Health Care Complaints Commission v Menchin

The Complaint: What the Commission alleges

1. The Complaint was subsequently amended at the hearing held on 10 March 2022. The amendments did not disadvantage Ms Menchin. Rather the Complaint was narrowed.
2. Four individual complaints are set out in the amended complaint. The first three complaints are that Ms Menchin is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that she has: 1. engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of the profession 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.
3. The fourth complaint is that the alleged unsatisfactory professional conduct by Ms Menchin amounts to professional misconduct under s 139E of the National Law.
4. The first three complaints all relate to Ms Menchin's conduct towards Patient A.
5. The details of the first three complaints are as follows:

Complaint One 1. Between 2 May 2019 and 11 June 2019, Ms Menchin, while engaged in a therapeutic relationship with Patient A, failed to maintain appropriate professional boundaries with Patient A in that she commented: 1. on his physical appearance to him and that she was attracted to him; and 2. said words to the effect of: "We don't get young handsome people who are intelligent like yourself in here". 1. Between 1 and 11 June 2019, Ms Menchin, while engaged in a therapeutic relationship with Patient A, failed to maintain appropriate professional boundaries with Patient A when, after conversing with him alone one evening while he was watching television, she 1. sat on Patient A's lap and permitted him to embrace her and kiss her.

Complaint Two 1. Between 7 and 11 June 2019, while engaged in a therapeutic relationship with Patient A, Ms Menchin failed to maintain appropriate professional boundaries in that she: 1. secretly provided her mobile service number on a post it note to Patient A as he sat alone in the media room at the Hospital and said words to the effect of "This is my number if you would like to get in touch with me"; and 2. on the dates and times as set out in Schedule B to this Complaint used this mobile service to exchange messages with or receive calls from Patient A on numerous occasions for a purpose that was not clinically indicated.

Complaint Three 1. On 9 June 2019, while engaged in a therapeutic relationship, with Patient A, Ms Menchin failed to maintain appropriate professional boundaries in that she: 1. arranged with Patient A, by phone, to meet when he was on leave from IDAT; 2. collected Patient A in her car; 3. drove Patient A around in her car; 4. had coffee with Patient A at a cafe; 5. later drove Patient A back to IDAT.

1. The final complaint is one of professional misconduct. The details set out above which form the particulars for the first three complaints are relied upon both individually and cumulatively by the Commission to establish this complaint.

Evidence

1. Material was provided by the Commission to support the details of the complaints set out above. This included but was not limited to an email from Patient A received by the Hospital in March 2020 in which he set out his interactions with Ms Menchin, an investigation report conducted by the Nurse Unit Manager of IDAT, written responses from Ms Menchin to correspondence from her employer and the Commission about Patient A's allegations and a schedule of calls between Ms Menchin and Patient A.
2. In written responses Ms Menchin made admissions about most of the particulars detailed in the Complaint.
3. Ms Menchin admitted giving her mobile telephone number to Patient A, and that they messaged one another and agreed to meet. Evidence in the form of call charge records indicates that between 8 June 2019 and 1 July 2019 Ms Menchin sent over 110 SMS messages to Patient A and he sent over 150 SMS messages to her, with a number of messages sent late at night. We are satisfied that the particulars in Complaint Two are substantiated.
4. Ms Menchin admitted to sitting on Patient A's lap when he was watching TV in the multi-function room. She thought that Patient A may have kissed her however she was "unable to recall" this event specifically (Complaint One, particular 1).
5. In relation to Ms Menchin's alleged comments about Patient A's physical appearance and the statement that she was attracted to him, Ms Menchin stated she was unable to agree or disagree because she was not able to clearly remember saying that or not (Complaint One, particular 2).
6. In our view the nature of these alleged interactions is not in keeping with the usual interactions that occur between a nurse and a patient in a therapeutic setting. The alleged interactions are so unusual that Ms Menchin would have a very specific recollection about whether they occurred or not. The extensive personal communications between Ms Menchin and Patient A persuades us that as a precursor the overly familiar conduct as detailed in Complaint One occurred. Further the conduct is specifically detailed in Patient A's email. We find both particulars in Complaint One substantiated.
7. Complaint Three is that on 9 June 2019 Ms Menchin arranged by phone with Patient A to meet when he was on leave from IDAT, collected him in her car; drove him around in her car; had coffee with Patient A at a café and later drove Patient A back to IDAT.
8. The evidence demonstrates that Patient A took approved leave from IDAT on 9 June 2019, Ms Menchin did not work at the unit that day and Patient A contacted Ms Menchin's mobile within minutes of leaving the unit.
9. Ms Menchin admitted that an arrangement had been made with Patient A to meet up for coffee and that they drove around. She subsequently clarified that they got a takeaway coffee from a café.
10. Ms Menchin further admitted that she did not inform her supervisor about this meeting. Her responses to the Commission were to the effect that on reflection her conduct amounted to a series of errors of judgement on her part. Ms Menchin referred in some detail to her own circumstances and that in this context believed that her own vulnerabilities led to her lapses in professional judgement.
11. Save for the modification as to whether Ms Menchin and Patient A had coffee at a café or a take away coffee, we are satisfied that the particulars in Complaint Three are substantiated. We are satisfied that Ms Menchin failed to maintain appropriate professional boundaries in meeting up with Patient A on 9 June 2019.

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

1. The use of registration standards, codes or guidelines in disciplinary proceedings is specifically identified in the National Law. An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings against a health practitioner as evidence of what constitutes appropriate professional conduct or practice: see section 41 of the National Law.
2. Principle 4.1 of The Nursing and Midwifery Board of Australia's Code of conduct for nurses ("the Board's Code"), specifically outlines that nurses must maintain professional boundaries;
3. The Nursing and Midwifery Board of Australia's A nurse's guide to professional boundaries ("the Board's Guide") includes the following guiding principles for safe, professional practice: 1. Care is optimised when nurses and persons receiving care do not engage in dual relationships, for example where the nurse has a personal or business relationship, as well as a professional one with that person; 2. Nurses establish and maintain the boundaries in their professional relationships with persons receiving care; and where necessary communicate these to that person; 3. Nurses examine any boundary crossing, and are aware of the potential implications, avoiding repeated crossings.
4. Ms Menchin did not act in a way which reflected these principles. Further Ms Menchin concedes that her conduct towards Patient A amounted to a lapse in professional judgement.
5. We find that Ms Menchin'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. We find her conduct constitutes unsatisfactory professional conduct under section 139B(1)(a) of the National Law.
6. The complaint also alleges unsatisfactory professional conduct within the meaning of section 139B(1)(l) of the National Law. Section 139B(1)(l) refers to "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". It requires a determination by the Tribunal as to whether a practitioner has been guilty of unsatisfactory professional conduct arising from an assessment as to whether conduct was improper or unethical relating to the practice of their profession. It is therefore directed at a broader range of conduct than that which occurs "in the practice of" a person's profession.
7. 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."
8. 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. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
9. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]- [48]: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "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." 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.
10. Ms Menchin failed to identify the moral dimension to her conduct. Her conduct was improper and unethical. This is because it took the interactions between her and Patient A beyond the bounds of a nurse and patient relationship into a social relationship which was incompatible with an appropriate health professional relationship that ought to exist between a nurse and a patient.
11. The conduct occurred in circumstances and during a time which Patient A was highly vulnerable because he was receiving treatment as an involuntary patient in a drug and alcohol treatment unit. In a statement made by Patient A he refers to this vulnerability. He stated that he felt traumatised by his experience and he felt that due to his vulnerable state he was taken advantage of.
12. Accordingly we are satisfied that Complaints One, Two and Three are established and that Ms Menchin's conduct was unsatisfactory professional conduct within the meaning of both s 139B(1)(a) and (l) of the National Law.

The Complaint of Professional Misconduct section 139E of the National Law

1. The Commission submits that the conduct of Ms Menchin, which we have found constitutes unsatisfactory professional conduct, when considered individually and cumulatively is of a sufficiently serious nature to amount to professional misconduct.
2. 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 the object also includes deterring the practitioner, and other practitioners, from repeating the same misconduct: see Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [43]-[50] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
3. 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 [19].
4. In our view when the complaints are considered individually and together there has been a significant departure from the standard of conduct to be expected of a nurse.
5. Ms Menchin breached the standards that apply to the nursing profession. She engaged in boundary violations culminating in an interpersonal relationship with a vulnerable client. The conduct had the capacity to bring the profession into disrepute.
6. We find that the unsatisfactory professional conduct displayed by Ms Menchin is of a sufficiently serious nature to constitute "professional misconduct" under s 139E of the National Law. The complaint of professional misconduct is proved.

Principles regarding protective orders

1. 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.
2. Having found the complaint of professional misconduct proven against Ms Menchin we may exercise powers to suspend or cancel her registration: see s 149C(1) of the National Law.
3. 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: see s 3A National Law. 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 Health Care Complaints Commission [2012] NSWCA 80 at [34].
4. 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.
5. 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.
6. Therefore 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. As such, the adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order: see Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [101]

Consideration of protective orders

1. The Commission seeks an order under section 149C(4)(a) of the National Law that if Ms Menchin were still registered the Tribunal would have cancelled her registration; and an order under section 149C(4)(b) of the National Law that Ms Menchin be disqualified from being registered in the health profession for 6 months.
2. The conduct proven against Ms Menchin was limited to a discrete period of time during Patient A's admission of some 41 days. It involved several overly familiar comments referencing Patient A's appearance, an occasion sitting on Patient A's lap and permitting him to embrace and kiss her, extensive phone and text communication and socialising on one occasion outside the bounds of a therapeutic relationship.
3. As Ms Menchin did not participate in the hearing we have only limited material available to us to assess her remorse and level of insight into her conduct. Some of this material is contained in written responses made by Ms Menchin to both her employer and to the Commission.
4. At the outset when Patient A's allegations were put to Ms Menchin by her employer she accepted that her conduct may constitute professional misconduct. She referred to continual advances being made by Patient A towards her. She claimed that he made several requests for her phone number which she "regretfully gave". She stated that at the time she was in a vulnerable state mentally due to a number of psychological stressors. She was in a relationship which she described as emotionally and physically abusive. Further her child was involved with an adolescent mental health team due to self-harm and suicidal ideation.
5. Nonetheless Ms Menchin stated that she was unsettled at her own behaviour and her lack of professional judgement. She acknowledged that she should have sought advice and shown greater regard for her role as a professional. She expressed remorse and admitted it was her responsibility to maintain professional boundaries and that she had failed in this regard. She had engaged with a psychiatrist and psychologist to keep her personal problems out of her professional performance.
6. There is also some evidence before us in the form of a number of reports prepared by Dr Anthony Samuels, Consultant Psychiatrist as to Ms Menchin's understanding and progress in other aspects of her work.
7. In a report dated 17 November 2020 Dr Samuels referenced another report that Ms Menchin was well engaged in treatment and had gained some insight and strategies. In a report dated 1 June 2021 Dr Samuels noted several reports made in 2020 and 2021 by Ms Menchin's then supervisor which described her as organised, hardworking, and a valuable member of the team, focused on providing the best care to patients and looking to improve the standard of care.
8. In our view taking into account all the material before us Ms Menchin was potentially out of her depth when navigating the professional relationship with Patient A. At the time the conduct occurred Ms Menchin had relatively limited experience. From 2015 to 2017, she worked as an endorsed enrolled nurse and became a Registered Nurse in 2017. In early 2018, she commenced employment with the Hospital as a new graduate Registered Nurse, within mental health, drug and alcohol services, and on 3 February 2019, she commenced employment with IDAT. Accordingly she had been working at the IDAT unit for about 3 months at the time of Patient A's admission.
9. Ms Menchin did not maintain a clear separation between her professional conduct aimed at meeting the health needs of Patient A and her own personal views and feelings. The personal relationship she engaged in with Patient A was not relevant to the therapeutic relationship and it crossed professional boundaries.
10. Having regard to the nature and extent of the conduct we have found proven together with the findings made above, if Ms Menchin were still registered we would have suspended her registration for a period of 4 months. In our view this reflects an appropriate level of deterrence for the professional misconduct we have found proved in this case.
11. In its submissions the Commission also sought that the Tribunal make a prohibition order against Ms Menchin because it argued that she posed a substantial risk to the health of members of the public.
12. Where Tribunal makes an order under s 149C(4) of the National Law declaring that if the person were still registered it would have suspended or cancelled the person's registration, the power to make a "prohibition order" can be exercised: s 149C(5A).
13. An order of this kind is aligned with the protective purpose of the legislation.
14. Section 149 of the National Law states if the Tribunal is satisfied that 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 - 1. prohibit the person from providing health services or specified health services for the period specified in the order or permanently; 2. 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.
15. Section 5 of the National Law defines "health service" to include the following services, whether provided as public or private services, and includes amongst other services mental health services, community health services and health education services.
16. In support of its position that a prohibition order was warranted the Commission submitted that Ms Menchin had not filed any statutory declaration or any information about whether she plans to seek registration in the future, had not filed any information about when or why she ceased working as a registered nurse; or any information about her current employment or future employment plans. Although Ms Menchin's name was placed on the NSW Health Service Check Register, she could seek employment in private facilities and as she was a single parent she may seek to return to work for financial reasons. It was argued that Ms Menchin may seek work in areas related to nursing such as an assistant in nursing, in drug and alcohol services, aged care, disability work, case work, and youth work, which would bring her in regular close contact with vulnerable clients.
17. Reference was made to Ms Menchin's history of mental health issues. Specifically Ms Menchin was put on antidepressants at around the age of 14 or 16 and had her first in-patient mental health admission when she was about 16. There were subsequent in-patient mental health admissions in 2012 and 2019, her treating psychiatrist reported that her mental state deteriorated in 2020 and in 2021 she was assessed to have a Mood and Anxiety Disorder, Cluster B traits, and Cannabis Use Disorder in remission which was said to have had the potential to impact upon her professional functioning. It was submitted that these mental health issues may have impacted on her ability to maintain professional boundaries in nursing.
18. The misconduct we have found proven was limited to a discrete period and represented a singular failure by Ms Menchin to maintain a clear separation between professional conduct aimed at meeting the health needs of Patient A and her own personal views and feelings. In our view the submissions in support of a prohibition order did not address in a meaningful way how Ms Menchin was likely to pose a real and material risk to the health of the public if she were to be involved in the provision of health services.
19. We are not satisfied that the nature and extent of the conduct proven against Ms Menchin nor the evidence before us demonstrates that she is likely to pose a real and material risk to the health of the public if she were to be involved in the provision of health services.
20. As previously referenced the purpose of protective orders is not to punish a practitioner but rather to protect the public and maintain proper professional standards. In our view a prohibition order is a far reaching order and in this case would amount to a punishment. It is not necessary for the proper protection of the community or any of the other proper purposes of protective orders.
21. Accordingly we are not satisfied that the orders in this case should include a prohibition order.

Costs

1. The Commission seeks an order for costs. In an email to the Commission Ms Menchin referred to her inability to pay costs.
2. The principles relevant to the exercise of discretion in awarding costs are the subject of recent discussion in the High Court of Australia in Northern Territory v Sangare [2019] HCA 25. The High Court stressed that the awarding of costs is a discretionary matter, but the discretion must be exercised judicially by reference to relevant considerations. Their Honours further explained the general rule that costs follow the event is not affected because of a respondent's impecuniosity, rather a successful party should be compensated for the expenses it has incurred: see also Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
3. The Commission has been wholly successful. Accordingly an order for costs will be made in their favour.

Orders 1. Under s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if Ms Menchin was still registered as a nurse, the Tribunal would have suspended her registration for a period of 4 months from the date of this decision. 2. Under s 149C(4)(c) of the National Law, the Tribunal requires the Nursing and Midwifery Board to record the fact that had Ms Menchin been registered, the Tribunal would have suspended her registration for a period of 4 months from the date of this decision. 3. Ms Menchin is to pay the costs of the Health Care Complaints Commission as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 4. The disclosure of the name of Patient A which is set out in the Schedule to the Complaint is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (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: 11 July 2022