Health Care Complaints Commission v Gaberman

Health Care Complaints Commission v Gaberman - [2023] NSWCATOD 77 - NSWCATOD 2023 case summary — Zoe

REASONS FOR DECISION

In March 2020, the Nursing and Midwives Council of New South Wales (the Council), suspended the registration of nurse, Mr Lane Gaberman, under s 150 of the Health Practitioner Regulation National Law 2009 (NSW) (the National Law). The trigger for that decision was a complaint made by Mr Gaberman's employer, a NSW Local Health District (the LHD), citing "concerns about health professional's understanding of professional boundaries".
The Council referred that complaint to the Health Care Complaints Commission (the Commission). Following an investigation, the Commission referred a complaint about Mr Gaberman to the New South Wales Civil and Administrative Tribunal (NCAT). That complaint concerns Mr Gaberman's conduct in relation to three adolescent female patients during the period November 2018 to November 2019 (the Complaint).
In November 2014, shortly after being registered as a nurse, Mr Gaberman commenced employment at an eight-bed child and adolescent inpatient mental health facility located within a regional hospital in NSW (the Facility). Mr Gaberman worked at the Facility on a continuous basis until his registration was suspended in March 2020. The Facility is a declared mental health facility under the Mental Health Act 2007 (NSW) and provides cares to both voluntary and involuntary patients. Patients at the Facility were acute, high-needs patients, typically complex, with emerging borderline-type presentations. About 85% of the patients were female.
Mr Gaberman admits to some but not all of the conduct particularised in the Complaint (the admitted conduct). In these reasons, we consider whether the conduct denied by Mr Gaberman is proven; whether any proven or admitted conduct amounts to "unsatisfactory professional conduct"; and, if so, whether that conduct amounts to "professional misconduct" as defined by the National Law.
We explain below our reasons for finding that the proven and admitted conduct does not amount to professional misconduct.

[7]

The Facility: staffing and workplace culture

To put the submissions made by the parties in context, it is useful to make some observations about staffing arrangements and the workplace culture of the Facility.
Throughout the period of the Complaint, the eight beds at the Facility were in high demand. The beds were usually occupied.
Nursing staff were rostered to work morning (07:00 to 15:30), evening (14:30 to 22:00) or night (22:00 to 07:00) shifts. A nurse unit manager (a NUM), a nurse educator, and a social worker were rostered to work throughout the day, usually from 08:00 to 17:00. A nurse-in-charge, three or four registered nurses and one or more enrolled nurses were usually rostered on the morning shift. A nurse-in-charge, two registered nurses, or an enrolled nurse and registered nurse were rostered to work the afternoon shift. The weight of evidence is that the Facility was chronically understaffed and rostered positions were often not able to be filled.
The practice of the Facility was to allocate each member of the nursing staff, except the NUM, responsibility for particular patients.
Throughout the period Mr Gaberman was employed at the Facility (November 2014 to April 2020), there was a difference of opinion between members of nursing staff about the proper model of patient care. Adherents of the model said to have been championed by the Facility's inaugural NUM, Ms Louise Megson (2008 to 2016), favoured what was described by its adherents as a "patient centric", "compassionate" model of care which encouraged "warm therapeutic relationships" between staff and patients.
Mr Gaberman was an adherent of that approach and held in high regard by Ms Megson. In an email sent on 27 February 2017 to NUM Mr Peter Lacey, Ms Megson provided a reference for Mr Gaberman - "possibly/probably the most skilled and exceptional mental health nurse that I have ever worked with". Ms Megson wrote that Mr Gaberman has "excellent therapeutic skills and uses them to engage with young people whilst maintaining professional boundaries".
Other members of staff described the model of care promoted by Ms Megson as a "rescuing mindset" which failed to acknowledge the power differential between patient and nurses. Mr Timothy Dilli, who took over as NUM in April 2021, said that when he commenced at the Facility in 2015 there was a culture of "over-familiarity" between nursing staff and patients. He felt some staff members were ostracised and undermined in their practice while others were praised and promoted. In his opinion, this culture and management style probably contributed to Mr Gaberman's "intensive approach" to patient care. Mr Dilli considered that clinical governance at the Facility was lacking and that greater structure should have been established.
From about 2016, the differences of opinion between staff about the proper model of care became more pronounced, particularly in relation to the treatment of patients with eating disorders. Some, including Mr Gaberman, considered the approach adopted by some treating practitioners to be harsh and overly reliant on the use of restrictive practices to modify patient behaviour.
In 2021, an external review of the Facility was conducted and several recommendations for change made. To date, those changes have apparently not been formally implemented.

[9]

Sub-particular 2a: Did Mr Gaberman inappropriately interrupt RN Butler's engagement with Patient A?

By Particular 2 of Complaint 1, the Commission complains: "2. On a date unknown in January 2019, the practitioner: a. inappropriately interrupted RN Emma Butler's engagement with Patient A in circumstances where there was no therapeutic indication that his assistance was required; b. breached proper professional boundaries by agreeing to provide Patient A his shoulder to cry on."
Registered Nurse (RN), Ms Emma Butler, commenced employment with the Facility in early 2018, working one day per week. In a statement dated 21 December 2021, Ms Butler stated that on several occasions she observed Mr Gaberman being "overly involved with [Patient A]". In these proceedings, Ms Butler said she was not concerned that Mr Gaberman was sexually inappropriate with Patient A or any other patient, but she was concerned about his tendency to "overly engage" with Patient A and other patients. In Ms Butler's opinion, while Mr Gaberman was well-intentioned and genuinely believed his level of involvement was beneficial, his level of engagement was not beneficial to Patient A.
In an email to Clinical Nurse Educator, Mr Brent Hall, dated 19 January 2019, Ms Butler raised concerns about the amount of time that Mr Gaberman spent engaging one-on-one with some patients including Patient A. Referring to an incident which had "occurred recently", Ms Butler wrote: "I was engaging with a female patient [Patient A] in a conversation when Lane commenced his shift, approached and sat down next to myself and [Patient A]. He addressed his conversation solely toward the patient and did not acknowledge my presence or include me in the conversation (with body language, a greeting or other interaction). Sometime into the conversation he initiated with [Patient A] he briefly said 'hello' to me and immediately continued his conversation with [Patient A]."
In a letter to Mr Gaberman, dated 14 March 2019, a senior manager employed by the Area Health Service, Ms Fiona Couch, asked Mr Gaberman to respond to several "reported concerns" including the incident described by Ms Butler and set out above. Ms Couch described that incident as "another staff member was engaging with [Patient A], you interrupted this engagement and commenced conversation with [Patient A] effectively 'cutting out' the other staff member".
In a letter in response dated 20 March 2019, Mr Gaberman stated that the incident described by Ms Couch was "clouded by a subjective interpretation of what actually transpired". He said that earlier that day Patient A had received a letter from her mother which caused her distress and anxiety. As a result, Patient A's case coordinator, social worker, Ms Rebecca Gordon, asked him "to personally support [Patient A] that evening". Mr Gaberman wrote: "[Patient A] is another client I have worked with over a period of several years and multiple admissions to [the Facility]. I believe we have developed a strong and positive therapeutic rapport during that time. [Patient A] has discussed many sensitive issues with me during her admissions with great openness and candour. One of the central issues for [Patient A] involves her relationship with her mother. On the day in question, [Patient A] was expressing feelings of having been blamed and shamed in a lengthy letter penned by her mother which had been recently delivered to her. She was highly distressed and anxious about its contents. She felt the letter was highly accusatory in tone and laden with statements that could easily be interpreted as intending to provoke feelings of guilt and shame, as can be corroborated by her Care Coordinator (CC) at the time (RG). Following a session with RG, I had been asked directly by the CC to personally support [Patient A] that evening. The other nurse involved, who [Patient A] had not known for very long and she had not (in my observation) developed significant rapport with, was speaking with [Patient A] and the CC when I approached to see how I might assist. Earlier in the day, I had promised [Patient A] that we could go out for a walk later that day, and I asked if she still wished to do so. I also stated that if she wished to go with the other nurse, that was absolutely fine and the decision was certainly hers. [Patient A] requested that I go for the walk with her, and we did. There was no intention on my part to disrupt an interaction between her and the other nurse. [Patient A] simply made her own choice without any coercion, and I was able to honour the commitment I'd made to her earlier in the day about going out for a walk together, as well as supporting [Patient A] per the request of the CC (RG). I must assume that this is the event where I allegedly 'interrupted the conversation' and 'cut out the other staff member.' If I did, it was certainly unintentional and worthy of an apology from me. During our walk, [Patient A] and I discussed the letter and explored her feelings about it. She was enraged and feeling as though her mother was attempting to use guilt as a tool of manipulation (an earlier conversation with her CC (RG) seemed to validate this interpretation). I asked her if she wished to communicate these feelings directly to her mother - if/when she was ready to do so. (Self-advocacy had been an issue we had been working on for some time, as [Patient A] often directed her resentments inward - or in outwardly destructive ways). [Patient A] stated she thought she might like to confront her mother over the phone that evening to convey her feelings about the letter. I told her I thought that if she felt she was ready to do that, I would absolutely support her in doing so. I also provided some basic instruction in nonviolent communication to support her if she chose to make the call that evening, so that she had the best possibility of advocating for herself respectfully to her mother. Upon return to the unit, [Patient A] was more ambivalent about making the call. I did not pressure her in any way, and I recall stating, 'You do not have to do it. It's totally your choice. I will support you in whatever decision you make.' [Patient A] deliberated a bit more internally, then later approached me unprompted and said 'OK, I'm going to do it. I don't want to sit on this all night...' I believe I may have said, 'Good for you!' I also recall [Patient A] saying, 'I might need a shoulder to cry on afterwards though...' to which I replied, 'We're here to support you. Of course!' [Patient A] then made her phone call. It appeared to go well. She maintained her composure, advocated for herself extremely well, and showed great maturity during the call. After she hung up, we acknowledged her courage and composure with positive feedback."
In these proceedings, Ms Gordon confirmed that she asked Mr Gaberman to support Patient A. Ms Gordon described Patient A as "one of the more high-needs" patients at the Facility. She shared Mr Gaberman's opinion that Patient A had a particularly complex relationship with her mother and that Mr Gaberman had developed a good rapport with Patient A.
Mr Gaberman disputes that he "inappropriately interrupted" Ms Butler's engagement with Patient A. He claims that he, not Ms Butler, was allocated to care for Patient A on the day of the incident. In support, he points to the clinical note he made on 19 January 2019, the only clinical note made by a member of the nursing staff about Patient A on that day. Mr Gaberman and Ms Butler agree that the practice in the Facility was for the nurse allocated to care for a patient on a particular day to be responsible for recording any clinical notes about that patient made on that day.

[10]

Consideration

The incident about which Ms Butler complained in her email to Mr Hall of 19 January 2019 probably occurred on 11 January 2019. That is consistent with the clinical note made by Mr Gaberman on 11 January 2019 referring to Patient A having a telephone conversation with her mother that day which was "difficult for her". Further, it is not inconsistent with Ms Butler's email to Mr Hall complaining about Mr Gaberman's conduct which referred to an incident which had "occurred recently".
We find that Mr Gaberman interrupted Ms Butler's conversation with Patient A on 11 January 2019. That finding is consistent with the account Ms Butler gave to Mr Hall eight days after the incident. In addition, while in these proceedings Mr Gaberman formally denied Ms Butler's claim, in his letter to Ms Couch sent six weeks after the incident, Mr Gaberman, in effect, acknowledged that he may have unintentionally interrupted Ms Butler's conversation with Patient A.
The difference between the accounts given by Ms Butler and Mr Gaberman largely turns on their respective opinions about whether the interruption was warranted and appropriate. Ms Butler saw it as a further example of Mr Gaberman's intense style of patient engagement which, in her opinion, was not beneficial to patients and which "fractur[ed] a unified team approach to patient care". On the other hand, Mr Gaberman considered the interruption to be necessary given Ms Gordon's request to "personally support" Patient A. In his opinion, it was a matter of some urgency that he speak with Patient A because her emotional stability was at risk as a result of receiving the letter from her mother. Mr Gaberman reasoned that as he had cared for Patient A throughout multiple admissions to the Facility, he had developed a better rapport with Patient A than Ms Butler who had only known her for a short period.
We accept that Mr Gaberman held, and continues to hold, the honest belief that his interruption of Ms Butler's conversation with Patient A was warranted. However, in circumstances where Ms Butler and Patient A were engaging in a one-to-one conversation, where at that time there was nothing to indicate that Patient A was distressed or at immediate risk of harm, where other options were available to Mr Gaberman to give effect to Ms Gordon's request, such as taking Ms Butler aside and informing her of that request, we find that the interruption was inappropriate.
There is no reliable evidence about who was allocated to care for Patient A on 11 January 2019. But, even if, as he claimed, Mr Gaberman was the allocated nurse, given the circumstances described above, his conduct in interrupting a colleague was inappropriate. Sub-particular (a) is established.

[11]

Sub-particular 2(b): "Shoulder to cry on" allegation

In her email to Mr Hall sent on 19 January 2019, Ms Butler gave this account of Mr Gaberman's interaction with Patient A after he interrupted her conversation with Patient A: "The content of Lane's conversation appeared to be very directive and delivered with body language, words and tone that were insistent. Specifically, Lane repetitively communicated that he felt [Patient A] should phone their mother to inform this parent that their recent behaviour was inappropriate. He fleetingly added that [Patient A] should only do what they wanted and not necessarily listen to him. Several times [Patient A] shared reluctance to phone her mother. Yet Lane continued to communicate that he felt it was a good idea for her to make the phone call. Given the dynamic of the interaction I felt the conversation would lead to/Lane would implicitly or directly offer to emotionally support [Patient A] if she phoned her mother. Shortly after I formed this impression [Patient A] looked at Lane and said she would make the phone call if she had a 'shoulder to cry on afterwards'. [Patient A] appeared to be seeking for Lane to give her a 'shoulder to cry on'. Lane then said he would provide this for her."
In a letter to Ms Couch dated 20 March 2019, Mr Gaberman disputed Ms Butler's claim that he pressured Patent A to contact her mother. Rather, he claimed that he explored with Patient A her feelings about the letter she had received from her mother, whether she wished to communicate those feelings to her mother and whether she felt ready to so do.
Mr Gaberman denies offering Patient A "a shoulder to cry on". Rather, he claims that in response to the statement made by Patient A "after I call my mother, I might need a shoulder to cry on", he responded by saying "we are all here to support you, whatever you decide to do".
In cross-examination, Ms Butler said that she understood that the expression "shoulder to cry on" can carry a literal or figurative meaning and the meaning conveyed is dependent on context.

[17]

Meaning of CBT

The Complaint does not contain a definition of CBT. The only evidence about the meaning of that term was given by Ms Gordon and Mr Gaberman.
Ms Gordon has undertaken formal training in and is qualified to use CBT. In answer to questions from the Tribunal, Ms Gordon explained that CBT was "a formalised and structured form of treatment" where a therapist assists a person to modify their behaviours/thinking patterns by setting goals, identifying values, and measuring progress against those goals. In CBT, the therapist conducts a preliminary assessment and assists the patient to identify values and to set formal goals, against which the patient's progress is measured. CBT is based on "Beck's triangle", the notion that "thought - emotion - behaviour" are interrelated.
Ms Gordon explained that, as with all therapies, there are "manualised versions" of CBT where the therapist follows a "strict protocol". However, in practice, the manualised versions of CBT version are rarely used. According to Ms Gordon, many people come to therapy only once or twice and therefore therapists commonly use a "combination of approaches" to give the person "the skills that they need to relieve their suffering". In her view, even in a brief session a therapist can provide elements of CBT and assist a person to develop an understanding of their thoughts, feelings, and behaviours and to reflect on them to create change.
Ms Gordon explained that the practice of reflecting on thoughts, feelings and behaviours is a component of several other types of therapies such as mindfulness, Acceptance and Commitment Therapy (ACT), and motivational interviewing. According to Ms Gordon, ACT and mindfulness were techniques commonly used with patients at the Facility. Nursing staff were trained in and were expected to be able to engage with patients in mindfulness, meditation, and some elements of ACT. These and other 'therapies', such as yoga, were used by staff to assist patients to increase their skills to tolerate distress and to regulate their emotions. Ms Gordon explained that CBT is "a first-generation therapy" and the "umbrella term", under which ACT, mindfulness and several other types of therapy sit.
Ms Gordon explained that a care plan was developed for each patient which gave direction about the type of therapies which could be used with that patient.
Mr Gaberman agreed with Ms Gordon's explanation of CBT. In his view, the critical difference between CBT and other types of therapy falling under the CBT umbrella is the highly formalised nature of CBT, specifically the identification of clear goals against which the patient's progress is measured.
In Ms Gordon's view, a series of discussions with a person about their values did not constitute CBT and nor did informing the person about the model used in CBT, "Beck's triangle".

[21]

Consideration

The absence of any definition of CBT in the Complaint makes it difficult to determine what is meant by the allegation that Mr Gaberman "provided CBT to [Patient A]". In circumstances where the evidence reveals that nursing staff were encouraged to use a range of therapies which fall under the CBT umbrella and to use elements of CBT, we have not taken this allegation to mean that Mr Gaberman engaged with Patient A in those therapies. Rather, we have taken this allegation to mean that Mr Gaberman provided CBT in the sense used by Ms Gordon: a formalised type of therapy characterised by the setting of and measuring of clear goals.
The clinical notes on which the Commission relies reveal that on 19 September 2019, Patient A expressed ambivalence to her treating psychiatrist about starting CBT. It can be inferred from that note that the treating psychiatrist had encouraged or at least raised with Patient A the option of engaging in CBT.
The clinical note made by Mr Gaberman nine days later records that Mr Gaberman discussed "alternative therapeutic strategies" and "some CBT concepts" with Patient A. We agree with Ms Gordon's opinion that discussing values with a patient or providing a patient information about CBT could not be said to be providing a patient with CBT. The reference in that note to Mr Gaberman "engaged in CBT/ACT exercise" with Patient A does not establish that Mr Gaberman engaged in CBT with Patient A in the sense used by Particular 3.
There is no direct evidence that Mr Gaberman engaged in CBT with Patient A. He steadfastly denies doing so. It is unclear precisely what Ms Soliman meant by the claim that Mr Gaberman "used CBTE" with Patient A. In oral evidence, Mr Bruce-Allen appeared to qualify his claim that Mr Gaberman told him he had engaged in CBT with Patient A. The clinical notes relied upon Commission are inconclusive. For these reasons, we are not satisfied that Mr Gaberman provided CBT in the sense we have used that term. Particular 3 is not proven.

[22]

Particulars 5 and 6

Particular 5 of Complaint 1 states: "5. On 5 November 2019, on a date and time that he was not rostered to work at [the Facility], the practitioner attended [the Facility] and: a. personally farewelled Patient A without seeking prior approval from the NUM to attend the unit for this purpose; b. inappropriately went into a quiet room at [the Facility] alone with Patient A and conducted a meditation with her; c. brought a lighter onto [the Facility] premises; d. lit an incense stick with Patient A in the outside courtyard; e. breached proper professional boundaries by embracing in a hug with Patient A of approximately one minute duration. 6. The practitioner failed to record his interactions with Patient A occurring on 5 November 2019 in her patient record."
Mr Gaberman admits Particular 6.
With respect to Particular 5, Mr Gaberman denies paragraph (a) and admits the balance of that particular. Mr Gaberman agrees that on 5 November 2019 he was not rostered to work and visited the Facility to farewell Patient A. However, he disputes the premise on which paragraph (a) is based, that members of the nursing staff required prior approval from the NUM to attend the Facility to farewell a patient on a day they were not rostered to work.
The weight of evidence is that, while not a common occurrence, it was not unknown for members of the nursing staff to visit the Facility on a day they were not rostered to work to see or to farewell a patient. That finding is consistent with: 1. The report dated 29 January 2020 commissioned by the LHD to investigate Mr Gaberman's visit to the Facility on 5 November 2019. That report noted that the practice of off-duty staff attending the Facility had become a form of "unaccountable, unchallenged, accepted culture". 2. The reaction of nurse-in-charge, Ms Soliman, to Mr Gaberman's attendance at the Facility on 5 November 2019. On becoming aware that Mr Gaberman had come to farewell Patient A, Ms Soliman did not express disapproval or attempt to stop the visit. In an email to NUM, Mr Peter Lacey, sent shortly after the visit, while critical of the manner Mr Gaberman conducted the farewell, Ms Soliman made no mention of Mr Gaberman's failure to seek permission to attend the Facility to farewell Patient A on a day he was not rostered to work. The Commission contends that Ms Soliman's inaction can be explained by her apparent lack of management experience and training together with the fact that she was junior to Mr Gaberman. While those factors might explain why Ms Soliman failed to intervene or confront Mr Gaberman, it does not explain why she failed to raise with Mr Lacey, less still with Mr Gaberman, his failure to obtain permission to attend the Facility on a day he was not rostered to work. 3. The evidence given by Mr Bruce-Allen and several other members of nursing staff. Mr Bruce-Allen's evidence was to the effect that the practice of off-duty staff visiting the Facility to see a patient was not as common as claimed by Mr Gaberman, but nonetheless occurred.
The premise on which paragraph (a) rests is not established.

[24]

Improper or unethical conduct

The Commission contends that the conduct the subject of Particular 5 can be characterised as unsatisfactory professional conduct within the meaning of both s 139B(1)(a) (conduct significantly below the standard), and s 139B(1)(l) (improper or unethical conduct) of the National Law.
In Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 at [187]-[189], the Tribunal (differently constituted) considered the question of whether conduct found to be unsatisfactory professional conduct within the meaning of s 139B(1)(a) could also be found to amount to conduct within the meaning of s 139B(1)(l): "187. In Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [159]-[160], Walton J observed that s 139B(1)(l) is not a stand-alone example of unsatisfactory professional conduct. The use of the word 'other' - "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (emphasis added) - limits the operation of s 139B(1)(l) to conduct not falling within the definitions of unsatisfactory professional conduct in s 139B(1)(a)-(k). (See also Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [31]; Health Care Complaints Commission v Hart [2021] NSWCATOD 36 at [47]). 188. In contrast, in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123, the Tribunal considered that as a matter of statutory construction, the same facts could establish unsatisfactory professional conduct within the meaning of ss 139(1)(a) and 139(1)(l). 189. Undoubtedly, as a matter of fact the same act or omission by a health practitioner is capable of being characterised as 'improper and unethical' and also as demonstrating that the knowledge, skill or judgment possessed, or care exercised, by the practitioner fell below the relevant standard. However, that does not resolve the question of whether, having regard to the text and context of s 139(1), and in particular the opening words of s 139(1)(l), conduct found to fall within 139B(1)(a) can also be found to fall within one or more of paragraphs of s 139B(1)(a)-(k). We are not persuaded that the interpretation adopted by Walton J in Attia v Health Care Complaints Commission is plainly wrong and adopt that interpretation. Therefore, the question of whether Mr Yildirim's conduct found by us to fall within s 139B(1)(a) also amounts to 'other improper or unethical conduct', does not arise."
Referring to Health Care Complaints Commission v Day [2022] NSWCATOD 134 at [170], the Commission correctly points out that there is a "divergence of views" within NCAT about the proper interpretation of s 139B(1) of the National Law, specifically, the interrelationship between paragraphs (a) and (l). The Commission urges us to adopt the interpretation adopted by the Tribunal in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 (Grygiel). In Grygiel, the Tribunal concluded that the same facts are capable of being found to be unsatisfactory professional conduct within the meaning of both ss 139B(1)(a) and 139B(1)(l) of the National Law.
The Commission does not contend that Walton J in Attia v Health Care Complaints Commission [2017] NSWSC 1066 (Attia) failed to "seriously consider" the proper meaning of s 139B(1) of the National Law, or the interrelationship between paragraphs (a) and (l). The Commission did not make considered submissions in support of its contention that the interpretation adopted by Walton J is "plainly wrong". In those circumstances we consider that we are bound by Attia.
Adopting that approach, it is unnecessary to decide whether the conduct in Particulars 5 and 6 amounts to "other improper or unethical conduct".

[26]

Code of Conduct for Nurses

Clause 4.1 of the Code of Conduct for Nurses (Nursing and Midwifery Board of Australia, March 2018) (the Code of Conduct) states: "4.1 Professional boundaries Professional boundaries allow nurses, the person and the person's nominated partners, family and friends, to engage safely and effectively in professional relationships, including where care involves personal and/or intimate contact. In order to maintain professional boundaries, there is a start and end point to the professional relationship, and it is integral to the nurse-person professional relationship. Adhering to professional boundaries promotes person-centred practice and protects both parties. To maintain professional boundaries, nurses must: a. recognise the inherent power imbalance that exists between nurses, people in their care and significant others and establish and maintain professional boundaries b. actively manage the person's expectations, and be clear about professional boundaries that must exist in professional relationships for objectivity in care and prepare the person for when the episode of care ends c. avoid the potential conflicts, risks, and complexities of providing care to those with whom they have a pre-existing non-professional relationship and ensure that such relationships do not impair their judgement. This is especially relevant for those living and working in small, regional or cultural communities and/or where there is long-term professional, social and/or family engagement d. avoid sexual relationships with persons with whom they have currently or had previously entered into a professional relationship. These relationships are inappropriate in most circumstances and could be considered unprofessional conduct or professional misconduct e. recognise when over-involvement has occurred, and disclose this concern to an appropriate person, whether this is the person involved or a colleague f. reflect on the circumstances surrounding any occurrence of over-involvement, document and report it, and engage in management to rectify or manage the situation g. in cases where the professional relationship has become compromised or ineffective and ongoing care is needed, facilitate arrangements for the continuing care of the person to another health practitioner, including passing on relevant clinical information (see also 3.3 Effective communication) h. actively address indifference, omission, disengagement/lack of care and disrespect to people that may reflect under-involvement, including escalating the issue to ensure the safety of the person if necessary i. avoid expressing personal beliefs to people in ways that exploit the person's vulnerability, are likely to cause them unnecessary distress, or may negatively influence their autonomy in decision-making (see the NMBA standards for practice), and j. not participate in physical assault such as striking, unauthorised restraining and/or applying unnecessary force."

[34]

Mr Gaberman's account of the admitted conduct

Complaint 2 concerns two meetings held in local cafés between Mr Gaberman and a former patient of the Facility, Patient B. Those meetings took place about 14 months after Patient B had been discharged from the Facility. Patient B was then about 19.5 years of age.
In a written response, dated 20 April 2021, to questions asked by the Commission about those meetings, Mr Gaberman said Patient B contacted him at work about a year after she was discharged from the Facility. She asked after other members of staff, said that she was about to move overseas, and wanted to meet up to say good-bye and to thank him for the support she received while a patient. Mr Gaberman said he told Patient B that he would make enquiries about whether he was permitted to meet with a former patient, took her phone number and said that he would get back to her.
Mr Gaberman said that over the next couple of weeks he unsuccessfully attempted to find a policy or procedure which provided guidance on whether a nurse was permitted to have contact with a former patient. He concluded that that it was permissible to accept Patient B's invitation, reasoning that there was no policy or procedure expressly prohibiting contact with a former patient, a significant amount of time that had elapsed since Patient B's discharge, and having turned 18, Patient B could not return to the Facility.
According to Mr Gaberman, at the first meeting Patient B was in high spirits, talked about her travel and other plans and expressed her gratitude to him and other clinicians for the care she received at the Facility.
A few weeks after their first meeting, Patient B contacted Mr Gaberman and asked could they meet before she departed for overseas. He agreed. They met for about an hour. Mr Gaberman said that like the first meeting, the conversation was "polite and jovial", and each paid for their purchases. He wished Patient B the best for the future.
According to Mr Gaberman, he did not attempt to hide the fact that he had met with Patient B and spoke openly about and reflected on their meetings during clinical supervision. He said he "felt honoured to be part of [Patient B's] healing journey".
Mr Gaberman said he "never believed there was any sort of impropriety" and that he was therefore surprised when after the second meeting he was contacted by management and directed to have no further contact with Patient B because she was a former patient. When he asked what period after discharge must elapse before a person is no longer regarded to be a patient, he was surprised to be told by an LHD manager "never". He questioned that response, reasoning that it appeared to stigmatise a person with mental illness.
About eight months after the second meeting, Patient B left a message on Mr Gaberman's phone, advising that she had returned from overseas and asked to catch up. Mr Gaberman sent an SMS to Patient B advising that he was on holidays in a remote location, was unable to be contacted, and wished her well. On his return to work, he immediately notified Mr Lacey and Ms Couch. Following Ms Couch's instruction, he sent Patient B a message that he was not permitted to have any further contact with her.

[36]

Complaint 3

Complaint 3 states: "1. During Patient C's admission to [the Facility] on a date unknown, the practitioner breached proper professional boundaries when he sat on the floor behind a bed in Patient C's room with Patient C during which time the practitioner rested his head on Patient C's shoulders and Patient C rested her head on his shoulders. 2. By his conduct in particular 1, the practitioner breached clause 4.1 of the Code of Conduct for Nurses (Nursing and Midwifery Board of Australia, March 2018)."
By Complaint 3, the Commission alleges that on a date unknown Mr Gaberman: 1. sat with Patient C on the floor behind a bed in Patient C's room on the ward; 2. permitted Patient C to rest her head on his shoulders; 3. rested his head on Patient C's shoulders; 4. by the above conduct, Mr Gaberman failed to maintain professional boundaries with Patient C.
Mr Gaberman says he cannot recall the incident about which the Commission complains. However, he admits on occasion having sat with Patient C on the floor behind a bed in her room and permitting Patient C to rest her head on his shoulders. According to Mr Gaberman, this occurred following incidents of self-harm and where Patient C was extremely distressed. He denies having ever rested his head on Patient C's shoulder. Mr Gaberman contends that the admitted conduct did not breach cl 4.1 of the Code of Conduct.
Patient C has a history of self-harm. The clinical notes reveal that on occasion she would escape into her room, sit behind her bed, and cut herself.
Complaint C is based on a report made by Ms Soliman. In a statement prepared for these proceedings, Ms Soliman stated that on one occasion she witnessed Mr Gaberman and Patient C: "[S]itting on the floor behind the bed in [Patient C's] room. They were facing each other and had their heads resting on each other's shoulders. I recall one of them saying that they 'couldn't break the hug' which I took to mean they did not want to be interrupted. I cannot recall the exact date of this incident. I was concerned as I thought [Patient C] and Lane were overly familiar and close to each other".
In cross-examination Mr Soliman said she did not report the incident until about 18 months after it occurred.
In a letter to the Commission dated 20 April 2021, Mr Gaberman said that some patients engaged in deliberate acts of self-injury following a "distressing incident". He claimed that this would often follow a "predictable pattern" whereby the patient: retreated into their room; "almost always" concealed themselves from nursing staff, and, engaged in self-harm using a hidden instrument until interrupted by a member of the nursing staff or reported the injury to staff. Mr Gaberman said that he had been trained to respond to such incidents by remaining in close proximity to the patient which sometimes required getting down on the floor.
With respect to the alleged incident described by Ms Soliman, Mr Gaberman wrote that he had no recollection of that incident or of saying "I couldn't break the hug". He said that while a patient of the Facility, Patient C had self-harmed on many occasions. On those occasions he was on duty and went to her assistance, Patient C: "[B]ecame very emotional (crying uncontrollably), and would sometimes put her head on my shoulder and sob deeply for some time. I would try my best to comfort her, sometimes putting my arm around her shoulder while she cried…"
In an affidavit dated 9 December 2022 prepared for these proceedings, Mr Gaberman repeated his claim that he had no recollection of the incident reported by Ms Soliman. In oral evidence, Mr Gaberman said that on those occasions he comforted Patient C following incidents of self-harm, it was not uncommon for Patient C to slump forward and to require physical support. He said when this occurred, he permitted Patient C to rest her head on his shoulder. He claimed other staff members also sat with Patient C on the floor of her room following episodes of self-harm. He said it was necessary to sit on the floor behind Patient C's bed because the bed was bolted to the floor. In cross-examination, Mr Gaberman denied ever resting his head on Patient C's shoulder.
Several witnesses, including Ms Gordon, Mr Bruce-Allen and Mr Dilli agreed with Mr Gaberman's claim that Patient C was prone to falls, pseudo-seizures and at times required physical support to prevent her slumping. Mr Bruce-Allen agreed with the proposition that Patient C often became dysregulated and would isolate and sometimes barricade herself in her room and that these incidents were often generated by feelings of rejection. He said that on occasion Patient C had slumped against him and he had not pushed her away, believing to do so would be inconsistent with the principles underpinning "trauma informed counselling". While acknowledging that there was not a one-size-fits-all approach to how best to respond to a dysregulated patient, Mr Dilli said that he would not encourage staff to sit on the floor with a patient or to permit the patient to put their head on their shoulder.

[38]

Consideration

As pointed out by the Commission, Ms Soliman did not resile under questioning from her claim that she saw Mr Gaberman place his head on Patient C's shoulder while sitting on the floor in her room. Arguably, it was not in Ms Soliman's interests to admit failing to report an incident which she now describes as "concerning". However, in circumstances where Mr Gaberman denied placing his head on Patient C's shoulders, where Ms Soliman was reliant on her memory of events which probably took place 18 months earlier and where there is no contemporaneous or supporting evidence, we are not satisfied that Mr Gaberman placed his head on Patient C's shoulder while sitting on the floor in her room.
Therefore, the question posed is whether by the admitted conduct - sitting on the floor behind a bed in Patient C's room with Patient C during which time Patient C rested her head on Mr Gaberman's shoulders - Mr Gaberman "breached proper professional boundaries". Context is critical in making that assessment. If, as claimed by Mr Gaberman, his conduct was in response to finding Patient C sitting on the floor, sobbing uncontrollably following an incident of self-harm, it would not, in our view, amount to a failure to maintain professional boundaries. However, if, as Ms Soliman apparently believed, there was no reason for Mr Gaberman to be sitting on the floor with Patient C's room with her head on his shoulder, this would probably amount to a failure to maintain professional boundaries.
In circumstances where the available material does not enable us to identify when the alleged incident occurred or the circumstances surrounding that incident, where Mr Gaberman has given a plausible explanation for the impugned conduct, we cannot be satisfied that that conduct can be characterised as a failure to maintain proper professional boundaries.
In reaching that conclusion we note that Ms Burgess' opinion that if a patient had self-harmed, the appropriate response would be to activate the duress alarm was not one shared by any of the witnesses who were questioned about this issue, including Mr Lacey.
Reasonable minds must differ about whether the approach adopted by Mr Gaberman when confronted with a patient who had self-harmed was best practice. However, that is not determinative of whether the admitted conduct amounted to a failure to maintain proper professional boundaries.
Complaint 3 is not established.

[39]

Complaint 4

Given our findings that Complaint 3 and most of Complaint 1, are not established, Complaint 4 requires us to decide: 1. Whether Particulars 5(b)-(e) and 6 of Complaint 1, and Particular 1 and 2 of Complaint 2 each justify a finding of professional misconduct; or 2. Whether, taken together, two or more of the particulars of the proven or admitted conduct justify a finding of professional misconduct.
Mr Gaberman does not admit Complaint 4.
Whether the above conduct amounts to professional conduct, requires us to decide whether that conduct is of a "sufficiently serious nature" to justify an order for suspension or cancellation. That exercise involves "an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct": Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20] (Basten JA). The seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred: Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35]. The definition of professional misconduct is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] (Basten JA). The impugned conduct is to be measured by the extent to which it departs from proper standards and not by reference to the worst cases. The latter approach risks the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWSC 297.
In evaluating whether the impugned conduct is of a sufficiently serious nature to justify the suspension or cancellation of Mr Gaberman's registration, we must consider the circumstances that bear on the objective assessment of that conduct. These include the nature and duration of the conduct; whether the conduct was deliberate or inadvertent; the likely risk of harm to the patient posed by that conduct; and any mitigating factors.
Of the conduct found to amount to unsatisfactory professional conduct, we consider the most serious to be Mr Gaberman's conduct in farewelling Patient A (Particular 5 of Complaint 1). As stated, by that conduct Mr Gaberman failed to comply with his obligation to maintain professional boundaries with Patient A. There is no evidence, and nor is it claimed, that the farewell caused Patient A harm or distress or derailed her scheduled discharge. However, given her youth and medical history it had the potential to do so. Further, whether a patient did or did not suffer harm as a consequence of a practitioner's unsatisfactory professional conduct does not determine the question of whether that conduct was of a sufficiently serious nature to justify an order for suspension or cancellation.
We accept, and the Commission does not suggest otherwise, that Mr Gaberman's intentions were well-meaning. However, in circumstances where Mr Gaberman had failed to discuss the farewell and the manner in which it was to be conducted with other members of the treating team, where he was reliant on his own judgment in concluding that it would be beneficial to Patient A, his conduct was undoubtedly of a serious nature. While, in our view, that conduct comes close to the line, it was not sufficiently serious to warrant the suspension or cancellation of Mr Gaberman's registration. In making this assessment, we have taken into account several factors, including Mr Gaberman's disciplinary history. Had this been an example of conduct for which Mr Gaberman had previously been disciplined, the contention that it was sufficiently serious in nature to warrant suspension or cancellation of his registration would be more powerful (see, Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [36]; Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [172]).
While undoubtedly serious, the conduct the subject of Complaint 2 was not sufficiently serious to warrant the suspension or cancellation of Mr Gaberman's registration, either alone or in combination with the other instances of unsatisfactory professional conduct, in particular, the farewell to Patient A.
Complaint 4 is not established.

[40]

Protective orders

Where a complaint made under the National Law is admitted or proven in part, NCAT may exercise any of the powers in s 149A of the National Law. These include the powers to caution, reprimand, and to impose conditions on the practitioner's registration and to order the practitioner to complete an educational course specified by the Tribunal. Because the complaint of professional misconduct is not proven, the power to suspend or cancel Mr Gaberman's registration cannot be exercised: s 149C(1)(b) of the National Law.
In exercising the power to make protective orders, the paramount consideration is the protection of the health and safety of the public: s 3B of the National Law.
In these proceedings, Mr Gaberman said that he does not intend to return to the profession of nursing because he found his treatment by his employer together with the prosecution of the Complaint by the Commission to the Tribunal to be a humiliating and traumatic experience. He said he had no intention of putting either himself or his family through that experience again.
We accept that Mr Gaberman does not intend to return to nursing. However, in considering the appropriate form of orders we must assume that in the future Mr Gaberman might change his mind.
We have decided to issue Mr Gaberman with a reprimand. The reprimand will appear on the public record of Mr Gaberman's registration maintained by the Australian Health Practitioner Regulation Agency and serves to denounce Mr Gaberman's conduct.
In addition, we have decided to impose a condition on Mr Gaberman's registration requiring that, before returning to any position in nursing, he satisfactorily complete a course approved by the Nursing and Midwifery Council of New South Wales that addresses the obligation imposed by the Code of Conduct to maintain professional boundaries with patients. In reaching that conclusion, we note that Mr Gaberman now acknowledges that, in meeting with Patient B, he breached cl 4.1 of the Code of Conduct. However, his initial view that those meetings did not offend the Code, points to the need for Mr Gaberman to obtain further training on, and to reflect on, his obligations under the Code of Conduct.

[41]

Costs

The Commission seeks an order that Mr Gaberman pay its costs of the proceedings. The Commission contends that even if the Tribunal were to find some of the Complaint not proven, including the complaint of professional misconduct, there would be no basis to depart from the general "rule" and Mr Gaberman should be required to pay all of its costs.
In exercising the power to award costs, conferred by cl 13 of Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 ("Philipiah") at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].
In Philipiah at [43], Emmett JA after stating the general rule, referred to "factors that might militate against the recovery by the Commission of all of its costs in particular proceedings". One of the factors to which Emmett JA referred was "that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant".
Given that the Commission failed to establish two of the four complaints in the Complaint, the question arises in exercising the discretion to order Mr Gaberman to pay the Commission's costs, whether he should be required to pay all, or part of the Commission's costs. While the parties touched on this issue in oral submissions, fairness demands that, having been informed of our decision, they be given the opportunity to make further submissions.
We urge the parties to use their best endeavours to reach agreement about the Commission's application for costs. If agreement cannot be reached, the parties are invited to make written submissions on the issue of costs. In addition, we invite the parties to comment on our preliminary view that the determination of the Commission's application for costs can be dealt with on the papers without an oral hearing.

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