Health Care Complaints Commission v Moses

Background

1. These proceedings are constituted by a Further Amended Complaint brought by the applicant Health Care Complaints Commission alleging that the respondent Andrew Michael Moses is guilty of professional misconduct under the Health Practitioner Regulation National Law ("the National Law") arising out of the performance of his profession as a nurse.
2. In Health Care Complaints Commission v Moses [2019] NSWCATOD 64 we found the respondent guilty of unsatisfactory professional conduct and stood the proceedings over for further hearing to enable the respondent to obtain additional evidence. In doing so we reserved for further consideration whether the respondent was guilty of professional misconduct. These reasons for decision flow from that further hearing.
3. For the purpose of the proceedings the respondent admitted that he was guilty of unsatisfactory professional conduct and admitted each of the particulars of Complaint One, save for particular 8b. These admissions assisted in shortening the proceedings, and in confining the issues to 1. the one remaining particular of Complaint One, 2. whether the respondent was guilty of professional misconduct as alleged in Complaint Two, and; 3. whether any and what protective and other orders should be made consequent upon any such findings.
4. Whilst it will be necessary to have regard to the contents of our earlier decision, for ease of reference we set out again the provisions of the Complaint in its amended form; The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr Andrew Moses ("the practitioner") of (address deleted) NSW being a Registered Nurse registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as an Enrolled Nurse in 2006. He completed his Bachelor of Nursing at the Australian Catholic University in 2008 and was first registered as a Registered Nurse in January 2009. The practitioner started working at the Lakeside Clinic at Warner's Bay Private Hospital ("the Lakeside Clinic") in 2009 and resigned in March 2015. Patient A had numerous admissions to the Lakeside Clinic between 2011 and 2015. During this time, the practitioner nursed Patient A while she was an inpatient, and was her primary care nurse during some of her admissions. On 18 May 2015, the practitioner commenced work as a community mental health nurse for the Lake Macquarie Mental Health Service ("LMMHS"), part of the Hunter New England Local Health District ("HNELHD".) In late May 2015, Patient A presented at the LMMHHS. On 27 November 2015, the practitioner resigned from his position at the HNELHD. Patient A has had a long history of mental health issues and has previously been diagnosed with borderline personality disorder, bipolar II disorder and post-traumatic stress disorder. In April 2011, her treating psychiatrist confirmed her diagnosis of borderline personality disorder. Patient A's recent history in 2015 included frequent suicidal ideation, self-harming behaviours and a number of suicide attempts. PARTICULARS OF COMPLAINT ONE 1. On or around the period between 18 March and 18 May 2015, the practitioner failed to observe proper professional boundaries with Patient A in that he: a. attempted to make contact with Patient A after he had resigned from the Lakeside Clinic including: i. by providing a gym instructor at the Lakeside Clinic with his mobile telephone number to pass on to Patient A; ii. by requesting Patient A's mobile telephone number from a gym instructor at the Lakeside Clinic; iii. by contacting the secretary of Patient A's treating psychiatrist's and providing her with his mobile telephone number to pass on to Patient A; iv. by contacting Patient A's treating psychiatrist's secretary and requesting she provide him with Patient A's mobile telephone number. 2. On 5 May 2015, the practitioner failed to observe proper professional boundaries with Patient A after she sent him a text message in that he responded to and maintained telephone communication with Patient A in the following manner; a. sent approximately 24 text messages to Patient A; b. received approximately 61 text messages from Patient A. 3. Between 5 May and 9 September 2015, the practitioner failed to observe proper professional boundaries with Patient A in that he: a. had frequent telephone contact with Patient A which included: i. approximately 20 telephone calls to Patient A, including calls of up to 33.76 minutes in duration; ii. approximately 182 text messages sent to Patient A; iii. approximately 6 telephone calls received from Patient A; iv. approximately 371 text messages received from Patient A; v. approximately 24 multimedia messages received from Patient A; b. had discussions with Patient A on the telephone about her health and personal circumstances, including Patient A expressing thoughts of self-harm and suicidal ideation; c. exchanged photographs with Patient A via text message that were personal in nature; d. included the words "I love you" or words to similar effect in one or more than one text message sent to Patient A; e. after being told by Patient A's psychiatrist on or around 1 September 2015 to cease all contact with Patient A, said the following or words to similar effect to Patient A, contrary to the advice and recommendations of Patient A's psychiatrist: i. "don't tell anyone we are still in contact"; ii. "we aren't doing anything wrong"; iii. "don't listen to anyone else…it's fine to keep talking". 4. In August 2015 on a date unknown, the practitioner failed to observe proper professional boundaries with Patient A in that he visited Patient A while she was an inpatient at the Lakeside Clinic in circumstances where he was no longer employed by the Lakeside Clinic, was not involved in Patient A's care and had no therapeutic reason to do so. 5. In or around the period from March 2015 to 9 September 2015, the practitioner failed to observe proper professional boundaries with Patient A in that he asked her to participate in his university assignment which would involve him asking Patient A about her experience with drugs and alcohol. 6. On or around 1 to 4 September 2015, the practitioner failed to maintain proper professional boundaries with Patient A after being asked by Patient A's treating psychiatrist to cease all contact with Patient A in that he continued to have contact with Patient A in the following manner: a. on 1 September 2015, the practitioner sent one text message to Patient A and received one text message from Patient A; b. on 4 September 2015, the practitioner sent approximately ten text messages to Patient A and received approximately thirteen text messages from Patient A between 18.52 and 22.09; c. on 4 September 2015, the practitioner called Patient A at 22.11 and spoke with her on the telephone for 32.8 minutes. 7. On 4 September 2015 (the birthday of both the practitioner and Patient A), in circumstances where the practitioner was aware of Patient A's history of deliberate self-harm and suicide attempts, the practitioner failed to communicate with the patient in a manner consistent with the appropriate standards of care in that during a personal telephone conversation and text message exchange with Patient A where she disclosed suicidal ideation to him the practitioner made comments to the patient to the following effect: a. "I don't want you to go, but I respect your right to choose if that is what you want"; b. "if you decide to do anything to yourself, delete all my of our contact first messages before you do anything, I don't want them found"; "I want you to understand that if you went through with it, and our conversations were found, there would be consequences for me"; c. "don't do anything to yourself tonight because it's my birthday too and I don't want my birthday to be the day you died." 8. The practitioner failed to appropriately manage the matters referred to in Particular (7) above in that he: a. did not provide supportive counselling over the telephone when Patient A disclosed suicidal ideation; b. did not consider the role that his termination of the personal relationship with Patient A may have had on her condition at the time; c. did not contact support services such as the After Hours Mental Health Access team or the police to provide immediate intervention to ensure Patient A's safety; d. did not refer Patient A to support services including those referred to in (c) above; e. did not contact Patient A's treatment team to alert them to Patient A's thoughts of self-harm and suicidal ideation. 9. In or around the period from March 2015 to 9 September 2015, the practitioner failed to appropriately manage issues arising in relation to maintaining professional boundaries with Patient A in that he: a. failed to inform Patient A that his communication with her referred to in Particulars (2) and (3) above was a breach of professional boundaries and that ongoing contact would be inappropriate; b. failed to advise Patient A at any time to make contact with her treatment team so she could be supported in dealing with the inappropriate contact with the practitioner; c. failed to advise Patient A's treatment team of his inappropriate contact with Patient A so they could manage any potential negative outcomes or risk factors for Patient A arising from the inappropriate contact, including exacerbation of substance use or self-harming behaviours; d. failed to discuss his request that Patient A participate as a subject in his assignment about drug and alcohol use, as referred to in Particular (5) above, with Patient A's treating psychiatrist or another member of her treatment team; e. failed to inform his employer LMMHS of his contact of a personal nature with Patient A and the potential conflict of interest that may arise when Patient A presented at LMMHS; f. attended a meeting at LMMHS in which Patient A's care was discussed and subsequently discussed the details of this meeting with Patient A; g. failed to seek appropriate advice or guidance about the management of maintaining professional boundaries with Patient A from his employer or a senior colleague. 10. The conduct in any of Particulars (1), (2), (3), (4), (5), (6), (7), (8) and/or (9) is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct. COMPLAINT TWO Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. 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 PARTICULARS OF COMPLAINT TWO 1. Particulars (2), (3), (4), (6), (7), (8) and (9) of Complaint One are repeated and relied upon individually. 2. The particulars identified in Complaint One are repeated and relied upon cumulatively.