Health Care Complaints Commission v Rayner

Evidence of the Applicant

The Applicant in Exhibit 1 provided a series of documents including of particular relevance the Nursery and Midwifery Council of New South Wales' reasons for decision in respect of a section 150 hearing dated 22 July 2019, an expert report of Ms Carol Martin, a local Health Department report, and various correspondence between the Nursery and Midwifery Council of New South Wales and the Respondent and between the Applicant and the Respondent.
The Applicant provided written submissions which set out in detail the background to the matter, the evidence presented by the Applicant and a request for specific orders.
The evidence provided includes an expert report by Ms C Martin following instructions given to Ms Martin and specific questions requesting her to deal with the issues involved in this matter. In this report Ms Martin responded to the questions as follows: 1. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in using her personal mobile phone to contact and leave a message on Patient A's mobile phone to return her call. If Ms Rayner was not issued with a work mobile phone then calls to patients, except in an emergency situation, could be made by her during routine office hours from the community centre and a message left to return the call. There was no clinical reason for Ms Rayner as Patient A case manager to contact him on her personal mobile phone. Ms Rayner had a nine year history of employment as a Registered Nurse with considerable nursing experience in a variety of health related fields. Previous positions would have required her to interact with patients and she would have been aware through training, supervision and discussions with other professionals of the need to keep personal and professional social networking identities separate so as to maintain appropriate boundaries. Ms Rayner's conduct fell below the standard reasonably expected of a practitioner with equivalent training or experience. By using her personal mobile and inviting a return call with details of her private mobile number Ms Rayner effectively invited a potential intrusion on her private time and opened the opportunity for a breach of personal professional boundaries 2. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in answering a phone call from Patient A outside of work hours and intoxicated at the RSL club. Ms Rayner was not at work and had no reason to answer a phone call from Patient A after hours. The fact she was intoxicated would have impaired her judgement and decision-making capability. In that context, any provision of nursing care would have been compromised. Ms Rayner's conduct fell below the standard reasonably expected of a practitioner with equivalent training or experience. Professional boundaries may be more difficult to maintain in the community rather than inpatient settings. Particularly in small rural communities, there is more opportunity for casual interactions with less clearly defined roles and boundaries. Given this, Ms Rayner should have contacted her supervisor if she was unsure of how to manage her relationship with Patient A. 3. Assuming Patient A's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in calling Patient A outside of work hours whilst intoxicated and asking him to meet her at the RSL club From 2007 Patient A had a history of involvement with mental health services and case managers allocated to provide his care and treatment. Patient A would have expected a professional relationship to continue with his new case manager Ms Rayner. Ms Rayners phone calls while intoxicated and requesting him to meet her at the RSL club initiated a relationship that Patient A felt took advantage of him. He felt it demonstrated the imbalance of power that can exist in the nurse patient relationship. In the nurse-patient relationship Ms Rayner held a position of power by having professional knowledge and skills that Patient A relied on for his ongoing health and well-being and Ms Rayner had access to Patient A's personal health information. The phone call from Ms Rayner to meet Patient A at the RSL club was unnecessary and a personal request not clinically motivated. Patient A had every right to expect Ms Rayner as his case manager would act in his best interest and not for her personal gain that involved drug taking and sexual activity. Ms Rayner's conduct fell below the standard reasonably expected of a practitioner with equivalent training or experience. Nurses are accountable for maintaining appropriate boundaries and meeting the health care needs of their patients. It is exploitative for a nurse to use this relationship to meet their own social, emotional, or relationship needs. Crossing boundaries puts the nurse-patient relationship at risk, breaches patient trust and can cause severe harm. 4. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in meeting Patient A at the RSL club out of work hours and discussing personal issues for several hours. Ms Rayner indicated she was feeling depressed and alone and was seeking male company. All healthcare employees have access to the Employee Assistance Program (EAP) for cost free confidential advice. If Ms Rayner was experiencing these feelings she should have sought these services and spoken to her supervisor. Ms Rayner was perhaps feeling more vulnerable with the alleged relationship that Patient A disclosed between himself and her daughters partners family. Discussing personal issues is part of the development of the therapeutic relationship and some level of personal disclosure may be necessary to demonstrate an empathic understanding of the patient's situation. As a result, the discussion of personal issues between nurses and patients is not wrong from an ethical or legal standpoint, however, an RSL is not the place for the provision of nursing services. Ms Rayner's conduct fell below the standard reasonably expected of a practitioner with equivalent training or experience. It is always the responsibility of a health care professional to establish appropriate boundaries and be aware of potential implications if these are blurred. Given her nursing experience and training it would be reasonable to conclude that Ms Rayner was aware following her level of personal disclosure to Patient A that she had crossed her professional boundaries with Patient A. Ms Rayner as a registered nurse also has the responsibility to ensure her own health and wellbeing so she can effectively perform the requirements of her position description. Having healthy relationships is a key factor in maintaining health and wellbeing and this includes having good professional relationships with patients. 5. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in having a sexual relationship with Patient A from February to April 2019 whilst working as his case worker at Mental Health and Drug and Alcohol Services, Bourke. Ms Rayner stated both she and Patient A were consenting adults in the sexual relationship and it was conducted 'out of work hours'. Consent and time of the sexual relationship is not a justification or defence for violating professional boundaries. Ms. Rayner was aware her sexual relationship was inappropriate demonstrated by the fact that Patient A only walked her to a corner following visits to Patient A's uncle's home and 'on most occasions she walked home alone "as...[she] didn't want anybody from my work observing... [her] for obvious reasons" Ms. Rayner's intimacy needs should have been met outside her professional relationship with Patient A. There is an inherent imbalance of power in the nurse patient relationship. Ms Rayner by her position had access to knowledge or perceived authority that Patient A did not have. Boundaries exist to protect both the nurse and the patient and are part of what differentiates a therapeutic relationship from an intimate or social relationship. These boundaries ensure that the focus of the relationship should remain on Patient A needs and it was Ms Rayner's responsibility to establish boundaries and the limits of their professional relationship. Ms Rayner's conduct fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience. NSW Health Policy Directive PD 2015 049 NSW Health Code of Conduct signed by Ms Rayner clearly defines the ethical and professional standards that are required of all staff working within NSW Health. It categorically states in section 4.6.2 that staff "Not have any sexual relationship with a patient or client during a professional relationship". Sexual misconduct can create public and media attention and this can have severe repercussions for career, working relationships and family. Ms Rayners sexual relationship with Patient A was a clear breach of her responsibility to maintain professional boundaries and it is for these reasons that her conduct falls significantly below that expected of a practitioner with her training and experience and constitutes an extreme boundary violation. 6. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in purchasing cigarettes, clothes and food for Patient A. The difference between a caring relationship and an over involved relationship can be difficult to separate at times especially in small rural communities (attachment a). It is not uncommon for nurses to support the more vulnerable in our community through gifts, donations, or the provision of money. These activities are acts of charity with no expectation of reciprocity or the expectation of personal gain. Ms Rayner's conduct fell below the standard reasonably expected of a practitioner with equivalent training or experience. Given the intimate sexual nature of their relationship the purchase of cigarettes, clothes and food by Ms Rayner for Patient A were not acts of charity. They were either a person in an intimate relationship providing for their partner or purchases designed to develop dependency and maintain intimacy. 7. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in staying at the Riverside Hotel with Patient A on 15 and 16 March 2019. By her actions Ms Rayner consistently placed her inappropriate personal relationship with Patient A above that of her professional responsibilities. Ms Rayner paid for the accommodation indicating staying at the Riverside Hotel with Patient A was what she had wanted to occur. The fact that Patient A uncle and sister liked her and welcomed her does not give permission for Ms Rayner to be involved in sexual misconduct with Patient A. As a registered nurse Ms Rayner had a responsibility to provide care to Patient A as required. The fact that she was his case worker and he was a client of the WNSWLHD should have been indicators there could be nothing but a professional relationship between Patient A and herself and anything outside of this was a serious breach of conduct. Ms Rayner's conduct fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience. Ms Rayner knew her relationship with Patient A was wrong and would have consequences for her if it was discovered. Ms Rayner had no intention of giving up the relationship and took precautions to ensure that their inappropriate relationship should remain undiscovered. Ms Rayner signed and accepted her conditions of employment which specifically stated that she had read and understood the NSW Code of Conduct and the inappropriate nature of having a sexual relationship with a patient. 8. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct, in giving Patient A money which he used to purchase ICE. Ms Rayner was Patient A allocated case manager. On 5 February 2019 she was given a clinical handover of care from the Drug and Alcohol clinician. Ms Rayner had access to Patient A medical record where it was documented that Patient A had a `past history of substance abuse which caused him to have paranoid ideas, psychosis and depression'. As a registered nurse and Patient A case manager Ms Rayner had a responsibility to provide the care to Patient A that he required. Providing Patient A with money to purchase ICE in no way demonstrates her responsibility to provide safe quality nursing practice as set down in Standards of Practice for Registered Nurses. Ms Rayner's conduct fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience. Nurses are expected to always act in the best interests of their patient and maintain a relationship that benefits the patient. It would be reasonable to expect that Ms Rayner would have known that Patient A would have used any money he was given for the purchase of ICE. Ms Rayner would have known that the use of the substance would have had a negative impact on Patient A's problems with addiction and his mental health. As such this was contrary to her role as his case manager and more a reflection of the inappropriate nature of her relationship with Patient A and her desire to have her needs met, either in relation to her intimacy needs or substance abuse problems. 9. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in using ICE with Patient A. Ms Rayner has admitted that she had a previous substance abuse problem. Given the potential for relapse it is inappropriate for Ms Rayner to have used ICE at all let alone with Patient A. She should have been seeking help for her own substance use problems rather than being complicit in supporting the substance abuse problems of Patient A. Ms Rayner's conduct fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience. By her actions Ms Rayner consistently placed her inappropriate personal relationship with Patient A above that of her professional responsibilities. As a nurse, Ms Rayner is also expected to take time and reflect on her own behaviour. In practice the nurse considers issues of transference and counter transference and in this instance how Ms Rayners own history may be motivating her behaviour in drug taking or influencing the behaviour of Patient A. 10. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in using Buprenorphine with Patient A. Patients can expect a nurse to act in their best interests and to respect their dignity. This means that a nurse abstains from attaining personal gain at the patient's expense and refrains from jeopardizing the therapeutic nurse - patient relationship. Ms Rayner's use of multiple substances with Patient A is another indication of her own substance use issues. Her failure to seek help for her own problems may call into question her ability to provide appropriate nursing care to the other patients for whom she was the case worker. Ms Rayner's conduct fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience. The NSW Health Code of Conduct PD2015-049 that was signed by Ms Rayner clearly states that nurses should not engage in unlawful behaviour and that this behaviour may be viewed as unprofessional conduct and have implications for her ongoing professional registration. Ms Rayner was aware and had signed the NSW Health Code of Conduct but still used Buprenorphine with Patient A. 11. Assuming Ms Rayner's version of events, please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in making false entries in Patient A's medical records in relation to his drug use. The NSW Health Code of Conduct articulates that the underlying principle of the clinical communication system is to ensure that documentation and communication of information is for the purpose of delivering high quality health care services to all consumers of NSW Health. Quality nursing documentation plays a vital role in the delivery of nursing care by supporting communication between team members to facilitate continuity of care and safety of the patient Ms Rayner consciously made a false entry into Patient A medical record. This action did not promote patient safety or enable informed decisions to be made regarding Patient A ongoing care planning and treatment options. The Western District NSW LFID Position Description that was signed by Ms Rayner when accepting her current RN role states that the she 'Complies with relevant documentation requirements for patient care plans' Ms Rayner's conduct fell below the standard reasonably expected of a practitioner with equivalent training or experience. Ms Rayners conduct does not reflect professional integrity. Withholding clinical information concerning Patient A drug use is significantly below what is expected of an RN with her experience across various nursing roles. Health Care Records and Management PD2012-069 clearly outlines that documentarian in the medical record - either electronic or paper based - is to enable communication that ensures appropriate care and treatment of patients. Nursing documentation is the principal clinical information source to meet legal and professional requirements and one of the most significant components in nursing care. Failure to document correctly was also an indication that Ms Rayners relationship with Patient A had crossed professional boundaries. 12. Please provide your opinion in relation to the appropriateness or otherwise of Ms Rayner's conduct in sending the text message at 8.50pm on 30 April 2019. The text message sent to Patient A by Ms Rayner is clearly an indication of the personal nature of the relationship. In the text message Ms Rayner is expressing her disappointment at the threats and betrayal inherent in Patient A's actions. From a personal perspective this text message might be appropriate but from a professional perspective this message is inappropriate. Ms Rayner's conduct fell below the standard reasonably expected of a practitioner with equivalent training or experience. Ms Rayner was the case manager of Patient A and she had a responsibility to maintain a professional relationship with him. The text message clearly expresses her sense of loss and betrayal at his actions and is a demonstration of the personal nature of their relationship. This is evidence of the clear breach of her responsibility to maintain a professional relationship. NSW Health employees are tasked with not only maintaining confidentiality of the people under their care but also with representing their place of employment in a positive manner. This includes maintaining professional standards and understanding the implications of their actions in having a relationship with a patient on social media. 13. Please make any other comments about Ms Rayner's conduct in relation to Patient A that you consider relevant. It is always the responsibility of the health care professional to establish appropriate boundaries with current and former patients. Ms Rayner has clearly not understood the professional boundaries that should have been in place for the protection of both herself and Patient A. Nurses may find themselves in situations where boundary issues and self-interest are tested but the expectation is that they maintain a professional relationship and not attempt to have their own needs met through the nurse-client relationship (attachment c). Ms Rayner disclosed her relationship to another work colleague. It is unfortunate she did not talk to her supervisor and take advantage of the supports that would have been available to her.
Also included in the evidence was a transcript of a section 150 proceeding and the written reasons for decision of the hearing held on 24 June 2019.
Their reasons are set out below: INTRODUCTION 1. Naomi Rayner was born on 17 December 1977. She was first registered as a Registered Nurse (Division 1) on 1 July 2010 having completed a Bachelor of Nursing at Victoria University in 2009. 2. On 4 June 2019 the Council received a mandatory notification from Sandra Duff, Executive Director Workforce and Culture - Western NSW Local Health District. 3. The notification advised that during the months of February and April 2019, Ms Rayner allegedly: • commenced an inappropriate intimate/sexual relationship with a former client of the Bourke Mental Health and Drug and Alcohol services • purchased and used drugs (ICE and Oxy) with the former client • used and abused the former client by accessing his file • sent threatening messages to the former client 4. Section 150 of the Health Practitioner Regulation National Law (NSW) (the National Law (NSW)) provides for the Council to impose conditions on or to suspend the registration of a nurse for the protection of the public or generally in the public interest. Action taken under section 150 is intended to be interim and may be reviewed under section 150A. 5. An urgent hearing before the delegates of the Council, Katchen Cheney, Joanne Muller and Greg Rickard was held on 24 June 2019. Ms Rayner did not attend the proceedings. ISSUES 7. The central issue for the Council to consider was whether Ms Rayner poses a risk to the safety or health of the public that warrants action to be taken by the Council. They also consider whether it is generally in the public interest for the Council to take action. To determine these issues, they must answer the following subsidiary questions: a. What information is there about Ms Rayner's current conduct? b. What information is available about whether Ms Rayner's current conduct poses a risk to public health and safety? c. What information is there about Ms Rayner's health and any treatment she has sought for any health issues? d. What information is there about whether Ms Rayner's self-disclosed health concerns are impacting on her ability to practise? e. What information is available about Ms Rayner's current or proposed work arrangements? f. What information is available about Ms Rayner's support networks? g. What information exists about earlier complaints, complaint findings or Tribunal or PSC decisions concerning Ms Rayner? 8. If they conclude that Ms Rayner does pose a risk to the safety or health of the public and that the public interest warrants action being taken, then they must also consider the following questions: i. Are there conditions that could be imposed to minimise that risk? ii. If not, should Ms Rayner's registration be suspended? 9. Ms Rayner admitted to allegations of particularly serious misconduct issues in the context of having a relationship and illegal drug use with a former mental health client from February to April 2019. 10. The Council has no information on the mental health client's engagement with Bourke Mental Health and Drug and Alcohol services and whether Ms Rayner provided direct care. 11. In her response to the notification, Ms Rayner acknowledged that she had crossed professional boundaries. She stated that she was having an 'extremely difficult time with her ex-partner back in Western Australia and was feeling really sad, lonely and down and wanting to talk with male company'. 12. Ms Rayner advised that she regrets her actions and the decision to have a relationship with a mental health client. She expressed concerns that she had ruined her career and that she would lose her registration. 13. They noted that Ms Rayner's actions are extremely serious, unacceptable and constitute a serious breach of the Code of Conduct for Nurses and a serious departure of professional expectations of a RN. 14. Ms Rayner's conduct constitutes a significant departure from accepted professional standards for registered nurses. 15. Ms Rayner is currently working in community mental health services. While all patients/clients are vulnerable, clients of mental health services are particularly vulnerable. 16. They noted that Ms Rayner's name has been added to the NSW Service Check Register. 17. They were concerned that Ms Rayner is currently working with vulnerable clients in a regional area. We acknowledge that Ms Rayner has confirmed that her current employer is aware of her situation, however we are not confident that she has fully disclosed her involvement with the former mental health client including illegal drug use. What information is there about Ms Rayner's health and the treatment she has sought for any health issues? 18. Ms Rayner disclosed that she had been an illegal drug user for about 20 years and that she had not used drugs for at least two years. She stated that she relapsed and used ICE with the former mental health client on one occasion. (Ex 6) 19. They did not have independent information regarding Ms Rayner's engagement with treatment for her drug addiction or any other health issues. 20. Ms Rayner's significant history of illegal drug use raises concerns of possibly attending work under the influence of drugs thereby placing the public at risk. 21. It is unknown if Ms Rayner has disclosed her long term illegal drug use to AHPRA. What information is available about Ms Rayner's current or proposed work arrangements? 22. Ms Rayner reported that she has been employed by the West Australian Country Health Service since 27 May 2019 on a permanent basis and is currently working full time in community mental health services. There is no evidence as to whether her employer is aware of this notification or her self-disclosed recent and long term drug taking. 23. Ms Rayner advised that her current employer is supportive and she is engaged with the Employee Assistance Program. 24. Her support network was unknown to them at the time. She advised in her response a 'difficult' time in relation to her behaviour and they were concerned about the impact of this on patient care and her own health if untreated. 25. The Council had no record of an earlier complaint, any complaint findings or Tribunal or PSC decisions concerning Ms Rayner. 26. Having regard to that assessment of the information and evidence relevant to the above issues they conclude that Ms Rayner does pose a risk to public health and safety and the public interest which requires there to take action, because of the following risk factors: a. Ms Rayner admitted to entering in an inappropriate relationship with a former mental health client b. Ms Rayner admitted illegal drug use with a former mental health client c. Ms Rayner admitted to previous history of illegal drug use d. They do not have a current independent health (CAP) assessment of Ms Rayner e. They do not have any evidence of Ms Rayner's current engagement with Mental Health and/or Drug and Alcohol services 27. They considered the public interest aspects of this matter and whether or not the public's trust in the practitioner and the profession of nursing would be undermined if it were known that a practitioner was involved in a relationship with a former mental health client. 28. They consider that the public interest cannot be upheld if a practitioner engages in a relationship with a patient which constitutes abuse of trust bestowed upon them in their capacity as a registered nurse. 29. They are also of the view that this risk can be addressed by the imposition of conditions which include that she not work as a nurse until reviewed and that she be required to undergo hair drug testing to ascertain the extent of her drug use. 30. Pursuant to section 150(1)(b) of the National Law (NSW) the delegates imposed the following conditions on Ms Rayner's registration as of 25 June 2019: 1. Not to work as a registered nurse until reviewed by the Nursing and Midwifery Council of NSW. 2. To attend for hair drug/ETG testing as directed by the Nursing and Midwifery Council of NSW. The test will require head hair with a minimum length of 6cm and a. comply with any instructions provided by the Council in relation to hair testing. b. the costs of this assessment will be met by the Council. 31. They referred this matter for consultation with the HCCC pursuant to section 150D of the National Law (NSW). They were of the view that the matter should be dealt with as a complaint for investigation.

Applicant's submissions

The Applicant provided written closing submissions which are set out in full below: 1. These proceedings concern a Complaint brought by the Director of Proceedings of the Health Care Complaints Commission ('the Commission') against Ms Naomi Rayner ('the Respondent') pursuant to s90B(1) of the Health Care Complaints Act 1993. 2. The Respondent is a registered nurse. Her registration is currently suspended, effective from 9 March 2017. 3. The Complaint was filed on 25 September 2020 and arises out of the Respondent's failure to maintain appropriate professional boundaries in engaging in a sexual relationship with a patient under her care. 4. The Complaint is made up of the following elements: i. Complaint One is brought pursuant to section 144(b) of the National Law alleges that the Respondent is guilty of unsatisfactory professional conduct within the meaning of sections 139B(1)(a) and/or (I) of the National Law, namely: a) that the practitioner engaged in conduct which demonstrated that her judgment and care were significantly below the standard reasonably expected of a practitioner with an equivalent level of training or experience; and/or b) improper or unethical. ii. Complaint Two is also brought pursuant to section 144(b) but alleges that, by virtue of the conduct underlying Complaint One, the Respondent is also guilty of professional misconduct as defined by section 139E of National Law. 5. The Commission has filed one volume of evidentiary material with the Tribunal ('the Commission Documents'). 6. With the leave of the Tribunal, the Commission sought to file the following additional material: i. Evidentiary Certificate from AHPRA (to form Tab 1A); ii. Service Bundle (to form Tab 1C), comprising: a) Letter from the Commission to the Respondent dated 12 November 2020; b) Emails to and from the Commission and the Respondent dated 17 November 2020; c) Emails to and from the Commission and the Respondent dated 24 November 2020; d) Email to and from the Commission and the Respondent dated 25 - 26 November 2020; iii. Email from the Respondent to the Commission dated 16 December 2020 (to form Tab 1D); and iv. Email from the Commission to the Tribunal dated 16 December 2020 (to form Tab 1E). 7. A Directions hearing was conducted on 23 October 2020, with the Respondent appearing by telephone. An order was made that the matter proceed as single hearing, noting admissions made by the Respondent. 8. The Respondent was first registered as a nurse in Australia on 4 January 2010 (AHPRA Registration Certificate, CD1A). 9. From 21 January 2019 until 14 April 2019, the Respondent was employed as a community mental health nurse at Bourke Mental Health and Drug and Alcohol Services ('the Bourke MHDAS'), operated by the Western NSW Local Health District (WNSWLHD) (Employment agreement, CD33). 10. Patient A was referred to the Bourke MHDAS on 18 January 2019 by his case worker at Community Corrections NSW ('NSWCC'), Ms Jessica Anderson (WNSWLHD Records for Patient A ('WNSWLHD Records.), CD 56, p117). 11. The Respondent was Patient A's case manager at the Bourke MHDAS from 5 February 2019 until 3 April 2019 (WNSWLHD Records for Patient A, CD 56, pp 55, 62 - 71). 12. On 30 April 2019, Patient A, made a formal complaint to WNSWLHD alleging that that the Respondent had engaged in a sexual relationship and used drugs with him. (File note of meeting by L Rolek, CD 18, p 3) 13. On 4 June 2019, WNSWLHD made a mandatory notification to AHPRA detailing Patient A's complaint. (Formal Notification to AHPRA, CD2) 14. On 24 June 2019, the Nursing and Midwifery Council of NSW (The Council') convened proceedings under section 150 of the National Law in the Respondent's absence ('the section 150 hearing'). (Written Reasons for Decision, CD4) 15. At the section 150 hearing, conditions were imposed on the Respondent's registration that she not work as a registered nurse and that she undertake hair drug and alcohol (ETG) testing at the direction of the Council. 16. The Tribunal may proceed with the hearing if it is satisfied that the Respondent has been given notice of the inquiry: National Law, s 165J(3); HCCC v Greenwood [2011] NSWNMT 13 at [14]; Health Care Complaints Commission v Marquinez [2014] NSWCATOD 125 at [7]-[9]; Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151 at [3]. 17. The Service Bundle (CD1C) evidences the following timeline of correspondence with the Respondent regarding service of the Commission Documents: i. 12 November 2020: Commission Documents sent to the Respondent by express post and electronic file transfer; ii. 17 November 2020: Respondent confirms receipt by email; iii. 24 November 2020: hard copy documents 'returned to sender'; iv. 24 November 2020: Respondent confirms she did receive documents but was unable to properly download electronic file. Further electronic file link requested; v. 25 November 2020: further electronic file link sent to Respondent; and vi. 26 November 2020: Respondent confirms by email that she has downloaded electronic copy of Commission Documents but has now deleted it. 18. Further to the Respondent's email of 16 December 2020, above email correspondence with the Commission indicates that she willingly does not wish to be involved in the hearing. For example: i. on 24 November 2020 the Respondent wrote to the Commission advising that, "Ok I did receive it.. Not sure what you want me to do with it? I have absolutely no understanding of any of your legal jargon etc. lam losing interest in partaking in this quickly. Please email specific basic layman's instruction as to what you require from me. This has, dragged on long enough and I'm really not coping each time it's being brought up"; and ii. on 26 November 2020, the Respondent wrote to the Commission advising that, "Not sure what you want me to do with this ...ive downloaded it and seen my whole life and this trauma on display again. So I will be deleting this now". 19. The National Law establishes that proceedings of this type are inquisitorial in nature: see s165(2), 165C, 165H, 1651, 165J and s165M of the National Law and clauses 11, 12, 13 of Schedule 5D of the National Law, and Weinstein v Medical Practitioners Board (2008) 21 VR 29 at [30] for the general nature of such proceedings. 20. A number of key principles govern proceedings in this jurisdiction: i. the fundamental purpose of proceedings is the health and safety of the public: see as reflected in sections 3 and 3A of the National Law and Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78 at [70]; ii. proceedings are primarily protective, not punitive, in nature: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637; Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186. iii. however, in protecting the community the Tribunal must take into account the maintenance of the standards of the relevant profession and the preservation of public confidence in the that profession: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; and iv. deterrence is a relevant factor: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [637]; NSW Bar Association v Meakes [2006] NSWCA 340 at [114]. 21. The application of those principles was explained by Meagher J in the case of Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: "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". 22. The Commission bears the onus of proof in these proceedings: Lindsay v Health Care Complaints Commission [2005] NSWCA 356. 23. However, in light of the serious nature of the allegations made by the Commission, the Tribunal must be reasonably satisfied that the Complaint has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J at 362 to 363. 24. Pursuant to section s38(2) Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal is not bound by the rules of evidence. 25. However, the principle of procedural fairness applies to the gathering of evidence by the Tribunal as it sees fit, meaning that only reliance should only be placed on 'material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined': Sudath v HCCC [2012] NSWCA 171 at [75]. 26. Patient A is an indigenous Australian man born on 12 November 1980 (WNSWLHD Records for Patient A. The Commission was unable to contact with Patient A. 27. Medical Records provided by Justice Health show that Patient A was taking buprenorphine and methadone as part of the Opiate Treatment Program ('OTP') whilst in custody in 2007 and 2008 for treatment of an opioid addiction. 28. Medical Records provided by WNSWLHD show Patient A's engagement with the Bourke MHDA Service and the same service in Dubbo in the two years leading up to the January 2019 admission. Patient A was engaged with the service on 6 April 2017, 24 August 2017, 5 June 2018, and 31 October 2018, presenting with opioid use, substance abuse and related psychosis and paranoia. 29. For example, Patient A's referral to the Bourke MHDA service on 24 August 2017 followed his admission to Dubbo Hospital on 20 August 2017 suffering from psychosis and paranoia; the diagnosis recorded was one of 'mental and behavioural disorders due to use of opioids, psychotic disorder'. A similar hospital admission on 5 October 2018 led to a further referral. 30. Patient A's admission to the Bourke MHDA Service on 31 October 2018 was the result of a referral from Community Corrections on 25 October 2018. The history recorded in the subsequent initial triage of Patient A on 23 November 2018 provides further background, with Patient A recorded as having 6 presentations to hospital emergency departments for paranoia between February and October 2018 and being then enrolled in the OTP. 31. Patient A was discharged from the Bourke MHDA Service on that occasion on 14 December 2018 for non-engagement. 32. The Respondent was born on 17 December 1977 and was first registered as a nurse on 4 January 2010. The Respondent has not been subject to any prior complaints. 33. The curriculum vitae ('CV') provided by the Respondent to the Council confirms that she obtained her Bachelor of Nursing from Victoria University in 2009 and a Post-graduate Certificate in Mental Health from Edith Cowan University in 2018. 34. The Respondent's CV demonstrates that she began working with drug and alcohol patients in Victoria in 2010 and first worked in a specific mental health role from May 2012. 35. In May 2019, the Respondent began working in a community mental health position for the Western Australia Country Health Service. However, the Respondent confirmed to the Commission on 10 December 2019 that she had ceased working once notified by AHPRA she was not permitted to. January 2019 admission to the Bourke MHAS 36. Patient A was again referred to the Bourke MHAS by Community Corrections on 18 January 2019. A drug and alcohol assessment conducted on 21 January 2019 recorded a prior history of heroin use and previous addiction to oxycodone and ongoing use of buprenorphine. 37. On 5 February 2019, Patient A was transferred into the Respondent's direct care as his case manager. Progress Notes made by the Respondent show that this continued until 3 April 2019. Complaint by Patient A to WNSWLHD 38. On 30 April 2019 (Community Corrections NSW records, Patient A disclosed to Ms Anderson he had been in a sexual relationship with the Respondent for a period of two months (Statement of Jessica Anderson, CCNSW, CD5). 39. Patient A showed Ms Anderson photographs of himself and the Respondent and a message from the Respondent as evidence of his claim. Patient A alleged that during that relationship the Respondent provided him with methylamphetamine ('ice') and oxycodone and they had consumed drugs together. 40. On 30 April 2019, a formal complaint was made to the WNSWLHD by Patient A with the assistance of Ms Anderson. 41. On 6 May 2019, Patient A had a telephone meeting with Ms Anderson and representatives of the Bourke MHDA Service Ms Lucy Rolek and Ms Jenny Taylor. Patient A informed Ms Rolek and Ms Taylor that he had made up the complaint. 42. Shortly afterwards, Ms Anderson called Ms Rolek and confirmed that she had seen a message from the Respondent confirming that she had bought Patient A drugs and clothes and threatening to report him for breach of his parole conditions. 43. On 15 May 2019, Ms Rolek and Ms Taylor met with Patient A and Ms Anderson in person. Patient A made the following allegations: i. two days after his initial assessment with the Bourke MHAS, the Respondent called him whilst intoxicated and asked him to meet her at the RSL; ii. from that time until approximately the beginning of May, he had been in a sexual relationship with the Respondent and she had stayed with him at his uncle's house every night. The following morning he would walk her to work at the Bourke MHAS; iii. during that time the Respondent would buy him drugs including ice and oxycodone, which they would consume together; iv. the Respondent would also give him her card to buy drugs; v. he had not been using drugs prior to the relationship and ceased using them after it ended; and vi. the Respondent had paid for them to stay for a weekend at the Red River Motel. 44. Patient A informed Ms Rolek and Ms Taylor that the Respondent had initiated the relationship, had used her power over him, and that he felt used for drugs and sex. He also provided photos and a text message in support of his allegations. 45. The following day, Ms Rolek completed a risk assessment and on 4 June 2019, a formal letter outlining Patient A's allegations was sent to the Respondent. 46. Patient A's WNSWLHD records demonstrate that he had a number of further hospital presentations for hallucinations, paranoia and/or suicidal ideation in the months following the end of his relationship with the Respondent. This included 2 June 2019, during which Patient A claimed the Respondent had hired a hitman to kill him, 11 July 2019 and 10 September 2019. 47. The Respondent has provided a response to Patient A's allegations to WNSWLHD, the Council and the Commission. 48. In her undated formal response to WNSWLHD, the Respondent made the following admissions: i. she had called Patient A on her personal mobile phone after having attended his uncle's house and he wasn't home, at which time Patient A's uncle gave her his number. This call was for professional reasons as she was driving and did not have a work mobile phone; ii. Patient A returned her call and she had met him at the RSL whilst intoxicated, where they spoke for a few hours and he disclosed he was related to her daughter's partner. She was aware this crossed professional boundaries, however she was "having an extremely difficulty time with my ex partner back in WA and I was feeling really sad, lonely and down and wanting to talk with male company"; iii. the following evening, she went to Patient A's uncle's house to watch movies for couple of hours; iv. Patient A initiated a consensual sexual relationship which lasted from February to April; v. she saw Patient A at his uncle's house one to two times per week for a couple of hours each time. On some occasions, Patient A would walk her home but never to the Bourke MHAS as "I didn't want anybody from my work observing me for reasons obvious'; vi. she gave Patient A money to buy cigarettes and brought him food and new clothes; vii. she had stayed with the Respondent at a hotel. She gave Patient A money to buy cigarettes but he purchased ice, which they subsequently consumed. viii. Patient A stockpiles and sells his buprenorphine tablets. The following day, Patient A gave her a quarter of one tablet, which she also consumed; and ix. she is a recovering drug addict and had not used drugs for the two years preceding this incident. 49. The Respondent denied coercing or manipulating Patient A into the relationship or threatening him when he made a complaint to WNSWLHD. The Respondent detailed an experience where Patient A screamed at and made threats of physical violence towards her and also outlined her discussions with Patient A where he disclosed that from his friends had advised him to use their relationship to obtain compensation. The Respondent provided photographs of Patient A's text messages with his friends, and a text sent by her to the Respondent, to support these assertions. 50. In June 2019, the Respondent made similar admissions to the Council in the lead up to the s 150 proceedings. 51. In a telephone call on 6 June 2019, the Respondent confirmed that she had been in a relationship with Patient A and had used ice with him on one occasion. The Respondent indicated that she regretted the relationship, which occurred because "she was in a bad place and there was a lot of 'shit from her past' that put her in vulnerable position", but reiterated that she had been subject to abuse by Patient A and her belief that his complaint was to obtain monetary compensation. The Respondent again provided the text messages that she had provided to WNSWLHD. 52. On 17 June 2019, the Respondent was notified by the Commission that the Council had referred the WNSWLHD complaint to the Commission. In response, on 2 July 2019 the Respondent forwarded to the Commission a copy of her response to WNSWLHD. 53. The Commission sought further information from the Respondent on 22 November 2019. In her response of 10 December 2010, the Respondent advised the following: i. Regarding her drug use: a) this commenced 15 to 20 years earlier, with periods of remission of 6 years whilst studying, before relapsing upon the death of her stepmother; b) the only drug she used was amphetamines; and c) it was not reported to AHPRA but she never worked under the influence of drugs. ii. Regarding Patient A a) her colleague had also used her personal phone to call patients at the Bourke MHAS, and practitioners would sometimes give lifts to patients; b) her purchase of cigarettes for Patient A occurred sporadically depending on his requests; c) she only bought second-hand clothes for him on one occasion and sometimes brought leftover food; d) Patient A made regular comments to her about 'getting compensation out of me'; e) Patient A had held her hostage and threatened to stab her; f) Patient A was not suffering from any form of drug psychosis or diagnosed with any mental health condition during her treatment of him; g) she documented that Patient A was not using drugs as he told her this, although she had witnessed him use marijuana and ice on a number of occasions; h) she never used or abused Patient A by accessing his file, as this was only for work purposes; i) Patient A had used 'grooming behaviours' in their first few meetings and she was drawn in once he discussed being related to her daughter's partner and asked personal questions when her guard was down; and j) the motel booked was on 15 and 16 March 2019. 54. The Commission sought further information from the Respondent on 15 April 2020 regarding her disclosure of drug addictions. In response, on 21 May 2019 the Respondent provided to the Commission a copy of treatment notes made by her psychologist. 55. The notes support the Respondent's account that she first used drugs 20 years prior and relapsed with Patient A after being abstinent for two years. They also indicate that the Respondent disclosed a history of 20 years of trauma, first used amphetamines at age 15 and had another relapse in approximately 2013. Further, the notes record that in relation to Patient A the Respondent is 'angry towards guy for trying to fleece me'. 56. In addition to the information provided by Patient A and the Respondent, independent information has been used to particularise the allegations in Complaint One. This includes: i. regarding Particular 1, Patient A's WNSWLHD medical records indicate that the occasion where the Respondent was provided with Patient A's mobile number was on 13 February 2020; ii. regarding Particular 4, the relevant entry in Patient A's medical records can be found in the documents; iii. regarding Particular 5, an online booking form provided by the Bourke Riverside Motel confirms that the Respondent made a booking from 15 to 17 March 2019; iv. regarding the Respondent's claim that Patient A was on-selling his opioid prescriptions, there is support for this in Patient A's WNSWLHD records. This is in the form of an email from the local pharmacy refusing to provide opioids to Patient A and detailing lost medication and alleged on-selling; and v. regarding the Respondent's claim that Patient A reported her only for compensation, Patient A's WNSWLHD records also show that on 23 August 2020 he advised drug and alcohol staff that he had a barrister and 'had a court case against the hospital due to the relationship'. 57. The Commission referred to the expert report from Registered Nurse Carol Martin regarding the Respondent's conduct, dated 18 May 2020, the details of which are set out earlier in this decision. 58. The Commission alleges that each Particular of Complaint One amounts to unsatisfactory professional conduct as the conduct underlying is significantly below the relevant standard and/or or improper or unethical. 59. Determining whether conduct meets the first of these 'limbs' requires the Tribunal to make an objective assessment with reference to the standards of the profession generally: Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82] per Basten J; Ahmad, Dr Firoz Uddin [2013] NSWMPSC 8 at [171]. 60. Guidance on whether a departure from that standard is significant can be taken from the established principle that the term 'may in law be taken to mean not trivial, of importance or substantial: Re A Medical Practitioner and the Medical Practice Act, Medical Tribunal of New South Wales, 3 September 2007 at [12]. 61. The Commission relies upon the evidence of Ms Martin to establish the appropriate standard and departure from it by the Respondent. The Tribunal may also apply the specialist expertise of the Panel in making this determination: Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 at [16]. 62. The terms 'improper' and 'unethical' are not defined in the National Law. In Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25, the Tribunal found the following at [67]-[69]: "The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as 1. Not "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrne [1995] 193 CLR 501 at 514-515: see Health Care Complaints Commission v Phung (No. 1) [2012] 1 NSWDT at 68. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s.139B(1)(1) stating at paragraphs 47 to 49: 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." 63. The Respondent's conduct can also be measured by the relevant guidelines. 64. As an employee of WNSWLHD, the Respondent was subject to the NSW Health Code of Conduct and signed to that effect. Relevantly, the Code of Conduct contains the following principles: "4.2.3 Ensure that their actions and decisions are not influenced by self interest or considerations of personal gain or other improper motives. 4.3.1 At all times act in a way which is consistent with NSW Health's duties of care to its patients and clients, and its obligations to provide a safe and supportive environment on its premises for patients and their family members. 4.3.11 Observe all laws, professional codes of conduct and ethics relating to their profession. 4.3.13 Avoid conduct that could bring NSW Health or any of its staff, patients or clients into disrepute, including when using social media. 4.6.1 Not take an unfair advantage of, or exploit any relationship with, patients or clients in any way, including not engaging in on-line friendships with patients or clients via social media; staff may accept patients and clients as members of their professional pages that contain information relating to the professional practice of the staff member. 4.6.2 Not have any sexual relationship with a patient or client during a professional relationship." 65. As a registered nurse, the Respondent was subject to the National Board's 'Registered Nurses Standards for Practice' (the 'RN Standards') effective 1 June 2016. Relevantly, the RN Standards contain the following principles: "1.6 maintains accurate, comprehensive and timely documentation of assessments, planning, decision‑making, actions and evaluations. 2.1 establishes, sustains and concludes relationships in a way that differentiates the boundaries between professional and personal relationships. 6.5 practises in accordance with relevant nursing and health guidelines, standards, regulations and legislation." 66. The Respondent was also subject to the International Council of Nurses Code of Ethics for Nurses (the 'ICN Code'), effective in Australia from 1 March 2018. Relevantly, the ICN Code contains the following principles: "Element 1, at [7]: The nurse demonstrates professional values such as respectfulness, responsiveness, compassion, trustworthiness and integrity. Element 2, at [4]: The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance its image and public confidence. Element 2, at [6]: The nurse strives to foster and maintain a practice culture promoting ethical behaviour and open dialogue. Element 3, at [1]: The nurse assumes the major role in determining and implementing acceptable standards of clinical nursing practice, management, research and education Element 4, at [3]: The nurse is active in developing and sustaining a core of professional values". Assessment of conduct Particular 1 67. This particular and its sub-particulars are admitted by the Respondent. Ms Martin found that the conduct fell below the appropriate standard and the Respondent should have been aware of "the need to keep personal and professional social networking identities separate so as to maintain appropriate boundaries", noting the increased difficulty in rural communities. 68. The Commission relies upon the evidence of Ms Martin to show that the Respondent's conduct departed from appropriate standards and was therefore improper and/or unethical. Particular 2 69. This particular and its sub-particulars are admitted by the Respondent. Ms Martin found that the conduct fell significantly below the standard, finding that: "There is an inherent imbalance of power in the nurse patient relationship. Ms Rayner by her position had access to knowledge or perceived authority that Patient A did not have. Boundaries exist to protect both the nurse and the patient and are part of what differentiates a therapeutic relationship from an intimate or social relationship. These boundaries ensure that the focus of the relationship should remain on Patient A needs and it was Ms. Rayner's responsibility to establish boundaries and the limits of their professional relationship." 75. [sic] Further to the opinion of Ms Martin, the Commission says that the conduct in Particular 2 is also improper and or unethical. Particular 3a. 70. This sub‑particular is admitted by the Respondent. Ms Martin found that conduct fell significantly below the standard, noting that: "Patients can expect a nurse to act in their best interests and to respect their dignity. This means that a nurse abstains from attaining personal gain at the patient's expense and refrains from jeopardizing the therapeutic nurse‑patient relationship." 71. Further to the opinion of Ms Martin, the Commission says that the conduct in Particular 3a is also improper and or unethical. Particular 3b. 72. This sub‑particular is admitted by the Respondent. Ms Martin found that conduct fell below the standard, noting that: "Given the intimate sexual nature of their relationship the purchase of cigarettes, clothes and food by Ms Rayner for Patient A were not acts of charity. They were either a person in an intimate relationship providing for their partner or purchases designed to develop dependency and maintain intimacy." 73. The Commission relies upon the evidence of Ms Martin to show that the Respondent's conduct in Particular 3b. departed from appropriate standards and was therefore improper and/or unethical. Particular 4 74. The Respondent admitted that she made the entry in Patient A's records as it reflected what he told her; however, she was aware of Patient A's ongoing use of illicit drugs at that time. Ms Martin found that, "Withholding clinical information concerning Patient A's drug use is significantly below what is expected of an RN with her experience across various nursing roles". The basis of Ms Martin's opinion included: "Quality nursing documentation plays a vital role in the delivery of nursing care by supporting communication between team members to facilitate continuity of care and safety of the patient. Ms Rayner consciously made a false entry into Patient A's medical record. This action did not promote patient safety or enable informed decisions to be made regarding Patient A's ongoing care planning and treatment options." 75. Further to the opinion of Ms Martin, the Commission says that the conduct in Particular 4 is also improper and or unethical. Particular 5 76. Sub-particulars a., c. and d. are admitted by the Respondent. However, in regard to sub-particular b. the Respondent informed WNSWLHD that she had only given Patient A the money for cigarettes. 77. Ms Martin found that all of the conduct as alleged in this Particular was significantly below the relevant standard. Ms Martin made the following relevant observations about sub-particulars a. and d.: "By her actions Ms Rayner consistently placed her inappropriate personal relationship with Patient A above that of her professional responsibilities. Ms Rayner paid for the accommodation indicating staying at the Riverside Hotel with Patient A was what she had wanted to occur...." "As a registered nurse Ms Rayner had a responsibility to provide care to Patient A as required. The fact that she was his case worker and he was a client of the WNSWLHD should have been indicators there could be nothing but a professional relationship between Patient A and herself and anything outside of this was a serious breach of conduct." 78. Ms Martin made the following relevant observations about sub-particular b.: "Ms Rayner was Patient A's allocated case manager. On 5 February 2019 she was given a clinical handover of care from the Drug and Alcohol clinician. Ms Rayner had access to Patient A's medical record where it was documented that Patient A had a 'past history of substance abuse which caused him to have paranoid ideas, psychosis and depression'. As a registered nurse and Patient A's case manager Ms Rayner had a responsibility to provide the care to Patient A that he required. Providing Patient A with money to purchase ICE in no way demonstrates her responsibility to provide safe quality nursing practice as set down in Standards of Practice for Registered Nurses." 79. Ms Martin made the following relevant observations about sub-particular c.: "By her actions Ms Rayner consistently placed her inappropriate personal relationship with Patient A above that of her professional responsibilities. As a nurse, Ms Rayner is also expected to take time and reflect on her own behaviour. In practice the nurse considers issues of transference and counter transference and in this instance how Ms Rayners own history may be motivating her behaviour in drug taking or influencing the behaviour of Patient A." 80. Further to the opinion of Ms Martin, the Commission says that the conduct in Particular 4 is also improper and or unethical. Particular 6 81. Particular 6 is admitted by the Respondent as she provided a copy of the relevant message to both WNSWLHD and the Council. Ms Martin found that the Respondent's conduct fell below the appropriate standard as it showed a 'clear breach of her responsibility to maintain a professional relationship'. 82. The Commission relies upon the evidence of Ms Martin to show that the Respondent's conduct in Particular 6 departed from appropriate standards and was therefore improper and/or unethical. Accumulation of particulars 83. It is open to the Tribunal to find that a pattern of conduct is significantly below the relevant standard of a practitioner: Re A Medical Practitioner and the Medical Practice Act, Medical Tribunal of New South Wales, 3 September 2007 at [11]. 84. The Commission says that the conduct in Particular 1, Particular 3b. and Particular 6, whilst found by Ms Martin to only fall below the appropriate standard, cumulatively and in combination with the remaining Particulars amounts to conduct significantly below that standard. PROFESSIONAL MISCONDUCT 85. Complaint Two is that the unsatisfactory professional conduct of the Respondent also amounts to professional misconduct. The Commission says that each of the Particulars of Complaint One meets this threshold on an individual basis and in combination with the remaining Particulars. 86. The relevant test is whether the conduct is of a sufficiently serious nature to justify suspension or deregistration: section 139E of the National Law. 87. In making this assessment, the Tribunal may be guided by the following principles: i. there is no category of unsatisfactory professional conduct which is not capable of forming professional misconduct: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]‑[21]; ii. the traditional common law definition of professional misconduct is that "which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency": Allinson v General Council of Medical Education and Registration [1984] 1 QB 750; iii. professional misconduct may be made out by a deliberate departure from professional standards or 'such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration': Pillai v Messiter [No.2] (1989)16 NSWLR 197; and iv. the gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. 88. The Commission says that the conduct underlying each Particular in Complaint One amounts to a deliberate contravention of the Respondent's obligations as a registered nurse, as set out at paragraphs [74] to [92] above. Further, each Particular is part of a pattern of an ongoing behaviour completely incompatible with the standards expected of practitioners, both by the public and fellow practitioners. 89. For these reasons, the Commission says that the Respondent's conduct is sufficient to ground a finding of suspension or cancellation and can therefore be considered professional misconduct. APPROPRIATE ORDERS 90. Should the Tribunal find that the Respondent's conduct amounts to unsatisfactory professional conduct and/or professional misconduct, the next step is to determine the appropriate protective orders. 91. The Commission seeks the following orders under the National Law: i. an order under section pursuant to section 149C(1)(b) cancelling the Respondent's registration; ii. an order under section 149C(7) that an application for review of the cancellation order not be made until 3 years from the date of the Tribunal's decision; and iii. an order under section 1490(5) prohibiting the Respondent from providing any "health service" as defined by section 4 of the Health Care Complaints Act 1993 for a period of 3 years from the date of the Tribunal's decision. 92. Whether the Tribunal should exercise its discretion to cancel the Respondent's registration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. Such an exercise requires an assessment of the conduct itself as well as any remorse or insight, shown by the Respondent: Health Care Complaints Commission v King [2013] NSWMT 9. Conduct 93. Engaging in a sexual relationship with a patient is a gross breach of trust and misuse of the power imbalance in the therapeutic relationship, and this is exacerbated by the vulnerability of Patient A. This is well recognised by the Tribunal and clearly set out in Health Care Complaints Commission v Hudson [2019] NSWCATOD 38 at [62]-[63]: "While every case must be judged on its own facts, it would be a rare instance where this Tribunal found that a sexual relationship between a mental health practitioner and a current or former mental health patient did not amount to misconduct, by reason of the extreme power imbalance in such a relationship and the inherent vulnerability of such patients. It bears repeating that the vulnerability of a mental health patient, and in particular someone who has been so acutely unwell as to be an inpatient of a mental health service, does not instantly disappear upon discharge, but may persist for months or even years depending upon the severity of their health condition and their life circumstances." 94. Patient A, whilst engaging in the relationship with the Respondent consensually, was a particularly vulnerable patient. He had a lengthy history of substance misuse and associated mental health issues and the Respondent was aware of this as his case manager. In that context, the Respondent's conduct is particularly egregious given her use of ice with Patient A and failure to disclose his relapse in his medical records. It is also clear that the Respondent's behaviour negatively impacted Patient A's health, as evident from his subsequent hospital admissions for psychosis (although noting this was an ongoing health problem prior to his interaction with the Respondent). 95. It is further relevant that the Respondent engaged in this conduct deliberately, which is evident in the steps she took to hide her conduct, such as avoiding walking with the Respondent near the Bourke MHAS. Further, the Respondent continued with her conduct for almost three months in full knowledge that it was a significant departure from professional standards of which she was aware (and had signed to acknowledge on entering the role). Remorse and insight 96. To her credit, the Respondent has demonstrated a level of remorse in her candid admissions to regulatory authorities. She has also provided evidence of underlying personal circumstances in her background which may have contributed towards her breach of professional boundaries with Patient A. 97. However, the Respondent's evidence does also demonstrate a lack of recognition of the abuse of power in her relationship with Patient A. For example, the Respondent informed the Commission that she had fallen for Patient A's 'grooming behaviours' whilst her psychology records demonstrate ongoing anger towards Patient A for 'trying to fleece me'. In that regard, it is open to the Tribunal to find that the Respondent has genuine remorse but not a significant degree of insight, as was the case in Health Care Complaints Commission v Nelson (2019) NSWCATOD 22 at [64]. 98. Further, the Respondent's lack of participation in these proceedings only allows the Tribunal to make limited findings regarding any insight she may have at this time, other than her admissions. This was a relevant factor in Health Care Complaints Commission v Mackie [2018] NSWCATOD 174 (a boundary violation matter involving a registered nurse), where the Tribunal noted at [74]: "The respondent expressed remorse early on, to both the CCLHD and the delegates of the Council. He understood that he had brought shame to the profession and may have impacted Patient A. The Council delegates however concluded that they did not "consider that (the respondent] provided any evidence to give them assurance that an episode of this nature would not occur again in the future". This is reflected in the interview with the respondent at tab 23.15.3 where the respondent is asked why his training and experience did not come into play for Patient A. He is unable to answer that satisfactorily. The respondent however has no intention of returning to nursing and as such it cannot be assumed that he has sufficient insight into his conduct. By the absence of his presence at this hearing, the respondent has not provided this Tribunal with any context for his insight or lack of insight and understanding of the origins of his misconduct and hence any assurance that it will not reoccur should similar motivations arise." Cancellation and appropriate review period / prohibition order 99. Applying the principles set out above at [23] to [24], there is a strong need to protect the public from such behaviour. Cancellation is therefore appropriate and will operate not only as a specific deterrent to the Respondent and protect her future patients but will also uphold the standards of the profession and public confidence of such, through general denunciation. 100. Should the Tribunal agree with that assertion, the Commission asks for the proposed non-review period and prohibition order for the same length of time. 101. The Commission acknowledges that caution must be given in the amount of weight given to comparative cases: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]. However, the Commission notes the following orders in factually similar cases to support the orders sought: i. Health Care Complaints Commission v Elliott [2017] NSWCATOD 20: RN engaged in inappropriate relationship with mental health patient, including kissing. Non-review period and prohibition order for 3 years; ii. Health Care Complaints Commission v Szulik [2018] NSWCATOD 188: RN entered inappropriate relationship with 17‑year-old mental health patient, including sexualised messages and meeting in private. Lies to LHD and HCCC. Non-review period and prohibition order for 4 years; iii. Health Care Complaints Commission v Mackie [2018] NSWCATOD 174: RN entered into sexual relationship with mental health patient, continuing after being requested by LHD to cease. Accessed records improperly. Disqualified for 4 years as not registered; iv. Health Care Complaints Commission v Hudson [2019] NSWCATOD 38: RN in a sexual relationship with mental health patient, smoked cannabis in front of the patient and provided cannabis to the patient. Also found to be impaired. Non-review period and prohibition order for 12 months; v. Health Care Complaints Commission v Nelson [2019] NSWCATOD 22: RN engaged in sexual relationship with mental health patient. Non-review period and prohibition order for 2 years; vi. Health Care Complaints Commission v Harvey [2019] NSWCATOD 67: RN engaged in sexual relationship with Patient At injection clinic. Non-review period and prohibition order for 12 months; and vii. Health Care Complaints Commission v Hollis [2019] NSWCATOD 6: RN engaged in sexual relationship with involuntary mental health patient, improperly accessed records, lied to LHD re relationship. Non-review period and prohibition order for 18 months; 102. The Commission further says that a prohibition order for all health services as defined in the HCC Act is necessary as the breach of trust underlying the Respondent's conduct is such that the Tribunal should be satisfied she poses a significant risk to patients outside the scope of nursing practice.

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