Health Care Complaints Commission v De Lore - [2020] NSWCATOD 72 - NSWCATOD 2020 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v De Lore

[2020] NSWCATOD 72

NCAT Occupational|2020-06-30

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2020-06-30

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

o s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names, addresses or any other identifying information of any patient or any family member of the Respondent referred to in the evidence in the proceedings.

[2]

Introduction

On 24 October 2019 the Health Care Complaints Commission (the Commission) applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Rebecca De Lore, a registered nurse.
In its Complaint attached to the Application the Commission brings three individual complaints in relation to the conduct of Ms De Lore. The first two complaints allege unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. The third complaint alleges professional misconduct under s 139E of the National Law in relation to that conduct.
The Commission alleges that Ms De Lore's conduct demonstrates that the judgment possessed, or care exercised, by her in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience: see s 139B(1)(a) of the National Law. It is also alleged that her conduct was improper or unethical: see s 139B(1)(l) of the National Law.
The complaints relate to discrete time periods. The complaints are grounded in Ms De Lore's conduct while working as a registered nurse at a Community Health Centre and subsequently at a private psychiatric facility. The evidence demonstrates, and it is admitted by Ms De Lore, that she had a personal and intimate relationship with two patients, who are referred to in this decision as Patient A and Patient B.

[4]

Tribunal proceedings

Ms De Lore was legally represented at a directions hearing held on 22 November 2019 when a timetable was set for the Commission and Ms De Lore to file and serve evidence and submissions. The proceedings were listed for hearing on 6 April 2020.
In a statement dated 14 February 2020 Ms De Lore made substantial admissions. She admitted both complaints of unsatisfactory professional conduct and professional misconduct. She also made admissions in full or in part to the particulars which supported the Complaint.
On 6 March 2020 Ms De Lore's legal representative filed a Notice of Ceasing to Act. In a letter to the Tribunal and the Commission of the same date, the former representative stated that he was instructed that Ms De Lore would not be attending to give evidence at the hearing and would no longer be participating in the proceeding.
In addition a letter from Kate Moylan, Psychologist, Spectrum Health dated 2 March 2020 was provided to the Tribunal and the Commission. This letter indicated that Ms De Lore was attending Spectrum Health following identification of mixed anxiety and depression. Ms Moylan wrote that considering Ms De Lore's current presentation, it was considered detrimental to her mental health if she were to attend the hearing.
The matter had been listed for hearing on 6 April 2020 in the midst of COVID-19 pandemic restrictions. To reflect the public health measures deployed in response to the pandemic, shortly before the scheduled hearing date and in communication with the parties, the Tribunal made an order on 25 March 2020 dispensing with the oral hearing and determining that the matter would be considered by the Tribunal on the papers.
Each party had previously provided evidence. On 3 April 2020 the Commission provided written submissions to Ms De Lore and the Tribunal in which is set out the orders it was asking the Tribunal to make and why.
By letter dated 9 April 2020 the Tribunal wrote to Ms De Lore giving her the opportunity to comment on the Commission's submission and in particular the orders it was seeking. No response or further material was received from Ms De Lore.
We are satisfied that Ms De Lore has been served with the relevant documents on which the Commission relies, has formally responded to the complaint in writing at a time when she was legally represented, and has been given the opportunity to comment on the protective orders sought by the Commission. On that basis we are satisfied that it is appropriate to consider both Stages 1 and 2 being the Complaint (stage 1) and the appropriate protective orders (stage 2).

[8]

Evidence

Material was provided by the Commission to support the details of the complaints set out above. This included but was not limited to: a notification to Australian Health Practitioner Regulation Agency (AHPRA) in relation to Ms De Lore's conduct towards Patient A, a mandatory notification to AHPRA by Ms De Lore's employer in relation to her conduct towards Patient B, a complaint by Patient A to the Commission, emails, transcript of voicemails, photographs and text messages, Expert Peer Review Report, personnel files, patient clinical records, correspondence with the Council and witness statements.
The Council has conducted two section 150 proceedings in respect of Ms De Lore and her conduct towards Patients A and B respectively. Section 150 proceedings occur in the context of the Council's obligation under the National Law to take action at any time if it is satisfied it is appropriate to do so for the protection of the health and safety of the public or for reasons otherwise in the public interest.
The Council conducted its first hearing on 22 February 2016. Reasons were published on 13 March 2016. Ms De Lore attended this hearing. These proceedings concerned her relationship with Patient A. After considering the matter the Council was satisfied that at that time conditions were not required on Ms De Lore's registration. The delegates considered that it was unlikely that Ms De Lore would have another boundary violation and did not think her practice was likely to present an ongoing risk to the public.
A second hearing was conducted on 9 December 2016. Reasons were published on 13 February 2017. Ms De Lore did not attend this hearing. These proceedings concerned her relationship with Patient B.
On this occasion the Council observed that it appeared from the material before it that Ms De Lore had contacted and engaged in an intimate relationship with Patient B within four months of attending the earlier section 150 Proceedings on 22 February 2016 which had been about her intimate relationship with Patient A. After considering the matter the Council was satisfied that it was appropriate to put conditions on Ms De Lore's registration. These conditions included that she must not work as a registered nurse.
Two expert peer reports were prepared by Warren Shaw. Mr Shaw is an area Nurse Manager, Mental Health Services of a large regional area in New South Wales. The first report is dated 30 December 2016 and it reviewed Ms De Lore's conduct in relation to Patient A. The second report is dated 10 June 2018 and it reviewed Ms De Lore's conduct in relation to Patient B.
In both reports Mr Shaw expressed the view that Ms De Lore's conduct was significantly below the standard expected of a practitioner of an equivalent level of training or experience. It invited his strong criticism.
To support this view Mr Shaw stated that the standard reasonably expected would include maintaining a professional and therapeutic relationship rather than attempting to develop over familiarity, friendship or intimacy with a patient during and after being in the practitioner's care. Mr Shaw also referenced that all nurses are expected to be aware of the power imbalance in such relationships and the vulnerability of patients to exploitation. Mr Shaw stated that the decision to enter into an intimate relationship with an ex-patient formerly under one's care is a selfish, unethical and exploitative one.
In Mr Shaw's report dated 10 June 2018 Mr Shaw referenced that the complaint in relation to Patient B occurred in the context of a similar complaint regarding Ms De Lore's actions in 2010 and the subsequent scrutiny that accompanied it. Mr Shaw was concerned that this represented a major flaw in the professional and ethical framework within which Ms De Lore operates.
The Nursing and Midwifery Board of Australia's (NMB) Code of Professional Conduct for Nurses in Australia, August 2008 and A Nurse's guide to professional boundaries, February 2010 were operative at the time of Ms De Lore's conduct. These codes variously address the importance of the maintenance of professional boundaries. They refer to the inherent power imbalance that exists within the relationship between people receiving care and nurses that may make the person vulnerable and open to exploitation. The Code of Professional Conduct for Nurses in Australia, indicates that sexual relationships between nurses and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances. Such relationships automatically raise questions of integrity. Consent is not acceptable defence in the case of sexual or intimate behaviour within such relationships.
Material provided by Ms De Lore included but was not limited to her statement, two character references, a list of attendance dates at Spectrum health and professional development certificates.
We note that the references are of somewhat limited value. One author had not worked with Ms De Lore and knew her in a personal capacity. Both references refer to Ms De Lore crossing professional boundaries and her errors of judgement. However, the references do not traverse any specific details as to what action Ms De Lore has taken that would assist in our assessment of her development of insight into her past conduct. However we accept that Ms De Lore is well regarded by her referees.

[9]

Complaint One: Unsatisfactory Professional Conduct sections 139B(1)(a) and (l)

The expert peer review reports concluded that Ms De Lore's conduct in relation to Patient A was significantly below the standard expected of a practitioner of an equivalent level of training or experience.
The various Codes of Conduct referred to in this decision inform us as to what the profession, as a whole, reasonably expects of its members. This includes but is not limited to acting in a way that does not exploit the vulnerability of patients.
Ms De Lore accepts that her conduct amounted to unsatisfactory professional conduct. As referenced by Ms De Lore's own admission she was in breach of the Code of Professional Conduct for Nurses in Australia
We find that Ms De Lore's conduct demonstrates that the judgment possessed, or care exercised, by her in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. We find her conduct constitutes unsatisfactory professional conduct under section 139B(1)(a) of the National Law.
The first complaint also alleges unsatisfactory professional conduct within the meaning of section 139B(1)(l) of the National Law. Section 139B(1)(l) refers to "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". It requires a determination by the Tribunal as to whether a practitioner has been guilty of unsatisfactory professional conduct arising from an assessment as to whether conduct was improper or unethical relating to the practice of their profession. It is therefore directed at a broader range of conduct than that which occurs "in the practice of" a person's profession.
The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not 1. "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]- [48]: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.
Ms De Lore's initial response to enquiries about her relationship with Patient A was to deny the relationship. This was done through a submission sent to the Council by her legal representatives on her behalf.
In that same submission, Ms De Lore gave an undertaking to the Council that she would not contact Patient A whilst the Council were dealing with the complaint relating to her conduct towards Patient A. Ms De Lore breached that undertaking on a number of occasions.
In our view Ms De Lore knew what she was doing was wrong. Her initial lack of candour can be explained on a desire to avoid the consequences of her behaviour.
Ms De Lore then compounded her transgression by breaching her undertaking. She sought to persuade Patient A not to provide truthful information to the Commission and/or the Council about their relationship. She placed her own interests ahead of Patient A. She failed to identify the moral dimension to her conduct. It was improper and unethical.
We are satisfied that complaint one is established and that Ms De Lore's conduct was unsatisfactory professional conduct within the meaning of both s 139B(1)(a) and (l) of the National Law.

[10]

Complaint Two: Unsatisfactory Professional Conduct sections 139B(1)(a) and (l)

The evidence clearly establishes that between 20 April 2016 and 24 May 2016 Ms De Lore cared for Patient B from time to time during his admission to the Clinic in her role as a registered nurse.
The Commission submits that we can find particular 1 proved, in the form alleged by it, on the basis of Ms De Lore's admission. The particular does not refer specifically to the initiation of non-therapeutic contact, which is what Ms De Lore appears to deny. We accept that submission.
There is some evidence to suggest that Ms De Lore may have initiated non-therapeutic contact with Patient B. In a witness statement made by Patient B's mother she says her understanding is that Ms De Lore contacted Patient B via email on 27 May 2016 several days after his discharge from the Clinic on 24 May 2016. The Commission submits that this evidence is more reliable that Ms De Lore's apparent assertion that Patient B initiated the non-therapeutic contact.
We are not able to make a clear finding that the first non-therapeutic contact with Patient B was made by Ms De Lore. However, on the evidence before us we are satisfied that following Patient B's discharge, Ms De Lore breached proper professional boundaries in that she inappropriately maintained contact with Patient B by telephone, email, and/or social media for a non-therapeutic purpose.
In relation to particular 2, Ms De Lore denies a sexual relationship with Patient B. She admitted engaging in a personal relationship with Patient B however she says it was not physical or intimate in nature.
Again, the Commission submits that Ms De Lore's admission is, in substance, an admission of the particular alleged, which is of a "personal and/or sexual relationship" with Patient B. We accept that submission.
Further, the evidence is consistent with a very intimate relationship and highly suggestive of a sexual relationship. Patient B's mother says that Patient B and Ms De Lore "had a relationship" and that they each spent weekends at the other's home. In a witness statement the CEO of the Clinic, records that Ms De Lore acknowledged to her that her relationship with Patient B was "more than just a friendship".
Whatever the true nature and extent of the relationship between Ms De Lore and Patient B was, we are satisfied the evidence establishes that between about mid-2016 and November 2016, Ms De Lore inappropriately entered into and maintained a personal relationship with Patient B.
Ms De Lore accepts that her conduct amounted to unsatisfactory professional conduct. As referenced by Ms De Lore's own admission she was in breach of the Code of Professional Conduct for Nurses in Australia.
We find that Ms De Lore's conduct demonstrates that the judgment possessed, or care exercised, by her in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. We find her conduct constitutes unsatisfactory professional conduct under section 139B(1)(a) of the National Law.
Again Ms De Lore failed to identify the moral dimension to her conduct. We also find that her conduct was improper and unethical.
Accordingly we are satisfied that complaint two is established and that Ms De Lore's conduct was unsatisfactory professional conduct within the meaning of both s 139B(1)(a) and (l) of the National Law.

[11]

Complaint Three: Professional Misconduct section 139E of the National Law

The Commission submits that the conduct of Ms De Lore, which we have found constitutes unsatisfactory professional conduct, when considered individually and cumulatively is of a sufficiently serious nature to amount to professional misconduct.
There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s 139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: see Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [43]-[50] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation": see [19].
In our view when the complaints are considered individually and together there has been a significant departure from the standard of conduct to be expected of a nurse.
Ms De Lore breached the standards that apply to the nursing profession. She engaged in serious boundary violations culminating in personal relationships with two vulnerable clients. One of those relationships was sexual. Ms De Lore's conduct is aggravated by the fact that she entered into her relationship with Patient B soon after the section 150 hearing was held in relation to her relationship with Patient A. Such a breach of professional standards is serious.
Ms De Lore's conduct is compounded by her lack of candour with the Council and her breach of the undertakings she had provided.
We find that the unsatisfactory professional conduct displayed by Ms De Lore is of a sufficiently serious nature to constitute "professional misconduct" under s 139E of the National Law.
We are satisfied that the complaint of professional misconduct as detailed in complaint three is proved.

[12]

Principles regarding protective orders

The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see sections 149A, 149B and 149C of the National Law.
Having found the complaint of professional misconduct proven against Ms De Lore we may exercise powers to suspend or cancel her registration: see s 149C(1) of the National Law.
The Commission seeks cancellation of Ms De Lore's registration as a nurse for a period of 2 years.
In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s 3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective: see s 3A National Law. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34].
In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.
In Health Care Complaints Commission v Do, [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred at [35] to the importance of denunciation of misconduct, in the context of s 3 and s 3A of the National Law as follows: 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.
As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.

[13]

Consideration of protective orders

In our view Ms De Lore's conduct is very serious. Both Patient A and Patient B were very vulnerable patients with significant mental health issues. By maintaining a personal relationship with two former patients she demonstrated an absence of care, propriety, honesty and integrity in her nursing practice.
Ms De Lore's inappropriate relationship with two patients is aggravated by her ancillary conduct. For example she initially denied her relationship with Patient A. Whilst the Council were dealing with the complaint relating to Patient A she breached the undertaking she had given them. Ms De Lore sought to persuade Patient A not to provide truthful information to the Commission and/or the Council about their relationship. Soon after the section 150 hearing in relation to Ms De Lore's relationship with Patient A she entered into a relationship with Patient B.
Ms De Lore was not candid and honest with the Council. This is an integral part of the proper functioning of the regulatory system. By her actions she demonstrated a disregard for the Council and its role.
Ms De Lore has made no submissions as to protective orders. As a result we have somewhat limited measures by which we can assess the level of insight and remorse, if any, that Ms De Lore holds into her conduct now.
Certainly Ms De Lore had an opportunity to demonstrate insight and remorse when investigated on the second occasion by the Council and during the Commission's investigation. She chose not provide any information in this regard.
In our view the false representations Ms De Lore made to the Council on the first occasion it dealt with a complaint against her and entering into an intimate relationship with Patient B soon after her section 150 hearing in relation to her relationship with Patient A are evidence of her lack of insight.
Ms De Lore has not provided any material that would assure us that she has any insight or understanding into the standards of practice and morality required of her as a nurse.
Having regard to the findings made above as to the nature of the conduct and the protection of the public, we are satisfied that the disciplinary orders sought by the Commission are appropriate. Specifically that if Ms De Lore were still registered the Tribunal would have cancelled her registration and that she be disqualified from being registered as a nurse for a period of 5 years.
In our view given the gravity of the misconduct and the upholding of public confidence in the nursing profession requires that the conduct in its entirety be denounced as unacceptable and that a period of five years appropriately reflects that.

[14]

Prohibition order

The Commission seeks an order prohibiting Ms De Lore from working as an assistant in nursing or providing any mental health service for a period of 5 years. It did not make any specific submission addressing the prohibition order sought.
We can make a prohibition order if we are satisfied that the practitioner poses a substantial risk to the health of members of the public: see s 149C(5)(a) of the National Law. An order of this kind is aligned with the protective purpose of the legislation.
The question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if that person were to be involved in the provision of health services.
A prohibition order should only be made where there is some basis to find that there is a possibility that the practitioner will engage in the provision of unregistered health services and place the public at substantial risk through so doing. In this matter there is no evidence as to Ms De Lore's future employment plans.
In our view there is a substantial risk to the health of members of the public because the available evidence demonstrates that Ms De Lore has replicated the same pattern of failing to adhere to professional boundaries with vulnerable patients. She has shown a willingness to mislead regulators and has not been candid with employers.
In our professional experience it is not unknown for nurses whose registration has been cancelled to seek work in the aged care and disability sectors. The specific health issues for patients in these sectors make them particularly vulnerable. In some instances care may be provided in the patient's own home with fewer safeguards or oversight than would otherwise be available.
In this case a prohibition order ensures that the protective purpose of the cancellation of Ms De Lore's registration is not significantly undermined. This is because if Ms De Lore were permitted to provide health services as an assistant in nursing, mental health service or other care services during the interim period when her registration was cancelled, it would substantially diminish the protective purpose of any order that cancelled her registration and may undermine confidence held in the profession.
For the reasons set out above we have framed the prohibition order in broader terms than that sought by the Commission, to cover the provision of care services in the aged care and disability sectors.

Health Care Complaints Commission v De Lore

At a glance

Court

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Judgment (17 paragraphs)

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Legislation Cited (3)

Cases Cited (11)

Cited By (3)