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 misconduct for the purposes of the Health Practitioner Regulation National Law ("the National Law") arising out of the performance of his profession as a nurse.
The Complaint in its amended form is as follows
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.
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.
[2]
The Constitution of the Tribunal
After the composition of the Tribunal had been formally constituted, but prior to the commencement of the hearing one of the Members became ill and was unable to participate in the hearing. The parties both agreed that the remaining Members should constitute the Tribunal, having regard to the provisions of section 165C (1) of the National Law, which is in the following terms;
165C Effect of vacancy on Tribunal [NSW]
(1) If one of the members (other than the presiding member) constituting the Tribunal for the purpose of conducting a hearing under this Law vacates office for any reason before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal, the inquiry or appeal may be continued and a determination made by the remaining members of the Tribunal.
[3]
The factual matrix
Both parties tendered into evidence documentary material. Oral evidence was given on behalf of the applicant by Christine Muller who had been retained to provide an expert opinion. The respondent gave oral evidence, and oral evidence was also taken by telephone from Dr Wayne Halpin called on behalf of the respondent. The narration which follows is based upon this evidence.
There is reference in the Background material in the Application filed with the Tribunal to the circumstances of patient A. Her detailed clinical notes were tendered into evidence which confirm that material. We do not apprehend that the respondent disagreed with it. In addition to corroborating the general summary of patient A's medical condition set out in the Background material, the clinical notes reveal that this patient's mental health issues have been suffered by her for many years, and that she also suffered from a number of physical conditions.
We assume for the purpose of this proceedings that the respondent would have had familiarity at least in a general sense with the nature and extent of patient A's mental health conditions by reason of care provided by him for her from time to time during the period 2011 to 2015 as referred to in the Background material. At the least, we conclude on the basis of the admissions made by the respondent for the purpose of these proceedings that he was aware that this patient had been diagnosed with borderline personality disorder, bipolar II disorder and post-traumatic stress disorder and that in 2015 she was an emotionally vulnerable person in that her behaviour included frequent suicidal ideation, self-harming behaviours and a number of suicide attempts.
The genesis of these proceedings is a referral of the respondent's conduct concerning patient A to AHPRA by Dr Russell Hinton, her treating psychiatrist dated 17 September 2015. In that referral Dr Hinton referred in general terms to the history of the interaction between patient A and the respondent. In particular, he referred to receipt of an email to him from the respondent dated 1 September, 2015 and to his discussion with the respondent that day in which he said that he had asked him "to cease and desist any contact with the patient."
It is convenient to refer to the substance of that email. It said that he had nursed the patient for over 3 years and during that time he did not contact her personally or "attempt to be other than an appropriate support." He said that he chose to accept her request of friendship after his professional relationship had ceased and he was no longer employed at Lakeside Clinic. He said he had made contact with the Nurses Association and AHPRA and had been told that his then relationship with the patient did not contravene any code of conduct, ethics or professional boundaries. He said that they had confirmed "that a reflective decision, that was made mindful of the patient's vulnerability and where there was no dual role of both clinician and friend is completely appropriate. I will also clarify that this is only a platonic friendship and I do not believe there is ambivalence on this from her viewpoint." He said that he was concerned that "accusations of impropriety that amount to nothing more than gossip (even if made with good intentions)" had caused distress for the patient. He said that he only wished to support her, and that he took matters of ethical standards "extremely seriously and would never abuse my professional position."
In his notification Dr Hinton said of the respondent's reaction: "He could not understand why I thought he had done anything wrong but agreed to have no more contact with her. He also stated that he had contacted the Nursing and Midwifery Council whom apparently stated to him that he had done nothing wrong with regards to his contact with the patient. He stated their relationship was only platonic." The notification went on to describe further telephone conversations patient A said that she had with the respondent to the effect that he could continue to be her friend if she did not tell anyone about it, and that if she did engage in self harm she should delete all his messages to her. There is also reference in the notification to use of the words "I love you" by the respondent. The principal concern of Dr Hinton was that patient A would continue to be treated for crisis management within the Lake Macquarie Mental Health Service, that the respondent continued to be engaged within that service area, and he was anxious that he have no contact with her.
[4]
The statement of patient A
Patient A provided a statement to the applicant dated 3 October 2017. She said that she first met the respondent when he provided her with general nursing care while she was a patient at Lakeside Clinic. She said that they developed a friendship relationship over and beyond that of a nurse/patient relationship. On a later attendance at Lakeside Clinic at a time when the respondent was no longer working there, she gave a note to an employee which she had asked should be shown to the respondent. On the occasion of a further admission to that clinic, she was told that the respondent wanted to obtain her telephone number so he could contact her. Later, he made contact.
In describing her contact with the respondent, patient A said at first they commenced messaging each other, nearly every day for around 2 weeks and then commenced contact by telephone. She said; "Our conversations were mostly focused on me, but this developed into us talking about each other's lives. He would really just tell me general things about himself, like how he was going in his new house." She then said that they continued daily contact for around 6 months by text and telephone conversation and that occasionally they would send each other photographs of random activities.
Patient A described the respondent at that time as being "very supportive. He became a big part of my life. Although I had my support network in my treating team, it seemed helpful at the time to have that more personal connection, and not just professional. By this time, the nature of our communication was very familiar…… I would call him when I was feeling like self harming or when I was feeling suicidal. We would talk through what I was feeling, and he would say things to me like I couldn't do anything because he would miss me, for there were people who cared about me who would miss me. I think he felt his talking to me was what was going to help. It did seem helpful at the time. Mostly I would be the one to initiate contact with him. Our conversations were mostly focused on me, and any time we spoke about him the things he would say was still very general, like his work and general things about his family. I knew he had a wife and two children."
In her statement patient A also referred to the respondent visiting her on one occasion when she had been admitted to Lakeside Clinic and brought her fairy floss and chocolate. At this stage he was not working at that clinic. Their discussion included her current feelings and circumstances. Significantly, patient A referred to the fact that some of the nurses at that clinic had been upset that he had visited her there and had asked her whether he was working with her through the Lake Macquarie Mental Health Service as her case manager. When told that he was not, they seemed upset. She said that she informed the respondent that the nurses at the clinic had been concerned that he had visited her there.
Later patient A said that she had informed her treating team about her contact with the respondent. She said that after this occurred the respondent "started telling me not to tell anyone that we were still in contact. He also would say things like we weren't doing anything wrong and not to listen to anyone else and it was fine to keep talking. I was actually quite angry at the time that Dr Hinton had spoken to Andrew, so I recall telling Andrew that I wanted our contact to continue. I still however continued to tell my treating team about my continued contact with Andrew."
Patient A said that at one stage the respondent had said that he wanted to interview her for an assignment relating to drug and alcohol consumption. This matter did not proceed.
Patient A referred to the last occasion on which she talked with the respondent on the telephone, namely her birthday on 4 September, 2015. She said that she had sent the message because she was feeling suicidal and she told him that she was going to take some tablets. When he called her he told her that she could not do anything to herself that night because it was also his birthday and he did not want her to die that day. "I felt like he had made me feel guilty about wanting to harm myself on his birthday. This was also when he told me that if I was going to do anything to myself I should delete all our contact (sic) first."
Patient A concluded her statement with the following;
It has taken me a long time to deal with what happened with Andrew and I got a lot of help from my treating team to deal with this. When I think about it, I am angry that he did make me so reliant on him. Looking back, I also now question what he was getting out of the relationship, and makes me wonder whether it was for his benefit. On reflection I think his intentions were good at the beginning, but it developed into something about power. In a strange way I think he saw himself as part of my treating team. It has taken me some time, but I feel now I have dealt with the issues surrounding him.
[5]
Extracts from clinical notes
There is evidence which is corroborative of the factual background to these proceedings contained within the clinical notes concerning patient A, some of which we reproduce hereunder.
A letter from Dr V Lee, general practitioner to Dr Russell Hinton psychiatrist dated 19 August 2015 refers to an overdose on the previous Saturday night, and to the patient engaging in "risky sexual behaviour." There was a minor self-inflicted burn. Significantly, the letter refers to the patient having frequent text and phone contact with the respondent. She narrated that the patient said that the relationship was neither romantic or sexual. Dr Lee told her that a platonic relationship was not appropriate because the respondent had treated her previously, it was therefore "not a even relationship" and there was serious boundary issues. Furthermore, a request by the respondent that he use her as a case study for an assignment was not appropriate. She also said that the patient "is aware of the boundary issues, but is not prepared to break off contact."
In a letter of 20 August, 2015 to Dr Lee, Dr Hinton referred to the ongoing texts and occasional in-person contact with the respondent. He said that after a long discussion he advised the patient to discontinue contact with the respondent.
Dr Hinton wrote to Dr Lee on 3 September, 2015 after reviewing the patient that day. He noted that she had burnt herself in the previous week as a result of ongoing problems with a family member. Significantly, Dr Hinton said;
I spoke to her at length about her friendship with registered nurse, Andrew. This followed an email from Andrew to me earlier in the week and a telephone conversation between the two of us. I spoke to Andrew about how I felt their friendship was not appropriate given that he had been involved in her treatment as a nurse. He agreed to discontinue contact with her. It appears (the patient) too has had some reservations about a friendship with him after you, her psychologist and I informed her that the relationship was not appropriate. On a somewhat disconcerting note (the patient) told me that Andrew and her had a conversation about the matter and he suggested to her that they could carry on being friends and tell no-one that was the case. Of course I only have (the patient's) report on this and have not verified this with Andrew. At the present time I am not going to take the matter any further but I will be following up with (the patient) over the coming weeks and months to make sure that the relationship is not an ongoing one.
That letter concluded that Dr Hinton thought that the patient's low mood recently was caused in part because of the difficulties with the relationship with the respondent.
In a letter dated 17 September 2015 to Dr Lee Dr Hinton referred to a conversation with the patient that day. The letter said in part;
I spoke to her about her contact with the nurse, Andrew. She said that they last spoke on his and her birthday which was 4 September, 2015.She confirmed with me that he had told her to delete all his texts if she made an attempt on her life. She also said that he would sometimes end his text with the words "I love you". However she felt that I was interrupting (sic) this in a different way to the way she did. She again said that he had informed her that they could stay in contact as long as she did not tell anyone else that it was going on. She has now decided not to have any more contact with Andrew………………
A discharge summary from Lakeside Clinic refers to an admission of patient A on 13 July 2015 and discharge on 7 August, 2015. In describing her "Referral and Presentation" the document said that patient A was referred for admission "due to exacerbation of emotional distress and chronic suicidal ideation due to ongoing issues surrounding coping with a number of stressors in her life to do with family, her own experience of childhood trauma, and an inappropriate friendship with the previous staff member." We infer that the reference to the previous staff member must, in all the circumstances, be a reference to the respondent.
A letter from Dr Hinton to Dr Lee dated 12 November, 2015 refers to a recent discharge of patient A from Lakeside Clinic. It said in part that patient A;
remains anxious and somewhat angry about the actions of a registered male nurse who befriended her after he had been involved in her care. She is aware of the ongoing investigation with AHPRA and Hunter New England Health. She feels she should have known what was going on and had been more insightful in this respect. I have reiterated to (patient A) that I do not see any of this as being her fault and that she was vulnerable at the time as she was in crisis….
A discharge summary from Lakeside Clinic concerning patient A with respect to an admission. Between 21 September, 2015 and 11 November, 2015 states that she;
was re-referred to Lakeside Clinic due to intentional overdose leading to admission to the Mater Hospital, subsequent admission to Lakeside Clinic. This occurs on the background of Borderline Personality Disorder and ongoing struggle in dealing with life stresses and triggers to dramatic experience in childhood.
The main conflict she presented with on this admission was surrounding the impact of an inappropriate friendship with an ex-staff member which had resulted in notification of this person by (sic) AHPRA by Dr Russell Hinton, and conflict (patient A) had with "doing the right thing" versus not wanting to get this person in trouble.
There followed a reference to a family matter as constituting another stressor.
[6]
The expert evidence of Christine Muller
The applicant retained Ms Christine Muller to provide an expert report for use in these proceedings. No challenge was made by the respondent concerning her expertise. Ms Muller has been a registered nurse since December 1982 and has specialised in adult mental health. She has postgraduate qualifications in this area and is a Fellow of the Australian College of Mental Health Nurses. She is an authorised Nurse Practitioner in the specialty of adult mental health.
In her expert report provided on 27 December, 2017 Ms Muller first considered the nature of borderline personality disorder which she described as involving "a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts as indicated by 5 or more of 9 nominated indicia. We note those indicia are the following;
1. frantic efforts to avoid real or imagined abandonment
2. a pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation
3. identity disturbance: markedly and persistently unstable self-image or sense of self
4. impulsivity in a number of areas
5. recurrent suicidal behaviour, gestures or threats, or self-mutilating behaviour
6. affective instability due to a marked reactivity of mood
7. chronic feelings of emptiness
8. inappropriate, intense anger or difficulty controlling anger
9. transient, stress-related paranoid ideation or severe dissociative symptoms
Ms Muller observed that there was a high risk of specific transference and countertransference enactments occurring in dealing with patients with this condition. We were informed that transference involved the redirection of feelings and desires, especially of those unconsciously retained from childhood toward a clinician and that countertransference would involve a transference by the clinician of "repressed feelings aroused by the patient." It was said by Ms Muller that the high risk of transference and countertransference enactments in the context of this disorder enhanced the need of a health practitioner to uphold professional boundaries with the patient. This was also in the context of the inherent power imbalance which exists within any professional relationship between persons receiving care and persons giving that care. Those patients were thereby vulnerable and open to exploitation.
A substantial issue in these proceedings revolves around the continuing contact between the respondent and patient A following the cessation of his treatment of her and whether this constituted misconduct. Ms Muller explained the basis for her opinion that the respondent had misconducted himself in the following way;
1. by its nature borderline personality disorder is an enduring and long-standing condition.
2. so long as that condition remains, the consequences and impact of treatment and care afforded by a health practitioner such as a nurse member of a treating team will persist
3. one of those consequences is the power imbalance which is inherent in any relationship between a patient and a treating health practitioner
4. it follows that the power imbalance in the relationship will persist notwithstanding that a particular health practitioner may no longer be involved in the care and treatment of the patient.
5. because of these matters it is inappropriate for a health practitioner including a mental health care nurse to continue to have a relationship outside of the treating relationship with the patient, whether or not the treating relationship still persists in cases where the patient is suffering from borderline personality disorder. Such a patient will remain vulnerable to a manifestation of symptoms of borderline personality disorder including suicide ideation and thoughts of self-harm and the like, and such vulnerability may be exacerbated by the conduct of the health practitioner outside the treatment relationship
It was the opinion of Ms Muller that by reason of his undergraduate training, and the fact that he had had some experience in working in mental health care that the respondent should have been aware of these matters. As such she was critical of the respondent's conduct in making contact with patient A after she had ceased to be in his care at the Lakeside clinic.
Even allowing for the professed naïveté of the respondent in not appreciating the inappropriateness of his relationship and interaction with patient A after he ceased being involved in her treatment, Ms Muller was particularly critical of the respondent in continuing to maintain contact with patient A after firstly he was made aware that nurses at Lakeside clinic were concerned when he attended upon her there after he had ceased treating her, and after he had clearly been told by Dr Hinton that he should cease all contact with her.
Her criticism also extended to the substance of his communications with her including the intensity and frequency of his text and telephone communications, his discussions with her concerning her health and personal circumstances, concerning her thoughts of self-harm and suicidal ideation, his suggestion that there was nothing wrong with their continued communications and they could be kept secret, informing her that he "loved her" and his reference to respecting her right to choose to suicide if she wished that she should delete his text messages before doing so. She thought that his communications might exacerbate her condition. Furthermore, Ms Muller was critical of the respondent in failing to respond appropriately by seeking external assistance for her when she expressed suicidal ideation in circumstances where she was at high risk of suicide or deliberate self-harm.
[7]
The respondent's evidence
The respondent provided two statements and gave oral evidence. He said that he first became registered as an enrolled nurse in 2006, completed a Bachelor of Nursing in 2008 and became a registered nurse. He commenced employment at the Lakeside Clinic in 2009 and remained there until he resigned in March 2015. In May 2015 he commenced employment as a mental health nurse at the Lake Macquarie Mental Health Service, part of the Hunter New England Local Health District. In 2018 he completed a Masters of Mental Health Nursing at the University of Newcastle.
In that statement the respondent conceded the nature and extent of his relationship with patient A which he said was conducted almost exclusively by text and telephone communications. Furthermore, and significantly, he said that upon reflection he should not have had those communications with her. He said his relationship was "well-intentioned. It was a supportive relationship where our conversation centred on her health and current stressors." He said that he was naïve in maintaining "this supportive relationship."
The respondent acknowledged that he had been told by Dr Hinton on 1 September, 2015 not to have further contact with patient A. He received a telephone call from her on 4 September 2015 which he said he took in order to explain to her why he could no longer maintain any contact.
The respondent explained his error of judgement as being based "on an assumption and since I was no longer employed at Lakeside, that there would be no conflict of interest, so long as I didn't involve myself with her care in the future."
The respondent said that his name had been placed on a NSW Health Service Check Register on 25 November, 2015 which had precluded him from securing employment as an employee of a public health facility. He said that his name was removed from that list on 17 December 2018 on the basis that the original risk no longer existed.
In his second statement dated 15 February 2019 the respondent referred to the report of Ms Muller, the expert retained by the applicant and acknowledged that his conduct had fallen below the standard expected of a registered nurse. He expressed embarrassment and regret for his conduct. He said that following the incident he has sought formal counselling from a clinical psychologist and a psychiatrist and had undertaken remediation by completing the Masters in Mental Health Nursing at the University of Newcastle. He said; "I understand now exactly why my actions failed the client in question and the service that employed me."
By explanation of his conduct at the time the respondent said that he then believed that his friendship was not inappropriate, and he had no intention to cause her harm. He said that he had felt sympathy towards patient A and had focused on trying to "save" her. It was this that led him to act beyond the scope of his practice and conceded that he should have focused "on the effects of my actions on an emotionally vulnerable person with limited ability to appropriately cope."
In that statement the respondent explained his telephone conversation with patient A on 4 September 2015. He said that at that stage he thought that patient A was expressing an inability to adaptively process a difficult emotional situation, namely being unable to maintain a relationship with him and he did not think that this was a "genuine acute crisis. I did not refer to support services during the conversation as she was well aware of them. We had discussed the need for professional support. Similarly, I did not contact the treatment team as her conversations and SMS communications with me were attending to those with a friend and I would not attempt to talk to a friends' treating team." Notwithstanding this the respondent said that he accepted the criticism about this matter made by Ms Muller.
The respondent also outlined his further experience in mental health nursing including dealing with refugees in immigration centres and defence personnel. He is no longer restricted in providing mental health nursing services within the Hunter New England Local Health District. Furthermore, he is also employed as a nursing facilitator working with undergraduate nursing students through the University of Newcastle.
When giving oral evidence about his conversation with patient A on 4 September, 2015 the respondent said that he was attempting to give her an understanding that her actions affected him and he was hoping to draw on his fondness for their relationship as a reason for her not to go through with her threat of suicide. Even though Dr Hinton had told him that further communication was inappropriate, the respondent thought it would help patient A to understand that it might assist in preventing her from suicide. He also thought that in mentioning his own circumstances that he would give her a reason to think about something other than her own personal distress. He was concerned for her personal safety. He repeated what he had said in his statement to the effect that he did not advise her to obtain help because she knew about her treatment team.
Significantly, the respondent conceded in oral evidence that he had never contemplated that his friendship with patient A might end and the consequences. He had never thought about her vulnerability and whether this could be an issue when the relationship came to an end.
When asked about the use of the words "I love you" in his text messages the respondent conceded that when he had done so he was trying "inadvisedly and naïvely" to create a model for patient A of an example of personal regard. He said he did not know then about the importance of emotional support. He thought that the only way she would know about genuine feelings was to experience them.
In oral evidence the respondent was adamant that although he understood and learned about the need to create professional boundaries with patients, he did not understand that that need persisted after the termination of a professional relationship with a mental health patient.
When questioned about the advice that he had sought from AHPRA and the Nurses Association about whether it was appropriate to have a personal relationship with patient A after the treatment relationship had come to an end, he could not remember whether he had informed the persons he had spoken to that the patient was suffering from a borderline personality disorder.
During the course of his oral evidence the respondent elaborated on the nature and extent of the treatment given by him to mental health patients at Lakeside Clinic. He had received no formal training about the manner of his interaction with patients. He did, however, work as part of a treatment team which was directed by a consultant psychiatrist, a career medical officer and a psychologist. He said that he looked after 6 to 10 patients on any shift and the extent of his interaction with the patients depended upon how unwell a patient was. During his time at Lakeside he had completed 2 or 3 certificate courses in mental health.
The respondent said that patient A was the only patient with whom he had any relationship outside of his treating relationship. We asked him what it was about her that caused him to engage in their personal relationship. He said he felt sorry for her and had a desire to want to help her. He thought she was being stigmatised by the system and that she was not being treated with dignity and respect. He said she was smart and was capable of improving her mental health if given a chance. He said he felt that he had a connection with her which he did not have with other patients. The respondent said; "I allowed myself to have more subjective feelings for her than other patients."
The respondent also gave evidence concerning the stage 2 element of the proceedings. He said that he was living with his wife and 2 children aged 15 and 9 and his mother-in-law who was suffering from dementia. He described the personal health circumstances of his family, which created an enhanced drain on his finances.
The respondent described how his employment opportunities had come to an end in the local area when he was placed on the service check register. In response he up skilled himself into general nursing and obtained agency work carrying out these duties. Since then he has continued work as a mental health nurse for the Department of Defence and within the immigration system.
The respondent said that for a few months he had suffered from depression, and had sought treatment. He was now in remission and continued to see his psychiatrist and psychologist, with whom he has discussed these proceedings.
[8]
Particular 8 b.
This is the only particular about which the respondent did not concede that he was guilty. For whatever reason the respondent asserted that this particular did not apply, it is clear from his evidence which we have set out above that he did not give any consideration to the impact of the termination of his relationship with patient A may have had upon her when that occurred. Indeed, he said in evidence that he gave no consideration to the termination of the relationship and its sequelae.
We are comfortably satisfied to the Briginshaw standard that this particular has been made out.
[9]
Dr Wayne Halpin
Dr Halpin is a medical practitioner at a Defence Force health centre in the Newcastle Area where he holds the position of General Practice Trainer and Aviation Medical Officer. He provided a supportive reference for the respondent dated 7 February 2019. Dr Halpin had read an earlier version of the Application filed in these proceedings.
Dr Halpin said that he had worked with the respondent whilst he was engaged as a mental health nurse in the facility during the period November 2017 to October 2018. He said that the respondent was a "very good" mental health nurse, and that he conducted himself in a pleasant caring and respectful manner exhibiting high standards of care.
Dr Halpin said that the respondent had discussed the complaints with him, the circumstances of his relationship with patient A and had said that he was very remorseful, and that he would not make that error of judgement again. Dr Halpin said that if the complaints were upheld he believed that the respondent "has learned a valuable set of lessons and this experience would lead him to practice in such a way that further misjudgments of this nature are very unlikely." His opinion was qualified to the extent that the respondent had undergone a process of education concerning appropriate professional behaviour and ethical issues and that he had not been guilty of any other instance of misconduct.
In oral evidence Dr Halpin said that the respondent had not worked at the facility on a full-time basis but had been placed there for periods of 1 or 2 months as required. Nevertheless, he was satisfied that he had had an adequate opportunity of assessing the respondent's professional capabilities.
[10]
Codes of conduct
There was considerable discussion during the course of the proceedings about whether and to what extent the respondent's circumstances and his conduct were covered by any relevant Code of Conduct.
We were provided with a document issued by the Australian Nursing and Midwifery Council entitled "Code of Professional Conduct for Nurses in Australia." This provides inter-alia that nurses must provide safe and competent nursing care. It is clear in the circumstances that the respondent when interacting with patient A when he was no longer directly involved in her treatment had failed to provide safe and competent nursing care, in the manner conceded by him. However, he never regarded himself as interacting with patient A in those circumstances in his capacity as a mental health nurse, but merely as a friend. Indeed, he was no longer involved in any formal sense in her treatment. Nowhere in that document is there any reference to whether any duty of care extends after formal treatment has ended.
We were also referred to a document issued by the Nursing and Midwifery Board of Australia entitled "A nurse's guide to professional boundaries." The intention of this document is, in part, to identify and differentiate the boundaries between professional relationships and personal relationships. One of the necessities for so doing is to counter the "inherent power imbalance" which exist between nurse and patient in circumstances where that relationship no longer exists. However, as we read that document it consistently refers to relevant boundaries applicable to persons "in the care of" a nurse. There is a reference to "dual relationships and boundaries" but again, this contemplates concurrent relationships whilst a person remains in the care of the nurse.
The only material which is relevant to the circumstances of the respondent in these proceedings is contained in a paragraph to the following effect;
Nurses understand the complexities if personal relationships develop once professional relationships end as the person may need additional care and services, making it difficult to determine whether the professional relationship is truly terminated.
This would seem to contemplate that it might be necessary to consider the possibility of a nurse having to provide future care for a former patient, and the "complexities" which might be created by a then existing relationship of whatever kind. If so, it might be observed that it is possible to reframe this provision as injecting greater certainty for the reader, especially a reader who may be looking at the content generally, without particular regard to any particular situation. On this basis, we do not regard the existence of this particular provision within that particular document as having particular relevance.
We would add that the circumstances pertaining to a relationship by a mental health nurse with a former patient are arguably significantly different to those which pertain to a nurse in another area, such as general nursing. The circumstances of a mental health nurse are more akin to those of a psychologist or psychiatrist the effects of whose treatment may also endure beyond the termination of any treatment regime, so as to preclude the desirability of forming any relationship with the former patient, at least for an appropriate period. To the extent that the relevant codes do not refer to this aspect of the work of a mental health nurse, they are defective. Notwithstanding this, we regard this matter as being relevant to the determination of these proceedings for reasons which we have earlier set out.
[11]
The further course of the proceedings
We were informed of the commencement of the proceedings that they were to be conducted by the parties on the basis that stages 1 and 2 would be heard concurrently.
After the conclusion of the evidence the parties commenced their submissions. We were provided with written submissions to which counsel then spoke. During the course of her submissions counsel for the respondent said that we could be satisfied that the respondent not only conceded that he was guilty of unsatisfactory professional conduct, but that we could be assured that he was unlikely to engage in conduct of this nature ever again. When asked for the basis of that assurance we were told that firstly we could rely on the respondent's own assertion about this and secondly we could take comfort in the opinion of Dr Halpin to this effect.
The difficulty that we have about this particular submission is that the explanations relied upon by the respondent are firstly that he was unaware that it was not appropriate to have any relationship with patient A after the termination of their treatment relationship and secondly that he had allowed himself to have more subjective feelings for this patient than any other patient.
We have considerable difficulty concerning this submission. If the respondent was ignorant of the inappropriateness of creating a personal relationship with a former mental health patient after treatment had ceased, this reveals a lack of insight into the nature of patient A's condition and her vulnerability. Given that by 2015 the respondent had spent some years in mental health nursing, he should by then have understood the complexities of a borderline personality disorder, the vulnerability of the patient, and the inappropriateness of endeavouring to form a relationship after termination of his care for her. At the least, it would have been appropriate for him to have discussed what he wanted to do with a peer, or sought advice from someone in a supervisory capacity.
His professed ignorance in any event has no basis once he became aware that other nurses were concerned when he had visited patient A at Lakeside after he was no longer employed there, and certainly when Dr Hinton had informed him very clearly on 1 September, 2015 that he should have no further contact with her. Notwithstanding that clear communication from Dr Hinton the respondent engaged in a telephone communication with the respondent on 4 September, 2015 in which there was a discussion about matters which should have given the respondent grave concern. Despite the excuses proffered by him, he failed to take the positive steps as asserted in the particulars of Complaint One, something which Ms Muller said he should have done.
Of equal concern is the explanation given by the respondent as to what it was that attracted him to this particular patient apart from any other patient of the hundreds whom he had treated whilst at Lakeside Clinic. In all the circumstances it is difficult to assess whether the respondent's explanation is what occurred to him at the time, or an ex post facto rationalisation. Unless we have some understanding of what it was that motivated him to form this relationship, we will not be in a position to assess whether and to what extent the respondent might engage in this type of conduct again. Information of this kind is fundamental to the formulation and assessment of what is an appropriate protective order, which is the ultimate task of this Tribunal in determining these proceedings. We would have thought that it was obvious that evidence to assist the Tribunal in this regard would more appropriately be given by the respondent's treating psychiatrist and treating psychologist. No reports were available from either of them, nor had the respondent intended to call evidence from them.
Such evidence would also be of assistance in helping us understand why it was that the respondent persisted in his relationship with patient A notwithstanding firstly that he was aware that nurses working at the clinic were unhappy about his relationship, and secondly, and more importantly, the Dr Hinton had told him not to have any further contact with her. Did the respondent persist because he determined to disregard both of these matters as an act of defiance, did he do so because of some misplaced sense of superiority, did he have some idealistic confidence in his own ability to afford health to her, or is there some other reason for his conduct? Again, the expert opinion of a psychologist, psychiatrist or both may be of constructive assistance.
After discussion with counsel for the respondent an application was made on his behalf that the proceedings be adjourned to enable that evidence to be obtained.
The applicant did not object to any such adjournment, but did submit that on an interlocutory basis a condition should be placed on the respondent's registration pending the ultimate determination of the proceedings. The applicant sought that the respondent be required to work under supervision.
We are empowered to make interlocutory orders in these proceedings by reason of the combined effect of sections 165 L and 149 A (1) of the National Law which out of the following effect;
165L Interlocutory orders [NSW]
The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand.
149A General powers to caution, reprimand, counsel etc [NSW]
(1) The Tribunal may do any one or more of the following in relation to the registered health practitioner -
(a) caution or reprimand the practitioner;
(b) impose the conditions it considers appropriate on the practitioner's registration;
(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);
(d) order the practitioner to complete an educational course specified by the Tribunal;
(e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal;
(f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal
The difficulty that we have with the applicant's position is that there is no evidence of any kind which would suggest that the respondent is not capable of practising in any field of nursing other than as a mental health nurse. Indeed, there is no suggestion that if the respondent had been treating patient A in any capacity other than as a mental health nurse it would necessarily have been inappropriate for him to have formed a personal relationship with her once his treatment of her had finished, possibly after some suitable intervening period had elapsed. It is the circumstances of the patient's complex mental health condition and the fact that the respondent was treating her as a mental health nurse that has created the catalyst for his current difficulties. To this extent, supervision would only be appropriate if the respondent were performing work as a mental health nurse.
We are conscious that the respondent has continued to practice as a mental health nurse notwithstanding the commencement of these proceedings. However, we are conscious that in dealing with these proceedings this Tribunal must principally be concerned for the protection of the public. So much is clear from the provisions of section 3A of the National Law which is to the following effect;
3A Objective and guiding principle [NSW]
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
We have previously referred to the fact that it is important that we ascertain, to the extent possible, why the respondent conducted himself in the manner in which he did which is the subject of these proceedings. Otherwise, we cannot be assured that he can safely practice as a mental health nurse. Given this current lack of assurance we are of the opinion that it is appropriate that pending the outcome of these proceedings that we impose a condition upon his registration that he not practice as a mental health nurse. This will leave him able to practice as a nurse in any other area.
[12]
Unsatisfactory professional conduct
When we informed the parties that we were prepared to adjourn the proceedings as requested by the respondent, we announced that in addition to imposing conditions on the registration of the respondent we intended to make a determination about whether the respondent was guilty of unsatisfactory professional conduct as alleged in Complaint One, and as conceded by him for the purpose of these proceedings.
Unsatisfactory professional conduct is relevantly defined in section 139 B in the following manner;
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.
……………………..
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
It was the opinion of Ms Muller that the several areas of criticism identified by her, and to which we have earlier referred, invited her strong criticism as being significantly below the standard reasonably expected of a nurse. In considering this opinion we take into account that at the time of the commencement of the conduct of the respondent about which complaint is made in these proceedings he had had considerable experience as a nurse practising in the area of mental health, and had undergone an opportunity to train whilst at the clinic as well as having completed a Bachelor of Nursing degree and a recognised tertiary institution.
Because of the concession appropriately made by the respondent that he is guilty of unsatisfactory professional conduct, it is not necessary that we discuss this aspect of these proceedings in great detail. It is sufficient to observe that the respondent engaged in a relationship with patient A who was suffering from borderline personality disorder whose behaviour included frequent suicidal ideation, self-harming behaviours and a number of suicide attempts. His interaction with her was, as we have observed, contraindicated, and occurred at a time when he knew that she was being treated by a psychiatrist and psychologist. He should have known that it was inappropriate for him to have communicated with her in the manner which he did. At the least, he should have desisted when he was alerted to the fact that nurses at the clinic were concerned about his attendance on patient A, and when told by her treating psychiatrist that he should cease all contact, but did not do so. These are obviously matters which may be characterised as being significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and also constituting improper conduct.
We are comfortably satisfied to the Briginshaw standard that the respondent is guilty of unprofessional misconduct.
[13]
Professional misconduct
Although the stage 1 proceedings are complete, we shall defer and reserve for consideration the question whether the respondent is guilty of professional misconduct as alleged in Complaint TWO in the event that anything emerges at the adjourned hearing which might impact upon this matter.
[14]
Orders
We make the following orders;
1. the respondent shall file and serve any reports from a psychiatrist or psychologist upon which he wishes to rely by 28 May, 2019
2. the applicant will notify the respondent and the Tribunal by 17 June, 2019 whether it wishes to qualify any further evidence in response to that filed by the applicant, and if so the latest date upon which it will file and serve that evidence
3. the Tribunal shall thereafter, in consultation with the parties fix a further date or dates for the hearing of these proceedings
4. the question of whether the respondent is guilty of professional misconduct as alleged in Complaint TWO is reserved and will be further considered at the adjourned hearing
5. the Tribunal imposes the following condition on the registration of the respondent namely;
the respondent shall not undertake any work as a mental health nurse pending the determination of these proceedings or pending further order of the Tribunal
1. liberty to apply generally which may be exercised by either party at short notice.
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: 06 May 2019