Ms Harvey became registered as a Nurse on 18 January 2010. In September 2014 Ms Harvey started work as a part-time Registered Nurse, RN at the Uniting Medically Supervised Injecting Centre, MSIC, in Sydney. Ms Harvey resigned from her employment at MSIC on 10 April 2017. She currently works as a casual RN at Mathew Talbot Hostel where she has worked since November 2014.
According to its website MSIC is a harm reduction health service located in Kings Cross where people may lawfully attend and inject otherwise illegal substances under medical supervision. It aims to reduce drug overdose deaths and the transmission of blood borne viruses. MSIC also refers and connects clients of its service to other health care agencies and facilities including pathways into drug and alcohol rehabilitation and treatment. It operates in accordance with Part 2A of the Drug Misuse and Trafficking Act, overseen by the Commission of Police and Secretary of Health. Staff are employed by Uniting. The service first opened in May 2001 and is open to clients seven days a week.
MSIC has a three stage pathway for clients. The first involves an assessment where they are checked for their eligibility to access the service. This includes being over 18 years, not being pregnant or accompanied by a child and not being intoxicated. The second stage is where the client injects under the supervision of staff, including a registered nurse. In this stage they are provided with clean injecting equipment and advice on safe injecting practices. The final stage is an after care service which according to the MSIC website provides an important space for clients to connect with staff in a less clinical environment and link them with other services including housing, legal, social welfare, drug treatment and rehabilitation services.
This case is about Ms Harvey's conduct whilst working at MSIC. The evidence demonstrates, and it is admitted by Ms Harvey, that during this time she had a personal and intimate relationship with a client of MSIC, who is referred to in this decision as Patient A.
On 17 March 2017 MSIC staff spoke with Ms Harvey about allegations that had been brought to their attention emanating from a client that she was in a relationship with Patient A. Ms Harvey denied these allegations.
Following a period of leave Ms Harvey resumed work on 3 April 2017. The next day a MSIC staff member spoke with Ms Harvey again about the allegations. Ms Harvey did not disclose the relationship.
On 10 April 2017 Ms Harvey told her manager about her relationship with Patient A. At the same time she resigned from her employment at MSIC.
On 11 May 2017 the Nursing and Midwifery Council of New South Wales, the Council, conducted a fact finding meeting under section 150 of the Health Practitioner Regulation National Law (NSW), the National Law.
The outcome of the section 150 proceedings was that the Council imposed a number of conditions on Ms Harvey's registration. These included that she practice under the supervision of a registered nurse and a nurse manager, and that the nurse manager provide the Council with quarterly written reports about Ms Harvey's performance. There were also requirements for Ms Harvey to notify current and future employers of the conditions imposed on her. In relation to the ongoing management of the matter the Council also decided to deal with it by reference to its impairment provisions. It required Ms Harvey to attend a Health Assessment conducted by a Psychiatrist. Dr Anthony Samuels was appointed to conduct this assessment. His report and opinions are dealt with later in this decision.
In response to a request from Ms Harvey the Council conducted further proceedings under section 150A of the National Law. It conducted a hearing on 25 June 2018 and lifted the conditions it had previously imposed. In making this decision the Council noted that lifting the conditions on Ms Harvey's registration was not a reflection of its views of the severity of the incident itself but rather a reflection of Ms Harvey's performance as evidenced by the supervision reports over the previous 12 months.
On 14 June 2018 the Commission, applied to the Tribunal for disciplinary findings and orders under the National Law against Ms Harvey. The application attached a Complaint dated 14 June 2018. It comprises two individual complaints.
[2]
The Complaints
The first complaint is one of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law. The Commission alleges that Ms Harvey's conduct demonstrates that the judgment possessed, or care exercised, by her in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It is also alleged that her conduct was improper or unethical.
The basis for the first complaint of unsatisfactory professional conduct is that Ms Harvey failed to observe proper professional boundaries with Patient A. She exchanged contact details with Patient A, and in September 2016 commenced and maintained a personal and sexual relationship with him whilst she worked at MSIC. It is alleged that she acted improperly in continuing to work at MSIC whilst she was in a personal and sexual relationship with Patient A. She failed to disclose the relationship with Patient A to her employer and directly supervised Patient A whilst he injected drugs at MSIC. Further that in March 2017 when her employer specifically asked her about the nature of her relationship with Patient A she delayed disclosure about the nature of their relationship until 10 April 2017 being the date of her resignation. Further Mr Harvey continued her personal and sexual relationship with Patient A after her resignation from MSIC until February 2018.
The second complaint alleges professional misconduct arising from the same matters that are detailed in the first Complaint. Professional misconduct is set out in section 139E of the National Law. It provides:
For the purposes of this Law professional misconduct of a registered health practitioner means-
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 the suspension or cancellation of the Practitioner's registration.
[3]
Patient A and his involvement with MSIC
Patient records held by MSIC for Patient A indicate that he first attended MSIC in mid-2012. At this time he was 38 years old and residing in a homeless shelter. During Patient A's MSIC eligibility assessment he advised that his reason for presentation to MSIC was to inject morphine. At this assessment Patient A stated that he first injected drugs when he was 25 years old and from that time had experienced two heroin overdoses. He advised that he consumed alcohol approximately 5 days per week, ranging between 6 to 25 drinks per day. Between Patient A's initial presentation at MSIC in 2012 and July 2017 he visited MSIC on 1175 occasions often to inject opioid substances such as heroin, morphine and oxycodone.
On some occasions Patient A was professionally attended to by Ms Harvey both before and after the commencement of their relationship. Ms Harvey clarifies that although she did supervise Patient A whilst he injected drugs at MSIC, this was not on an individual basis and other staff members were present.
Patient A was involved in more general activities at MSIC. For example he was a member of the Consumer Action Group which was a collaborative staff and client group, as well as giving talks at staff education days. The evidence suggests that Patient A ceased attending MSIC on a regular basis on 19 July 2017. However there is evidence before the Tribunal that he did attend MSIC on 19 September 2017 to use the service. According to a file note made by the Medical Director of MSIC on this occasion he was given a private letter from the Commission to which he was receptive. He also indicated that at that time he was on a methadone program.
In late 2017 Patient A made a statement to the Commission about his engagement with MSIC and his relationship with Ms Harvey. He stated that he met Ms Harvey around April 2015 at MSIC. He knew that she worked at the Mathew Talbot hostel and he knew the days she worked. One day he was waiting outside the hostel for her to finish her shift. On this occasion a violent incident occurred at the hostel. Ms Harvey was shaken by what she had experienced. They talked about the incident and he walked her to a railway station. Following on from this incident he would meet her after her shifts at the hostel. This continued for about a month. He told her that he thought they should spend more time together and in around September 2016 he gave her his phone number. They formed a relationship and decided to keep it to themselves for a while. Although Ms Harvey talked about resigning from her job at MSIC, Patient A said he talked her into not resigning because he knew that she liked her job. They were in a relationship for approximately 4 to 6 months before Ms Harvey resigned from her employment at MSIC.
In his statement to the Commission Patient A set out his work to deal with his drug use. He referenced that he was on the methadone program and had been on the program for about two months. He hoped to be off the program in about another two months.
Sadly in mid February 2018 Patient A died. Patient A's death was reported to the Commission by the Medical Director of MSIC. She reported that he had died of an overdose of possibly drugs and alcohol.
There is a reference to Patient A's death contained in the background to the first complaint. However Patient A's death does not form a basis to the complaint and is not specified as a particular. There is no suggestion that Ms Harvey was responsible for Patient A's death.
[4]
Ms Harvey's written reply to the Complaint
In a written reply to the Complaint Ms Harvey accepts that her conduct amounted to unsatisfactory professional conduct and professional misconduct. In general terms she admitted the specific details relied upon by the Commission in the Complaint. She admitted that in around September 2016 she failed to observe proper professional boundaries with Patient A by exchanging personal telephone numbers with him, and commencing a relationship which she accepts was improper. She admitted that it was improper to continue working at MSIC whilst she was in a relationship with Patient A, and that she failed to disclose the relationship when she was directly asked about it by her employer.
However there was one significant area which Ms Harvey did not accept. This related to a claimed particular by the Commission that the continuation of the personal and sexual relationship with Patient A after her resignation from MSIC in April 2017 until February 2018 remained improper. Ms Harvey did not accept this proposition.
Ms Harvey provided explanations for her conduct including how the relationship started and that Patient A had been the instigator. She did not believe that she had been given adequate support at MSIC in the form of Individual Professional Supervision. She also objected to the references in the Complaint to Patient A's disengagement with MSIC in July 2017 and his death. She believed that both these references were not relevant.
[5]
Evidence of Ms St Hill
Ms St Hill is the Service Operations Manager at MSIC. When the relationship between Ms Harvey and Patient A was admitted by Ms Harvey, Ms St Hill made a written complaint about her conduct to the Commission in its capacity as a regulator.
Ms St Hill gave evidence about the supervision available to staff at MSIC. Staff received group supervision with an external supervisor once every 4 weeks. In addition a confidential Employee Assistance Program (EAP) service was available. Staff Performance reviews also provided opportunities for staff to discuss issues. She described the workplace as having an open communication culture with one floor being open plan to afford the opportunity of informal and impromptu consultation and advice. In addition there was a meeting room for private discussions.
In relation to other professional development activities the service was closed twice a year for a staff training day. Reference was made to a training day in October 2016, which Ms Harvey attended, which included a specific session on professional boundaries.
Ms St Hill gave evidence that the client group with whom MSIC was engaged often consisted of people who had been traumatised and in need of assistance. She emphasised that whilst it was important to build trust, be welcoming and at an emotional level to meet clients "where they were", professional boundaries needed to be clear because clients could over attach.
Ms St Hill agreed that whilst Ms Harvey worked at MSIC there were no issues raised about her work performance, and she had been surprised by the existence of the relationship. She accepted that in the context of a group supervision session it could be difficult for a staff member to reveal a transgression of boundaries or if they were otherwise having difficulties. However she pointed to the other opportunities for individual discussion. A staff member could talk to their supervisor or avail themselves of the EAP. She believed that although it could be difficult it was expected that a professional would speak to their manager and make sure that they were not dealing with the issue alone. She expressed the view that anything that makes you want to be secretive should be seen as a "flashing light".
[6]
Evidence of Ms Julie Latimer
Ms Latimer is the Nursing Unit Manager at MSIC and has worked there for some 11 years. She was Ms Harvey's line manager. She had completed a number of performance reviews of Ms Harvey's work. Prior to the conduct issue which gives rise to the current complaint, Ms Latimer saw no issues with Mrs Harvey's work performance. She agreed that she had been a good nurse. Indeed she had supported an application by Ms Harvey to become a clinical nurse specialist. This role involved floor supervision and management duties, and a greater degree of clinical decision making responsibility. The skills for this role which she believed Ms Harvey possessed included a commitment to professional development, leadership and higher level clinical skills. In response to a question from Ms Harvey she agreed that she had some recollection of Ms Harvey raising an occasion where a client had made inappropriate comments to her.
[7]
Evidence of Stephanie Smith
Ms Smith has been a registered nurse for some 42 years. She worked with Ms Harvey at MSIC and provided a reference in support of Ms Harvey. She gave evidence about Ms Harvey's clinical and nursing qualities. She referred to her compassion, competence, skill, professionalism and leadership. She was surprised to learn of the boundary violation and regarded it as out of character. She did not think that she posed a risk to patients or clients. She believed that if Ms Harvey was de-registered this would be loss to nursing as her clinical standards are excellent.
[8]
Ms Harvey's work with her current employer Mathew Talbot
[9]
Evidence of Julie Smith
Ms Julie Smith is the manager at Mathew Talbot Hostel's Primary Health Clinic. Ms Smith recruited Ms Harvey to work in the clinic because of the care and compassion she had seen her show in a previous role and her excellent health care knowledge. Ms Smith had agreed to act as Ms Harvey's supervisor for the purpose of the conditions imposed by the Council on her registration. Ms Smith provided quarterly performance reports about Ms Harvey and described her conduct and practice standards during and since the conditions were imposed as exemplary. She has witnessed the personal toll that rumour and innuendo together with judgements from ex-colleagues and reputational damage have taken on Ms Harvey. Throughout Ms Harvey has continued to act professionally. She had no concerns about her practice or conduct. She was surprised that Ms Harvey had been involved in a boundary violation and believed it to be out of character. She did not believe that Ms Harvey posed any risk to patients or clients.
In oral evidence Ms Smith confirmed that Ms Harvey told her about her relationship with Patient A after the Council's section 150 proceedings. Under cross examination Ms Smith's evidence was unclear as to whether she may have had some earlier awareness of Ms Harvey's relationship with Patient A because of "gossip" amongst clinic staff. At another point in cross examination she stated she was concerned with gossip coming out of MSIC. This appeared to be related to her stated worry that if gossip infiltrated to the hostel generally and to colleagues outside the hostel clinic, then it may have become untenable for Ms Harvey to continue working at the Hostel clinic.
[10]
Ms Harvey's evidence
In general terms Ms Harvey's written reply to the Complaint admitted the particulars and provided context and explanation from her perspective. However as noted above there was one significant variation. This related to a claimed particular by the Commission that the continuation by Ms Harvey of the personal and sexual relationship with Patient A after her resignation from MSIC in April 2017 until February 2018 remained improper. As we understood Ms Harvey's position, she believed that once she resigned from MSIC the continuation of the relationship ceased to be matter which should form the subject of a complaint.
In Ms Harvey's oral evidence she explained the context in which the relationship with Patient A occurred. She believed that she was particularly vulnerable at the time the relationship commenced due to trauma she had experienced whilst working at Mathew Talbot. This related to her witnessing a violent assault, and the kindness displayed towards her by Patient A in the aftermath.
In written material provided to the Commission Ms Harvey maintained that she did not consider Patient A to be particularly vulnerable. For example in a statement dated 26 April 2017 she indicated that that although clients of MSIC are extremely marginalised and vulnerable, this does not apply to all and there are some who continue to function within society in what would be considered to be quite a normal way.
Ms Harvey was questioned at some length about this issue and whether she still held this view about Patient A's vulnerability.
Ms Harvey identified that in some ways Patient A was vulnerable and referred to his health issues. However he was articulate and could engage in society in ways that other clients could not. As far as their relationship was concerned she did not believe that he was vulnerable. After further targeted questioning by Counsel for the Commission she expressed some softening in her views. For example she acknowledged that she had lost sight of professional boundaries when making this assessment about Patient A.
In oral evidence Ms Harvey referred on a number of occasions to her relationship with Patient A being real and ongoing, and spoke of their intention to marry. From her perspective there had been no helpful reason to end the relationship. She referred to an absence of evidence that any actual harm was caused to potential clients of Mathew Talbot by her continuation of the relationship with Patient A.
Ms Harvey accepted that her conduct breached various codes of conduct including a specific code of conduct which she had signed at MSIC. She submitted that her conduct was out of character. She did not feel that she received an appropriate level of clinical supervision given the intense client contact at MSIC but accepted that this did not excuse her entering into the relationship with Patient A. She had done much reflection and reading around professional boundaries. She attended a psychologist through the EAP for 6 sessions around June to August 2017, and further sessions through a GP care plan between October 2017 and January 2018. However, she found the first psychologist unprofessional because she advised that she should have continued to lie to MSIC about the relationship with Patient A. She found the second psychologist judgmental and unwilling to explore the issues.
Since June 2017 she had been a member of Al Anon for relatives and friends of people with problems with alcohol. She had found this program helpful in understanding her own behaviours and boundaries.
In relation to why she had not made further attempts to engage in counselling and taken a course on professional boundaries Ms Harvey referred to cost and the uncertainty around her current situation. It was her intention that once her life settled down she would pursue counselling. In relation to educational courses she explained that she wanted to wait and see the outcome of these proceedings. In the face of a suggestion by Counsel for the Commission that the purpose of undertaking a course would be for the benefit which could be derived from it, Ms Harvey was steadfast in her belief that there was no utility in her taking such a course if her registration was to be cancelled.
[11]
Evidence about Nursing Standards and Ms Harvey's insight into Boundary Violations
An Experts Report dated 16 January 2018 was prepared by Ms Susan Banks which examined Ms Harvey's conduct. Ms Banks has been a registered nurse for some 40 years. She is currently an area manager for Opioid Treatment Services, NSW Health. Amongst an extensive range of roles in drug and alcohol health services spanning many years, she has held various positions as a Nurse Unit Manager in Drug and Alcohol Services and nurse and clinic manager of several Methadone clinics. She has also undertaken voluntary work in the Philippines in community health and drug and alcohol services.
In Ms Banks opinion Ms Harvey's conduct falls significantly below that which is reasonably expected of a practitioner of her level and training and experience. This opinion is based on her own experience and her application of the relevant codes of conduct. Her report referenced various breaches by Ms Harvey of the NSW Health Code of Conduct, the Nursing and Midwifery Board of Australia's (NMB) Code of Professional Conduct for Nurses in Australia and Code of Ethics for Nurses in Australia and the MSIC's own Code of Conduct. These codes variously address the importance of the maintenance of professional boundaries. The NSW Health Code of Conduct sets a prohibition on staff having intimate sexual relationships with a patient or client during a professional relationship. Further the MSIC Code of Conduct which Ms Harvey signed, specifically states that staff should not enter into a personal or social relationship with a client.
Ms Banks was of the opinion that Ms Harvey showed little insight into her own vulnerabilities and responsibilities. She said that MSIC was a unique and special service, controversially implemented and as such the work requires extra professional care from staff to ensure its good name is upheld. It made it even more important for staff to be compliant with the various codes of conduct and boundary maintenance.
In her oral evidence Ms Banks gave further context by identifying the vulnerabilities of the particular client group that use the service. These included that drug and alcohol abuse was a chronic condition which often required participation in long term programs and rehabilitation. A patient can be well for a while but they remain vulnerable.
Ms Banks also considered Patient A to be "extremely vulnerable" even though he engaged regularly with the service. The fact that Ms Harvey had continued to characterise him as not vulnerable was concerning because it showed a lack of insight into the serious nature of the violations. It also demonstrated a failure to acknowledge the potential harm caused to Patient A and to other clients in the community. She referred to the potential for clients to drop out of the service. In addition her opinion was that clients talk to each other and would have known about the relationship. The fact that clients can see that a relationship exists between a staff member and a client impacts on how they view the service, Ms Banks stressed the importance of the harm that is done to the professionalism of the service such as MSIC and how it is perceived by other clients and the community.
Ms Banks was asked to comment on the level of support and supervision that existed at MSIC whilst Ms Harvey worked there. Ms Banks expressed the view that the level was adequate and noted that a practitioner could always ask for further supervision through their manager.
Ms Banks also referred to the dishonesty and betrayal of trust displayed by Ms Harvey towards her colleagues and manager by not telling her manager about the relationship, and her delay in revealing the relationship to her employer after her employer specifically raised it with her.
[12]
Evidence of Dr Samuels
Dr Anthony Samuels is a Consultant Psychiatrist. As part of the section 150 proceedings against Ms Harvey, the Council determined to deal with the matter under provisions relating to impairment and to require her to attend a Health Assessment. Dr Samuels was appointed to conduct this assessment. He prepared a report dated 27 July 2017.
Dr Samuels made a number of observations about Ms Harvey's boundary violations with Patient A. He pointed to her seeming inability to acknowledge the seriousness of the boundary violation. In his view her position suggested that:
1. Either she was so infatuated with Patient A that she was unable to objectively appraise the situation
2. Her personality vulnerabilities have created a blind spot in regard to these issues
3. Her stance on the matter is based on misguided ideology
4. Her knowledge of ethics and boundaries is woefully inadequate
In his view it seemed likely that all of these factors had a role to play.
Dr Samuels expressed the view that Ms Harvey had an impairment in the form of a depressive and anxiety condition which appeared to be well controlled and in remission. He did not see a clear reason for Ms Harvey to enter the impairment program but strongly suggested that she continue treatment with her general practitioner, takes anti-depressants and see a psychologist as required.
Significantly Dr Samuels believed it was imperative that Ms Harvey begin some form of long term psychological work to begin to understand the significance of what occurred and the ramifications for her personally and professionally. In his view it was likely that she will need considerable support to manage the personal challenges and risks associated with the relationship. He reported that she did not seem to have a very good understanding of boundary issues and probably should be mandated to participate in some form of professional ethics training.
Dr Samuels gave oral evidence to the Tribunal in which he was asked to reflect on and update the views he had expressed in his written report. He was aware of the contents of the Complaint which formed the basis of these proceedings, and had read Ms Harvey's reply to the Complaint together with the peer review report of Dr Banks. He was given information to bring him up to date with Ms Harvey's current circumstances including that there had been no adverse reports about her work, her relationship with Patient A had continued until his death and she had not engaged in any counselling or therapy.
Dr Samuels did not believe that Ms Harvey acknowledged the serious boundary violation that the relationship with Patient A represented. He explained that she seemed unable to grasp the significance of the boundary violation and the attendant secrecy that accompanied it.
Dr Samuels referenced the fact that although Ms Harvey had admitted the Complaint, he was concerned that in her written reply to the Complaint she had referred to both Patient A's ceasing to attend MSIC in July 2017 and his death as being irrelevant. In his view this still suggested denial and minimisation on Ms Harvey's part and an inability to reflect on the impact that the boundary violation had on Patient A's care.
Dr Samuels conceded that he did not know why Patient A had disengaged from the MSIC service in July 2017. However in his view regardless of the reasons, the relationship with Ms Harvey was inappropriate and it had the potential to disrupt Patient A's care.
Dr Samuels did not suggest that the harm caused to Patient A by his relationship with Ms Harvey was the cause of his death. He acknowledged that other factors were at play. However, the fact that Ms Harvey referred to his death not being relevant to the Complaint suggested that she still maintained a blind spot around these issues which he had identified in his written report.
Dr Samuels expressed concerns about Ms Harvey working with vulnerable client groups. He noted that whilst no complaints had been made about her current work, unless she had demonstrable measures in place he remained concerned about her working with vulnerable clients
The measures he identified which he believed Ms Harvey needed to take included completing an ethics course to address her knowledge gap around professional boundaries. As well as undertaking comprehensive psychological work with a suitably qualified professional to accept and understand that the relationship was not acceptable and that the behaviour was harmful to Patient A.
Dr Samuels' attention was drawn to the evidence given by Ms Harvey's current supervisor, Ms Smith, about the quality of Ms Harvey's work, the absence of any adverse reports, and her stated view that in carrying out her practice Ms Harvey did not represent a risk to the health and safety of clients. Dr Samuels responded that this was reassuring but until the work he had identified had been undertaken by Ms Harvey he held ongoing concerns that if similar circumstances arose in the future that a boundary violation could occur again.
Dr Samuels stated that he continued to have reservations about Ms Harvey working with vulnerable client groups until she could objectively demonstrate that she had truly reflected on the improper nature of the relationship, show that her understanding had changed and she had safeguards in place to deal with similar issues in the future. He observed that he had not seen any material or evidence to suggest that there has been a substantial change in Ms Harvey's thinking or that she had measures in place to prevent a re-occurrence.
[13]
The issues
In light of the evidence and the admissions made by Ms Harvey we are satisfied that the particulars detailed in the first complaint relating to her failure to observe proper professional boundaries with Patient A are proved. She exchanged contact details with Patient A and in September 2016 commenced and maintained a personal and intimate relationship with him. She acted improperly in continuing to work at MSIC whilst this relationship was ongoing. She failed to disclose the relationship with Patient A to her employer and directly supervised Patient A whilst he injected drugs at MSIC. Further in March 2017 when her employer specifically asked her about the nature of her relationship with Patient A she delayed disclosure about the nature of their relationship until 10 April 2017 being the date of her resignation.
The only real contest about the particulars is the categorisation by the Commission that Ms Harvey's continuation of her personal and intimate relationship with Patient A after her resignation from MSIC in April 2017 until February 2018 remained improper. As we understood Ms Harvey's position she believed that once she admitted the relationship and resigned from MSIC the relationship was no longer improper. In effect from her perspective it ceased to be a matter of complaint.
We do not accept Ms Harvey's categorisation in this regard. We accept the submissions made by the Commission that notwithstanding her resignation maintaining the relationship with Patient A remained improper. This is because the reputation of and impact on MSIC continued to be affected. In addition there was a potential crossover and some links between client groups using the services of both MSIC and Mathew Talbot where Ms Harvey was employed. The evidence of Ms Smith referred to the existence of gossip and innuendo at Mathew Talbot. In our view there was a risk that the client group at Mathew Talbot could become aware of the relationship.
Significantly the NMB, Code of Professional Conduct for Nurses in Australia, effective 7 May 2013, references that sexual relationships between nurses and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances. Such relationships automatically raise questions of integrity in relation to nurses exploiting the vulnerability of persons who have been in their care: see Code of Conduct statement 8.5.
In our view this standard exists to ensure that nurses promote and preserve the trust and privilege inherent in the treating relationship between nurses and those receiving their care. There is the potential for a substantial power imbalance in their interaction with a former patient to remain. This is because the practitioner has experience of that person whilst they were unwell and knowledge of that person's therapeutic disclosures and clinical records arising from the treating relationship. The existence of and adherence to this standard promotes the confidence that the public are entitled to have in the integrity of nursing care.
In this case Patient A had a longstanding history of drug and alcohol abuse. Ms Banks considered Patient A to be extremely vulnerable. This vulnerability did not disappear merely because Ms Harvey ceased working at MSIC.
We are satisfied that all the particulars relied upon by the Commission in Complaint One are established.
Accordingly our primary focus has been on whether Ms Harvey's conduct constituted unsatisfactory professional conduct and professional misconduct, and what protective orders are appropriate in the circumstances.
[14]
Complaint One: Unsatisfactory Professional Conduct
Complaint One alleges "unsatisfactory professional conduct" within the meaning of section 139B, via the two pathways contained in sections 139B(1)(a) and (l) of the National Law. Complaint Two alleges "professional misconduct" by the Practitioner under section 139E of the National Law, relying individually and/or in combination on the particulars of Complaints One.
Section 139B(1)(a) of the National Law requires the determination by the Tribunal as to whether the Practitioner has been guilty of unsatisfactory professional conduct. It involves an objective assessment of the Practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner.
Section 139B(1)(l) of the National Law also requires a determination by the Tribunal as to whether the Practitioner has been guilty of unsatisfactory professional conduct. It involves an assessment as to whether her conduct was improper or unethical relating to the practice of nursing.
Ms Harvey accepts that her conduct amounted to unsatisfactory conduct. The various Codes of Conduct referred to in this decision inform us as to what the profession, as a whole, reasonably expects of its members. This includes but is not limited to acting in a way that does not exploit the vulnerability of patients. Ms Harvey was in clear breach of these codes.
The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not 1. "in accordance with propriety of behaviour, manners etc". or "abnormal or irregular" and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law.
Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1 at 25 :
Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case.
Accordingly if conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at 54 and 55 and the cases there cited and HCCC v Nguyen [2018] NSWCATOD 168.
The evidence of Ms Banks in her peer review report makes it clear that Ms Harvey's conduct fell significantly below the standard reasonably expected of a practitioner of equivalent training and experience. As referenced by the expert and by Ms Harvey's own admission she was in breach of the Code of Professional Conduct for Nurses in Australia and the MSIC Code of Conduct. Her conduct in having and maintaining a personal and intimate relationship with Patient A was improper.
In our view Ms Harvey knew what she was doing was wrong. Further we are not persuaded that supervision at MSIC was inadequate.
Ms Harvey initially denied the relationship when it was directly put to her by her manager at MSIC. Later she had another discussion with her manager and again failed to disclose the relationship. It was not until about a week later that she told MSIC about the relationship.
In our view Ms Harvey's lack of candour with her colleagues at MSIC can be explained on a desire to avoid the consequences of her behaviour. She placed her own interests ahead of the service and its clients. It was improper and unethical.
Further Ms Harvey did not tell her employer at Matthew Talbot of the relationship until after the section 150 proceedings. As we understood this aspect of the evidence before us this was because she had been advised that she did not have a legal obligation to do so.
In our view Ms Harvey's delay in disclosing the relationship to her manager at Mathew Talbot demonstrates a lack of understanding as to the serious nature of the behaviour and a lack of protective concern for her clients at both services. The fact that Ms Harvey may have believed she did not have a legal obligation to disclose the relationship does not obviate her obligation to act in an ethical and professional manner towards her colleagues and employer.
We are satisfied that the complaint of unsatisfactory professional conduct as detailed in Complaint One is proved.
[15]
Complaint Two: Professional Misconduct
The Commission submits that the conduct of Ms Harvey which we have found constitutes unsatisfactory professional conduct, when considered either individually or cumulatively is of a sufficiently serious nature to amount to professional misconduct.
There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: see HCCC v Saedlounia [2013] NSWMT 13 at paragraphs 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at paragraph 35.
As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation": see paragraph 19.
Ms Harvey breached the Code of Conduct which applied and which she signed at MSIC, and she has breached various Codes which apply more generally to the nursing profession. She engaged in serious boundary violations culminating in a personal and sexual relationship with a vulnerable client. Such a breach of professional standards is serious.
To make matters worse Ms Harvey then compounded her conduct with her lack of candour with her colleagues.
In our view when Ms Harvey's conduct is considered individually and cumulatively there has been a significant departure from the standard of conduct to be expected of a nurse.
We find that the unsatisfactory professional conduct displayed by Ms Harvey is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. Accordingly we are satisfied that the complaint of professional misconduct as detailed in Complaint Two is proved.
[16]
Protective orders sought by the parties
The Commission submits that the serious nature of Ms Harvey's misconduct justifies cancellation. It points to Ms Harvey's failure to engage in appropriate counselling and therapy. It also submits that deterrence is relevant and suggests a period of one to two years before Ms Harvey should be allowed to seek re-registration. This would enable a period of time for Ms Harvey to undertake the work that has been identified by Dr Samuels to ensure that the public is protected.
In contrast Ms Harvey's position is that cancellation would be counterproductive and could be seen as punitive. It would mean the loss of an excellent nurse to the profession. Her career has been otherwise unblemished and the conduct was out of character. She believes she has already been punished. She pointed to a loss of income and housing, together with the uncertainty of her situation whilst the proceedings are resolved. The previous conditions of supervision imposed on her practice have been removed by the Council. She argued that the Council would not have revoked the conditions if it believed she was a risk to the public. She pointed to the evidence given by Ms Julie Smith and Ms Stephanie Smith about the absence of risk to the public and the standard of her clinical practice. She believed that appropriate orders should allow her to continue to practice but require that she attend an ethics course and engage in therapy as proposed by Dr Samuels.
[17]
Principles regarding protective orders
The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see sections 149A, 149B and 149C of the National Law.
In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law.
This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at 34.
In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 637.
In Health Care Complaints Commission v Do [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred at 35 to the importance of denunciation of misconduct, in the context of s. 3 and s. 3A of the National Law as follows:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.
[18]
Consideration of protective orders
In our view Ms Harvey's conduct is very serious. By commencing and continuing a personal and intimate relationship with a client she demonstrated an absence of propriety, honesty and integrity in her nursing practice.
Moreover Ms Harvey made a deliberate decision to continue the relationship and not inform her employer. She lied to her employer when the allegation was directly put to her. She had time to reflect on this decision but chose not to do so. Her moral culpability is high because of the significant departure from acceptable standards.
Ms Harvey then delayed in telling her second employer about the relationship. In this respect she failed to demonstrate the integrity and ethical candour that the public are entitled to expect of the nursing profession.
As referenced by Ms Banks she believed that Ms Harvey showed little insight into her own vulnerabilities and responsibilities. She said that working at the MSIC is unique and such work requires extra professional care when navigating boundaries. Ms Banks stressed the importance of the fact that the MSIC would no longer be perceived as a professional organisation by other clients and the community.
During the course of these proceedings Ms Harvey has stated that it was common for friendships to develop with clients and the boundaries of therapeutic relationships are acknowledged to be more blurred at MSIC than in other health services. In oral evidence she referred on a number of occasions to her relationship with Patient A being real, ongoing and spoke of their intention to marry. From her perspective there had been no helpful reason to end the relationship. She referred to an absence of evidence that any actual harm was caused to potential clients of Mathew Talbot by her continuation of the relationship with Patient A.
In our view there was nothing in Ms Harvey's evidence that gave us any confidence that she truly understood that the maintenance of professional boundaries is even more important at a unique service such as MSIC. The credibility of an entity such as MSIC depends on it having a reputation and image which enhances its standing with stakeholders and in the community. The standard to which an employee of MSIC is held is relevant. Ms Harvey breached the standards that specifically applied at MSIC. Further she did not in a meaningful way demonstrate that she understood the potential harm that flowed to Patient A and potentially to other clients in the community by continuing the relationship.
We accept the evidence of Ms Julie Smith and Ms Stephanie Smith that Ms Harvey is a good and skilled nurse. We note that they did not believe that the public was at risk by Ms Harvey continuing to practise.
However we prefer the evidence of Dr Samuels about the risk Ms Harvey presents to the public. This is because his views are directed specifically towards Ms Harvey's conduct and boundary violations.
Dr Samuels wrote his report at a time when Ms Harvey was still in a relationship with Patient A. In this context, he formed the opinion that her inability to acknowledge the seriousness of the boundary violation arose from a range of factors such as she was infatuated and could not objectively appraise the situation, she had a blind spot due to personality issues, she was driven by misguided ideology; or her knowledge of ethics was woefully inadequate. His oral evidence was to the effect that until Ms Harvey undertook the steps he outlined in his report he continued to hold concerns about her ability to practice safely.
Ms Harvey did not persist in her attempts to engage in appropriate counselling or therapy. She has made no attempt to engage in a structured educational program dealing with professional boundaries or ethics.
We did not find Ms Harvey's explanations as to why she had not undertaken counselling and a structured program around professional boundaries persuasive. This included her references to costs together with the uncertainty of the intervening two years, and awaiting the outcome of these proceedings. In the face of a suggestion by Counsel for the Commission that the purpose of undertaking a course would be for the benefit which could be derived from it, it concerned us that Ms Harvey was steadfast in her belief that there was no utility in her taking such a course if her registration was to be cancelled.
Ms Harvey may have had difficulties in identifying a suitable counsellor. She may have encountered logistical barriers such as cost in pursuing counselling or educational programs but it is her obligation to ensure professional boundaries are maintained and professional practices are upheld. It is her professional responsibility to address and manage these issues. Ms Harvey's views and lack of action reflected a degree of naivety and little, if any, insight into what she needed to do address her misconduct.
There is no recent psychological assessment which indicates that the issues referred to by Dr Samuels are no longer relevant because through counselling and therapy Ms Harvey has comprehensively addressed them. Equally there is no evidence from a suitably qualified person that Ms Harvey has a better understanding now of professional boundaries.
Ms Harvey states that her conduct was an aberration in an otherwise unblemished career. Apart from Ms Harvey's assertions that she has gained insight through her personal reflection, reading on professional boundaries and her attendance at Al Anon, there was nothing in her evidence that objectively gave us any confidence that she has actually gained the necessary insight such that further boundary violations in the workplace will not reoccur in the future. We are not satisfied that she has truly become a changed person since the boundary violation occurred. We are not willing to assume that the mere fact that there have been no adverse incidents at her current workplace means that she has the requisite knowledge and insight into the serious boundary violation in which she engaged.
Further the extent to which Ms Harvey has the requisite understanding is not limited to her insight into whether her actions were improper in the context of her work at MSIC, but insight into what she understands about the standards of practice and morality required more generally of her as a nurse. For example in her oral evidence she continued to hold a position that once she left MSIC she saw no difficulty in continuing the relationship with Patient A.
Demonstrating insight is not limited to saying that past errors are now understood and will not be repeated but having a willingness and commitment to objectively do something about it. Ms Harvey has not provided any material that would assuage us in this regard. Apart from her own assertions she has not presented any measureable evidence that she actually possesses the prevention strategies that she will need to maintain professional boundaries.
In so far as the Council expressed the view when removing the conditions on Ms Harvey's registration in the section 150A proceedings that she was not a risk to the health and safety to the public, we do not agree with this position.
The Council did not have the benefit of hearing the updated evidence which Dr Samuels gave in these proceedings. Further, the Council noted that the lifting the conditions on Ms Harvey's registration was not a reflection of the severity of the incident itself but rather a reflection of Ms Harvey's performance as evidenced by the supervision reports over the previous 12 months. The supervision reports that were before the Council and before us are focused towards Ms Harvey's clinical and nursing practice. They do not deal in any detail with her understanding of professional boundaries. They do not deal with her degree of insight into the potential risks of future transgressions.
We are not satisfied that Ms Harvey has shown sufficient insight into her behaviour such that we could be satisfied that the public is sufficiently protected. This fact, together with the objective seriousness of the violations and the opinion of Dr Samuels persuades us that cancellation is necessary in the circumstances.
A key aspect of the protection of the public extends beyond protecting the individual patients of an individual practitioner. It goes to the protection of the public as a whole by means of the denunciation of the type of conduct such as that which occurred in this case.
We accept the submission by Counsel for the Commission that deterrence is a relevant factor in this case. Ms Harvey's former workplace is a unique service with highly vulnerable clients. The fact that Ms Harvey is otherwise of good character and has continued to work with clients with drug and alcohol addiction does not negate the need to maintain public confidence in the nursing profession.
In our view given the gravity of the misconduct and the upholding of public confidence in the nursing profession requires that Ms Harvey's conduct in its entirety be denounced as unacceptable and that a period of 12 months appropriately reflects that. In addition it will afford a reasonable period for Ms Harvey to demonstrate that she has gained insight into her misconduct.
Having regard to these matters we are satisfied that it is appropriate that Ms Harvey's registration should be cancelled, and that she should not be able to make any application for review of the cancellation of her registration for a period of 12 months.
We acknowledge that Ms Harvey has a genuine interest in and commitment to working with some of the most disadvantaged and marginalised people in our community. We have no doubt that in her clinical practice she is a good nurse.
Equally, we hope that Ms Harvey can use the period of cancellation to undertake a structured specific course or courses to deepen her knowledge and skills in working safely and with care with all the complexities of professional boundaries. We hope that she will engage in a program of counselling and/or psychological sessions with a person experienced in working in the area of boundary violations, and that this along with a structured educational course will help her to explore in detail the underlying causes for her transgression, how to recognise warning signs and what strategies she can put in place to deal with any future challenges she may face. We hope that she will be able to provide quantifiable evidence of the work she has undertaken in these areas. It would be a pity if she was lost to the profession.
[19]
Costs
The Commission seeks an order for costs. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
Although Ms Harvey made a number of admissions in relation to specific particulars there was nothing in how the Commission conducted its case which would warrant disallowance of costs or an offset to them. There is no evidence of some disentitling conduct on the part of the Commission. There are no features in this case which make it an appropriate one to exercise the discretion to depart from the general presumption.
Ms Harvey should bear the Commission's costs so as to compensate it for the costs it has incurred in prosecuting the proceedings in the public interest. Accordingly for these reasons, Ms Harvey is to pay the Commission's costs, as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).
[20]
Orders
1. The complaints of unsatisfactory professional conduct and professional misconduct are proved.
2. The practitioner's registration as a nurse is cancelled.
3. The practitioner cannot make an application for review of the cancellation order (for a Reinstatement Order) until 12 months from the date of this decision
4. The Registrar is requested to notify the Nursing and Midwifery Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2 and 3 above as soon as practicable
5. The Practitioner is to pay the costs of the Health Care Complaint Commission as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).
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: 09 May 2019