Health Care Complaints Commission v Keegan

Complaint One

1. Complaint One is that the Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) and (1) of the National Law in that he has: 1. engaged in conduct that demonstrates that the 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.
2. The particulars of Complaint One are as follows: 1. Between about 5 and 6 September 2013, the Practitioner failed to observe appropriate professional boundaries whilst on duty as the nurse in charge of the Unit in that he: 1. used his personal mobile telephone to send explicit photographs to his partner in circumstances where the possibility of the photographs being seen by others created an unacceptable risk to the safety of colleagues and/or patients and the reputation of the NSW Health and its staff; 2. left his personal mobile telephone unattended on the desk in the nurses' station of the Unit, in circumstances where his personal mobile phone was left open with a photograph of his penis on the screen. 1. Between about 5 and 6 September 2013, the Practitioner failed to maintain appropriate professional boundaries with Patient A when he did not adequately respond to Patient A's request that: 1. he send a photograph of his penis to Patient A; 2. he have contact with Patient A outside of the hospital; 3. he come to Patient A's hospital room. 1. On or about 5 September 2013, the Practitioner failed to report the incident involving Patient A making inappropriate requests of him, in that he did not: 1. make any notation of the incident in Patient A's progress notes; 2. make any notation of the incident in the Charge Handover sheet; 3. report the incident within the hospital using the NSW Health Incident Management System; 4. report the incident within the hospital verbally to any other member of staff. 1. Between 6 and 7 September 2013, the Practitioner failed to maintain professional boundaries with Patient A in that he had contact with Patient A via mobile telephone, which involved: 1. sending a text message to Patient A on 6 September 2013; 2. accepting a telephone call from Patient A on 6 September 2013; 3. sending a multimedia message via mobile phone to Patient A which contained a photograph of his penis.
3. The Commission submits that each particular in itself justifies a finding of unsatisfactory professional conduct, or alternatively, that when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.

Complaint Two

1. Complaint Two is that Practitioner is guilty of professional misconduct under section 139E of the National Law in that he has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. engaged in 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.
2. The particulars of Complaint Two are the same as those relied on in Complaint One.
3. If the Complaints are found proven by the Tribunal the Commission requests the Tribunal to exercise its power to make disciplinary orders against the Practitioner. Specifically, that if the Practitioner were still registered the Tribunal would have cancelled his registration. Further that the Practitioner be disqualified from being registered as a nurse for a period of 2 years. It also seeks an order for costs.

The Hearing

1. The Practitioner did not attend the substantive hearing. Prior to the hearing the Tribunal conducted directions hearings relating to the filing and service of documents. Material was filed by the Commission demonstrating that it had sent correspondence to the Practitioner providing him with the relevant documents, notice of the hearing and details of the orders it sought. The Practitioner has ceased to respond to correspondence from the Commission. It can be inferred that he is unwilling to participate in the Tribunal's hearing of the Complaint. The Commission submits that the Practitioner has been given adequate notice of the Complaint and that it is appropriate for the Tribunal to proceed pursuant to s 165J(3) of the National Law.
2. There has been no correspondence to the Tribunal from the Practitioner about this Application or the hearing. The Practitioner has not filed any material in response to the Application and Complaint.
3. The Tribunal is satisfied from the evidence before it that the Practitioner is aware of these proceedings. The Application and attached Complaint was served on the Practitioner. There was no request from the Practitioner for an adjournment of the hearing. In the light of these matters the Tribunal was satisfied that it was appropriate for the hearing to proceed in the Practitioner's absence.
4. Although the Practitioner did not participate in the hearing he has not advised the Tribunal that he concedes the Complaints. Equally, he has not told the Tribunal that he denies the conduct alleged. He has not presented any evidence which contests the particulars of the Complaints or contradicts the evidence relied upon by the Commission.

Evidence

1. Evidence in support of the factual allegations made in the particulars are contained in the following documents: 1. An Investigation Report prepared by the Sydney Local Health District (SLHD); 2. Transcripts of the SLHD investigators' interviews with the Practitioner and supporting documentation collected by the investigators from the Practitioner, being extracts of telephone records and a copy of a business card; 3. A file note of an SLHD investigator's interview with Patient A regarding the matter; 4. The Practitioner's correspondence with the SLHD and the Commission, together with correspondence addressed to the Nursing and Midwifery Council and Tribunal dated 8 February 2016 in relation to the Council's decision made on 8 October 2015; 5. Patient A's medical records for his admission between 30 August 2013 and 6 September 2013, in particular progress notes for 5 to 6 September 2013; 6. The Practitioner's In Charge Hand Over Sheet for 6 September 2013; 7. An extract of the Practitioner's telephone records showing contact with Patient A.
2. As part of the investigation process conducted by the SLHD the Practitioner was interviewed on 27 May 2015 and 24 June 2015.
3. In the interview held on 27 May 2015 the Practitioner admitted that whilst working on night duty on 5 September 2013 he had sent his partner an explicit photo by mobile phone. He explained that he momentarily put his phone down on the desk to answer a phone call on the ward phone. At this time Patient A had come into the office and seen the phone and photograph.
4. In this interview the Practitioner explained that once Patient A saw the photograph he used it in way to pressure him. He stated that Patient A demanded that he give him the photograph, go to his room and make contact after his discharge from hospital because he wanted to see "for real" what was in the photograph.
5. According to the Practitioner's account a number of threatening messages were left on his mobile phone by Patient A. Whilst on night duty the following night that is; 6 September the day of Patient A's discharge, the Practitioner sent a text to Patient A asking him not to contact him.
6. The Practitioner explained he felt pressured by Patient A and gave into his request to send the photo. He stated that he thought if he gave Patient A what he wanted it would be alright and he would be left alone.
7. The Practitioner did not report or talk to anyone in his unit or to anyone in SLHD about the incident. The evidence discloses that he did not record the incident in Patient A's progress notes or make any notation in the Charge Handover sheet. He did not report the incident within the hospital using a case management system or by verbally telling another member of staff. He did not seek any help from the Employee Assistance Program (EAP). He did not block Patient A's number and he did not go to the police.
8. In the interview conducted on 24 June 2015 the Practitioner conceded that he answered a phone call from Patient A after he had claimed to have sent a text to Patient A asking him not to contact him again. When he was pressed about why he answered this call the Practitioner said it was just an immediate reaction and he did not know why he answered the call he just did.
9. In the Practitioner's written correspondence with SLHD, which was undated but written in around August 2015, he accepted that his actions were unacceptable and unprofessional. He was ashamed and remorseful. He said that his behaviour was out of character and he had acted out of fear. He understood that he should have asked for help from someone but he had been paralysed by his fear and he was not thinking clearly.
10. In email correspondence to the Commission dated 16 February 2016 the Practitioner attached an earlier submission which he had made to the Council dated 8 February 2016. In this submission he referred to the distress and anxiety the actions of Patient A and the entire complaints process had upon him. He referred to his previous unblemished record. He explained he had not gone to the police due to his stress and his unfamiliarity with the system being newly arrived in the country. He also explained he had not reported the matter based on what he perceived to be a lack of support and issues with management at his workplace.
11. The Practitioner added that throughout the procedure, which the Tribunal understood to be a reference to the Complaint process, he had availed himself of counselling through EAP.

Expert Peer Review Report

1. Ms Banks provided an expert peer report dated 22 July 2016 which examined the Practitioner's conduct. Ms Banks has been registered as a Nurse since 1967 and has substantial clinical and management experience in drug and alcohol services.
2. Ms Banks formed an overarching opinion that the Practitioner's entire conduct fell significantly below professional standards and was strongly critical of all aspects of his conduct. She believed that the Practitioner's conduct violated the NSW Health Code of Conduct, Code of Conduct for Professional Nurses in Australia, Code of Ethics for Nurses in Australia and conduct in relation to Professional Boundaries.
3. Specifically Ms Banks formed the view that a mobile phone should be used judiciously at work and only for emergencies. This was because inappropriate use of a mobile phone has the potential to damage the reputation and confidence in NSW Health and its Staff. In this case it was an abuse of the workplace by the Practitioner to view and send explicit photos of a sexual nature whilst at work.
4. Ms Banks acknowledged that whilst the Practitioner may not have intended to leave his phone unattended this had occurred, the photo was seen and it had serious consequences. She considered that by not reacting and taking control of the situation the Practitioner became complicit in the events that followed. Although embarrassment and guilt may been the cause of the Practitioner's inability to manage the situation in a professional and appropriate manner, in her view a nurse of his experience should have ensured compliance with codes of ethical and professional conduct by accessing assistance.
5. Ms Banks referred to the importance of maintaining professional boundaries. She referred to and detailed the particular issues faced by drug and alcohol patients and the interplay with professional boundaries. In her view it was of paramount importance to "hold the line" and if need be call for assistance by reporting the incident to relevant management as soon as possible. By not dealing with the situation the Practitioner placed both himself and the patient at serious risk. If the Practitioner felt uncomfortable reporting the incident to his manager due to what he perceived as a lack of support or dysfunction he could have sought assistance from the Human Resource Department, another senior staff member or the Nurses union. She also viewed the Practitioner's mobile telephone contact with Patient A as a breach of professional boundaries.
6. In Ms Banks' opinion the Practitioner's conduct in sending the photograph of his penis to Patient A was unethical, inappropriate and unprofessional. It was a breach of the NSW Health Code of Conduct. In support of this she referenced provisions that deal with avoiding conduct that could bring NSW Health into disrepute and to act in ways which protect and promote the interests of NSW Health. Nursing Standards The Nursing and Midwifery Board of Australia has developed a number of documents which set out standards and gives Nurses guidance as to the conduct expected of them. The Code of Professional Conduct for Nurses in Australia, at Conduct Statement 4.2, requires nurses to promote and protect the interests of people receiving treatment and care. A Nurse's Guide to Professional Boundaries (2010) refers to the power imbalance present in a professional relationship places the recipients of care in a position of vulnerability and of potential exposure to exploitation or abuse if trust is not respected. Nurses have a responsibility to ensure that a relationship based on plans and goals that are therapeutic in intent and outcome is maintained. The NSW Code of Conduct, March 2012 produced by NSW Health requires staff to promote a positive work environment and avoid conduct that could bring NSW health into disrepute . All these documents were before the Tribunal.

FINDINGS

1. For the reasons that follow the Tribunal is satisfied that all of the particulars relied upon by the Commission are established and that Complaints One and Two are proved.

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

1. There is no real dispute in the evidence before the Tribunal about the particulars relied upon by the Commission. The Practitioner has admitted the conduct described in the particulars in the interviews conducted by SLHD on 27 May 2015 and 24 June 2015. The Tribunal is satisfied that all the particulars as alleged are made out.
2. 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.
3. 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 his conduct was improper or unethical relating to the practice of nursing.
4. 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.
5. 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 Byrne [1995] 193 CLR 501 at 514-515: see HCCC v Phung (No. 1) [2012] 1 NSWDT at 68. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
6. The words improper and unethical were considered by the Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical.
7. This test was adopted in HCCC v Liu [2016] NSWCATOD 133 at [56].
8. In the peer expert report Ms Banks was of the opinion that each aspect of the Practitioner's conduct fell significantly below the standard reasonably expected of a Practitioner of equivalent training and experience, moreover she was strongly critical of all aspects of his conduct.
9. As referenced by Ms Banks, the Practitioner's conduct in relation to Patient A was in breach of codes and guidelines provided by the Nursing and Midwifery Board of Australia and NSW Health Code of Conduct.
10. In the Tribunal's view the Practitioner's conduct was significantly below the standard of conduct reasonably expected of an equivalent practitioner. He ought not to have been viewing or sending a photo of a sexual nature at the workplace. He then compounded this conduct by failing to manage the situation in a professional and appropriate manner when Patient A became aware of the photo. The Practitioner had a duty to report incidents that occurred on his shift. He failed to do this. He failed to maintain professional boundaries with Patient A. Significantly, it was completely inappropriate to then send the sexually explicit photo to Patient A.
11. When viewed objectively the Practitioner's conduct was not in conformity with standards of professional conduct and practice to be expected of nurses. In the Tribunal's view the Practitioner's conduct in sending a sexually explicit photo whilst at the workplace, and as critiqued by Ms Banks brings the profession into disrepute. It has no place in practice. It was improper and unethical.
12. The Tribunal finds that the Practitioner's conduct amounts to unsatisfactory conduct pursuant to s139B(1)(a) and (l) of the National Law.
13. The Tribunal finds Complaint One is established. Complaint Two : Professional Misconduct section 139E of the National Law The Commission submits that the conduct of the Practitioner, which has been shown to constitute unsatisfactory professional conduct, is sufficiently serious that it amounts to professional misconduct. Alternatively when the instances of unsatisfactory professional conduct are considered together they amount to sufficient seriousness for Complaint Two to be made out. In determining whether a finding can be made of professional misconduct the Tribunal must determine whether as outlined in HCCC v Perroux [2011] NSWDC 99 at 18 "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration". It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards": see Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638. 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: HCCC v Saedlounia [2013] NSWMT 13 at 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at 35. To constitute professional misconduct, it has been held that the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: see Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA). In Pillai v Messiter (No 2) [1989] 16 NSWLR 197 the Court of Appeal (referring to the earlier statutory test) described professional misconduct as including: "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson v General Council of Medical Education and Registration [1894] 1 QB 755] (at 760-761)." (per Kirby P at 200).
14. The Tribunal accepts the submission made by the Commission that the Practitioner's conduct is of a very serious nature and demonstrates a departure from accepted standards. As referenced by Ms Banks, practitioners need to be aware of the particular issues faced by drug and alcohol patients and the interplay with professional boundaries. By not dealing appropriately with the situation the Practitioner placed both himself and Patient A at serious risk. He engaged in conduct that had the potential to bring NSW Health into disrepute. He did not act in a way which was consistent with protecting and promoting the interests of NSW Health and its patients.
15. In the Tribunal's view the unsatisfactory professional conduct displayed by the Practitioner is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. The Tribunal finds that, when considered as a whole, the Practitioner's conduct constitutes professional misconduct. The Tribunal is satisfied that Complaint Two is established. 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 ss149A, 149B and 149C. 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. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield at [637]. In Health Care Complaints Commission v Do, 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.
16. The Practitioner has indicated his remorse for his actions in correspondence to the SLHD investigation and the Council, as well as in records of interview with the SLHD investigators. In this material the Practitioner also alleges that some of his actions took place in response to threats and pressure he felt from Patient A.
17. However, as submitted by the Commission the Practitioner's statements regarding Patient A's behaviour are largely unspecified allegations. A further difficulty is that the Practitioner did not give evidence to the Tribunal and we are not well placed to assess his allegations. In our view the Tribunal is not in a position to take into account any mitigating factors that might have been the subject of the Practitioner's evidence: see for example Lucire v Health Care Complaints Commission (No. 2) [2011] NSWCA 182 at [28].
18. In the Tribunal's view 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. Having regard to the findings made above as to the nature of the conduct and the protection of the public, the Tribunal is satisfied that the disciplinary orders sought by the Commission are appropriate. Specifically that if the Practitioner were still registered the Tribunal would have cancelled his registration and that he be disqualified from being registered as a nurse for a period of two years.
19. The Commission also seeks an order for costs.
20. 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.
21. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42-46, with Emmett JA (Meagher JA and Beech-Jones J agreeing) stating: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied.
22. The Complaints have been wholly established. There are no factors that might militate against the recovery by the Commission of its costs. Accordingly, the Commission is entitled to an award for costs in its favour of and incidental to the proceedings. ORDERS
23. The Tribunal, having found the complaints of unsatisfactory professional conduct and professional misconduct proved, orders that: 1. If the Practitioner were still registered, the Tribunal would have cancelled his registration. 2. The Practitioner is disqualified from being registered as a nurse for a period of 2 years. 3. That the National Board with which the Practitioner is registered, being the Nursing and Midwifery Board of Australia, record the fact that the Tribunal would have cancelled the Practitioner's registration in the National Register kept by the Board. 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. Under s.64 of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of Patient A and B appearing in the Schedule to the Complaint (as amended) is prohibited. 6. The Practitioner is to pay the Commission's costs of and incidental to the proceedings.

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: 04 January 2018