The applicant submitted that the evidence disclosed a significant and escalating course of boundary violations by Mr Hollis in his dealings with patient A whom he knew was a mental health patient. The relationship escalated from him giving her his mobile phone number, which itself involved an invitation for further personal contact, to co-habitation with Patient A and an ongoing sexual relationship for some months. It included use of illicit drugs with a person whom he knew, as a mental health patient, may have had additional impact on her mental health.
The applicant submitted that the accessing by Mr Hollis of Patient A's confidential medical records evidenced a severe misuse of his position as a registered nurse and a gross breach of trust.
The applicant submitted that the assistance Mr Hollis gave to Patient A in her effecting her self-discharge from hospital on 30 November 2012 by telling her to use his parents address as a discharge address, involved a further very substantial escalation of the relationship. Indeed, this led to the subsequent co-habitation and sexual relationship between Mr Hollis and Patient A. The applicant submitted that by the time he assisted Patient A with her discharge on 30 November 2012 there had clearly been a professional relationship between Mr Hollis and Patient A. Although Mr Hollis had tried to disavow this, it was clear on the evidence that she had been a patient under his care and he had made notes about her.
After her initial discharge there was the contact at the shopping centre where Patient A spoke to Mr Hollis and reminded him that she had been a patient and he had been a nurse on her ward- the contact only arose because there had been the professional relationship.
This improper conduct was aggravated because Mr Hollis knew, or should have known, that Patient A had serious mental health issues which he chose to ignore as it suited his purposes to get to know her better as he was attracted to her. The applicant submitted that such conduct, in effect, amounted to grooming type behaviour which makes Mr Hollis's conduct more serious and is a matter relevant to any disqualification order.
Health Care Complaints Commission v Hollis [2019] NSWCATOD 6 | Case summary | Zoe
The applicant also submitted that the misconduct on Mr Hollis's part continued during the period of cohabitation with Patient A. Apart from the inappropriateness of the relationship, including sexual relations, Mr Hollis engaged in taking illicit drugs with Patient A which was particularly dangerous for someone with her condition and is illustrative of his lack of judgment.
The applicant submitted that the Tribunal should have serious reservations as to whether Mr Hollis accepts that all of the conduct complained of is inappropriate. Whilst Mr Hollis should be given credit for now admitting he lied to the HCCC investigators in October 2015, the applicant submitted that the Tribunal should be careful in accepting Mr Hollis's evidence which was designed to minimise the seriousness of his conduct. Further, at no time has Mr Hollis thought of the effect that the lies he told to the HCCC investigators in 2015, let alone his conduct, has had on Patient A. This was relevant to his lack of insight and weighed in favour of a disqualification order.
The applicant noted that Mr Hollis had not put before the Tribunal any evidence that he had sought any treatment or undertaken any education or training since he surrendered his registration. It submitted that he poses a significant risk of engaging in the same or similar conduct.
In all of the circumstances, the applicant submitted that it was clear that Mr Hollis was guilty of professional misconduct.
[2]
The Respondent's Submissions
The respondent accepted, as we have noted, that subject to the Tribunal thinking it appropriate to make such a finding, that the conduct to which he admits constituted unprofessional conduct.
The respondent does not accept, however, that an assessment of the conduct of Mr Hollis at the time he engaged in it would lead to a finding of professional misconduct. He submitted that the Tribunal needs to assess his conduct having regard to his experience at the time, which the evidence shows, was that he had some limited experience in aged care, some minimal experience specialising in dementia.
The respondent submitted that he had performed his roles in providing those service appropriately. He then wanted to pursue a career in mental health nursing. He did this.
The respondent noted that in October 2012 he had only been a nurse on the acute mental health ward for 10 months. He had not had significant experience in mental health units at the time of the conduct. He had interacted with patients with empathy and appropriately. He remains a person who is capable of giving great care as a nurse. He likes caring for people and although he had handed in his registration and did not wish to return to nursing, he now candidly says that he has come to terms with himself and does wish to return to the profession. He wants to re-apply for registration when he feels the time is right for him.
As to the matters in particular 2, he submitted that the doctors at the hospital would not have let Patient A be discharged if she was too unwell. Further, he submitted he was helping Patient A in assisting her leave when she did not want to stay at the hospital.
In all of the circumstances the respondent submits that the conduct does not amount to professional misconduct. He accepts what he did was wrong. He accepts that he should not have lied to the HCCC investigators but he was fearful of losing his job which he had worked so hard to attain. He was not thinking straight at that time and did not then, as he has now, involve family or legal assistance.
In relation to the accessing of the records he submits that he was scared because of threats made to him and still had residual feelings for Patient A.
He referred to the references provided and the witness statement of Mr Constable to show that he is a good worker and a valued colleague.
[3]
Conclusion on Professional Misconduct
In our view, a consideration of all of the particulars to complaint one taken together, which have (except for particular 11) been unqualifiedly admitted by Mr Hollis, lead to the conclusion that the conduct amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Hollis's registration as a nurse. We find, therefore, that his conduct amounts to professional misconduct.
With respect to his qualified admission to particular 11 of complaint one, we do not think this changes the position. Particular 11 is as follows:
11. In late 2015 the practitioner denied that he engaged in the conduct particularized at Complaint One Particular Two during an interview on 29 October 2015, which was false or misleading in that the conduct is admitted in his signed statement of 29 October 2018.
Particular 2 to complaint one is as follows:
2. On or around 30 November 2012, the practitioner failed to observe proper professional boundaries in that following Patient A's self-discharge he had personal contact with Patient A in that he:
(a) collected Patient A from the Hospital;
(b) escorted Patient A to his parents' home.
Mr Hollis was interviewed by an HCCC investigator on 29 October 2015. At that interview, Mr Hollis was asked questions about Allegation 2 as it was then framed. Whilst that allegation dealt with the circumstances at which Patient A was self-discharged from the Hospital on or around 29 November 2012 it contained factual allegations different to those in particular 2 of complaint one referred to above.
Whilst it is true that Mr Hollis's denials of the matters put to him at that time were accurate in the sense that the allegations now particularised in particular 11 are substantially different to those then raised with him, as the applicant submits, Mr Hollis was not completely forthcoming with the investigator at that interview in respect to the circumstances of how it was that Patient A came to give his parents address as a discharge address. Indeed, Mr Hollis denied, at least impliedly, any knowledge of how Patient A obtained his parent's' address as the one to give in order to secure her voluntary discharge from the Hospital. At best, Mr Hollis's answers on this issue were misleading. As the facts recited above indicate he actively assisted Patient A in achieving her discharge by advising her to give his parents' address as the discharge address and then picking her up from hospital. As such, we did not think the qualification assists Mr Hollis.
Mr Shaw, the expert called by the applicant, who was not cross examined, opines that each of the matters now admitted by Mr Hollis, was conduct that was significantly below the standard expected of a practitioner of an equivalent level of training and experience. He opined that each of those departures from the relevant standard invited his strong criticism. We agree. Taking all of the conduct together, we think the only appropriate finding is one of professional misconduct.
We do not accept the submissions of Mr Hollis that his limited experience at the time of the conduct should reduce the seriousness of the conduct such that there is no finding of professional misconduct. We find that the particulars of misconduct admitted to by Mr Hollis were of such a serious nature, and of multiple varieties, that a finding of professional misconduct must follow even for a nurse of his relatively limited experience. Exercising the evaluative judgment required, we conclude that the conduct reveals that Mr Hollis should not be allowed to practice unless, at a future date, he is able to satisfy the Tribunal that the defects in his character exposed by the conduct have been overcome.
We also agree with the applicant that the matters in particulars 2, 3, 4 and 5 individually amount to professional misconduct.
We have dealt with particular 2 above. As we there observed, we find that Mr Hollis's conduct in assisting Patient A to be discharged from hospital to his parents' address without him having any understanding of her condition or treatment, was a most serious departure from the required standard of a nursing practitioner. Further, this was conduct which dramatically escalated the personal relationship between Mr Hollis and Patient A which led to their co-habitation and the sexual relationship (which are the matters in particulars 3, 4 and 5).
We also conclude that the matters in particular 6 (the use of cannabis on one or more occasions with Patient A) having regard to her clinical history which Mr Hollis knew, or should have known, was so serious a departure from the required standard as to constitute professional misconduct.
[4]
The Appropriate orders
Having made the finding that Mr Hollis is guilty of professional misconduct we turn now to consider the appropriate orders. We set out s 149C of the National Law, in so far as is relevant:
149C Tribunal may suspend or cancel registration in certain cases [NSW]
(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied -
(a) the practitioner is not competent to practise the practitioner's profession; or
(b) the practitioner is guilty of professional misconduct; or
(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or
(d) the practitioner is not a suitable person for registration in the practitioner's profession.
…
(4) If the person is no longer registered, the Tribunal may -
(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and
(b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and
(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following -
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Note.
Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
(5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.
(6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order -
(a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and
(b) give the Council, National Board and Commission an opportunity to make a submission.
(7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
The Applicant submitted that the following orders should be made:
1. Pursuant to s 149C(4)(a) the Tribunal orders that if the practitioner were still registered, his registration would have been cancelled or suspended;
2. Pursuant to s 149C(4)(b) the Tribunal orders hat the practitioner is disqualified from being a registered nurse for at least 18 months;
3. Pursuant to s 149C(4)(c) the Tribunal requires the National Board to record the fact that the Tribunal would have suspended or cancelled the practitioner's registration in the National Register kept by the Board;
4. Pursuant to s 149C(5A) the practitioner is prohibited from working as an Assistant in Nursing and from providing any of the following health services as defined by s 4 of the Health Care Complaints Act 1993 (NSW), whether provided as a public or private service, unless and until he is registered as a nurse:
1. Therapy;
2. Counselling
3. Psychotherapy
4. Hypnotherapy
5. Welfare services
6. Mental health services
7. Services provided in other alternative healthcare fields'
1. Pursuant to s 149C(7) the practitioner cannot seek a review of the orders made by the Tribunal for an 18 month period.
Mr Hollis submitted (correctly) that even if the Tribunal found professional misconduct it still had the discretion as to what orders it made. It was not required to cancel his registration or impose a time prohibition as to when he could reapply for registration. It was submitted that he has effectively been out of nursing for three years since he handed in his registration and it should be left to him as to when he reapplies. It was submitted that there is a benefit to the public in Mr Hollis, once readmitted, being able to practice his profession and provide care for the public.
Mr Hollis submitted that currently the community is protected as he is not registered. He submitted that the protective orders sought in (d) above are too broad and he should, if he chooses, be permitted to go back to work in services such as aged care. He submitted there should be no protective orders but, if there were, they should not be as restrictive as those sought. We have already referred to the mandate of s 3A of the National Law that the Tribunal's paramount concern is the protection of the health and safety of the public. Additionally, s 3(3)(c) provides that restrictions on the practice of a health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
We have had regard to the principles set out in [25]-[37] of the written submissions of the applicant and the authorities there cited and the oral submissions of the respondent. We have considered Mr Hollis's conduct as a whole and make the orders below to protect the public, to maintain the public confidence in the standards of the nursing profession and also by way of deterrence to the general body of practitioners. The orders we make seek signal that those whose conduct does not meet the required standards will not be permitted to practise (see HCCC v Do [2014] NSWCA 307 at [35]; HCCC v Litchfield (1997) 41 NSWLR 630).
We have also had regard to any steps taken by Mr Hollis since the conduct was engaged in. Whilst it is true that he has now seen fit to engage with his family and seek their support and obtain legal advice, there was no evidence that he had undertaken any other treatment for issues he may be facing. He was several times visibly emotional in recounting the events the subject of the complaint and said he would like to come back to nursing when he feels he is ready. There was no psychological or other evidence put before the Tribunal to assist us in understanding when that may be. We have taken into account the fact that Mr Hollis has now admitted that he gave deliberately false answers to the HCCC investigators in October 2015. Whilst that is to his credit, the fact that he did so in order to minimise what he must have known by then was his wrongful conduct and without any consideration of the effects this may have on Patient A, is not a matter which goes in his favour.
We have formed the view that the orders sought by the applicant are generally appropriate. We consider that a period of 24 months disqualification is an appropriate period having regard to the seriousness of the conduct. We consider that the conduct admitted to is of such a nature that in the exercise of the discretion conferred on the Tribunal under s 149C(4) we should make the orders sought by the applicant.
We also consider that protective orders are necessary. We have formed this view having seen Mr Hollis in the witness box and observed him and listened to his evidence carefully. As we have set out above, we do not think Mr Hollis fully understands, or accepts, the seriousness or gravity of the conduct he engaged in. We do not think he has shown sufficient insight to his behaviour. As such, we have formed the view that if he is permitted to provide health services he would pose a substantial risk to the health of members of the public.
[5]
Costs
It is not in dispute that the Tribunal has power under Schedule 5D, clause 13 of the National Law to require the respondent to pay the costs of the applicant.
It is accepted by the respondent that costs ordinarily follow the event. The respondent submits, however, that by reason of the late substantial amendments to the complaint, which generated further admissions, the applicant should only be entitled to 80% of its costs.
The applicant notes that the statement of Mr Hollis was late in being provided which then generated further amendments to the complaint. Until then, several matters had not been admitted. Further, it submits that the matter had to proceed to a full hearing as the respondent did not admit professional misconduct.
In the circumstances, in the exercise of our discretion, we have formed the view that the applicant has been wholly successful in the proceedings. It is true that the admissions lately made by the respondent perhaps shortened the hearing, but as the applicant submitted, the hearing was necessary and those admissions could have been made earlier.
Accordingly, cost should follow the event and we order that the respondent is to pay the applicant's costs of the proceedings, as agreed or assessed.
[6]
Orders
For those reasons we make the following orders:
1. Pursuant to s 149C(4)(a) of the National Law order that if the respondent were still registered his registration would have been cancelled;
2. Pursuant to s 149C(4)(b) of the National Law order that the respondent is disqualified from being a registered nurse for 24 months;
3. Pursuant to s 149C(4)(c) of the National Law require the National Board to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board;
4. Pursuant to s 149C(5A) of the National Law order that the respondent is prohibited from working as an Assistant in Nursing and from providing any of the following health services as defined by s 4 of the Health Care Complaints Act 1993 (NSW), whether provided as a public or private service, unless and until he is registered as a nurse:
1. Therapy;
2. Counselling
3. Psychotherapy
4. Hypnotherapy
5. Welfare services
6. Mental health services
7. (vii) Services provided in other alternative healthcare fields.
1. Pursuant to s 149C(7) of the National Law order that the respondent cannot seek a review of the orders made by the Tribunal for an 18 month period.
2. The Respondent is to pay the applicant's costs of the proceedings, as agreed or assessed.
[7]
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
[8]
Amendments
23 January 2019 - Coversheet orders corrected.
Paragraph 4 "the Tribunal was told that there had been" deleted.
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: 23 January 2019
The applicable principles relevant to disciplinary proceedings under the National Law such as these are well-known. The overarching principle to be applied as mandated by s3 and s3A of the National Law are that in determining the proceedings the Tribunal must have the protection of the health and safety of the public as its paramount consideration.
As submitted by the HCCC in its outline of submissions, and as accepted by Mr Hollis, the jurisdiction to be exercised by the Tribunal is protective and is not exercised so as to punish the practitioner (see Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202).
It is accepted that the HCCC bears the onus of proof and that this onus is on the balance of probabilities applying the "Briginshaw" standard (Briginshaw v Briginshaw (1938) 60 CLR 336).
The relevant provisions of the National Law with respect to unsatisfactory professional conduct are relevantly 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…
1. With respect to professional misconduct, the National Law provides:
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.
In HCCC v Reid [2018] NSWCATOD162 at [48] the Tribunal said:
48 Consideration of what constitutes unsatisfactory conduct and professional misconduct for the purposes of the National Law is explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21] as follows:
18 The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration.
19 The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The 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.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] over servicing [17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18]
20 There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
21 Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [footnotes omitted]