Health Care Complaints Commission v Stone

of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the names of the Patients in the schedule to the complaint.

Background

1. Mr Stone has been a registered nurse since 1984 and worked as a mental health nurse since 1987. Since 2007 the practitioner has been accredited as a nurse practitioner. In 2010 the practitioner gained accreditation as a registered mental health nurse from the Australian College of Mental Health Nurses. In 2012 the practitioner obtained a Diploma of Adult Psychotherapy from the Australian and New Zealand Association of Psychotherapy ('ANZAP').
2. A nurse practitioner is defined in the National Competency Standards as, [A] registered nurse educated and authorised to function autonomously and collaboratively in an advanced and extended clinical role. The nurse practitioner role includes assessment and management of clients using nursing knowledge and skills and may include but is not limited to the direct referral of patients to other health professionals, prescribing medication and ordering diagnostic investigations. The nurse practitioner role is grounded in the nursing profession's values, knowledge, theories and practise and provides innovative and flexible health care that complements other health care providers.
3. Nurse practitioners are able to hold a Medicare provider number and have professional attendances payable under the Medicare Benefits Scheme (MBS) under specific item numbers if they are working in a collaborative arrangement with a medical practitioner. Nurse practitioners are also authorised under section 17A of the Poisons and Therapeutic Goods Act 1966 (NSW) to prescribe, supply, possess and administer scheduled medicines, and can do so with their own Pharmaceutical Benefits Scheme (PBS) prescriber number if working in a formalised arrangement with a medical practitioner.
4. From July 2008 the practitioner provided therapy as a nurse practitioner at Matthew Talbot Lodge ('MTL') and Edward Eager Lodge ('EEL') (both of which provide crisis and homeless accommodation to adults). At MTL and EEL the practitioner worked in collaboration with, and under the supervision of, three psychiatrists.
5. From June 2013, the practitioner undertook private work in psychotherapy at a clinic he established in Surry Hills ("the Clinic") which he titled the "Lost Adult Play Department". The Clinic included a "studio space" for art based therapies. The practitioner saw up to 28 private clients per week; almost all of whom were referred via EEL and MTL, including referrals he made himself.
6. Patient A initially saw the practitioner through his work at a homeless/crisis service for women. Between August 2010 and November 2014 the practitioner provided psychotherapy to Patient A, initially weekly and then between two and four times per week.
7. Patient A had a history of severe childhood abuse and a diagnosis of Dissociative Identity Disorder. In adulthood Patient A suffered severe trauma related to domestic violence and physical and sexual assault.
8. Patient A was one of the first of Mr Stone's private patients as a nurse practitioner. At the time he was undertaking part time studies for a diploma of psychotherapy, using the Conversational Model.
9. Mr Stone worked with Patient A as one of two "training cases" for his course of study. As such Mr Stone increased the number of consultations with Patient A per week. Mr Stone audio recorded each session and some of these tapes were reviewed with his supervisor at ANZAP, Ms Jan Egan, whom he consulted with on a weekly basis as part of his studies. This supervision did not cover the entire duration of the time Mr Stone was providing therapy to Patient A.
10. In October 2011 Patient A showed a letter that Mr Stone had written to her to a staff member at another service she attended. A staff member at that service made a notification to AHPRA concerning the conduct in November 2011. In March 2012 the Counselling Committee of the Nursing and Midwifery Council met with Mr Stone and recommended a section 150 Inquiry. In June 2012 there was a section 150 inquiry which did not result in the imposition of any conditions on the practitioner's registration, although the panel did require that their reasons be provided to his psychotherapy supervisor. The panel recommended that Mr Stone discuss the issues raised in the reasons with his supervisor, and also that he begin a discussion about planning termination of therapy concerning Patient A in the future.
11. In November 2014 Patient A terminated the therapy.
12. Between 3 March and 11 August 2014 the practitioner provided psychotherapy to Patient B at the Clinic, usually on a twice weekly basis. Patient B did not present with a background of homelessness but rather approached Mr Stone through dropping into one of the services he worked at and stating that she was looking for therapy. Patient B presented with a diagnosis of borderline personality disorder, a developmental consequence of childhood trauma and abuse resulting in chronic post-traumatic stress. She disclosed a history of stalking and other destructive and violent behaviours.
13. One of the psychiatrists at EEL, Dr Rogoz, strongly advised Mr Stone not to take Patient B on as a patient. However the practitioner immediately began working with Patient B as a private patient. While the practitioner occasionally mentioned that he was facing challenges with a difficult patient to Dr Rogoz and other psychiatrists at his places of work, the practitioner's therapy with Patient B was conducted without any form of supervision from a more experienced practitioner, such as a psychiatrist.
14. In June 2014 Patient B commenced a complaint process with ANZAP. When the practitioner was notified of the complaint he terminated the therapy. However, following contact from the patient in a crisis, the practitioner recommenced seeing Patient B in July 2014 and she withdrew the complaint. On 12 August 2014 Mr Stone applied for an AVO against Patient B. On 15 August 2014 Patient B made a formal complaint with ANZAP which was sent on to AHPRA.
15. On 29 September 2014 a section 150 Inquiry imposed conditions on the practitioner including that he was required to practise under the direct or indirect supervision of a nominated supervisor on site, provide employers with a copy of the conditions and reasons for decision, and provide monthly reports to the Council from a nominated supervisor as well as monthly mentoring. These conditions were amended slightly on 3 July 2015.
16. On 26 February 2016 the HCCC filed this complaint with the Tribunal.

Relevant Law

1. The Tribunal is required to make findings for each particular if they are not conceded in writing: s 165H National Law.
2. The Tribunal must be independently satisfied that the complaints are made out to the civil standard in Briginshaw before then proceeding to determine the appropriate protective orders.
3. While the Tribunal's powers to receive evidence are broad, it must take into account only material which is probative, that is, "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 [79].
4. The professional members of the Tribunal are entitled to apply their own specialist experience to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238].
5. 'Unsatisfactory professional conduct' is defined in s 139B of the National Law as including: (a) 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. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
6. 'Improper' and 'unethical' are not defined in the National Law. The assessment of what constitutes improper or unethical conduct is based upon their ordinary meaning. In the professional disciplinary context there is necessarily some overlap between the two words.
7. 'Improper' conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: HCCC v Phung (No 1) [2012] 1 NSWDT 3 at [68]; HCCC v Fisher [2016] NSWCATOD 62 at [57]; HCCC v Flekser [2016] NSWCATOD 1 at [119]. Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87].

The Complaint and Issues

1. The Tribunal has before it four complaints against the practitioner. Complaints 1, 2 and 3 are of unsatisfactory professional conduct; Complaint 4 is that the matters in 1 to 3 both individually and cumulatively amount to professional misconduct. The particulars of each complaint are attached to this decision as an appendix.
2. Complaint 1 concerns both Patient A and Patient B and comprises 23 particulars detailing a series of boundary crossings and boundary violations. These involved the practitioner: engaging in regular out of session contact through letter and email correspondence with both patients; making inappropriate sexual references or disclosures of feelings of sexual arousal, attraction or erotic "counter transference" with both patients; hugging both patients at the end of sessions, as well as other forms of in session physical contact with Patient B; driving Patient A home; and the giving and accepting of gifts with Patient B.
3. The inappropriate sexualised disclosures and references to Patient A arose in a series of five letters the practitioner wrote to her in October 2011, including the following: 'I look forward to seeing you. I know we are really connecting at so many levels ... I am a clinician, therapist and good friend…I think of me and you as 'us'. and 'But then momentarily I see you as an adult, laying back as if naked; wanting something from me; I see desire; I see sensuality. Momentarily I experience you as a sexual person and I am aroused'.
4. The practitioner admitted the conduct detailed in particulars 1, 2 (partially), 5-7, 9-19, 21-23 of complaint 1, and conceded that the conduct amounted to unsatisfactory conduct.
5. The Tribunal is independently satisfied that the admitted particulars are established and that they cumulatively amount to conduct significantly below the professional standard.
6. The practitioner denied that he escorted Patient A part of the way home on foot (being part of particular 2), that he failed to document a comprehensive mental health assessment for her (particular 3), failed to adequately communicate and liaise with Patient A's other treating practitioners (particular 4) and that he ought to have terminated her therapy following his inappropriate sexual disclosure (particular 8).
7. The inappropriate sexualised disclosures and references to Patient B arose in a series of emails the practitioner wrote to her in May and July 2014, including the following: 'You are very attractive with a sexy bod [sic] and i am a red blooded male'. and 'Actualy [sic] that might be fun. What bsay [sic] we talk [about] the possibility of a wrestle; an arm wrestle?; a tickle fight?' and 'of course I like working with you. Who wouldn't want to work with a hot 39 year old'.

The Hearing and Evidence

1. The patients were not called to give oral evidence. The HCCC materials included written statements from Patient A dated 23 March 2015 and Patient B dated 18 March 2015. The HCCC tendered three peer expert reports from Ms Muller, a mental health nurse practitioner, dated 29 July 2015, 10 August 2015 and 1 August 2016, and oral evidence was also taken from her.
2. The Respondent tendered material including a written statement of 12 July 2016 from the practitioner, supervision reports by Dr Rogoz and letters from the other two psychiatrists the practitioner worked with. Only Dr Rogoz was required by the HCCC for cross examination, and she gave evidence by phone. The practitioner also gave oral evidence.
3. Counsel for the Respondent submitted that the Tribunal should reject the evidence of Ms Muller inasmuch as it concerned the practitioner's conduct in the provision of psychotherapy, because Ms Muller's expertise was as a nurse practitioner and mental health nurse but not a psychotherapist. Counsel submitted that Ms Muller's evidence should be entirely discounted as it related to complaint 3. Counsel for the HCCC replied that the practitioner's duties in prescribing medication in complaint 3 was squarely a question of nursing practice on which Ms Muller was qualified.
4. This was a disciplinary proceeding in which the professional standard being applied was that of an experienced mental health nurse practitioner. The Tribunal accepted the HCCC submission. The Tribunal relies upon Ms Muller's evidence which was in accord with the views of the professional members of the Tribunal on all the particulars. Ms Muller was careful to draw the limits of her expertise. Moreover the Tribunal notes that there are in any case very few instances where the relevant standard for nurse practitioners providing psychotherapy, as opposed to nurse practitioners in mental health practice generally, on the matters in this case could be said to differ in any material respect.
5. Counsel for the Respondent submitted that as the practitioner was forthright and had made a number of admissions against interest we should accept him as a witness of truth on the contested matters. The Tribunal was unable to do so. Rather, we found that Mr Stone was prepared to concede matters when backed into a corner by objective evidence. Where the evidence of Patient A or Patient B differs from the practitioner in relation to the particulars, we prefer the evidence of the patients.

Did the practitioner escort Patient A home or part of the way home by foot?

1. Mr Stone admitted driving Patient A home on three or four occasions but contested that he had walked her all or part of the way home. Rather he stated that he "bumped into" or "walked in the same direction" with Patient A when she was the last patient of the day and they were heading in the same direction on a number of occasions.
2. In oral evidence Mr Stone reiterated that he had "caught up" with Patient A, who walked slowly. He believed it was not possible to walk on without her. Mr Stone stressed that he did not have the intention of leaving with her, or plan to be walking with her, at the time he departed the premises. Yet he also acknowledged that Patient A was sometimes waiting outside for him and that he then did agree to accompany her.
3. The Tribunal finds that while the practitioner may not have intended to walk Patient A home when he left the premises, he did do so on more than one occasion, and that in doing so he contributed to a lack of boundaries in the professional relationship. The obligation was on him at all times to be aware of and to define this boundary.
4. While this may seem a small issue in the overall scheme of the complaints, the practitioner's adherence in oral evidence to the notion that he had done nothing wrong because he had not intended the conduct to occur, that he was selflessly accommodating to the patient's needs, and that he could do nothing to alter the situation once it had arisen, typified much of his attitude to the boundary transgressions in the case.

Did the practitioner fail to adequately communicate and liaise with Patient A's other treating practitioners?

1. Patient A was originally given an Access to Allied Psychological Services (ATAPS) referral by Dr Gould, who was not her regular GP. In a written statement Dr Gould stated that "Feedback from Mr Stone was verbal and unfortunately I do not recall the details."
2. During oral evidence Mr Stone produced for the first time an email exchange with Dr Gould from 31 August 2010 and 1 and 2 September 2010 in which he requested an ATAPS number from her for two patients. The emails are very informal in tone and brief in nature, with only a two sentence description of Patient A's presenting issues, including his statement that "this has markings of 'training case' all over it". On 14 October 2010 there is an email from Mr Stone saying he had used all six ATAPS sessions and requesting more. Mr Stone also wrote, "unfortunately I don't yet have supervision for this and am not required to start the second case for my ANZAP degree until next year." On 18 November 2010 Mr Stone again wrote to request more ATAPS sessions and added, "I'll be getting supervision."
3. The Tribunal finds that these emails do not constitute adequate communication with Patient A's treating practitioner. They do not contain a treatment plan or update on the Patient's progress. Nor do they contain any reference to Mr Stone's prescribing to Patient A or any request for information on her other medications.
4. Dr Williams was Patient A's regular GP. A written statement from Dr Williams was to the effect that she spoke to Mr Stone "on more than one occasion" when Patient A was very unwell and required hospitalisation, but that she had never received written updates from him over the four years in which he saw Patient A.
5. The peer expert Ms Muller, although not privy to the 2010 email exchange with Dr Gould, was strongly critical of the practitioner's conduct. In her written report she stated: As a NP Mr Stone is able to practice as an autonomous clinician within his scope of practice. However, when [Patient A's] complex presentation and co-morbid health concerns including poly-pharmacy, I would expect Mr Stone would liaise with other members of her treatment team regularly to ensure [Patient A] was receiving the best possible care and to clarify any exacerbating or emergent health conditions. I am concerned that Mr Stone has not considered the impact of concurrent medication and physical health issues on [Patient A's] mental state…

Did the practitioner prescribe to Patient A and B without appropriate attention to their physical health?

1. As detailed above, the practitioner did not adequately consult with Patient A's referring or treating GP. As a consequence it was not possible for him to consider the effects of Quetiapine with regard to Patient A's concurrent treatment regime.
2. The practitioner at first was not aware that Patient B had a treating psychiatrist, but acknowledged that he did not seek this information from Patient B, and did not seek to liaise once he did become aware.
3. In submissions counsel for the Respondent sought to argue that the particular psychiatrist was not Patient B's "treating psychiatrist" because she was not seeing her regularly. The Tribunal rejects this submission. Even a medical practitioner who is not seeing a patient regularly may be prescribing for them, and by failing to inquire and liaise with that doctor, Mr Stone was in effect prescribing in ignorance of any existing medication regime.
4. There was no evidence of any physical assessment prior to prescribing to each patient in his clinical notes, and in his written statement the practitioner conceded that he did not conduct a physical assessment of either Patient A or B.
5. Ms Muller was strongly critical of this failure and drew attention to the duty of a mental health nurse practitioner to be aware of physical health in all aspects of the treatment process and particularly in the context of prescribing.
6. Counsel for the Respondent sought to discount this opinion on the basis that the doses prescribed were low, and because the Tribunal was not provided with evidence of Ms Muller's formulary. In oral evidence Ms Muller stressed that, regardless of dosage, a clinical assessment and judgment must be made for each patient based upon their individual circumstances, and that this had not occurred.
7. In oral evidence Dr Rogoz stated that the side effects of Quetiapine include high blood pressure and cardio vascular problems. In the "frame" of psychotherapy a physical examination by the therapist was inappropriate because, in her view, "issues of touching can be misinterpreted". In her practice Dr Rogoz said she would refer to a GP for an examination including matters such as blood pressure and blood sugar, and would liaise closely with them.

Did the practitioner have a documented comprehensive mental health assessment for Patient A and B?

1. The practitioner drew attention to handwritten notes he had made for the first few sessions that he saw both patients, and initially claimed that these met the standard for a comprehensive mental health assessment, or was "an attempt" at them.
2. Ms Muller's report finds that: The documentation does not include a comprehensive mental health assessment or any evidence of any clinical risk assessment. A treatment plan and goals of treatment are not clearly evidence and it would be difficult for a clinician to assume care and provide any continuity in service delivery based on his clinical documentation. Overall, Mr Stone's documentation is of an exceptionally poor quality…
3. In cross examination counsel for the HCCC drew Mr Stone's attention to Ms Muller's supplementary report. In that report Ms Muller synthesised the "core components of a comprehensive mental health assessment", drawing on standard textbooks of psychiatry and the questions and checklists present in NSW Health Suite of Mental Health Documentation, as follows: ● Identifying data and Source of information ● Chief complaint/reason for presentation ● An overview of the present illness ● Mental Health history ● Substance use history ● Medical history ● Family history ● Development and social history ● Mental status examination ● Physical assessment ● Formulation including assessment of risk ● Diagnosis ● Treatment plan A Mental Status examination is routinely completed on every contact with a patient and includes the following components: ● Appearance, behaviour, motor activity, level of engagement ● Speech ● Mood and Affect ● Thought form and thought content ● Cognition, insight and judgment.
4. The practitioner conceded that his notes did not contain such detail and did not reflect the accepted professional standard.
5. We find that particulars 3 and 20 of complaint 1 are established to the required standard. The practitioner's documentation in both cases was very poor, and in our view reflected the lack of any structured approach to the patients' diagnosis or care.

Did the practitioner bill Medicare inappropriately for "studio" sessions attended by Patient A and B?

1. The MBS Category 8 provides at M.14.13 "Medicare benefits are only payable where the participating nurse practitioner provides care to not more than one patient on one occasion." At M14.7 "group sessions" are listed as a situation where Medicare benefits are not payable.
2. The practitioner's written statement justified the billing of individual sessions under MBS item 82215 on the basis that the studio sessions were not "group" sessions in that, although there was more than one person present, those patients were still undertaking individual therapy. Mr Stone claimed that up to five people in the room over a three hour period "did not mingle but rather kept to themselves and focused on their own project." The practitioner's view was that in this setting he was still providing each person with 40 minutes or more of care.
3. The practitioner maintained this view in his oral evidence, claiming that each patient was working on a separate project as part of their treatment plan and that he would divide his time among these individual activities.
4. The Tribunal finds the practitioner's account of these sessions wholly unconvincing.
5. Prior to this issue being pursued by the HCCC in a particularised way, Mr Stone's characterisation of the studio sessions, during counselling and s 150 proceedings, in his August 2014 statement to the police, in a July 2014 "principles and standards" document concerning his practice, and in a letter from Mr Stone to the HCCC of March 2015, was at all times of "group" sessions as opposed to "individual" sessions. These statements included several descriptions by Mr Stone of group and interactive activities: such as singing, playing chess and patients sharing skills with one another.
6. In his March 2015 letter the practitioner described Patient B developing friendships with several other patients through the Wednesday sessions whom she "continued to see … outside of the session times in a social capacity."
7. In addition it was the practitioner's oral evidence to the Tribunal that all 28 of his private clients were invited to attend the studio sessions, which did not involve an appointment.
8. The Tribunal finds that the Wednesday studio sessions involved an unstructured group engaging in creative activities both separately and together. Mr Stone was providing care to more than one person on one occasion and therefore inappropriately charged the MBS for Patient A and Patient B's attendance at such sessions. Both particulars of complaint 2 are established to the required standard.

Should the practitioner have terminated therapy with Patient A following his "reflections letter" of 12 October 2011?

1. Ms Muller was strongly critical of the practitioner for continuing to provide therapy to Patient A following this serious boundary violation, and in circumstances where that practitioner had acknowledged that he believed Patient A to entertain feelings for him of a romantic nature. As a general finding, Ms Muller concluded: In relation to [Patient A], I feel that Mr Stone has deviated from the principles that underpin mental health nursing and his practice is not in keeping with the Standards of Practice for a Nurse Practitioner 2014 as defined by the Australian NMC or the Standard of Practice for Mental Health Nurses as defined by the Australian College of Mental health Nurses 2013. I find myself questioning if it was to [Patient A's] benefit or Mr Stone's advantage to continue with treatment.
2. It is clear that Mr Stone only reluctantly came to accept that his self-disclosure of arousal, whether labelled counter transference or not, was in fact a boundary violation. Although he discussed the issue with his ANZAP supervisor Ms Egan on 14 October 2011, in an email dated 10 November 2011 written to the professional who made the first complaint about Patient A, the practitioner stated: As far as i'm concerned there are no violations. Certainly i will admit that the boundaries have been relaxed…But relaxed boundaries do not constitute a violation…My supervisor and i discuss the issues of boundaries and the issue of transference. It seems as if you and your supervisor are stepping in on the basis that a serious violation occurred. The practitioner went on to request an in person meeting to discuss the complaint with the professional, suggesting a meeting either with himself alone or with himself and Patient A.
3. In a letter dated 30 December 2011 to the HCCC the practitioner wrote: However, good things come from hardship and my patient and I have agreed that even though this process has been stressful for us both, we have learnt from our mistakes. …At the time of writing I am able to report that the delayed result of my disclosure has been positive in terms of bringing the issues into awareness in therapy. … The letters were part of an approach that included other methods, to regain some cohesion or add a framework to our sessions. In actual fact the letters as well as my patient's journaling were successful in allowing a greater degree of understanding between us about my patient's dissociative processes and my own.

Does the conceded and proved conduct amount to unprofessional conduct?

1. It was undisputed that the practitioner engaged in multiple boundary crossings and violations over an extended period in relation to two extremely vulnerable patients, both of whom had experienced sexual abuse and violence.
2. It was of very serious concern that the practitioner undertook some of this conduct against the clear advice of his supervisor, and of a far more experienced psychiatrist.
3. In Mr Stone's statement of 12 July 2016 he notes that he first hugged Patient A at the end of a session in September 2011. The practitioner states that he informed his supervisor at ANZAP, Jan Egan, within a month of it occurring and that on her advice, he ceased doing so at the next session with Patient A. However, he adds that in approximately April or May 2012 he "gave in to a request from Patient A" and "allowed" hugging to resume. Two years later he also hugged and engaged in other physical contact with Patient B.
4. Concerning Patient B Ms Muller stated: I am concerned that Mr Stone has repeated behaviours with [Patient B] of which he had been previously cautioned against in relation to his management of [Patient A]. This is magnified by his decision to disregard the advice and direction of both more learned and experienced psychiatrists and the ANZAP in relation to providing services for [Patient B]. This suggests to me that Mr Stone is engaging in a repeated pattern of behaviour of which he has little real insight.
5. The fact that the issues with Patient B arose despite the practitioner being very strongly, and repeatedly, advised by an experienced medical colleague not to take her on as a client, and despite the practitioner having been subject to a complaint, with associated counselling and s 150 disciplinary processes, concerning boundary violations with Patient A in earlier years, makes the conduct of much graver concern.
6. Mr Stone's account of the decision to take on Patient B at the time of the 2014 section 150 hearing was that he wanted to "give himself a challenge". In oral evidence to the Tribunal the practitioner acknowledged that he knew the case to be beyond his expertise, and that to proceed without supervision was inappropriate in the Conversational Model, and outside of the scope of his practice as a nurse practitioner. Yet he still believed that he was trying to help Patient B.

Do the complaints individually or cumulatively amount to professional misconduct?

1. The practitioner demonstrated a profound and continuing lack of professional judgment and extremely poor standards of practice.
2. Nurse practitioners hold the highest public trust, as nurses charged with functions ordinarily available only to medical practitioners. Mr Stone has abused this position and this trust.
3. Taken together the complaints are of such seriousness, and the particulars underlying them are of such repetition over a considerable period, as to require a finding of professional misconduct.

Costs

1. The HCCC was successful in its case. Only one particular was found to be not below the professional standard in the circumstances. The HCCC has acted with efficiency and in the public interest, and they are entitled to their costs of Stage 1 of these proceedings.

Orders: 1. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of the Patients in the schedule to the complaint; 2. A finding that Complaint 1, Complaint 2 and 3 of unprofessional conduct are made out to the required standard; 3. A finding that the complaints cumulatively amount to professional misconduct per Complaint 4; 4. The parties to communicate with the registry to set a hearing date for the Stage 2 determination; 5. Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

APPENDIX PARTICULARS OF COMPLAINT ONE Patient A 1. Between August 2010 and November 2014 the practitioner failed to maintain proper professional boundaries during his treatment of Patient A in that he hugged Patient A at the end of each session, despite being advised by his supervisor that this conduct was inappropriate. 2. Between August 2010 and November 2014 the practitioner failed to maintain proper professional boundaries in that on several occasions he drove Patient A home and/or escorted her part of the way home, in circumstances where there were other practical options available to ensure Patient A arrived home safely. 3. Between August 2010 and November 2014 the practitioner failed to document a comprehensive mental health assessment or any evidence of clinical risk assessments relating to Patient A. 4. Between August 2010 and November 2014 the practitioner failed to adequately communicate and engage with Patient A's other treating practitioners including her GP. 5. On 3 October 2011 the practitioner in the context of the therapeutic relationship with Patient A, inappropriately wrote a letter titled Reflections, William to [Patient A] in which he used language including: 'I look forward to seeing you. I know we are really connecting at so many levels ... I am a clinician, therapist and good friend .. .I think of me and you as 'us'. 6. On 12 October 2011 the practitioner in the context of the therapeutic relationship with Patient A, inappropriately wrote a letter titled 'Reflections to [Patient A]' in which he described: a) feeling sexually aroused by Patient A; b) feeling confused by his arousal; c) an erotic transference between himself and Patient A; d) interpreting Patient A's non-verbal communication in the context of a therapeutic intervention as being an unconscious sexual invitation when he used language including: 'But then momentarily I see you as an adult, laying back as if naked; wanting something from me; I see desire; I see sensuality. Momentarily I experience you as a sexual person and I am aroused'. 7. After 12 October 2011 the practitioner failed to discuss his erotic feelings towards Patient A with his clinical supervisor. 8. After 12 October 2011 the practitioner inappropriately continued to provide therapy to Patient A in circumstances where he should have terminated the therapeutic relationship and referred Patient A to a more senior colleague. Patient B 9. On 3 March 2014 the practitioner commenced therapy with Patient B at the Clinic without receiving a referral, in circumstances where the practitioner should have advised Patient B to obtain a referral from her GP or referred her to another nurse practitioner. 10. Between 3 March 2014 and 11 August 2014 the practitioner failed to establish clear boundaries and goals of the therapeutic treatment with Patient B. 11. Between 3 March 2014 and 11 August 2014 the practitioner failed to maintain proper professional boundaries during his treatment of Patient B in that he hugged Patient B at the end of various sessions despite being advised by his supervisor that this conduct was inappropriate. 12. In May 2014 the practitioner failed to maintain proper professional boundaries when he engaged in email correspondence as part of the therapeutic treatment of Patient B including using words of physical intimacy such as: a) 'I will make it up to you. I'll let you punch me'; and b) 'You are very attractive with a sexy bod [sic] and i am a red blooded male'. 13. On 24 June 2014 the practitioner failed to maintain proper professional boundaries when he engaged in a pledge ceremony organised by Patient B during which the practitioner: a) received a gift box from Patient B including flower petals, chocolates and a poem; b) read out a pledge written by Patient B; [deleted] 14. In July 2014 the practitioner failed to maintain proper professional boundaries when he continued to engage in email correspondence as part of the therapeutic treatment of Patient B and suggested a wrestle or tickle fight with Patient B when he said: a) 'Actualy [sic] that might be fun. What bsay [sic] we talk [about] the possibility of a wrestle; an arm wrestle?; a tickle fight?' 15. On 30 July 2014 the practitioner failed to maintain proper professional boundaries when he attended an op shop and purchased Patient B an item of clothing. 16. Between 3 March and 11August 2014 the practitioner failed to maintain proper professional boundaries when he engaged in physical touching during his therapeutic treatment with Patient B when he allowed Patient B to: a) attempt to sit on him and pummel his chest; b) grab his nipple and lean her head on his leg; c) grab him and tickle him around the chest. 17. Between 3 March and 11August 2014 the practitioner failed to maintain proper professional boundaries during the course of a therapeutic session with Patient B when he said words to the effect, 'of course / like working with you. Who wouldn't want to work with a hot 39 year old'. 18. Between 3 March and 11August 2014 the practitioner failed to maintain proper professional boundaries when he accepted gifts that Patient B brought to therapy including: a) flowers; b) art work; c) music discs; and d) shirts. 19. Between 3 March and 11 August2 014 the practitioner failed to maintain proper professional boundaries with Patient B when he allowed for unscheduled sessions and contact, including email correspondence. 20. Between 3 March and 11 August 2014 the practitioner failed to document a comprehensive mental health assessment or clinical risk assessment relating to Patient B. 21. Between 3 March and 11 August 2014 the practitioner failed to communicate and engage with Patient B's other treating practitioners including her counsellor or therapist. 22. Between 18 July and 8 August 2014 the practitioner inappropriately continued to provide therapeutic treatment to Patient B despite being informed between June or July 2014 that Patient B had lodged a complaint against him to ANZAP. 23. The practitioner inappropriately continued to communicate with Patient B by email until 11 August 2014, in circumstances where the practitioner terminated the therapeutic relationship by email on 11 July 2014 and should have arranged a referral to a more senior colleague. PARTICULARS OF COMPLAINT TWO 1. Between August 2010 and November 2014 the practitioner inappropriately charged Patient A on each occasion she attended under Medicare Item 82215 as a nurse practitioner for providing services of over 40 minutes in an individual setting, in circumstances where 1-2 sessions that Patient A attended per week were group studio sessions. 2. Between 3 March and 11 August 2014 the practitioner inappropriately charged Patient B on each occasion she attended under Medicare Item 82215 as a nurse practitioner for providing services of over 40 minutes in an individual setting, in circumstances where 1-2 sessions that Patient B attended per week were group studio sessions or sessions where he acted as her 'creative coach' and was not providing individual therapy. PARTICULARS OF COMPLAINT THREE 1. Between August 2010 and November 2014 the practitioner prescribed Quetiapine 25mg to Patient A on 7 (seven) occasions and failed to: a) conduct a basic physical assessment; b) consider the potential effects of Quetiapine with regard to Patient A's concurrent treatment regime. 2. Between 3 March and 11 August 2014 the practitioner inappropriately dispensed 2 (two) to 4 (four) Quetiapine 25mg tablets to Patient Band failed to: a) conduct a basic physical assessment; b) liaise with Patient B's treating psychiatrist. 3. On 27 July 2014 the practitioner prescribed 60 tablets of Quetiapine 25 mg to Patient B and failed to: a) [deleted] b) [deleted] c [deleted] d) liaise with Patient B's treating psychiatrist. 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: 02 September 2016