nurse, the Tribunal considers that the length of disqualification proposed by the HCCC would go further than is required for the proper protection of the community and the proper purposes of such an order. The Tribunal acknowledges the seriousness of the misconduct. The Tribunal also acknowledges that it has no information as to whether Ms Andrews has engaged in the steps recommended by the Council in the s 150 hearing that she obtain professional support to address any vulnerabilities that may have led to her misconduct. However, should she seek to return to nursing Ms Andrews would need to demonstrate, in an application under s 163 of the National Law for a reinstatement order so that she may be registered, that 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: Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13. The Tribunal considers that disqualification for a period of 18 months would strike the balance referred to in Chen.
25. The HCCC also seeks an order under s 149C(5) of the National Law, which provides: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
26. The Tribunal has decided that it would have cancelled Ms Andrews' registration had she still been registered, and pursuant to s149C(5A) of the National Law the Tribunal has power to make a prohibition order under subsection (5).
27. The HCCC submits that a prohibition order should be made in respect of specified health services being community health services, mental health services or welfare services, on a public, private or volunteer basis, for three years.
28. In support of such an order the HCCC submits that the areas specified are areas by their nature in which patients who are highly vulnerable are assisted, common vulnerabilities including mental health issues, volatile social arrangements and substance abuse issues. The HCCC acknowledges that Ms Andrews' conduct was only in relation to one patient, and does not submit that her behaviour shows a pattern of inappropriate conduct towards patients. However, that conduct spanned over a number of years, and Ms Andrews has not shown any real insight into her conduct.
29. Before considering whether to make a prohibition order, the Tribunal must be satisfied that Ms Andrews poses "a substantial risk to the health of members of the public". That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75].
30. In the absence of evidence as to Ms Andrews' insight and remorse, or how she has addressed any vulnerabilities that may have led to her misconduct, the Tribunal considers that there is some risk that she may again fall into a situation where she blurs the boundaries regarded as necessary to allow nurse and patient to engage safely and effectively in any kind of therapeutic relationship. However, the Tribunal is not persuaded that it could characterise that risk as substantial, or material. As an experienced nurse, Ms Andrews has skills that could be productively engaged in a community health setting or in volunteer work such as telephone counselling. The Tribunal considers it unlikely that she would in future be working in circumstances of an ongoing one to one relationship with a patient, particularly in a mental health setting. The Tribunal is not satisfied that a prohibition order should be made, even if the threshold requirement provided in s 149C(5) were met.

Costs

1. The HCCC seeks an order for its costs of the proceedings.
2. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, and are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. The HCCC was successful in establishing that both complaints were proven, and there is no disentitling conduct as on the part of the HCCC in how it conducted the proceedings. It is appropriate to order that the practitioner pay the costs of the HCCC, in the usual form, that is as agreed or assessed.
3. The Tribunal notes that in correspondence concerning the HCCC's request for an extension of time in which to provide written submissions for Stage 2, Ms Haider expressed a concern that the extension sought and the detail in the proposed written submissions would not assist Ms Andrews in circumstances where she is no longer a registered nurse and does not intend to work as a nurse or a health care provider, and would lead to the incurring of unnecessary additional costs by the HCCC. That factor should be taken into account in reaching any agreement as to the amount of costs that should be paid by Ms Andrews.

Orders

1. The Tribunal orders: 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law, if the respondent were still registered the Tribunal would have cancelled her registration; 2. Pursuant to s 149C(4)(b) of the Health Practitioner Regulation National Law, the respondent is disqualified from being registered in the profession of nursing for a period of 18 months; 3. Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law, the Nursing and Midwifery Board of Australia is to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board; 4. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law, an application for review may not be made by the respondent until after 18 months from the date of the Tribunal's decision; 5. Pursuant to cl 13 of Sch 5D of the Health Practitioner Regulation National Law the respondent is to pay the Health Care Complaints Commission's costs of 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: 13 December 2021