Health Care Complaints Commission v GGI

NCAT Occupational|2024-03-13

Introduction

The Health Care Complaints Commission ("Commission") has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") against the respondent ("GGI"), a registered nurse.
The proceedings arise from allegations that GGI failed to maintain appropriate professional and personal boundaries with patients, in particular that she engaged in a sexual relationship with a patient and a friendship with another. There is also a question for determination being whether GGI suffers from an impairment that affects or is likely to detrimentally affect her capacity to practise nursing.
A complaint was made about GGI by the Mental Health Drug & Alcohol Services (North Ryde) in September 2021 ("the Complaint"). The Nursing and Midwifery Council conducted a proceeding under s 150 of the National Law ("s 150 proceeding") on 20 December 2021 which resulted in GGI being suspended indefinitely. The Complaint was referred to the Commission for investigation.
In the Application for Disciplinary Findings, the Commission seeks orders from the Tribunal under the National Law, s 149C(1)(b) to cancel GGI's registration with a non-review period of two years under s 149C(7). The Commission also seeks an order as to costs.
In her reply on 11 January 2024, GGI admitted the entirety of the complaint and each of the particulars as set out below in Complaints 1 to 4 of the Commission's Application.
The hearing of this matter proceeded in GGI's absence (at her request) under the National Law, s 165J(3).

The respondent

GGI was first registered as an enrolled nurse on 16 September 2010 after completing a Diploma of Nursing at TAFE NSW. She completed her Bachelor of Nursing from UTS in 2018 and subsequently became a registered nurse on 1 June 2019.
GGI worked in the Adult Mental Health Unit (AMHU) at Hornsby Hospital from November 2020 until July 2021; and commenced at the Psychiatric Emergency Care Centre (PECC) unit in July 2021.
GGI was 32 years old at the time of the Complaint.

Patient A

Patient A was a female AMHU patient at Hornsby Hospital from 1 July 2021 to 16 August 2021, and over various dates between December 2020 and January 2022. At the time of the Complaint, Patient A was 28 years old.
Patient A was considered a high-risk inpatient requiring one-on-one care, with a high risk of suicide or self-harm. She also had several high-risk mental health issues such as post-traumatic stress disorder, borderline personality disorder and anorexia. She is a single mother of two children.
GGI first met Patient A in December 2020 whilst she was an inpatient at AMHU. In August 2021, GGI was working in the same ward and was one of the primary nurses who conducted one-on-one care of her.

Patient A's admission in AMHU on 26 December 2020 to 29 December 2020

Patient A provided a statement in which she said that during her December 2020 admission, GGI became quite personal with her in their conversations, including GGI talking about her alcoholic sister and her own anxiety. Patient A stated GGI would bring her gifts of food and other small items.
Patient A said the respondent left her a note stating "behave yourself skitso" and that this was "due to my schizoaffective disorder".

Patient A's admission in AMHU on 1 July 2021 to 16 August 2021

Patient A was admitted to Hornsby AMHU on 1 July 2021 to 16 August 2021 due to overdosing and she was suicidal.
Patient A stated that she was admitted (under schedule) to the AMHU, and that GGI was giving her more gifts such as a bejewelled frog, and snacks. During her inpatient admission she was not eating due to her anorexia and she fainted. GGI later told her that she and another nurse caught her whilst she was fainting, and that is the moment GGI told Patient A that she had fallen for her.
Patient A said that she was required to be observed by the RN when she took a shower due to the risk of her self-harming. GGI told Patient A that she had watched her in the shower and that she had "liked her body". Medical records show two instances where GGI recorded that Patient A had a shower. There is also a note dated 1 October 2021 where Patient A tells staff at the PECC Unit when she was an inpatient, that while being supervised "she was in the shower, the staff member would 'look at her and say she had a great body'".
Patient A recorded one incident that had occurred on the ward was where GGI hugged her and alluded to being touched inappropriately.
Patient A was discharged from AMHU on 16 August 2021, and, according to her statement, GGI first attended her home the same day.
In Patient A's statement she said that GGI drove her to a psychiatric appointment at Hornsby Hospital in GGI's car, and that on the way to the appointment said things like "there is something I want to tell you; I am saving my virginity for the one". Patient A states that GGI kissed her on the lips and hugged her, and told her she "had feelings" for her.

Communication via messages and phone calls with Patient A

After her discharge in August 2021, GGI and Patient A communicated via mobile. GGI subsequently added her on Instagram and also messaged her on Facebook Messenger.
Patient A states that GGI asked her to delete all the text messages and the Facebook messages between them. This was at a time when GGI found out a complaint had been made against her. Some of the remaining Facebook, WhatsApp and text messages that were not deleted were attached to Patient A's statement. One example is the following communication between them: GGI at 6:00am [date unknown]: "[H]ey i know you wanted to cut contact but i have had a lot of time to think about what has happened in the last few months. firstly i want to say i'm sorry for everything that has happened it wasn't my intension at all. i was just treating you like a friend and then ended up falling for you which again wasn't my intension at all. i haven't been in the right headspace for those few months so i was vulnerable and not clearly thinking. i'm sorry if i hurt you that was something i would never want to happen. i know I should have known better as been a nurse like getting involved with a patient is wrong at the time I didn't think. and I have never anything like that ever in my whole nursing career. and I'm not perfect and we all make mistakes. i do miss you and hanging out and having a laugh and helping out with the kids. i am going to leaving nursing and do some sort of job once all this stuff is over with hornsby. but I would like a second chance with you. i wish instead of text we met you and discussed it the night you ended everything. i hope you respond. i have been thinking about writing this so many times but i need to get this off my chest. hope ur keeping safe xx" Patient A at 4:31pm [date unknown]: "I just don't even know what to say to this. It's nice to get an apology, you have no idea how much this has messed with my head." GGI at 4:45pm [date unknown]: "yeh its messed with my head aswell u have no idea…and i have been put through a lot of stuff and anything to told u or had the community team report me and say that u told them this and that. which the stuff is bulls but shit i tried u with a lot of personal things and for some reason it come back to bite me…told…i'm hoping this conversation doesn't be told to the community team. because i'm already put through enough. i risking myself because i wanted to sort this out with you and i don't want you to think of me as some heartless bitch…
There were a total of 3,842 SMS and 76 calls and 119 MMS from 1 August 2021 to 17 September 2021 from GGI's mobile to Patient A. Patient A was still an inpatient on 1 August 2021.

Personal and sexual relationship between Patient A and GGI

According to her statement, after Patient A's admission on 16 August 2021, she was contacted by GGI via her mobile and a personal relationship developed. Patient A said on the day she left the hospital there were already several missed calls on her phone (confirmed by records obtained by the Commission). She also said that on that day GGI asked if she could come and see Patient A at her house. She said that she had arrived at her house and that GGI showed up uninvited.
According to Patient A they began a sexual relationship in September 2021. Patient A stated that GGI would come over to her house daily and start touching her in sexual ways, and the touching progressed to intercourse. She said this continued every night until the relationship ended around late September 2021.
Several staff members, including nurses and a psychologist, reported that Patient A confided in them as early as 25 August 2021 about a relationship she was having with a staff member who worked at the AMHU and later at the PECC Unit. In her statement, Patient A confirmed these disclosures were made.
The contemporaneous notes made by a practitioner (Ms Armstrong) at Royal North Shore Hospital on 17 September 2021 record that Patient A called her and stated that she: "Gave my name and number to a female member of staff she has been messaging me" and "This staff member - she is being investigated". Patient A continued: "They have been coming over to my house - they only left my place half an hour ago" and "She's here all the time, every day". Ms Armstrong said that Patient A told her that she was not sure how to get out of the situation and that she felt pressure to keep this relationship a secret by the staff member (GGI). She also stated that she self-harmed the previous night after "feeling pressured" by this staff member: "All the time, every day for 4-5 weeks" in "pressure to have sex with her".
The information recorded by Ms Armstrong was confirmed by Patient A in her statement and is also recorded by others to whom Patient A made these disclosures.
When Patient A was an inpatient at PECC from 30 September 2021 to 1 October 2021, medical records dated 1 October 2021 record that she also spoke about the relationship with GGI and indicated her stress about being at PECC due to the fact her "staff member/ex- partner 'worked here'."
On 19 August 2021, GGI accessed Patient A's electronic medical record while she was on night duty. Patient A was not an inpatient at this time.
On 26 August 2021, Patient A disclosed that she had commenced a relationship with GGI when she had been driven to her appointment at the hospital by GGI. She referred to GGI as her partner.
On 31 August 2021, Patient A made a similar disclosure to her psychiatrist.

Patient B

Patient B was a female patient who was admitted to AMHU in Hornsby Hospital several times in 2021; and was an inpatient on numerous occasions from March 2020 to August 2022. Patient B had bipolar affective disorder, acute relapses of mania and noncompliance with taking medication which caused relapses.
At the time of the Complaint she was 47 years old.

The therapeutic relationship

GGI met Patient B in August 2021 when she was admitted to the AMHU in Hornsby Hospital. Patient B did not receive one-on-one care but was a patient on the ward where GGI was working.

Forming a friendship with Patient B outside of the patient relationship

According to Patient B's statement dated 12 August 2021, GGI was one of the main nurses looking after her medication. Patient B believes her first interaction with GGI related to Patient B's frustrations at the AMHU.
Patient B said that: 1. GGI had bought her and Patient A a pair of socks but did not buy socks for any of the other patients; 2. she had seen GGI for coffee in the park with Patient A after they were no longer AMHU inpatients, but was unable to specify a date; 3. she had also been at Patient A's house when GGI was there. This occurred several times. On one occasion she said she was sitting on the couch and Patient A and GGI were sitting on the floor. She recalled that GGI sat close to Patient A and "pushed her body next to [her]".

Exchanging communication messages with Patient B

Patient B stated that she was discharged a month before Patient A and that GGI contacted both Patient A and Patient B on a messaging app (WhatsApp) and called the messaging app group "Dragon's Den". Patient B said she did not have GGI's phone number when she was first contacted by her.
The Dragon's Den messages including the following exchange: GGI at 8:43pm [date unknown]: "I have was speaking to this guy on RSVP and he is the same age as me and he lives in Wollongong and he told me he was recovered from cancer 6 years ago and then he goes and don't worry I'm all good with having kids" Patient B at 8:43pm [date unknown]: "Mmmm RSVP Been there done that" GGI at 8:44pm [date unknown]: "I haven't spoken to him on the phone yet or met him and I already have sperm donor ready for baby making." Patient B at 8:44pm [date unknown]: "Theirs quiet expensive being single I have heaps of stories Especially about RSVP" GGI at 8:44pm [date unknown]: "Oh dude said to [Patient A] that we should have a three way"
Patient B provided the Commission with a screen shot of SMS messages. The following communication between Patient B and GGI on WhatsApp is of note: GGI at 8:50pm [date unknown]: "Hope it wasn't too awkward for you [Patient B]. I don't normally talk to ppl I have looked after specially from a 'mental unit'" (laughing face emoji) GGI at 8:52pm [date unknown]: "Or make friends with them because of my job and 'unprofessionally' look, but I'm very careful. But I got to know you and [Patient A] so well and you already had a good time." GGI at 9:11pm [date unknown]: "and my little breezy [Patient A] definitely made my days good even when she didn't always feel great."

GGI's assertions in interviews

In her interview with the Local Health District on 10 September 2021, GGI denied having any contact with Patient A that was outside of a professional working capacity, and declined to provide any information in relation to screenshots of messages between them. She denied visiting the ward to see Patient A and that she had visited the ward to see other staff.
She said that on 27 August 2021 she met Patient A "spontaneously" at Hornsby Westfields and gave her a lift to her appointment at Hornsby AMHU at her request. GGI also stated she had given Patient A a lift after her appointment at around 3:15pm. She did not drop her home but only to the end of the street from Hornsby Hospital.
GGI stated that she had a WhatsApp group with Patient B but she never spoke to Patient B outside this communication and never met up with Patient B in person outside her inpatient status.
GGI stated that she took Patient A to her appointment in August 2021 and dropped her off afterwards on the corner outside the hospital.
At the s 150 hearing, GGI denied having a relationship with Patient A. She stated that she was friendly towards Patient A and established a rapport with her after she first met her in December 2020. GGI said she stayed professional the entire time in their interactions.
In relation to her interactions with Patient A, GGI said: "I was being myself, I didn't treat her any differently and I was being genuine towards her, I didn't think at the time, she made it out like it was a relationship, I didn't think it was, I was being friendly, I was being too friendly towards her."
In respect of taking Patient A to her appointment, GGI said she was fatigued after her previous night shifts and fell asleep in her car. When she awoke Patient A had finished her appointment and was knocking on her window in a distressed state, so she gave her a lift from the hospital. GGI stated she was not specifically waiting for Patient A. This was despite the fact that, as the Commission noted, GGI's last night shift was on 25 August 2021, two days prior to this incident.
At the s 150 proceedings GGI gave evidence that she did not know where Patient A obtained her mobile number from, and that perhaps she overheard it on the ward. She claims that Patient A initiated the contact, and that at first she did not respond to her text messages. She said Patient A then provided GGI with her address and requested her to drop groceries, which she did.
When questioned specifically about the screenshots of messages provided by Patient A, GGI could not recall the contact with Patient A as she had deleted the messages from her phone.
She said she was not in a relationship with Patient A; that she was just being friendly but that Patient A thought they were in a relationship. She denied ever touching Patient A inappropriately and said she may have only ever hugged her once.
In a further response to the Commission dated 2 February 2023, GGI admitted being in an intimate relationship with Patient A but did not provide much detail and stated that while Patient A was "in the hospital it was never more than a therapeutic relationship". GGI: 1. could not recall precisely when the relationship started; stating it happened very suddenly and lasted three weeks; 2. thought they were friends, but Patient A was looking for a relationship, so she went along with it without even thinking of anything and did not know why she let it happen; and 3. Patient A ended the relationship as she stated she felt pressured by her and that she did not know why she tried to keep it a secret.

The relevant law

The Tribunal may exercise the disciplinary powers conferred by Subdiv 6 of Div 3 of Pt 8 of the National Law if (a) it finds the subject matter of the complaint to have been proven or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149.
The Commission bears the onus of proving the complaints against GGI on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings: National Law, cl 2 of Sch 5D. The approach to be adopted in making findings of fact in respect of matters in dispute was explained in Tsolis v Health Care Complaints Commission [2023] NSWSC 1599: "[93] While these proceedings are heard on a civil standard, when the Briginshaw test applies it is not whether a fact is more probable than not. It is whether the Tribunal, having considered the circumstances, is comfortably satisfied of the existence of a fact in issue."
The principles relevant to disciplinary proceedings under the National Law are uncontroversial. The overarching principles are found in ss 3 and 3A of the National Law. Section 3B, a NSW provision, mandates that in determining proceedings the Tribunal has the protection of the health and safety of the public as its paramount consideration.

The Complaint

There are Four Complaints in the Commission's Application alleging: 1. unsatisfactory professional conduct within the meaning of s 139B(1)(a) and/or (l) of the National Law in that GGI has: 1. Engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. Engaged in improper or unethical conduct relating to the practice or purported practice of nursing. (Complaint 1) 1. a second complaint of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law for improper and unethical conduct (Complaint 2); 2. professional misconduct within the meaning of s 139E of the National Law on the basis that GGI has engaged in: 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of GGI's registration; and (Complaint 3) 1. that pursuant to s 144(d) of the National Law, GGI has an impairment within the meaning of s 5 of the National law, being a mental impairment, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect GGI's capacity to practice the profession of nursing (Complaint 4).

Complaint 1

The particulars in support of Complaint 1 are as follows: "Patient A Particular 1 a. The practitioner's conduct in disclosing personal information fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) of the National Law (see Expert Report of Carol Martin, page 386). Particular 2 b. The practitioner's conduct in leaving an inappropriate note for Patient A fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) (see Expert Report, pages 386-387). Particular 3 c. The practitioner's conduct in failing to maintain appropriate professional boundaries by giving gifts to Patient A while she was an inpatient at the AMHU was improper and/or unethical. It fell below the standard reasonably expected of a practitioner with equivalent training or experience (see Expert Report, page 386) Particular 4 d. The practitioner's conduct in failing to maintain appropriate professional boundaries by making social visits on Patient A in the AMHU was improper and/or unethical under s.139B(1)(l). It fell below the standard reasonably expected of a practitioner with equivalent training or experience (see Expert Report, page 387) Particular 5 e. The practitioner's conduct in failing to maintain appropriate professional boundaries by hugging her without her consent in the AMHU was improper and/or unethical under s.139B(1)(l). It fell below the standard reasonably expected of a practitioner with equivalent training or experience (see Expert Report, page 388) Particular 6 f. The practitioner's conduct in failing to maintain appropriate professional boundaries with Patient A by commenting to her that she had observed her in the shower (in the AMHU) and she had liked her body, fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) (see Expert Report, page 387). Particular 7 g. The practitioner's conduct in failing to maintain appropriate professional boundaries by attending Patient A's home following her discharge from the AMHU fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) (see Expert Report, pages 390 and 392). Particular 8 h. The practitioner's conduct in failing to maintain appropriate professional boundaries by engaging in inappropriate frequency of social communication with Patient A fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) (see Expert Report, pages 389-390). Particular 9 i. The practitioner's conduct in failing to maintain appropriate professional boundaries by sending inappropriate text messages and/or Facebook messages to Patient A fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) (see Expert Report, pages 388-389). Particular 10 j. The practitioner's conduct in entering into an inappropriate personal relationship with Patient A fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) (see Expert Report, page 391). Particular 11 k. The practitioner's conduct in entering into an inappropriate intimate and/or sexual relationship with Patient A fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) (see Expert Report, pages 390-391). Particular 12 I. The practitioner's conduct in inappropriately accessing Patient A's electronic health record without a valid reason was improper and/or unethical, under s.139B(1)(l) (see Misconduct letter to practitioner, pages 215-216). Particular 13 m. The practitioner's conduct in failing to maintain appropriate professional boundaries with Patient A after her discharge from the AMHU, by driving her to and from medical appointment/s, fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) (see Expert Report, pages 388-389). Patient B Particular 14 n. The practitioner's conduct in failing to maintain appropriate professional boundaries with Patient B by gifting her socks while she was an inpatient at AHMU, was improper and/or unethical under s.139B(1)(l). It also fell below the standard reasonably expected of a practitioner with equivalent training or experience (see Expert Report, page 391). Particular 15 o. The practitioner's conduct in entering into an inappropriate personal relationship with Patient B following her discharge from the AHMU, fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience under s.139B(1)(a) (see Expert Report, page 392). 14. The Commission submits that the practitioner's conduct amounts to unsatisfactory professional conduct because: a. The practitioner failed to acknowledge and appreciate the professional nature of a therapeutic relationship which involves recognition of professional boundaries and issues of unequal power (p 543). b. The practitioner's behaviour in blurring professional boundaries was dysfunctional and unethical (Expert Report, p 387). c. It was an abuse of her position as a registered nurse (Expert Report, p 387). d. It was exploitation of a patient whom the practitioner knew was vulnerable (Expert Report, p 387). e. The practitioner took advantage of the power imbalance. She had access to Patient A's medical records and privileged information which showed a history of sexual abuse/domestic violence (Expert Report, p 390). f. The practitioner knew what she was doing was wrong: i. She hid the gifts she had bought for Patient A in her pocket to avoid detection (Expert Report, p 386). ii. She hugged Patient A in a room with no cameras to avoid detection (Expert Report, p 388). iii. She requested Patient A not disclose their conversation to her community team because she wanted to keep their relationship a secret (Expert Report, p 389). iv. She requested Patient A delete all their text and Facebook messages to avoid detection (Expert Report, p 390). g. The practitioner's actions by their nature were a form of bullying; intimidating and upsetting Patient A (Expert Report, p 390). A nurse should be nonjudgmental and not refer to people in a non-professional manner e.g. 'skitso' (Expert Report, p 387). h. The nurse/patient relationship should provide a safe, trustworthy, reliable and secure foundation for therapeutic interactions (p 386). However the practitioner's conduct had the potential to cause harm and impact on Patient A's physical, social and emotional well-being (p 391) i. The practitioner had been an Enrolled Nurse from 2010 and a Registered Nurse with experience in acute mental health settings since 2019. She would have been aware through training, supervision and discussions with other professionals of the existence of her duties and obligations under the various Codes and Standards (Expert Report, p 386) j. By her conduct, the practitioner breached the following clauses of the Code of Conduct for Nurses: i. 3.3e - be non-judgmental and not refer to people in a non-professional manner ii. 3.5c - ensure use of social media is consistent with the nurse's ethical and legal obligations to protect privacy iii. 4.1a-j - maintenance of professional boundaries iv. 4.4a - act with integrity and in the best interest of the patient when providing or arranging treatment or care v. 4.4d - not offer financial, material or other rewards to encourage others to act in ways that personally benefit the nurse vii. 7.1b - act to reduce the effect of fatigue and stress on their health and on their ability to provide safe care26 k. By her conduct, the practitioner has not met the following Registered Nurses Standards for Practise: i. Standard 2.1 - establishes, sustains and concludes relationships in a way that differentiates the boundaries between professional and relationships ii. Standard 6.5 - Practices in accordance with relevant nursing and health guidelines, standards, regulations and legislation I. By her conduct, the practitioner breached the following clauses of the NSW Health Code of Conduct: i. 4.2.3 - ensure actions not influenced by self-interest ii. 4.3.1 - provide a safe and supportive environment for patient iii. 4.3.11 - observe all professional codes of conduct and ethics iv. 4.3.13 - avoid conduct that could bring NSW Health into disrepute, including when using social media v. 4.6.1 - not exploit relationship with patient vi. 4.6.2 - not have sexual relationship with patient during professional relationship

Complaint 2

The particulars in support of Complaint 2, which GGI admits, are as follows and noting that the false information is contained in particulars 1 - 3 above in respect of Complaint 1. "1. On 10 September 2021, during an interview with her employer the NSLHD, the practitioner provided false information which she knew to be untrue when the practitioner: a. denied having a personal relationship with Patient A outside the professional nursing relationship. b. denied having any contact with Patient A outside the workplace except for driving her to and from her appointment at the Hospital on 27 August 2021. 2. On 13 December 2021, during an interview with her employer the NSLHD, the practitioner provided false information which she knew to be untrue when she denied having any contact with Patient A after the commencement of the NSLHD investigation. 3. On 20 December 2021, during a hearing convened under section 150 of the National Law, the practitioner provided false information which she knew to be untrue when the practitioner advised the Council that she had only had a friendship and was not in a relationship with Patient A."
Further, as the Commissioner submitted, GGI knew the false information was untrue because: "a. On 29 November 2022, she attended a Council appointed health assessment. In the health assessment the practitioner admitted she had been in a relationship with Patient A b. On 9 January 2023, the Commission issued the practitioner with a section 34A Notice. In her response of 2 February 2023, she confirmed that she had been in an intimate relationship with Patient A. She also stated she was not honest with the Council about her relationship with Patient A."

Consideration of Complaints 1 and 2

Section 139B of the National Law provides a detailed list of behaviours that are covered by the term "unsatisfactory professional conduct" in relation to registered health practitioners in NSW. The two relevant paragraphs in regard to the complaint against the practitioner are as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The Tribunal discussed the process of a determination of whether conduct was significantly below the standard (s 139B(1)(a)) in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [25]: "Determining whether the 'knowledge, skill or judgment' possessed by a practitioner, or the 'care exercised' by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such."
Further, at [26], the Tribunal considered the determination of the question of "other improper or unethical conduct" (s 139B(1)(l)) requires making findings of fact.
The word "or" relating to improper or unethical conduct and the meaning generally was discussed by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65: "[25] The use of the word 'or' in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. [26] In our view, the test of 'unethical conduct' has both objective and subjective elements. The word 'unethical' connotes moral opprobrium. The term 'unethical conduct' implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances."
The Commission provided definitions from the Macquarie Dictionary as "improper" and "unethical" are not defined in the National Law. "Improper" is defined as: "1. Contrary to moral precept; immoral. 2. In contravention of some code of professional conduct."
"Unethical" is defined as: "1. Not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. Not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. Unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. Abnormal or irregular."
The issue of providing false information (as set out in the particulars to Complaint 2) was considered by the Tribunal in Health Care Complaints Commission v Picones [2018] NSWCATOD 56: "[103] Engaging with one's professional regulator and all forms of disciplinary inquiry with diligence and honesty are fundamental requirements of any professional. [104] The ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals. Mistakes happen. Covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions and services because of the real and present danger that such behaviour poses to the safety of patients. Without candid admissions and the provision of assistance to peers and superiors from a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented. [105] A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in any and every health services setting."
As previously noted, GGI admits each of Complaints 1 and 2 and each of the particulars relied upon.
As the Commission submitted, given GGI's "qualifications and experience, she was well-aware of her obligations to practice in accordance with relevant nursing and health guidelines, standards, profession codes of conduct and ethics, regulations and legislation." This included her obligation to maintain professional boundaries with patients.
An independent expert, Carol Martin, provided a report before the Tribunal in which she opined on the standard reasonably expected of practitioner with equivalent training or experience to that of GGI. She considered that the conduct in particulars 1, 2, 6-11 and 12 above fell significantly below the standards. This evidence was admitted without objection. We agree with Ms Martin's opinion and find that GGI's conduct fell well below the standards one would reasonably expect of someone in GGI's position and with her qualifications and experience.
We also find that GGI's conduct was both improper and unethical. She breached the trust of Patient A and Patient B, who were particularly vulnerable due to the various conditions they suffered. We find GGI took advantage of their particular vulnerabilities as mental health patients: she should not have done so.
Consequently, we are comfortably satisfied on the materials before us that GGI is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and s 139B(1)(l) of the National Law in respect of Complaint 1.
We are further comfortably satisfied that GGI is guilty of unsatisfactory professional conduct in respect of Complaint 2 within the meaning of s 139B(1)(l) of the National Law on the basis that her conduct was improper and unethical. We agree with the Commission's submission that: "a. As a NSW Health employee, the practitioner has a responsibility to demonstrate honesty and integrity and to act professionally and ethically. b. The practitioner did not. She lied to her employer in order to hide the truth, that she was in a relationship with Patient A, that she had not seen Patient A other than to take her to the appointment on 27 August 2021 and that she had not seen her since the NSLHD investigation began. She lied in order to deceive authorities so that she could avoid any trouble and continue in her relationship with Patient A. c. A Registered Nurse (RN) has a responsibility to act with professional integrity, honesty, respect and compassion, recognising when over-involvement may have occurred and disclosing this concern to an appropriate person such as a colleague.40 A RN should reflect on the circumstances surrounding any occurrence of over-involvement, document and report it, and engage in management to rectify or manage the situation. d. Rather than reporting her mistake, the practitioner sought to conceal it. She was given an opportunity when faced with the allegations by her employer to answer honestly, but instead she gave false information and sought to minimise her actions."

Complaint 3

Regarding Complaint 3, the Commission relies on the particulars in Complaints 1 and 2 either individually or cumulatively.
The Commission submits that the Tribunal should make a finding that the practitioner is guilty of professional misconduct under the National Law, s 139E, and that, in addition: "a. The practitioner was deliberate and intentional when she committed the boundary violations. She was likely suffering depression and anxiety at the time but not impaired under s.5 of the National Law. b. Patient A was extremely vulnerable and the practitioner was aware of her vulnerabilities, and as such, there was a high risk of harm arising from the practitioner's conduct. i. She is a 28-year-old female, single mother of two children who identifies as a Torres Strait Islander person. ii. She was deemed as a high-risk patient that needed special one to one care whilst being an inpatient at Hornsby Hospital. iii. She was a high risk of suicide/self harm and has several high-risk mental health issues such has PTSD, BPD and Anorexia. iv. There is a history of domestic violence from the father of her children. v. She had been a victim of ongoing child sexual assault. c. The practitioner had the knowledge, skill and experience to know that her conduct was wrong and was a contravention of her professional responsibilities and obligations as a Nurse/health practitioner."

Does the conduct in Complaint 1 or 2 either individually or cumulatively, constitute professional misconduct?

The question whether GGI is guilty of professional misconduct is a separate question. GGI admits this complaint.
Section 139E of the National Law provides as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19] (Basten JA) ("Chen"). The exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20].
The question for the Tribunal then, is whether the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances".
In Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35], the Court noted that the "seriousness of the conduct" concerns not just acts or omissions but also the circumstances of their occurring. Justice Kirk at [36]-[37] agreed that there was force in the Commission's submissions that the sorts of issues arising in characterising the conduct include: "(1) the practitioner's state of mind at the time of the impugned conduct (eg whether conduct was deliberate or inadvertent); (2) any knowledge the practitioner had of particular vulnerabilities in a patient; (3) the risks of harm that the conduct was apt to create; (4) the practitioner's knowledge, skill and training; (5) the disciplinary history of the practitioner, as repeated inappropriate conduct may be treated as being of a more serious nature than isolated inappropriate conduct…"
Whether and to what extent the conduct of GGI constitutes professional misconduct requires us to determine whether "when [GGI's] contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18].
We regard the behaviour of GGI including the inappropriate relationships she had with Patient A and/or Patient B; and lying to the Commission and her employer, as being a most serious matter. This is particularly so given her knowledge (as a nurse treating Patient A) of the particular vulnerabilities of Patient A. GGI should have known a relationship with Patient A would or at least could cause significant harm to Patient A.
We have taken into consideration the fact that GGI suffers from an impairment (a matter discussed under Complaint 4). However, we are not satisfied on the evidence before us, that GGI suffered from an impairment at the time of the alleged conduct concerning Patient A and Patient B: there is simply insufficient evidence for us to reach that view. Rather, on the evidence it appears GGI improperly and deliberately pursued Patient A and Patient B, despite knowing of their mental health issues and that it was a breach of her professional boundary obligations to engage in such conduct.
When considered in the aggregate, each complaint amounts to conduct of a sufficiently serious nature to justify cancellation of GGI's registration (pursuant to National Law, s 139E(b)). Consequently, we find that GGI is guilty of professional misconduct. Even if we considered the conduct in relation to Patient A on its own, we would find this sufficiently serious to warrant cancellation of GGI's registration. Complaint 3 is established.

Complaint 4

Complaint 4 is that the practitioner has an impairment under s 144(d) of the National Law.
The particulars in support of Complaint 4, which is admitted by GGI, is: "1. The practitioner has an impairment, namely Major Depressive Disorder (in early remission). 2. The practitioner was a voluntary inpatient at Wesley Hospital Ashfield for Major Depression on the following dates: a. from 5 November 2021 to 3 December 2021. b. from 25 January 2022 to 28 February 2022. c. from 21 April 2022 to 12 May 2022."
The definition of impairment is contained within s 5 of the National Law: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession;

Medical evidence concerning the respondent

Dr Fukui diagnosed the practitioner in December 2022 as having an impairment, being a Major Depressive Disorder (in early remission). Dr Fukui's opinion was based on a number of factors, including: 1. The deterioration in the practitioner's mental health with suicidal ideation on the news of her suspension and the three subsequent psychiatric admissions to Wesley Private Hospital: 5 November-3 December 2021; 25 January-28 February 2022; and 21 April-12 May 2022. 2. The practitioner has a history of anxiety and depression, having seen Ms Sharon Reid, a psychologist since 2020, attending sessions every 6 weeks. She had also consulted Dr Catherine Wiltshire, a psychiatrist, for a review of her medication: she had been taking venlafaxine which is an antidepressant.
The report of Ms Reid, her treating psychologist states: "I have also read, and agree with, the report made by Dr Atsumi Fukui (psychiatrist) dated 17 December 2022 that [GGI] was mentally unwell at the time of the incidents described in the complaint". In her report, she does not expand or explain what she means by this - in particular the description "unwell".
GGI admits and the Commission accepts that GGI suffers from an impairment. However, the Commission submits that the evidence did not reveal an impairment at the time of the boundary violation: rather, Dr Fukui, has found her to be presently impaired. Dr Fukui's opinion is that the violation "occurred on a background of working long hours and poor self-care which rendered her more psychologically vulnerable given her psychiatric history". In light of Dr Fukui's opinion, the Commission agrees the evidence could establish the practitioner was impaired during the investigation, when she provided false information in interviews. We are unable to be satisfied that GGI suffered from a major depressive disorder at the time of the conduct with Patients A and B but accept she was suffering from this disorder at least after the complaints were investigated.
We find that Complaint 4 is established.

What if any disciplinary orders should be made?

Having established each of complaints, the parties have requested the Tribunal to determine the second stage, that is, what protective orders should be made.
Part 8, Div 3, Subdiv 6 of the National Law which is headed "Disciplinary Powers of Tribunals" sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where, as in this case, the Tribunal is satisfied the practitioner is guilty of professional misconduct, the Tribunal may suspend the practitioner's registration for a specified period or cancel their registration: s 149C(1) of the National Law.
Justice Wright in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] summarised the principles underlying the purpose of the orders in Pt 8, Div 3, Subdiv 6: "(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]."
The Commission seeks an order cancelling GGI's registration and that there be a non-review period for two years on the basis of s 149C(1)(b) of the National Law - that she has been found guilty of professional misconduct.
The Commission's submissions set out the reasons in support for cancelling GGI's registration as follows: "a. The practitioner's conduct must be denounced and other practitioners deterred from engaging in similar conduct i. It was a serious boundary violation between practitioner and patient, who the practitioner knew was highly vulnerable. It was an abuse of her position as a nurse, constituted an imbalance of power, and a breach of trust. b. The practitioner displayed limited insight i. she attempted to apologise to Patient A over text message, but it was really a justification for her own behaviour (p 398) ii. she did not realise that her conduct may have harmed the patient (CAP report, p 536). She told the CAP at their assessment on 26 November 2022 (p 533) • 'I didn't do anything harmful towards her' • 'I know I did the wrong thing' • 'I don't know what I was doing at the time' • 'it was a blur' c. The practitioner was unable to take responsibility for her conduct. i. She initially blamed Patient A for the HR investigation into the practitioner's conduct. ii. She claimed to be not in control and couldn't help what happened (p 398) iii. The practitioner now claims in her letter to the Tribunal of wishing to take responsibility, yet she chose not to attend the hearing where her version could have been explored. d. The practitioner must be deterred from not engaging in similar conduct in the future. i. The practitioner's initial lies to her employer and the Council were self serving. The practitioner may say whatever is in her best interests to avoid situations/repercussions."
In essence, the Commission's contention is that there is no appropriate alternative given the degree of seriousness of GGI's conduct which must be denounced. GGI has failed to acknowledge and appreciate: the professional nature of the therapeutic relationship which involves recognition of professional boundaries and issues of unequal power; the serious boundary violation of two vulnerable mental health patients; and has displayed limited insight having denied the relationships initially and at s 150 proceedings and lied about the relationships until February 2023.
The reasons a two-year non-review period is sought by the Commission are: "a. It indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered: Chen at [22]. b. It will afford the practitioner an opportunity to take responsibility for her rehabilitation. i. The practitioner has Major Depressive Disorder (in early remission) according to Dr Fukui (report dated 17 December 2022, p 531). Dr Fukui recommended that the practitioner enter the Council's Health Program with conditions on her registration, to include continued treatment by her general practitioner, her psychologist and she should consult a psychiatrist for psychiatric management. Dr Fukui suggested a further CAP assessment in 6 months time. (p 536) ii. The practitioner's treating psychologist Ms Sharon Reid, in her report dated 5 December 2023 (practitioner's bundle} opines: • the practitioner is too unwell to attend the hearing, reporting suicidal ideation. • the practitioner will require another hospital admission to help better manage her mental health. iii. In her letter of 8 January 2024 the practitioner states: • She is too unwell to attend the hearing • She must prioritise her own health and safety in circumstances where she has a serious mental health condition • She is very anxious about the upcoming proceedings • She is seeking ongoing counselling and support from her psychologist and doctor • She assures the Tribunal she will do her utmost to get well and put strategies in place to never repeat that conduct."
GGI acknowledged in a letter to the Tribunal that she has acted well below the standards expected as a RN and has behaved unethically. She says she is very sorry for her behaviour towards Patient A and Patient B who were vulnerable and that she crossed professional boundaries that should not have been crossed and made grave errors. She says she has had time to reflect on her wrongdoing and can now admit it and apologises for being dishonest initially and now wishes to take responsibility for her actions. GGI also says she did not realise at the time that she was "mentally unwell and made some very poor choices" but is now trying to get help with her medical practitioner and psychologist. She says the proceedings have aggravated her mental health but she understands they are necessary to uphold the standards of the nursing profession.
GGI contends that the Tribunal should make protective order that have the least serious outcome that is reasonably necessary (Health Care Complaints Commission v Dr Ly [2010] NSWMT 20) and that if an order is to be made it should only before a one year as "both appropriate and adequate for both specific and general deterrence". It is also contended this is a sufficient further period of time for GGI to address "management of her mental health … [and] for any other necessary remedial steps such as appropriate further education."
We accept GGI's mental health is suffering and do not draw adverse inferences against her for the inability to attend the hearing. However her non-attendance has made it impossible for us to assess the veracity of the matters addressed in her letter including whether she has insight into the extent of damage she may have caused Patients A and B.
This is particularly relevant because while admitting the entirety of the complaints, it appears to us that there is still an element of minimisation in that there is a suggestion that her conduct with Patients A and B may be as a result of her own mental health at that time. There is no evidence before us to indicate that the impairment has a causal nexus with the conduct complained of as it relates to Patient A and Patient B.
We note in this regard that GGI has only seen Dr Fukui on one occasion over 16 months ago. Dr Fukui noted as much on 13 March 2024 and indicated an inability to comment on GGI's current mental state. Rather "my opinion regarding the practitioner being impaired due to the developing major depressive disorder following the Ahpra notification remains unchanged."
Dr Fukui further stated: "Just to clarify, the onset of her major depressive disorder in 2021 was after the boundary violation and was related to having her nursing registration suspended and having to engage in the regulatory process." We are unable to conclude on the evidence before us that GGI's behaviour in respect of Patient A and Patient B was affected by her mental health.
Further, despite the remorse for her actions expressed in her letter, she has still not admitted that she caused any harm to Patients A or B nor is it possible for us to assess whether she realises the consequences her behaviour has had on them: rather it appears to us she is sorry for her conduct because she was caught and the consequences have led her to this proceeding.
We agree with the Commission and we consider that GGI has shown a lack of insight and understanding in the context of her conduct which was an abuse of her position of trust as a nurse.
From the materials before us our overwhelming impression is that in addition to abusing the trust of her vulnerable patients, GGI minimised and downplayed the gravity of her conduct saying for example at the assessment on 26 November 2022 that "I didn't do anything harmful towards her" and "I don't know what I was doing at the time". In her self-reflection journal submitted to the Council in October 2021, when still denying the nature and extent of the relationships, she said things such as "I was just being friendly …. I was trying to be compassionate and help her out because I felt sorry for her." Even when she finally admitted the relationship she claimed that her judgment was impaired and that she was not thinking straight.
In the exercise of our discretion and having regard to the paramount consideration being the protection of the public, we consider the protective function is best met by ordering that GGI's registration be cancelled with a non-review period of two years. We have given careful consideration to the concerns of the Commission and whether these concerns could be met by a less restrictive order. However, we have no evidence to assess the likelihood that GGI would comply with less restrictive orders. Of concern is that despite GGI saying she wants to get help, there is no actual plan before us for ongoing treatment. Dr Fukui only saw her once and that was back in 2022, and while she saw Sharon Reid for psychology services from February 2020 and more recently in December 2023, we are unable to ascertain whether GGI receives ongoing treatment or if there is any treatment plan in place. We are unable to have confidence based on GGI's mere assertion that she will try to take certain steps and do certain things to prevent this conduct being repeated - there is simply no evidence of a pathway with treating doctors specific to her condition.
Maintenance of professional boundaries is an essential element in nursing, particularly mental health nursing, and GGI does not appear to have an understanding of this. To the contrary, GGI's conduct demonstrated a blatant disregard for those professional boundaries and a lack of understanding or concern as to the particular vulnerability of those patients. We have serious concerns about her working in mental health units in the future where patients are particularly vulnerable. This is particularly so given our finding that GGI has a mental health impairment and the absence of evidence of a treatment plan in respect of that impairment.
Overall, we consider a period of two years will give GGI an appropriate amount of time to get the help she needs and gain insight into the effect of her conduct.

Costs

The Commission seeks an order for costs as agreed or as assessed. In exercising the power to award costs under the National Law, cl 13 of Sch 5D, the general rule is that costs follow the event unless there has been disentitling conduct on the part of the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 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].
GGI does not dispute that the order should be made.
There is no suggestion that there has been some "disentitling conduct" by the Commission in these proceedings and we have decided to exercise the power to order GGI to pay the Commission's costs, as agreed or assessed.

Orders

We make the following orders: 1. The respondent's registration is cancelled under the Health Practitioner Regulation National Law (NSW), s 149C(1)(b). 2. The respondent cannot seek a review of Order 1 before two years from the date of these orders. 3. The respondent is to pay the applicant's costs as agreed or assessed under the Health Practitioner Regulation National Law (NSW), cl 13 of Sch 5D.

            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar 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: 15 August 2024

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